U.S. v. Hamilton

• Decision Date: 19 June 1986
• Docket Number: Nos. 84-5060,84-5063,s. 84-5060
• Citation: 792 F.2d 837
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles E. HAMILTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Eugene HAMILTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 837

792 F.2d 837

55 USLW 2042

UNITED STATES of America, Plaintiff-Appellee, v. Charles E. HAMILTON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles Eugene HAMILTON, Defendant-Appellant.

Nos. 84-5060, 84-5063.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1985.

Decided June 19, 1986.

William Fahey, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Robert L. Allen, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, HUG and HALL, Circuit Judges.

WALLACE, Circuit Judge:

Hamilton appeals from his conviction on seven counts of armed robbery in violation of 18 U.S.C. Sec. 2113(a), (d). Hamilton argues that he was denied his sixth amendment right to effective assistance of counsel, that the district judge should have recused himself, that he was deprived of the right to be absent from trial, that a photographic spread was unduly suggestive, that parts of three jury instructions were prejudicial, and that the district judge erred in admitting certain evidence. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

I

On July 12, 1983, a man robbed the Union Federal Savings and Loan of Newbury Park, California. A Ventura County, California, deputy sheriff heard a broadcast reporting that the robbery had occurred and that the suspect was a black man driving a white Cadillac.

A short time thereafter, the deputy sheriff saw a vehicle and driver matching the description given in the broadcast. With the assistance of other law enforcement officers, he stopped the vehicle and ordered the occupants to step out. Hamilton got out of the vehicle, along with Sheila Davis, a female co-defendant. Witnesses at the bank identified Hamilton as the robber, and he was arrested.

The next day, Federal Bureau of Investigation (FBI) agent Ahles contacted Gregory Jones, the owner of the white Cadillac that Hamilton was driving when he was arrested. Jones told agent Ahles that he had loaned the car to Davis for a few hours on the day of the robbery, and that he had gone to Davis's home to look for it when the Cadillac had not been returned. Jones stated that he had observed a motor home at Davis's premises and had noticed people removing articles from the house and placing them within the motor home. Jones gave agent Ahles the license plate number of the motor home and told him that the motor home had been moved and could be found at an address on Van Ness Avenue in Los Angeles. Agent Ahles determined from an investigation of the license plate number that the owner of the motor home was Frank Crawford.

Agent Ahles notified FBI agents Powers and Flanigan by radio of the location of the motor home and described the evidence he thought the agents would find inside. Agents Powers and Flanigan found the motor home at the Van Ness address. They contacted their office by radio and were advised of the name and address of a third person who was the registered owner of the motor home, and were informed that the registration was not current.

When the agents approached the home, they were greeted by Hamilton's mother, Claudia Cosbie. The motor home was parked in the driveway of Cosbie's home and was attached to the home's electric utilities by an extension cord. The door of the motor home was open and two teenage girls were inside listening to the radio. The agents observed Cosbie enter the motor home several times; on at least one occasion, Cosbie instructed the two teenage girls to cooperate with the questions of the agents. Cosbie told the agents that she did not know who owned the motor home but that it was driven onto her property by a grandson and that she believed it was owned by Hamilton, her son.

Based on these circumstances, the agents believed that Cosbie had free and complete access to the motor home. Consequently, they asked her if they could search the motor home, and she consented. The search produced several articles of clothing, which later were introduced at trial.

Hamilton was charged in two indictments with ten counts of armed robbery in violation of 18 U.S.C. Sec. 2113(a), (d). Prior to trial, Hamilton filed three motions to relieve his court-appointed counsel and one motion to suppress evidence, all of which were denied. The government's motion to dismiss count four of the first indictment was granted. Counts six and seven of the first indictment were severed prior to trial and later dismissed. A jury found Hamilton guilty of seven counts of armed robbery, and he was sentenced to 40 years in prison.

II

Hamilton first contends that he was denied his sixth amendment right to effective assistance of counsel because his attorney's performance was deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984) (Strickland ). Our review of counsel's performance is highly deferential and we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2066.

