U.S. v. Johnson, s. 76-1202

• Decision Date: 27 August 1976
• Docket Number: 76-1229,Nos. 76-1202,s. 76-1202
• Citation: 540 F.2d 954
• Parties: UNITED STATES of America, Appellee, v. Kenneth Michael JOHNSON, Appellant. UNITED STATES of America, Appellee, v. Donald Roy GUNN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 954

540 F.2d 954

UNITED STATES of America, Appellee, v. Kenneth Michael JOHNSON, Appellant.

UNITED STATES of America, Appellee, v. Donald Roy GUNN, Appellant.

Nos. 76-1202, 76-1229.

United States Court of Appeals,

Eighth Circuit.

Submitted June 14, 1976.

Decided Aug. 27, 1976.

Thomas H. Rost, St. Louis, Mo., for Johnson.

Robert B. Vining, Jr., Clayton, Mo., for Gunn.

Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee; Barry A. Short, U. S. Atty., St. Louis, Mo., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

In March, 1976 Kenneth Michael Johnson and Donald Roy Gunn, hereinafter at times referred to as the defendants, were tried jointly before a jury in the United States District Court for the Eastern District of Missouri ¹ on a charge of armed robbery of the Wellston Station of the St. Louis, Missouri Post Office in violation of 18 U.S.C. § 2114. Both men were found guilty and were sentenced to imprisonment for terms of twenty-five years. Each has appealed, and the appeals have been consolidated and heard together.

The only factual issue in the case was whether the defendants were two of the three men who robbed the post office of around $700.00 during the early afternoon of January 13, 1976. Assuming the admissibility of the evidence relied upon by the government to establish the identities of the defendants as two of the robbers, the evidence of their guilt was overwhelming, and they do not contend otherwise. They urge reversal on other grounds that will be mentioned presently.

When the evidence is viewed in the light most favorable to the government, and assuming that all of the evidence was admissible, the jury could properly have found and evidently did find substantially the following facts.

The Wellston Station of the St. Louis Post Office is located at 1409 Hamilton Avenue. There are two mail boxes located on the curb in front of the post office.

At about 1:10 p. m. on January 13 three black males entered the post office. Two of those men, later identified as Johnson and Gunn, were armed with revolvers and were wearing ski masks. They approached the counter with drawn weapons, menaced the postal employees on duty, and effected the robbery. The third man, later identified as Ellis T. Hart, remained near the door of the post office. Some of the bills that were taken from the possession of Ms. Georgia Brownlee, a postal clerk, were "bait money," that is to say that before they were placed in Ms. Brownlee's cash drawer on the morning of the 13th their serial numbers had been recorded.

While the three post office employees who were on duty at the time of the robbery were able to give general, and somewhat varying, descriptions of the robbers and of their dress, none of the employees was able to make a personal identification of any of the three men after they were arrested.

After the robbery was completed, the three robbers left the building at a walking pace with Hart in the lead. As they went down the steps Johnson removed his ski mask, and Gunn lifted his mask from his face in such a manner as to convert the mask into a brown or beige colored skull cap. When the men reached the sidewalk, Hart started across Hamilton Avenue in an easterly direction. Johnson and Gunn turned to their left and proceeded north along Hamilton.

As Hart crossed the street, he was observed by Derrick White, a security guard employed by a local protective agency, who had come to the post office on a mission of his wife, and who had parked his car across the street from the post office. When White saw Hart, White had not left his vehicle.

While the robbery was in progress, the St. Louis Police Department had been alerted and Patrolman Leonard E. Reynolds was dispatched to the scene in his patrol car. Office Reynolds arrived at the post office just as the three robbers were leaving the building. Reynolds called for reenforcement, left his vehicle, stationed himself behind the mail boxes, drew his pistol and called on the men to halt. He observed the dress of the men; he observed Johnson remove his mask from his head; and he had a side view of the faces of both men from a distance of about fifty feet.

When Reynolds ordered the men to halt, all three of them broke into a run. At this point Johnson turned momentarily so as to face Reynolds, and the latter observed that Johnson was holding what appeared to be a mask, a brown paper bag, and a revolver in his right hand. Johnson turned and he and Gunn ran north along Hamilton. Reynolds again called on the men to halt and fired one shot; they continued to run, and he fired another shot striking Johnson in the leg. Johnson fell to the ground and was apprehended on the spot by Reynolds and White. Gunn ran a short distance along Hamilton and then ran west into an alley. As Gunn turned into the alley, both Reynolds and White were able to see his face.

