U.S. v. Hicks, s. 82-5304

• Decision Date: 07 November 1984
• Docket Number: Nos. 82-5304,s. 82-5304
• Citation: 748 F.2d 854
• Parties: UNITED STATES of America, Appellee, v. Benjamin Jerome HICKS, Appellant. UNITED STATES of America, Appellee, v. Frankie RANDALL, Appellant. (L), 83-5006.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 854

748 F.2d 854

UNITED STATES of America, Appellee, v. Benjamin Jerome HICKS, Appellant.

UNITED STATES of America, Appellee, v. Frankie RANDALL, Appellant.

Nos. 82-5304(L), 83-5006.

United States Court of Appeals, Fourth Circuit.

Argued Aug. 30, 1984.

Decided Nov. 7, 1984.

Fred Warren Bennett, Federal Public Defender, Baltimore, Md., for appellant Hicks.

Stephen D. Langhoff, Doyle & Langhoff, Baltimore, Md., on brief, for appellant Randall.

Herbert Better, Asst. U.S. Atty., Baltimore, Md. (J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, SPROUSE, Circuit Judge, and BUTZNER, Senior Circuit Judge.

HARRISON L. WINTER, Chief Judge:

Tried jointly before a jury, Hicks and Randall were both convicted of armed bank robbery in violation of 18 U.S.C. Sec. 2113(d). They appeal, advancing several reasons why they were improperly convicted. We see merit only in the argument that the district court erroneously declined to instruct the jury as to Hicks' alibi defense, and that this error was not harmless. We reverse as to Hicks and grant him a new trial. We affirm as to Randall.

I.

Hicks and Randall, together with two others, ¹ were charged with the armed robbery of the Rogers Avenue branch of the Maryland National Bank in Baltimore on January 28, 1982. A fifth defendant, Anthony Ford, pleaded guilty to an information charging him with violation of 18 U.S.C. Sec. 2113(b) (bank larceny) for his participation in this same robbery, and he became a principal witness for the government at Hicks' and Randall's trial.

The robbery occurred shortly before noon on January 28. Three men, two of them wearing masks and carrying guns, entered the bank. The two men with guns each accosted a bank employee, a teller and a senior field representative, holding them at gunpoint while the third man vaulted the teller's counter and emptied the tellers' cash drawers. The money, along with two hidden dye packs, was placed in a brown paper bag, and the robbers left the bank. Outside the bank, a dye pack exploded and the robber carrying the bag dropped it, but another picked it up and threw it into the back seat of the getaway car. The car was owned by Hicks, although registered in the name of his common-law wife. According to Ford, Hicks drove the robbers to and from the bank in his car, though he did not enter the bank. After the car had gone a few blocks, smoke from the dye pack caused everyone except Hicks to abandon the car and disperse.

The owner of a store near the bank saw the robbers leave the bank, and he provided a description of the car in which they fled and the direction in which the car was driven. Shortly after the robbery the FBI found the car, parked and locked, 3/10ths of a mile from the bank. In the back seat were found the brown paper bag, the money stained with red dye, money orders taken from the bank, a ski mask, and a pair of dark gloves used in the robbery.

At 4:30 p.m. on the day of the robbery the FBI arrested Hicks at his girlfriend's apartment, which was not far from the bank. Hicks had the keys to his car when arrested, but he denied participating in the robbery and denied being with any of the other defendants that day. He told the FBI that he had not seen his car since parking it a few blocks from his girlfriend's apartment at about 10:00 that morning. He also claimed that he had spent the entire time between 11:15 a.m. and 4:30 p.m. with his girlfriend at her apartment, except for a quick trip across the street to obtain some liquor.

Hicks did not testify at his trial, nor did his girlfriend with whom he had allegedly spent the time of the robbery. ² The government, however, introduced Hicks' denials when he was arrested as evidence of a false exculpatory statement evidencing consciousness of guilt. Based on this evidence, Hicks requested an alibi instruction to the jury. The district court refused the request, and the jury returned a guilty verdict against Hicks as well as against Randall.

II.

We hold that the district court erred in refusing to give an alibi instruction.

The evidence adduced by the government, albeit to prove that Hicks made a false exculpatory statement showing consciousness of guilt, put before the jury the factual question of whether Hicks was with his girlfriend and away from the site of the robbery when the robbery occurred. If the jury found that Hicks' post-arrest statement was true, or if it raised a reasonable doubt regarding his presence at the scene of the robbery, then the jury was bound to find Hicks not guilty. Thus the government's own evidence may well have provided an effective alibi defense.

