U.S. v. Davis

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 103 F.3d 660
• Docket Number: No. 95-3175,95-3175
• Parties: 46 Fed. R. Evid. Serv. 189 UNITED STATES of America, Plaintiff-Appellee, v. Cleophus DAVIS, Jr., Defendant-Appellant.
• Decision Date: 23 December 1996

Page 660

103 F.3d 660 46 Fed. R. Evid. Serv. 189 UNITED STATES of America, Plaintiff-Appellee,
v.
Cleophus DAVIS, Jr., Defendant-Appellant. No. 95-3175. United States Court of Appeals,
Eighth Circuit. Submitted March 12, 1996.
Decided Dec. 23, 1996.

Page 664

Jeffrey A. Silver, Omaha, NE, argued, for appellant.

Russell X. Mayer, Omaha, NE, argued (Daniel A. Morris, on the brief), for appellee.

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Cleophus Davis, Jr., was convicted by a jury of three counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) (1988); and three counts of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (1988 Supp. V). ¹ Davis appeals his convictions and sentence, claiming numerous points of error by the district court. ² We affirm.

I. Background

This case involves the armed robbery of three separate, federally insured financial institutions in Omaha, Nebraska. Two of the armed robberies occurred only minutes apart on January 29, 1994. The third took place on March 12, 1994. Cleophus Davis was arrested and charged with all three robberies. We recite the facts in the light most favorable to the verdict.

The first robbery occurred at approximately 9:15 a.m. on January 29, 1994. An individual of medium build wearing dark sweatpants, a dark stocking cap ski mask, white tennis shoes, and white gloves entered the Mid City Bank located at the 74th Street Plaza, armed with a dark-colored, short-barrelled gun. With the gun aimed at the teller, the suspect demanded money, and at some point during the robbery, he fired a shot but no one was injured. The robber fled with $1,511.

No witnesses at the 74th Street Mid City Bank saw the robber's face because of the ski mask, but Ethel Griffin had been in her car in the plaza parking lot where the Mid City Bank is located. While she stated she could not identify the individual, she had noticed an African-American male as described above enter the bank. After hearing gunfire, she saw the same man leave the bank with a ski mask over his face and a yellow bag in his hand. The man ran by Ms. Griffin and turned north into a walkway that leads to another parking lot. Authorities discovered fresh footprints in the snow heading through

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the walkway toward the parking lot. The footprints measured approximately 11 inches long. Authorities also recovered a bullet fragment from the scene and later determined it to be a .38 caliber lead bullet with markings consistent with being fired from a gun with a very worn or heavily leaded barrel.

Minutes later, at approximately 9:20 a.m., an individual with a ski mask over his face entered the Streamliner Credit Union at 210 North 78th Street and demanded money from the teller. (There was testimony that it takes three to five minutes to travel by car to this location from the Mid City Bank on 74th Street.) With a gun aimed at the teller, he said, "Fifties and hundreds, b* * * *, fifties and hundreds." (Trial Tr. at 415.) Teller Susan Grow testified that the robber was an African-American male--she could see his skin through the ski mask eye holes. She estimated that he was approximately 5'5"' to 5'8"' tall and weighed approximately 140 pounds. Another employee testified that the robber was approximately 5'7"' or 5'8"' tall with a thin build. The robber fled with $4,945.

Again, fresh shoe prints were found in the snow along the path where the robber fled. The police photographed the prints. An Omaha police senior crime laboratory technician testified that the prints found near the Streamliner Credit Union were similar to those found near the scene of the first robbery at the 74th Street Mid City Bank.

Less than two months later, on March 12, 1994, an armed robbery took place at the Mid City Bank at 304 South 42nd Street in Omaha. Shortly after 11 a.m., bank teller Rita Kuchcinski heard a loud popping noise. She looked up to see an African-American male in a dark-colored stocking cap with a white scarf around his neck and a dark-colored gun in his right hand. The robber pointed the gun at Ms. Kuchcinski's head and repeatedly demanded, "Give me all your hundreds and fifties." (Trial Tr. at 675.) He also said, "Come on, b* * * * ... There's got to be more." (Id. at 676, 677). The vice president of the bank, Kenneth Grigsby, came out of his office upon hearing the loud noise. He saw an African-American male as described above leaning into Ms. Kuchcinski's teller booth and brandishing a dark-colored revolver. He estimated that the robber stood 5'6"' to 5'7"' tall and weighed 140 to 150 pounds. The individual fled with $2,400.

