U.S. v. Dawn

• Decision Date: 08 March 1990
• Docket Number: Nos. 89-1018,89-1019,s. 89-1018
• Citation: 897 F.2d 1444
• Parties: UNITED STATES of America, Appellee, v. Ricky DAWN a/k/a "Money", Appellant. UNITED STATES of America, Appellee, v. Aaron McCREE, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1444

897 F.2d 1444

UNITED STATES of America, Appellee, v. Ricky DAWN a/k/a "Money", Appellant.

UNITED STATES of America, Appellee, v. Aaron McCREE, Jr., Appellant.

Nos. 89-1018, 89-1019.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1989.

Decided March 8, 1990.

Rehearing Denied in No. 89-1018 May 14, 1990.

Dennis Shackleford, El Dorado, Ark., for Ricky Dawn.

Charles L. Honey, Prescott, Ark., for Aaron McCree, Jr.

Mark W. Webb, Fort Smith, Ark., for appellee.

Before BOWMAN and BEAM, Circuit Judges, and ROSS, Senior Circuit Judge.

BEAM, Circuit Judge.

Ricky Dawn and Aaron McCree, Jr. were convicted, following a joint trial, of aiding and abetting a bank robbery in violation of 18 U.S.C. Secs. 2, 2113(a), (d) (1988). On appeal, Dawn and McCree both argue that the district court ¹ erred in: 1) finding that the government did not use its peremptory challenges in a racially discriminatory manner; 2) denying their motions for mistrial based on extra judicial influence on the jury; 3) denying their motions for new trial based on newly discovered evidence; 4) failing to hold the sentencing guidelines unconstitutional; and 5) enhancing their sentences based on the use of a firearm during the robbery. McCree also argues that the district court erred in denying his motion for severance, refusing to give an alibi instruction and requiring him to appear at trial clean-shaven and wearing clothing similar to that worn by the robber. We affirm.

I. BACKGROUND

Dawn, McCree, Curtis Dewayne Stevens, and Verlinda Johnson ² were jointly indicted on one count of aiding and abetting the taking of money belonging to a federally insured bank and putting the life of bank employee Janice Adcock in jeopardy by means and use of a revolver, and on one count of using a firearm during the commission of the robbery. The district court denied the defendants' motions for severance and, to facilitate Adcock's identification of McCree as the man who entered her car, ordered McCree to appear at trial clean-shaven and wearing clothing similar to the clothing worn by the robber.

At trial, the evidence established that, for several days prior to the robbery, McCree and Stevens observed the transfer of money from the First National Bank in Camden, Arkansas, to a branch bank. They discussed a plan for robbing the bank with other people, including Dawn. On the morning of January 15, 1988, Adcock picked up $55,000 from the main bank to take to the Cardinal branch. On her way to the branch, Adcock stopped behind a pickup truck at a four-way stop intersection. The truck, which was identified as a vehicle Dawn and McCree had borrowed from Stevens earlier that morning, did not proceed through the intersection in turn. Instead, someone in the pickup motioned automobiles coming from the other three directions to proceed. While Adcock waited, a man wearing a blue jogging suit approached Adcock's car from the direction of the courthouse and knocked on the car window with a gun. Adcock identified this man as Ricky Dawn. Dawn opened the door, got in and took Adcock to an isolated area where they were met by another individual. Dawn and the other individual took the money and put Adcock in the trunk of the car.

During the trial, juror Shirley Deggs told the court that one of the defense witnesses had followed her home from the trial and refused to pass her, even when she stopped her car. Prior to informing the court, she discussed the incident with some of the other jurors. The trial judge dismissed juror Deggs and questioned each juror regarding the incident. While some of the jurors indicated that they heard juror Deggs discuss the event, each juror stated that the matter did not weigh in his or her decision regarding the defendants' guilt or innocence.

Dawn and McCree were convicted of bank robbery and acquitted of using a firearm during the robbery. Following the verdict, the defendants discovered that a county judge had seen a man dressed similarly to the robber on the county courthouse steps near where the robber had entered Adcock's car. The judge stated that he did not think the man was either Dawn or McCree. Although the judge reported this observation to the local police a few days after the robbery, the government asserted that it was unaware of the information.

