U.S. v. Dove
| Decision Date | 02 October 1990 |
| Docket Number | D,No. 1291,1291 |
| Citation | 916 F.2d 41 |
| Parties | UNITED STATES of America, Appellee, v. Michael L. DOVE, Defendant-Appellant. ocket 89-1607. |
| Court | U.S. Court of Appeals — Second Circuit |
Gary D. Weinberger, Asst. Federal Public Defender for the D. of Conn. (Thomas G. Dennis, Federal Public Defender for the Dist. of Conn., of counsel), Hartford, Conn., for defendant-appellant.
Joseph C. Hutchinson, Asst. U.S. Atty., D. of Conn. (Stanley A. Twardy, Jr., U.S. Atty., D. of Conn., of counsel), New Haven, Conn., for appellee.
Before FEINBERG, NEWMAN and CARDAMONE, Circuit Judges.
This appeal from a three-day jury trial that resulted in a judgment of conviction for bank robbery presents a question of defendant's identity. That issue in this Michael Dove appeals from a judgment of the United States District Court for the District of Connecticut (Daly, J.), convicting him of bank robbery in violation of 18 U.S.C. Sec. 2113(a). He was sentenced on October 3, 1989 to 45 months (three years, nine months) of incarceration, three years of supervised release, and a $50 assessment. On appeal, he challenges the district court's failure to give requested jury instructions, and contends that the court's instructions were unbalanced and failed adequately to inform the jury regarding how to assess the circumstantial evidence of innocence.
case is inextricably fused with defendant's contention that he is innocent. A number of the circumstances revealed in the record, to be detailed shortly, are quite out of the ordinary. Two warrant immediate mention: the first is that defendant's fingerprints that might be expected to have been found at the scene were not; the second is the failure of the government's key eyewitnesses to make an in-court identification of defendant.
The unfolding of the unusual circumstances at trial required that the jury instructions point to the evidence indicating innocence as well as guilt, and that the jury be informed how to assess such evidence. Because in this case we think the defense theory was not adequately included, and that as a result a balanced charge was not given, we vacate the judgment of conviction and remand this case to the district court for a new trial.
At 4:50 p.m. on October 7, 1988 a lone robber displaying a handgun entered a branch of the Connecticut Bank & Trust Company in South Meriden, Connecticut. After ordering everyone in the room to lie down on the floor, he jumped over the teller counter, grabbed $1,000 off a countertop, tried unsuccessfully to open a cash drawer, and then fled back over the counter and out the door. Bank surveillance photographs show that the entire incident took no more than a minute, and all pictures of the perpetrator were from the back, except for one blurred shot from the side. Those witnesses who had an opportunity to observe the robber described him to the police and agents of the Federal Bureau of Investigation (FBI) as a white male, five foot eight inches in height, weighing about 150 pounds, with shoulder length hair, dark eyes, and several days growth of beard. All of the witnesses agreed that he was wearing blue jeans, tan work boots, and a ripped grey sweat shirt. Based on these observations the police prepared a composite drawing of the suspect.
The only contested issue at trial was the bank robber's identity, the government asserting that the defendant was the party who committed the crime, and Dove asserting his innocence. The evidence linking defendant to the crime came from a curious course of events. After the robbery, the police searched the neighborhood around the bank but were unable to find a suspect.
An account of the crime was published the next day in a local newspaper describing the suspect generally as a white male in his early twenties with blonde hair. A 14-year-old girl named Teresa Botta read the newspaper account and called the police. She asked the desk sergeant if the robber had been caught yet, and when told that he had not, Botta asked for a more detailed description of him. At trial, she testified that the officer described the robber to her as a male in his early twenties, with light blue eyes and blonde hair, weighing between 150 and 170 pounds. This testimony is interesting because the police composite--from which the sergeant was presumably reading--listed the eye color of the suspect as "hazel," which is light brown, not blue. Based on this description alone, Botta testified, she told the officer the robber might be her neighbor, Michael Dove. Later, she identified Dove in a police photo used at trial by the sweatshirt he was wearing.