Around the time of this robbery, John Coats was in his car at a stoplight on the intersection of 42nd Street and Farnum, near the 42nd Street Mid City Bank. Mr. Coats noticed an African-American male jogging toward him from the direction of the bank, crossing the street against the light. Mr. Coats watched as the man approached and ran past Coats' automobile. The man had something white, like a towel, wrapped around his neck that blew off as he ran, but he did not attempt to stop it or retrieve it. This behavior caught Mr. Coats' attention, and he continued to watch in his rearview mirror until he could no longer see the man. Mr. Coats testified that at the time, he wondered what was happening because he knew "that bank gets held up a lot." (Trial Tr. at 622.) Mr. Coats described the man he saw as having an angular face and estimated him to be in his mid- to late-20s, between 5'7"' and 5'10"' tall, weighing around 165 pounds.

After learning that the bank had been robbed on the morning when he had observed this unusual behavior, Mr. Coats reported to the FBI what he had seen. He, along with the bank teller from the 42nd Street Mid City Bank, Ms. Kuchcinski, provided information for an FBI artist to sketch a likeness of the suspect. Both described an individual with an angular face, but neither witness was satisfied with the sketch. These two witnesses also participated in a police identification lineup. Out of a lineup of four individuals, Mr. Coats identified Davis, noting a "strong probability" or an "80 to 90 percent probability" of being the person he saw after the robbery. (Trial Tr. at 632, 654.) Ms. Kuchcinski could not decide between Davis and one other person in the physical lineup, but she was able to identify Davis through a voice identification procedure where she listened to four individuals say the phrase, "Give me all your fifties and hundreds"--a phrase the robber had repeatedly said to Kuchcinski.

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The evidence also shows that a few days before the first armed robberies on January 29, the Omaha police impounded a 1978 Lincoln Continental automobile that was registered to Davis's girlfriend, Jessica Carr (now his wife). On the very morning of the first two robberies between 10:00 and 11:30 a.m., Davis and Carr went to a used car dealer and indicated that they wanted to purchase a 1985 Nissan 300ZX. They paid $2,600 cash and registered it under Carr's name. Davis indicated to the dealer that he had recently received the money from a tax refund. The government presented evidence to demonstrate that neither Davis nor Carr had received any such refund. In fact, Davis was not employed, he was making his living "hustling" (Trial Tr. at 1074), and the IRS had no records of Davis filing any income tax documents from 1990 through 1993. The evidence also indicated that although the Nissan 300ZX was registered to Carr, Davis drove it and took care of it.

When he was arrested, Davis was wearing shoes that measured 11 inches long, and a partial box of .38 caliber wadcutter cartridges was found in plain view in the Nissan 300ZX. Davis was 25 years old, stood approximately 5'8"' tall, and weighed approximately 140 pounds. Davis denied any involvement in the bank robberies or in the purchase of the Nissan.

The .38 caliber wadcutter cartridges found in a box in the Nissan were later tested against the bullets found at the crime scenes. The crime scene bullets bore markings similar to each other, indicating that they were possibly fired by the same gun. The bullets from the box found in the Nissan were determined to be analytically indistinguishable from the bullets recovered at the 74th Street Mid City Bank and the 42nd Street Mid City Bank. An expert testified that such a finding is rare and that the bullets must have come from the same box or from another box that would have been made by the same company on the same day.

Two FBI agents later searched the Nissan 300ZX with the consent of its owner, Jessica Carr. They were looking for a gun, which they did not find. They found a receipt from some repairs that had been done to the vehicle, an estimate for those repairs, and a pair of tennis shoes. After searching the car, the agents allowed Jessica Carr to take some personal items out of the car. Agent Holmquist testified that she took the Nissan 300ZX owner's manual, a little white pillow, a chess or checkers box, and some other personal items. She then asked for a box to carry the items in, and the agents found a brown cardboard box to give her.

In late June 1994, upon belief that evidence of the robbery was located in Shauna Copeland's apartment, where Jessica Carr had been staying, FBI agents obtained and executed a search warrant for that apartment. Authorities searched Copeland's apartment and found a brown cardboard box that Ms. Carr was storing there. Agent Holmquist of the FBI testified that the box looked like the one he had given Carr to carry the personal items she had retrieved from the Nissan. Within the box, agents found the Nissan owner's manual, a little white pillow, a chess set, a picture of Cleophus Davis, an invoice with Davis's name on it, and a .38 caliber snub nosed revolver. The FBI later tested the gun and found it to have a very worn, heavily...