As Reynolds and White approached Johnson, the latter was still in possession of his pistol. Reynolds ordered Johnson to throw the weapon in the street, which he did. The mask was seized as was the brown paper bag which contained the money that had been taken in the robbery. Johnson was removed to a hospital for treatment of his wound.

As stated, Gunn ran down the alley and after proceeding a short distance hid himself under the front end of a parked automobile. He was observed by Patrolman Ronald Kathman who was on the alert and patrolling in the area. Kathman ordered Gunn to come out from under the car, and Gunn complied. Kathman observed that Gunn had a surgical glove, a brown paper bag, and a brown ski mask (cap) in his left hand. A search of Gunn's person produced a loaded .38 caliber revolver, some currency, and some postal receipts.

Kathman placed Gunn under arrest, handcuffed him, placed him in the back seat of the patrol car, and conveyed him back to the post office where Reynolds and White were standing. Kathman exhibited the cap and the gun, and said to Reynolds, "Here's the cap and here's the gun. Is this the guy?" Reynolds replied in the affirmative and immediately thereafter White also identified Gunn.

Gunn was carried to the police station and was later jailed. Although a federal complaint was filed against him on January 14, he was not taken into federal custody immediately and was not carried before a United States Magistrate until January 19.

While Johnson and Gunn were captured immediately after the robbery, Hart managed to make good his escape by running down a passageway on the east side of Hamilton Avenue. However, the police received confidential information that Hart had been the third man involved in the robbery; and on the evening of January 14 White picked the photograph of Hart out of a number of photographs of black males that he had been shown by Police Officer Steven Jacobsmeyer.

By January 15 Hart was in custody of the St. Louis police, and a police line-up was conducted which was viewed by Reynolds and White, and probably by others. The line-up consisted of Gunn and Hart and three other black males; there were two men between Gunn and Hart. Reynolds and White understood that the purpose of the line-up was to determine whether they could identify the third man (Hart) who had gotten away. Both of them identified Hart. They recognized Gunn from two days before, but they were not called on to identify him in the line-up, and they did not do so. ²

On January 21, 1976 Johnson, Gunn and Hart were jointly indicted. Thereafter they were represented by separate attorneys. They pleaded not guilty and filed pretrial motions. The only motions that need to be mentioned here are the motions for separate trials filed by both defendants pursuant to Fed.R.Crim.P. 14 and the motion of Gunn for a suppression of the identification evidence of Reynolds and White.

An evidentiary hearing on the motions was held by Judge Meredith in late February, and the record before us contains a transcript of the hearing as it related to the suppression of the identification evidence.

At the hearing both Reynolds and White testified positively that Johnson, Gunn and Hart were the three men who had fled from the post office. And they insisted that their identifications of Johnson and Gunn were based on their own observations of the two men on January 13. They also testified that the elapsed time between their first observations of the men and Gunn's return to the post office in the custody of Officer Kathman was no longer than from three to eight minutes.

All of the defendants' pretrial motions were denied. In connection with the motion to suppress the identification evidence Judge Meredith said:

Gentlemen, there's nothing that I can see that's wrong with this identification at all. The facts are very simple and very plain. Mr. Reynolds saw Johnson and Gunn coming out of the post office and go north. They had been preceded by Hart who went east. He shot Johnson, he fell, and Derrick White, the other officer, saw Johnson fall, too. Within three to eight minutes Gunn was brought back and they asked Reynolds if this was the guy and he said that was him. And Derrick White heard that and identified him, too, and then they had a line-up the next day it was two days later, I guess. In the meantime, Jacobsmeyer took pictures out to Derrick White, the officer, and he identified Hart as being the third man and both Derrick White and Officer Reynolds identified Hart in the line-up, and Gunn was also in the line-up, but they were not asked to identify him. So the motion to suppress identification is overruled. . . .

Thereafter, Hart pleaded guilty, and Johnson and Gunn went to trial together on March 1. They were found guilty on March 2.

There was never any question that the three men whom Reynolds and White observed to flee from the post office were the robbers. The question was whether Johnson and Gunn were two of those three men. Thus,...