U.S. v. Harvey

• Decision Date: 05 March 1985
• Docket Number: Nos. 83-1824,83-1825,s. 83-1824
• Citation: 756 F.2d 636
• Parties: UNITED STATES of America, Appellee, v. Walter HARVEY, Appellant. UNITED STATES of America, Appellee, v. Raphael CLARK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 636

756 F.2d 636

UNITED STATES of America, Appellee, v. Walter HARVEY, Appellant.

UNITED STATES of America, Appellee, v. Raphael CLARK, Appellant.

Nos. 83-1824, 83-1825.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1984.

Decided March 5, 1985.

Robert C. Babione, St. Louis, Mo., for Harvey.

David W. Harlan, St. Louis, Mo., for Clark.

Henry J. Fredericks, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before McMILLIAN, Circuit Judge, BENNETT, ^* Circuit Judge, and ARNOLD, Circuit Judge.

McMILLIAN, Circuit Judge.

Walter Harvey and Raphael Clark appeal from a final judgment entered in the District Court ¹ for the Eastern District of Missouri after a jury verdict finding each of them guilty of kidnapping, in violation of 18 U.S.C. Sec. 1201, transportation of a stolen vehicle across state lines, in violation of 18 U.S.C. Sec. 2312, interstate transportation of a female for immoral purposes, in violation of 18 U.S.C. Sec. 2421, and unlawful use of a firearm, in violation of 18 U.S.C. Sec. 924(c)(1). For kidnapping (Count I), each appellant was sentenced to one hundred years imprisonment. For transporting a stolen vehicle (Count II), each appellant was sentenced to five years to run consecutively with Count I. For transporting a woman in interstate commerce for immoral purposes (Count III), each appellant was sentenced to five years to run consecutively with Counts I and II. Finally, for unlawful use of a firearm (Count IV), each appellant was sentenced to ten years, to run consecutively with the other counts, for a total sentence of one hundred and twenty years imprisonment. For reversal appellants argue that the district court erred in (1) denying appellants' motion for a change of venue, (2) limiting voir dire to determine the prejudicial effect of extensive pretrial publicity and racial bias, (3) refusing to disclose the names and addresses of the persons on the master grand jury list, (4) denying appellants' request for a lineup and permitting the government to rebut improperly the defense theory that appellants were not the abductors, (5) admitting hypnotically enhanced testimony, (6) instructing improperly the jury on the unlawful use of a firearm, and (7) refusing to declare a mistrial because of prosecutorial misconduct. For the reasons discussed below, we affirm the convictions.

The facts can be summarized as follows, keeping in mind that the evidence must be construed in the light most favorable to the jury verdict. See Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). On December 14, 1982, Gary and Donna Decker went Christmas shopping at a department store in north St. Louis County, Missouri. Inside the store they purchased, among other things, an umbrella, some children's toys and some tobacco. Upon exiting the store, appellants confronted the Deckers, forced them into the Deckers' automobile, a 1975 Chevrolet Nova, and instructed them to drive out of the parking lot.

Lonnell Jamieson, also in the same parking lot, overheard Donna Decker ask the strangers not to hurt her. Becoming suspicious because of what he had heard, Jamieson followed the Deckers' car out of the parking lot and saw the automobile head north on Highway 367. Jamieson wrote down the first three letters of the Nova's license, and returned to the shopping mall and reported the incident to the security guards on duty.

Harvey drove the Deckers' Nova east toward Illinois, via the Poplar Street Bridge. Gary Decker and Clark struggled in the back seat and Clark shot Decker in the chest with a .32 caliber revolver.

At approximately 10:05 p.m., the Nova stopped at a red light at the intersection of Eighth and Spruce Streets in downtown St. Louis, Missouri. Vandy Brewer, who was driving home from work, was stopped at the same intersection adjacent to a dark blue Chevrolet Nova. Brewer testified that she saw a black man driving the car, a white woman sitting in the front seat, another black man sitting behind the driver, and a white man sitting on the passenger side of the back seat. Brewer testified that the woman in the Nova looked directly at her. After the signal changed, the Nova drove up the ramp onto the Poplar Street Bridge.

Just east of the Interstate Highway 55 entrance onto the Poplar Street Bridge, the Deckers' Nova was stopped along the south curb of the bridge under a light. Debbie Geiger was driving her jeep eastward on the bridge and, because of traffic congestion, was forced to stop immediately adjacent to the parked Nova. As Geiger looked into the Nova, she saw a woman she identified as Donna Decker sitting in the front seat between Harvey and Clark. Clark was driving. In the back seat she saw a white man slumped against the passenger side door. Geiger testified that the woman in the Nova had a very frightened look on her face. Geiger later identified Harvey and Clark in separate lineups and in court before the jury.

