U.S. v. Eggleton, 85-1858

• Decision Date: 20 August 1986
• Docket Number: No. 85-1858,85-1858
• Citation: 799 F.2d 378
• Parties: 21 Fed. R. Evid. Serv. 732 UNITED STATES of America, Appellee, v. Gary Wayne EGGLETON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 378

799 F.2d 378

21 Fed. R. Evid. Serv. 732

UNITED STATES of America, Appellee, v. Gary Wayne EGGLETON, Appellant.

No. 85-1858.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1986.

Decided Aug. 20, 1986.

Lee T. Lawless, Asst. Federal Public Defender, St. Louis, Mo., for appellant.

Frederick R. Buckles, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before McMILLIAN and BOWMAN, Circuit Judges, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge.

Eggleton appeals his conviction for bank robbery, alleging that the district court erred in admitting evidence on the theory of flight, admitting evidence of other crimes, overruling his motion to suppress identification evidence, and imposing an excessive sentence. For the reasons stated below, we affirm the decision of the district court. ¹

I. BACKGROUND.

On the evening of November 27, 1983, a woman knocked on the door of the Crystal City, Missouri home of Robert Smith, the president of Commerce Bank of Festus, Missouri. Mrs. Smith opened the door to give the woman directions and a man came through the door, pushing Mrs. Smith into the foyer and onto the floor. Mrs. Smith's daughter was also pushed to the floor. When Mr. Smith came downstairs with his son Jason, they were met by a man pointing a .30 caliber carbine at them. When Mr. Smith reached the bottom of the stairs, he saw a second gunman pointing a machine gun at his wife and daughter. The two men pushed Mr. Smith and Jason down to the floor and handcuffed Mr. Smith's hands behind his back. One of the gunmen then displayed what appeared to be a bomb. Mr. Smith was at this point taken aside and told that the men were there to rob the bank the next morning.

At the time the men came to the house they wore ski masks over their faces. However, the mask worn by one of the men slipped back around his face as he struggled with Mr. Smith and Mrs. Smith saw a portion of his face, including his brow, eyes, nose, mouth, and cheekbones.

At about 5 a.m. the following morning one of the gunmen took Mr. Smith to prepare to go to the bank. After tying up the rest of the family in the basement and telling them that there was a bomb attached to the basement door, the gunmen took Mr. Smith to the bank, using Mr. Smith's car. A ski mask was put over his face and he was forced to lie down on the back seat of the car.

After arriving at the bank, the gunmen positioned themselves one at the front door and one at the back door. As the employees arrived, Mr. Smith greeted them and took them to an area designated by the robbers. He explained that the bank was being robbed and that his family was being held hostage. After the time lock opened on the vault door, the robbers took the money, herded the bank employees into the vault, and shut the door. The men then fled. Mr. Smith waited until 8:30, then let the employees out, and called the police. Meanwhile, at the Smith house, Mrs. Smith and the children had untied themselves and found there was no bomb attached to the basement door.

Following the incident, Mrs. Smith prepared a composite drawing of the woman who knocked on the door and of the gunman whom she had caught a glimpse of under his ski mask. The FBI agent in charge of the case was able to identify the woman in the drawing as Carol Martin. He contacted Martin to question her about any knowledge she might have of the robbery. After her initial denial of any knowledge, she admitted her involvement in the robbery and identified the persons involved in exchange for her not being prosecuted. Martin admitted that she had been the woman who knocked on the door of the Smith residence. She said that the others participating in the robbery were Michael Wright, Frank Enriquez, and Wayne Eggleton, with Enriquez and Eggleton being the pair of gunmen who invaded the Smith home. In addition, Martin then gave the agent considerable information about the preparation for the robbery and what had happened subsequent to the robbery.

Based on the information provided by Martin, the FBI obtained arrest warrants for Wright, Enriquez, and Eggleton. Although Enriquez and Wright were arrested, the FBI was unable to arrest Eggleton because he had left the area. Following Wright's arrest, he agreed to cooperate with the government in the investigation in exchange for the dropping of all charges against him but that for conspiracy to rob the Festus bank. Wright confirmed the information provided by Martin and provided additional details. He described how they had made the bomb that was shown to the Smiths, and how he had thrown the bomb and other explosive devices into the Meramec River. The bag containing the devices was later found on the Meramec River bank on January 1, 1984.