The trial court denied each motion for mistrial and new trial and sentenced Dawn and McCree under the sentencing guidelines.

II. DISCUSSION

A. Batson issue

Dawn and McCree, who are black, contend that the United States used its peremptory challenges in a discriminatory manner. The prosecutor used six of his seven peremptory challenges to exclude black members of the venire from the petit jury. Dawn and McCree argue, solely on the basis of these numbers, that they established a prima facie case of purposeful discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and that the government failed to give racially neutral explanations for the strikes as required once a prima facie case has been established.

The venire consisted of thirty-three white and thirteen black individuals. The district court conducted most of the voir dire but allowed each defendant and the prosecutor to conduct additional voir dire when it had finished. After excusing members for cause, the venire consisted of twenty-nine white and nine black members. The district court allowed the defendants a total of seventeen peremptory challenges (sixteen for the panel and one for the alternates), which the defendants exercised against white members of the venire. The court determined that the United States was entitled to seven peremptory challenges (six for the panel and one for the alternates), and the prosecutor used six of his challenges to exclude black members of the venire and one to exclude a white member. The resulting petit jury consisted of ten white and two black members and one white and one black alternate member. The excused members of the venire were dismissed and the jury was sworn.

Dawn and McCree moved to quash the jury panel or, alternatively, for a mistrial based on the prosecutor's allegedly discriminatory use of his peremptory challenges. They also requested that the court require the prosecutor to give racially neutral reasons for each challenge. The court heard the motions immediately after the jury was sworn but declined to recess at that time to allow the parties to argue the motions. The parties presented their opening statements, and the prosecutor presented several witnesses. After the jury was recessed for the day, the court gave the defendants an opportunity to be heard on the motions.

The defendants argued that they had established a prima facie case of discrimination, even though there were black jurors on the panel, because the prosecutor's use of peremptory challenges excluded a representative cross section of the community from the jury and because the prosecutor used all of his peremptory challenges to exclude blacks from the panel. Without a request from the court, the prosecutor offered the following explanations for the challenges of black members of the venire: 1) a test regarding a job application would affect the ability of one juror to be present for one day of the trial; 2) one juror was near the age of defendants, and the prosecutor preferred older, more conservative jurors; 3) one juror was inattentive and disinterested during voir dire; 4) and 5) the family histories of two jurors, obtained from law enforcement agencies prior to trial, indicated that they would not be good jurors; and 6) one juror had health and eye problems which may have affected her ability to follow the evidence.

The defendants asserted that the prosecutor's reasons were not sufficient and that voir dire relating to the family histories of the venire members was necessary to determine whether the prosecutor's reasons were racially neutral. The court denied the defendants' motions, noting that all the parties had had the opportunity to ask any questions which they felt were appropriate during voir dire and that the defendants did not inquire about the potential jurors' family histories. The defendants requested that the court make a sensitive inquiry into the prosecutor's explanations and reconsider its ruling. The defendants renewed their motions during the trial, and the court denied the requests.

The district court's denial of the motions during trial did not explicitly state that the defendants had failed to establish a prima facie case of purposeful discrimination. However, the defendants again renewed their motions for new trial following the verdicts, and the court denied these motions and clearly stated that the defendants had failed to establish a prima facie case.

We review a district court's finding of purposeful discrimination in the jury selection process as a question of fact and reverse only if the court's findings were clearly erroneous. See United States v. Fuller, 887 F.2d 144, 146 (8th Cir.1989). Here, we must initially review the district court's finding that Dawn and McCree failed to establish a prima facie case of discrimination. This court recently decided that the trial court's prima facie finding also is entitled to review under a clearly erroneous standard. See United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990).

The burden of establishing a prima facie case of purposeful discrimination lies with the individual asserting that his equal protection rights have been violated. Batson, 476 U.S. at 94 & n. 18, 106 S.Ct. at 1721-22 & n. 18; United States v. Temple, 890 F.2d 1043, 1046 (8th Cir.1989) (defendant must overcome presumption that jury selection was lawful). Dawn and McCree assert that they met this burden and established a prima facie case simply because the prosecutor used six of his seven peremptory challenges to exclude black members of the venire from the petit jury. ³ While the exclusion of...