While the car was on the bridge, some of Gary Decker's personal possessions, such as his driver's license, checking account card and hospital physician's card, were thrown out of the car. The police later recovered these items underneath the bridge on Poplar Street.

Clark then drove the Deckers' car to a deserted area of East St. Louis, Illinois. Harvey and Clark got out of the car and forced Donna Decker to have sexual relations with them. Afterwards, while Donna Decker lay on the ground, she was shot four times in the head and face with a .32 caliber revolver. Appellants also placed Gary Decker on the ground near his wife. Appellants took Donna Decker's wedding ring, watch and purse.

Harvey and Clark then drove back to St. Louis, Missouri, to the home of Essie Carter and her sons Cedric and Farland Gilliehan. Harvey and Clark brought in a bag from the department store at which the Deckers were shopping. The bag contained an umbrella, children's toys and tobacco. Harvey showed Cedric Gilliehan his gun and told him that he and Clark had just robbed someone.

Upon Harvey and Clark's request, Cedric Gilliehan removed the radio and speakers from the Nova, while Clark wiped the inside and outside of the Nova with a rag. Harvey opened the trunk of the Nova, where he found some photographs of Donna Decker and her son. Harvey threw these pictures into a nearby sewer. Harvey and Clark also removed the spare tire and the jack from the Nova.

Harvey and Clark retrieved the department store items from Essie Carter's home and made arrangements with Cedric Gilliehan to get rid of the Deckers' car. Cedric and Harvey drove in Cedric's Thunderbird, while Clark followed driving the Nova. They drove south on Goodfellow Boulevard, arriving at the Job Corps Center near Goodfellow and Stratford. The Thunderbird and the Nova collided as they turned onto Stratford, causing paint and body damage to both automobiles. Clark parked the Nova on Stratford and left it there overnight. The next day Clark drove the Nova to Laurel Street in north St. Louis. Clark took three other men, Maurice Taylor, Jeff Browley and Steve Robinson, to Laurel Street to show them the Nova. The Nova then was moved several blocks next to a vacant lot on Minerva. Taylor removed the battery from the Nova and put it in the trunk of Robinson's Oldsmobile. The four men then went back to Taylor's house. There was some conversation concerning the Decker incident. On January 8, 1983, Clark also told Keith Voss about the robbery and shooting of the Deckers.

Donna and Gary Decker were found in a muddy field in East St. Louis, Illinois. Donna Decker, nude below the waist, had been shot four times in the head and face. A saliva specimen from Donna Decker's mouth contained male spermatozoa; vaginal and rectal swabs taken from Donna Decker contained the same. Gary Decker was found several feet away from his wife. Investigators removed a shopping list, naming such items as tobacco, an umbrella and a child's pull-a-truck toy, from Gary Decker's clothing.

Cedric Gilliehan led the FBI to Minnie and Wilborn streets where the photographs of Donna Decker and her son, her purse, and other debris were recovered from the sewer.

This crime received tremendous pretrial publicity in the metropolitan St. Louis area. Appellants filed a motion for a change of venue, but the motion was denied. Appellants were convicted by an all white jury in April 1983. The government's case was based on eyewitness identifications of appellants and testimony concerning admissions made to several persons by appellants.

Venue

Appellants argue that the district court erred in denying their motion for a change of venue, thus depriving appellants of a fair trial because of the prejudicial effect of the intense pretrial publicity. ² We disagree.

Mere exposure to publicity or the formation of tentative impressions by some jurors is not enough to require a change of venue. The ultimate test is whether a juror has been exposed to pre-trial publicity and, if so, whether he or she can set aside any impression or opinion resulting from that exposure and render a verdict based solely on the evidence presented at trial.

United States v. Bliss, 735 F.2d 294, 298 (8th Cir.1984), citing United States v. Brown, 540 F.2d 364, 378 (8th Cir.1976); see also Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961); United States v. Poludniak, 657 F.2d 948, 955 (8th Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1431, 71 L.Ed.2d 650 (1982). A pretrial change of venue is necessary when "pretrial publicity was so intensive and extensive or the examination of the entire panel revealed such prejudice that a court could not believe the answers of the jurors [regarding their impartiality] and would be compelled to find bias or preformed opinion as a matter of law." United States v. Bliss, 735 F.2d at 298, citing Beck v. Washington, 369 U.S. 541, 557, 82 S.Ct. 955, 964, 8 L.Ed.2d 98 (1961). The district court adequately determined during...