Hamilton argues that his appointed attorney should not have represented him because they were unable to communicate. Our review of the record indicates, however, that any lack of communication between Hamilton and his attorney prior to trial resulted from Hamilton's unwillingness to cooperate and his efforts to delay the trial. Once trial began, Hamilton cooperated with his attorney, assisted in selecting the jury, made suggestions for cross-examining witnesses, and even complimented his attorney on his efforts to defend him.

Hamilton next argues that his attorney's performance was deficient because he did not object to three jury instructions and to the trial judge's refusal to recuse himself. Since these objections are without merit, see infra, Hamilton's attorney did not err in failing to raise them.

Hamilton also contends that his attorney failed to present a defense at the close of the government's case. Hamilton never indicates, however, what evidence should have been presented. Under these facts, all Hamilton's attorney could do was what he did do: cross-examine the government's witnesses. Since Hamilton has failed to prove that his attorney's performance was deficient, we need not address whether it was prejudicial. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

III

Hamilton next argues that the district judge should have recused himself because Hamilton appeared before him in a state court proceeding 15 years earlier. We will reverse a district judge's decision not to recuse himself only if the decision was an abuse of discretion. United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.1982). The district judge stated that he had no recollection of the 15-year-old state court proceeding. We can find no reasonable basis to question the district judge's impartiality, see 28 U.S.C. Sec. 455(a); Trotter v. International Longshoremen's Union, Local 13, 704 F.2d 1141, 1144 (9th Cir.1983), and the record contains no evidence of bias or prejudice, see 28 U.S.C. Sec. 455(b)(1). Therefore, the district judge did not abuse his discretion in declining to recuse himself.

IV

Hamilton also contends that he was deprived of the right voluntarily to absent himself from trial. No cases are cited by Hamilton in support of this unique contention. To the contrary, the Third Circuit has concluded that a defendant has neither a due process right nor a right stemming from Fed.R.Civ.P. 43 to be absent from trial. See United States v. Moore, 466 F.2d 547, 548 (3d Cir.1972), cert. denied, 409 U.S. 1111, 93 S.Ct. 920, 34 L.Ed.2d 692 (1973). We need not decide, however, whether we agree with the Third Circuit because this record does not require us to do so. The district judge allowed Hamilton to be absent except for in-court identification by witnesses. Hamilton was required to be in the holding area of the courthouse to facilitate this. Because he was in the court building anyway, Hamilton decided to be present during the trial. Thus, he failed to preserve his claim to the alleged right for purposes of this appeal.

V

Hamilton next argues that the photographic display used in the investigation violated his due process rights. Due process, however, is not violated unless the photographic display results in a very substantial likelihood of irreparable misidentification in light of the totality of circumstances. See United States v. Field, 625 F.2d 862, 865-66 (9th Cir.1980). A suggestive photographic display "will not be held to violate due process if sufficient indicia of reliability are present." United States v. Hanigan, 681 F.2d 1127, 1133 (9th Cir.1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1189, 75 L.Ed.2d 435 (1983).

Hamilton contends that the photographic display was unduly suggestive because two of the six photographs used were of the same individual and two others were of individuals nearly identical in appearance. We have reviewed the photographs and agree with the district court that even if the display included photographs of only five individuals instead of six, it was not unduly suggestive. See United States v. Bagley, 772 F.2d 482, 493 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986).

VI

Hamilton contends that parts of three jury instructions were prejudicial. He argues that certain phrases in the three instructions "urge[d] a unanimous verdict" and "presume[d] that the jury [would] return with a guilty verdict." Hamilton did not object to the three instructions, however, as required by Fed.R.Crim.P. 30. Therefore, we will reverse only if the allegedly prejudicial phrases constituted plain error. See Fed.R.Crim.P. 52(b). "Plain error exists only if it is highly probable that the error materially affected the verdict." United States v. Williams, 685 F.2d 319, 321 (9th Cir.1982). "[R]eversal for plain...