U.S. v. Johnson

• Decision Date: 11 June 1997
• Docket Number: No. 96-1331,96-1331
• Citation: 114 F.3d 808
• Parties: UNITED STATES of America, Appellee, v. David Wayne JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 808

114 F.3d 808

UNITED STATES of America, Appellee, v. David Wayne JOHNSON, Appellant.

No. 96-1331.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 19, 1996.

Decided June 11, 1997.

Gerald M. Handley, argued, Kansas City, MO, for appellant.

Matt Jeffrey Whitworth, argued, Kansas City, MO (Stephen L. Hill, Jr., United States Attorney, on the brief), for appellee.

Before McMILLIAN, HENLEY and MORRIS SHEPPARD ARNOLD, Circuit Judges.

McMILLIAN, Circuit Judge.

David Wayne Johnson appeals from a final judgment entered in the United States District Court for the Western District of Missouri, ¹ upon a jury verdict, finding him guilty of armed bank robbery and possession of a firearm during a crime of violence. 18 U.S.C. §§ 2113(a), (d), 924(c). For reversal, appellant contends that the district court erred in: (1) denying his motion for judgment of acquittal based on the insufficiency of the evidence, (2) giving an "Allen " charge, and (3) denying his motion for a new trial based on newly discovered evidence. For the reasons discussed below, we affirm the judgment of the district court.

BACKGROUND FACTS

On the morning of August 16, 1994, at or about 9:35 to 9:40 a.m., the North American Savings Bank in Kansas City, Missouri, was held up by a lone individual. Rikki Kreamer, Head Teller, testified that she noticed a man with a bag clutched under his arms walking toward her from the door. At that time, there were no other customers in the bank; therefore, she looked directly at the man as he approached. When he was standing within three feet of her, Kreamer said that the man told her that he was robbing the bank and directed her to give him her money. He then placed the bag on the counter and opened it. She testified that, when the man opened the bag, she saw the Diane G. Harris, the branch manager, testified that the robber took $3,472.00. Carolyn Newsome, a bank teller who worked next to Kreamer, testified that she noticed a man hunched over Kreamer, so she moved slightly to get a better look, and realized that a robbery was in progress. Thereafter, she reached under the counter and pushed the button to activate a silent alarm. As soon as the silent alarm was activated, a surveillance camera immediately began to take pictures of the bank interior. At trial, Newsome was unable to identify appellant as the bank robber.

butt of a gun inside, and, when he placed his hand into the bag, he appeared to be holding the gun in her direction. She further said that, after she saw the gun, she became frightened and gave the man all of the money in her drawer. Kreamer described the bank robber as a white male wearing a red baseball cap and a loose-fitting, colored shirt that was buttoned down. Although she could not recall anything about his pants, she did notice that they had pockets on the back. She testified that the robber had gray hair, "salt and pepper type," and appeared to be wearing a wig in a darker color than his natural hair; he wore sunglasses with yellow lenses and his mustache was a "salt and pepper" gray. She noticed that he had unusually large feet, was about six feet tall, and weighed around 230 to 250 pounds. She not only identified appellant in court as the man who robbed her, but she had also identified him as the bank robber on September 1, 1994, at a police lineup.

As soon as the alarm was activated, a computer in the Communications Unit of the Kansas City, Missouri, Police Department (KCPD) automatically made a record of the incident. At trial, Jeane Rast, a supervisor in the Communications Unit, explained how Appellant told the investigating agents that he could not have robbed the bank, because he had been at work at that time at Bob Sight Lincoln Mercury in Kansas City, Missouri. He said he did not recall whether he was supposed to have been at work at 9:00 or 9:30 a.m., but, whatever time it was, he said he was there. During the search of appellant's house, FBI Special Agent Julie Christian found a Day-Minder type of calendar in appellant's living room. She opened it to August 16, and found a notation on the page, "10:00, Bob Sight."

the process worked. She testified that the call came in from the North American Savings Bank at exactly 9:40 a.m. on August 16, 1994.

FBI agents interviewed employees at Bob Sight Lincoln Mercury to attempt to verify appellant's alibi. Two of these employees testified at trial about their recollection of the morning of the robbery. Richard E. Barrett, a salesman at the car dealership, testified he believed that on the morning of August 16, he first saw appellant somewhere between 9:40 and 9:50 a.m. However, he also testified he did not look at his watch, and therefore he was not certain of the time.