It is settled law in this circuit as well as in other circuits that, at least upon proper request, a defendant is entitled to an instruction submitting to the jury any theory of defense for which there is a foundation in the evidence. See, e.g., United States v. Mitchell, 495 F.2d 285, 287-88 (4 Cir.1974); United States v. Fountain, 642 F.2d 1083, 1095 (7 Cir.), cert. den. 451 U.S. 993, 101 S.Ct. 2335, 68 L.Ed.2d 854 (1981); Zemina v. Solem, 438 F.Supp. 455, 468 (D.S.D.1977), aff'd 573 F.2d 1027 (8 Cir.1978); United States v. Burse, 531 F.2d 1151, 1153 (2 Cir.1976); United States v. Garner, 529 F.2d 962, 970 (6 Cir.1976). The government does not dispute this general principle, but argues the principle is inapplicable here.

The government asserts that no case has held that a defendant may request a defense instruction based solely on evidence that the government offers not for its truth but for its falsity and which, moreover, would not have been admissible if offered by the defendant himself. While we agree that the evidence would not have been admissible if offered by Hicks, we do not think that any of the authorities cited support the argument that only evidence admissible if offered by a defendant may serve as the foundation for a defense instruction. Indeed, Perez v. United States, 297 F.2d 12, 15-16 (5 Cir.1961) and Tatum v. United States, 190 F.2d 612, 617 (D.C.Cir.1951) speak of "any" evidence, whether "defense" evidence or "government" evidence, as providing a defendant with the foundation justifying a defense instruction. It also does not affect application of the general principle that the government sought to prove the statement it introduced to be untrue rather than true. By offering evidence of what the government contends was a false exculpatory statement, the government put the truth of that statement in issue. We thus reject the government's grounds of distinction and conclude that Hicks was entitled to an alibi instruction.

III.

The government contends that even if the failure to give the substance of the requested instruction was error, the error was harmless. Our beginning point in assaying this argument is a determination of the standard by which harmlessness should be measured. The district court's error implicated Hicks' rights under the Sixth Amendment. Once it appeared that there was sufficient alibi evidence to permit the factfinder to pass on the issue, Hicks had a Sixth Amendment and due process right to have that issue submitted to a jury:

If the trial judge evaluates or screens the evidence supporting a proposed defense and upon such evaluation declines to charge on that defense, he dilutes the defendant's jury trial by removing the issue from the jury's consideration. In effect, the trial judge directs a verdict on that issue against the defendant. This is impermissible.

United States v. Strauss, 376 F.2d 416, 419 (5 Cir.1967). In addition, due regard for the Fifth Amendment leads to the inevitable conclusion that a defendant must be permitted to prove an alibi other than by his own testimony. United States v. Curry, 681 F.2d 406, 416 n. 25 (5 Cir.1982). Failing to give the jury an alibi instruction was thus an error of constitutional magnitude, and under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), we can sustain Hicks' conviction only if we can say that the error was harmless beyond a reasonable doubt.

United States v. Burse, supra, identifies the factors which we should consider in determining harmlessness:

There have been occasions when the courts have viewed the absence of an alibi instruction as harmless. When such an instruction has not been requested or when the evidence of the defendant's guilt has been overwhelming or when the evidence in support of the alibi defense has been negligible or when the defendant's presence at the scene of the crime has not been an element of the offense which the government was required to prove, the courts have held that failure to provide an alibi instruction does not require reversal. (citing).

531 F.2d at 1153. Consideration of these factors here suggests that the error was not a harmless one. In this case an alibi instruction was requested. ³ Further, the government's theory was that Hicks aided and abetted the robbers by driving them to and from the bank, so that proof of his presence at the scene of the crime was essential. Finally, we cannot say beyond a reasonable doubt that the government's case so overwhelmed Hicks' alibi defense that an alibi instruction could not have affected the outcome.

While it is true that Hicks did not testify and his girlfriend was not called as a witness to corroborate him, Hicks' statement to the arresting officer, if believed, would provide him with a complete defense. There was evidence, on the other hand, that the statement was untrue for times other than the hour at which the robbery was committed and, as consequence, there was a basis on which the jury could conclude that the statement was false in its entirety.

The only direct evidence linking Hicks to the robbery was the testimony of his co-defendant Ford who, pursuant to a plea bargain, was permitted to plead guilty to a less aggravated form of bank robbery in return for testifying as a government...