U.S. v. Masterson, 75--1502

• Decision Date: 28 January 1976
• Docket Number: No. 75--1502,75--1502
• Citation: U.S. v. Masterson, 529 F.2d 30 (9th Cir. 1976)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Floyd MASTERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 30

529 F.2d 30

UNITED STATES of America, Plaintiff-Appellee, v.Floyd MASTERSON, Defendant-Appellant.

No. 75--1502.

United States Court of Appeals Ninth Circuit.

Jan. 28, 1976.

Nicholas R. Allis, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

William D. Keller, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

OPINION

Before MERRILL, CHOY and GOODWIN, Circuit Judges.

CHOY, Circuit Judge:

Floyd Masterson appeals from a conviction for bank robbery, in violation of 18 U.S.C. § 2113(a).We affirm.

Masterson was charged in a three-count indictment with the robbery of three banks, each count concerning a separate robbery.Trial was before a jury.At the close of the presentation of evidence, the court granted Masterson's motion for judgment of acquittal as to Count Two on the ground of insufficiency of evidence.The case then went to the jury, which found Masterson guilty as to Count One and not guilty as to Count Three.

Masterson contends that the trial court erred by refusing to: (1) grant the defense's motion to suppress evidence seized from Masterson's home at the time of his arrest; (2) give special jury instructions proposed by Masterson on eyewitness identification; and (3) permit Masterson's counsel to refer in his closing argument to surveillance photographs of the bank robbery charged in Count Two, which had already been dismissed.

Suppression of Evidence

Masterson was arrested at his home during the early morning hours of September 12, 1974.After announcing their presence and identities and requesting entry, police officers broke into the home to accomplish the arrest.Neither the arrest nor the entry was supported by a warrant.After he was found and arrested, Masterson requested some clothing in order to get dressed.Before permitting him to enter his bedroom and bedroom closet, police officers conducted a search of those areas for possible weapons.In plain view on the closet floor the officers saw a multi-colored shirt, denim jacket and pants, and a pair of shoes.These items resembled clothing worn by the offender or offenders in the various bank robberies, and they were seized.The only item relevant to the Count One robbery of which Masterson was convicted was the pair of shoes.Masterson moved to suppress the clothing seized, but the motion was denied by the trial court.

It is not disputed that the seizures were permissible if the officers were lawfully in the home to arrest Masterson.Chimel v. California, 395 U.S. 752, 762--63, 89 S.Ct. 2034, 23 L.Ed.2d 685(1969);Giacalone v. Lucas, 445 F.2d 1238, 1244--47(6th Cir.1971).Masterson, however, alleges that the entry into his home was improper.He argues that law enforcement authorities are required to have a warrant for such a non-consent entry of private premises to arrest someone, unless there is 'urgent need' or 'exigent circumstances,' and that there was no such justification here.SeeUnited States v. Phillips, 497 F.2d 1131, 1135(9th Cir.1974);Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385, 388--96(1970).

We need not consider that contention, however, since even if the entry was improper, the trial court's failure to exclude the evidence was harmless error.The evidence as to Count One, on which Masterson was convicted, included a positive identification by the branch assistant manager, a description by the victim teller that resembled, though did not exactly match, Masterson, identification of his fingerprint on the customer service counter where the robber stood and his palmprints at the victim teller's customer window, and a surveillance photograph of the robber.Of the clothing seized, only the shoes related to Count One: the Government claimed that they matched those shown in the photo.The jury acquitted Masterson on Count Three, the charge to which the clothing primarily related.The surveillance photo from that robbery showed the offender to be wearing a distinctively flowered shirt, a blue denim pants-and-jacket outfit, and patent leather shoes.The clothing seized matched this, and it was introduced, but the acquittal resulted anyway.We thus conclude that any error was harmless beyond a reasonable doubt.Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967).

Jury Instructions

Masterson requested that the court instruct the jury regarding eyewitness identification.A particular charge was offered, but defense counsel indicated that he would have been satisfied with any instruction that 'eye-witness testimony is a peculiarly dangerous type of testimony.'The trial court declined to single out eyewitness testimony and present such instructions, though the jury was charged to 'consider the witness' ability to observe the matters as to which he has testified and whether he impresses you as having an accurate recollection of these matters.'

Masterson cites for support--and drew the proposed instruction from--United States...