The desk sergeant informed Meriden Police Detective William Staton of the phone One of the two, Deborah Petroske, had observed the perpetrator twice on the day of the robbery. The first time was when he entered the bank earlier that day. Ms. Petroske stated that the same individual who later robbed the bank came into the bank for about ten seconds fidgeting with some papers, swore audibly, and hurried out. She said she remembered this individual because of his peculiar behavior, and further testified that she recognized him when he came in later and ordered everyone to lie down on the floor. Petroske was only able to observe the robber during a portion of the minute he was actually in the bank because she complied with the robber's request to lie down on the floor, which partially obstructed her view. When Ms. Petroske was shown the photo lineup, she observed that six of the eight individuals pictured were too young to be the robber, and identified Michael Dove--whose picture was one of two remaining--as the robber.
call. Detective Staton then obtained a photograph of Michael Dove along with the photographs of seven other males who, in his view, resembled Dove. From these he assembled a photo lineup, although this photo array was not based on the description given the police by the witnesses, nor on the police composite created from those descriptions. Several days after the robbery, Detective Staton showed the photographs to the two female bank employees who had the best opportunity to observe the perpetrator during the robbery. The detective told both witnesses beforehand that the police had a suspect whose picture was included in the array.
The second witness, Laurie Dinuzzo, was actually brushed by the robber when he approached her after vaulting the bank counter, she noted that he had a gun with black and silver on it. She described him to the police as a white male, 25 years of age with blonde hair, weighing 150 pounds, and wearing blue jeans, tan work boots, a plaid shirt, and a grey sweat shirt. She explained that he had a pock-marked face, and crooked, yellow teeth. These facial characteristics do not fit defendant. After being shown two sets of photos and told the suspect was among them, she tentatively identified Dove as the robber.
Despite the photographic identification, neither Petroske or Dinuzzo were able to identify Michael Dove at trial. When asked by the prosecutor whether the individual who robbed the bank was in the courtroom, both responded that he was not. Dinuzzo in fact pointed to a member of the jury as the individual who looked most like the robber. In a further strange twist, it was shown at trial that about three weeks following the robbery--and after her original photo identification of Dove--Petroske was working in the bank's drive-in teller window when an individual she thought was the robber tried to cash a check at her window. She stated to Dinuzzo--who also happened to be working that day--that the man she saw was either the robber or "his twin." Dinuzzo alerted her superior at the bank who in turn phoned the FBI. The man's name was Ronald Wujcik. He was not charged with the robbery, but was called by the defense as a witness at trial.
Bank surveillance photos showed, and eyewitness testimony confirmed, that the robber had not worn gloves, and had placed his bare hands on a number of surfaces within the bank, including the counter surfaces and a pane of glass directly above the push-bar on the door that the perpetrator of the crime had used to exit the bank. Immediately after the robbery, police and the FBI lifted several sets of latent palm and fingerprints from these areas. At trial, the government fingerprint expert stated that none of the palm or fingerprints they had obtained matched Dove's palm or fingerprints. Further, the government was able to lift bootprints from areas where the robber had stepped, including the counter, and none of these prints matched the pair of tan work boots police recovered from Dove's residence.
Special FBI Agent Michael Cizmar testified that he arrested Michael Dove on November Based on Dove's account, Cizmar prepared a handwritten statement for Dove to sign. The statement did not include Dove's admissions that he purchased a revolver and robbed a bank to get back at the local police in South Meriden. It merely stated instead that Dove had viewed the surveillance photos, and that he (Dove) did "believe" the subject in those photos was him because he recognized a pair of "stone washed" jeans and a grey sweatshirt that he owned. Dove's admission that he recognized the stone washed jeans in the pictures as his own, oddly enough, was flatly contradicted by direct accounts of several witnesses in the bank at the time of the robbery who stated that the robber was wearing blue jeans.
11, 1988, a little over a month after the robbery, in Waterbury, Connecticut and that he and several agents brought defendant to Hartford, Connecticut for interrogation. At first Dove denied involvement in the robbery. After Dove told them he drank heavily and occasionally suffered alcoholic blackouts, the agents questioned him regarding his...
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