The evidence showed that Eggleton had left his home in North Carolina on December 16, 1983. From there he traveled for the next thirteen months, going to Florida, the Dominican Republic, Kentucky, Costa Rica, Tennessee, and Texas. During this time he took an assumed name, obtaining various kinds of identification under that name.

On July 23, 1985 Eggleton was arrested in El Paso, Texas by the FBI. At the time of his arrest he was heavily armed. He wore a shoulder-holstered .357 caliber pistol. In the car agents found a loaded M-14 rifle, several incendiary devices, several knives, a machete, and various other pieces of military field gear.

Following his arrest, Eggleton was taken to the St. Louis area where he was placed in a lineup viewed by Mrs. Smith. She identified him as one of the gunmen who had broken into her home on November 27, 1983. She also identified him at trial.

One of the witneses at the trial was Lynn West, a friend of Eggleton, who testified that he had spoken to Eggleton before the eventual arrest and urged him to turn himself in. Eggleton told West that he would prefer to "take his chances on the outside."

Eggleton testified that he had been in the St. Louis area at the time of the bank robbery, but did not participate in the robbery of the Commerce Bank or the invasion of the Smith home. Rather, Eggleton claimed that he and Enriquez had swindled Michael Wright and others who had given them money with which to purchase drugs. Eggleton thereafter fled the area, believing that those that he had robbed had a contract with the Mafia to kill him. It was only later, he alleges, that he learned that the police wanted to arrest him for the robbery of the Commerce Bank.

At the close of the trial, the jury returned a guilty verdict, and the judge sentenced him to forty-five years imprisonment.

II. THEORY OF FLIGHT EVIDENCE.

At the trial, the court gave the jury the following instruction as consciousness of guilt:

Instruction No. 20.

The intentional flight or concealment of a defendant immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not of course sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by the jury in the light of all other evidence in the case, in determining guilt or innocence. Whether or not evidence of flight or concealment shows a consciousness of guilt, and the significance to be attached to any such evidence, are matters exclusively within the province of the jury.

In your consideration of the evidence of flight you should consider that there may be reasons for this which are fully consistent with innocence. These may include fear of being apprehended, unwillingness to confront the police, or reluctance to appear as a witness.

Eggleton claims that, while overruling his motion for a mistrial at the close of the government's case, the court stated that the government had not introduced evidence of flight. However, during its closing argument the government argued the theory of flight and concealment as evidence of guilt.

Evidence of the flight of an accused after a crime has been committed is admissible in that it tends to prove consciousness of guilt. United States v. Peltier, 585 F.2d 314, 323 (8th Cir.1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979). Although the circuits are divided on whether it must be shown that the person attempting to flee had reason to believe that he was being, or would be, sought in connection with the commission of a particular crime, this Circuit allows the theory of flight evidence when there is an awareness of guilt. We stated in Peltier that:

Analytically, flight is an admission by conduct. Its probative value as circumstantial evidence of guilt depends upon the degree of confidence in which four inferences can be drawn: (1) from the defendant's behavior in flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.

585 F.2d at 323. The validity of drawing an inference of guilt depends on the number of evidentiary manifestations suggesting that the defendant's decision to flee was prompted by considerations related to the crime in question. Id.

After the robbery, Eggleton returned to his home in North Carolina where he got a telephone call from Enriquez telling him that the FBI was looking for them. A short time later Eggleton tried to call Enriquez and was told by his wife that "some men" had taken him away. The FBI had arrested Enriquez. At this point Eggleton left home, leaving his wife and family behind.

In February of 1984 Eggleton called Lynn West looking for a place to stay for a while. He told West he was "in trouble with the law." Sometime later West, a deputy sheriff in the State of Florida, was contacted by the FBI and told that Eggleton was wanted for robbery. West spoke several times on the phone with Eggleton and told him of the charges against him. West offered to be a middleman between Eggleton and the FBI. Eggleton asked what might...