U.S. v. Earley

• Citation: 657 F.2d 195
• Decision Date: 20 August 1981
• Docket Number: No. 81-1065,81-1065
• Parties: 8 Fed. R. Evid. Serv. 1617 UNITED STATES of America, Appellee, v. Gordon "Butch" EARLEY, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 195

657 F.2d 195

8 Fed. R. Evid. Serv. 1617

UNITED STATES of America, Appellee, v. Gordon "Butch" EARLEY, Jr., Appellant.

No. 81-1065.

United States Court of Appeals,

Eighth Circuit.

Submitted June 19, 1981.

Decided Aug. 20, 1981.

John P. Roehrick, Des Moines, Iowa, for Gordon "Butch" Earley, Jr.

Roxanne Barton Conlin, U. S. Atty., Terry Wright, Asst. U. S. Atty., argued, Des Moines, Iowa, for appellee.

Before LAY, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Gordon "Butch" Earley, Jr. appeals his conviction of bank larceny of the Grinnell State Bank in violation of 18 U.S.C. § 2113(a) & (e). The jury found defendant guilty on two counts. In Count I, he was found guilty of killing Dan Kriegel in the course of committing the larceny and in Count III, he was found guilty of killing Dawn Kriegel in the course of committing the larceny. The district court ¹ entered a judgment of conviction "of the offense of violation of Title 18 U.S.C. § 2113(a) and (e)" and adjudged a single sentence of life imprisonment.

Earley seeks a new trial on the grounds that the indictment was multiplicious and his conviction after a jury verdict of guilty on two counts constituted double jeopardy, that certain evidence was erroneously admitted as a present sense impression or as an excited utterance, that polygraph results were erroneously barred from admission into evidence, and that evidence of a prior incident involving a witness was erroneously not admitted into evidence. The district court denied his motion for a new trial. We affirm the conviction.

Earley was convicted for his participation in the November 1979 larceny from a bank in Grinnell, Iowa, and the killing of Dawn and Dan Kriegel in connection therewith. His indictment contained four counts. Count I charged Earley with committing bank larceny of the Grinnell State Bank in violation of 18 U.S.C. § 2113(a) and (e) and killing Dan Kriegel in the course of the larceny. Count II charged Earley with burglarizing the Grinnell State Bank in violation of 18 U.S.C. § 2113(b) and (e) and killing Dan Kriegel in the course of the burglary. Count III charged Earley with committing bank larceny of the Grinnell State Bank in violation of 18 U.S.C. § 2113(a) and (e) and killing Dawn Kriegel in the course of the larceny. Count IV charged Earley with burglarizing the Grinnell State Bank and killing Dawn Kriegel in the course of the burglary.

Prior to trial, defendant moved to have Counts I and III dismissed and Counts II and IV merged. After a hearing, the district court denied the motion. At the close of both plaintiff and defendant's cases, the government voluntarily dismissed Counts II and IV. The jury returned a verdict of guilty on Counts I and III. Thereafter Judge Vietor gave Earley a life sentence.

Earley argues that the district court erred in denying his motion to dismiss and merge counts. He claims that there was only one offense with an enhanced penalty, regardless of the number of victims. He concludes that the indictment was multiplicious and prejudiced his right to a fair trial by unnecessarily compounding the crime. He also claims that the multiple counts led to multiple convictions thereby violating double jeopardy.

We do not find defendant's argument persuasive under the facts of this case. There was only one sentence given by the court. The evidence discloses there were two distinct killings. One occurred before and one after the bank larceny. The prosecution was justified in having evidence separately considered with respect to each death and its connection with the larceny of the bank. To force the prosecution to select one murder or, for that matter, to choose between bank larceny and burglary, would unduly hamper the prosecution's case.

We hold that there has been no multiplicious sentencing in this case. Earley was sentenced to a single life sentence. If there had been multiple sentences there might well be a sufficient basis for vacating all but one sentence. However, our court held in Gerberding v. United States, 471 F.2d 55, 58-59 (8th Cir. 1973), that an indictment is not multiplicious when it merely contains numerous counts alleging various violations of 18 U.S.C. § 2113. United States v. Phillips, 609 F.2d 1271, 1272-73 (8th Cir. 1979); Gerberding v. United States, supra, 471 F.2d at 58-59. We see no reason to change our position and we hold that the indictment was not multiplicious.

Defendant argues that even though the indictment may not fail as multiplicious, the conviction on more than one count was faulty because it violated double jeopardy. Defendant claims that it was erroneous to allow multiple convictions with concurrent sentencing. He claims that the double jeopardy bar prohibits multiple convictions regardless of whether they run concurrently or consecutively. See Wright v. United States, 519 F.2d 13 (7th Cir.), cert. denied, 423 U.S. 932, 96 S.Ct. 285, 46 L.Ed.2d 262 (1975); O'Clair v. United States, 470 F.2d 1199 (1st Cir. 1972), cert. denied, 412 U.S. 921, 93 S.Ct. 2741, 37 L.Ed.2d 148 (1973).

It has been the position of this circuit that the problem of multiplicity in 18 U.S.C. § 2113 offenses can be remedied by vacation of multiple sentences. See United States v. Golay, 560 F.2d 866 (8th Cir. 1977); United States v. Delay, 500 F.2d 1360, 1368 (8th Cir. 1974); United States v. Pietras, 501 F.2d 182, 187 (8th Cir. 1974). In a recent case, United States v. Rust, 650 F.2d 927 (8th Cir. 1981), appellant was convicted on two counts under 18 U.S.C. § 2113(a) which charged defendant with an attempt to enter a bank with intent to commit larceny and with entering the bank for the same purpose. Concurrent sentences were imposed. We held the court erred in entering a judgment of conviction on both counts and directed that judgment be vacated on one of the two counts. ²

In the instant case, we are not presented with multiple convictions or multiple sentences. Although the jury returned a verdict of guilty on two counts, the court entered a judgment of conviction of a single offense and imposed a single sentence of life imprisonment. Appellant's claim of double jeopardy is without merit.

The second basis advanced by Earley for a new trial is that the district court erred in admitting testimony of Barb Whisenand regarding a statement Dawn Kriegel made after she received a phone call while she was with Whisenand. The event occurred on November 10, 1979, approximately two days before her death, when Kriegel received a telephone call while she was at the American Legion Hall in Brooklyn, Iowa. The call apparently upset her. Immediately after hanging up the phone, she said to her mother, while Whisenand stood next to her,

Oh, Mom, what am I going to do? That sounded just like Butch.

Earley asserts that this statement is inadmissible hearsay because of its inherent untrustworthiness. Earley argues that it is impossible to determine from the statement whether Dawn meant that Earley was calling or that the caller was saying something that Earley would say.

Earley has not provided us with sufficient reason to hold that the district court's ruling was an abuse of discretion. The spontaneity of the statement in relation to the telephone call attests to its trustworthiness. Any question concerning the meaning of the statement is best left to the judgment of the jury. Therefore, because of the nature of the statement and its proximity to the event, we do not find the district court erred in admitting the evidence under Fed.R.Evid. 803(1) (present sense impression) ...