Larry Frick, the new car sales manager at the car dealership, testified that he had hired appellant as a salesman during the week of August 8, 1994. Appellant was scheduled to arrive at the car dealership between 9:30 and 10:00 on the morning of August 16th. Frick testified that he was in a manager's meeting from around 9:00 a.m. until 9:45 a.m., after which he came out onto the sales floor and saw Barrett. Frick further testified that as he walked out of the meeting, he glanced at a clock, because he was expecting appellant to arrive. Frick testified the receptionist notified him at 9:56 a.m. that appellant had arrived and that thereafter he spent the greater part of the day, from 10:00 a.m. to 5:00 p.m., training appellant. He also noted that appellant never returned to work at the car dealership after that day.

That evening, Frick saw a report of the bank robbery on the television news, and the news program showed a surveillance photograph of the robber. Frick testified that he commented to his wife, "God, that guy looks familiar," but that he did not remember at the time whom the photograph resembled. After he was contacted by the FBI, he suddenly realized that the photograph looked like the man he had spent the day with on Tuesday, August 16, 1994--appellant.

FBI Special Agent Eric Gerstein performed a number of "test runs" in an unmarked FBI vehicle in order to determine approximately how long it would have taken a person to get from the bank to the car dealership. Agent Gerstein started the run approximately at the same time that the bank robbery had occurred, in order to avoid variations in traffic conditions. On the last four runs, when he reached the car dealership, he changed his pants and shoes and put on a necktie. He testified that the average time for the runs was 12 minutes and 18 seconds.

KCPD detectives recovered three items of physical evidence from a delivery man who had found them in a dumpster near the bank --- a red baseball cap with a "Hill's Science Diet" logo, leather gloves, and sunglasses with yellow lenses. In accordance with standard procedure, the items were taken to the property room of the KCPD.

On August 19, the day after appellant was arrested, he telephoned a friend, Michael D. Hall, of the Kansas City, Missouri, Fire Department, and asked him to contact Agent Christian. Appellant told Mr. Hall about the arrest and asked him to go to the FBI headquarters, look at the surveillance photographs, and tell the agents that they had the wrong man. Hall and appellant were co-workers and friends. Early in the summer of 1994, Hall helped appellant get a job at a local mortgage company, where Hall himself was working at the time. At trial, Hall testified that appellant was supposed to be at work at the mortgage company on Monday, August 15, 1994, but that he did not actually start work until Wednesday, August 17th. On Tuesday, August 16th (the day of the bank robbery), Hall called appellant to find out why he had not come to work that morning. Appellant told Hall that he had been at the car dealership that day and that he would report to work the following morning.

On Monday, August 22, Hall went to FBI headquarters to speak to Agent Christian. Hall believed at the time that by speaking to Agent Christian, he would be able to straighten things out. At trial, Hall identified government's exhibit No. 33 as the photographs he had been shown by Agent Christian. Hall testified that he believed that the person in the bank surveillance photograph was appellant, his friend.

After Agent Christian had shown Hall the photographs on August 22, 1994, she asked him if he had ever known appellant to own or wear a baseball cap. Hall immediately asked her if the cap had a "Hill's Science Diet dog food logo on it." Hall then said that he was color blind, so that he did not know if the cap was red or orange, but that he remembered seeing appellant with a bright-colored cap with a "Hill's Science Diet" logo. Both Agent Christian and Hall testified that it was impossible to read the logo on the cap in the original surveillance photographs viewed at the FBI that day. At the time Hall asked her about the cap, Agent Christian had not yet seen the baseball cap that had been recovered by the KCPD. Immediately after Hall left her office, Agent Christian telephoned Detective Day and asked him if he knew what logo was on the cap. Detective Day had not seen the cap because it had already been taken to the property room by the time he arrived at the bank. The following day, the KCPD detectives sent Agent Christian some Polaroid photographs of the red baseball cap with a "Hill's Science Diet" dog food logo.

FBI Special Agent Douglas A. Goodin, from the Special Photographic Unit of the FBI Laboratory in Washington, D.C., used image processing computer software to heighten the contrast in the surveillance photographs in order to make it possible to read the logo on the cap worn by the bank robber. Agent Goodin identified the logo as a "Hill's Science Diet" dog food insignia and testified that it was the same type found on the cap found by the KCPD at the bank. Agent Goodin also used a technique known as "photogrammetry" to analyze the...