U.S. v. McClain
| Decision Date | 25 May 1995 |
| Docket Number | No. 94-3192,94-3192 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff - Appellee, v. Allen Randy McCLAIN, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: KENNEDY and NORRIS, Circuit Judges, and TAYLOR, District Judge *.
Defendant-Appellant Allen Randy McClain ("McClain") appeals his conviction and sentencing in the United States District Court for the Northern District of Ohio. For the reasons stated below, we AFFIRM.
On February 6, 1992, two men robbed the University Park Branch of National City Bank in Akron, Ohio. Tellers Lisa Cook and Robyn Moore, acting manager Janet Esterle, as well as customers Philip Bibey and Thomas Doyle were present. One of the robbers brandished a gun and hit Doyle on the head with its handle. The robbers escaped with $12,472.
On April 6, 1992, a second robbery was executed by only one robber at this same branch. Tellers Moore and Cook were again present, with teller Jeannie Thornburg and manager Patty Kent, but without customers. This robber also brandished a gun, and escaped with $14,280.72.
Appellant McClain later became a suspect and on June 2, 1992, Akron Police and FBI Special Agent Michael Daugherty went to a Glenwood Avenue address in Akron where McClain was known to be an occasional visitor. They knocked and were admitted by the owner, Collette Myers, who advised that McClain was not there. However, because of mirrors at the top of the stairwell, the officers were able to observe a person at the head of the stairs. The officers saw the person step away and heard thumping noises, after which McClain came downstairs and was arrested. Officers then conducted a search of the house, to which the owner consented, and discovered two firearms in a brown pouch under the upstairs bathroom sink.
McClain was indicted on two counts of armed bank robbery, in violation of 18 U.S.C. Sec. 2113 (a) and (d), two counts of carrying a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c), and one felon-in-possession of a firearm count, in violation of 18 U.S.C. Sec. 922(g)(1). The jury convicted him on all counts, and he was sentenced, pursuant to the Armed Career Criminal Act ("ACCA"), to a term of imprisonment for 188 months on Counts 1, 3, and 5, a consecutive term of 5 years on Count 2 and a consecutive term of 20 years on Count 4. He filed a timely appeal of which this court has jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. 3742(a)(3)(A).
Of numerous errors claimed, McClain first argues that because the government willfully failed to disclose Exhibits 11 and 30 in discovery, he was substantially prejudiced when the district court erroneously admitted Exhibit 11 at trial. We review matters of discovery and evidentiary rulings of the district court for abuse of discretion. United States v. Bartle, 835 F.2d 646, 649 (6th Cir. 1987), cert. denied, 485 U.S. 969 (1988). Exhibit 11 is a color photograph of McClain, which had been taken in June, 1992, after his arrest in this matter, and which demonstrated that McClain's hair was black at the time of the arrest. Exhibit 30 is a black and white photograph of McClain, taken a few days later. Exhibit 22 is a photographic array, which includes an enlargement of exhibit 30. This array, including Exhibit 30, was produced in discovery. At McClain's September, 1992 trial, however, his hair was gray, and he wore a long moustache with gray ends. Prosecution witnesses described the armed bank robber at the February and April robberies as having black hair, and McClain's counsel cross-examined the first five of them with the suggestion that their identification of McClain must be incorrect, as they had described a robber with no gray hair, other than his moustache. On the third day of trial, the government presented Exhibits 11 and 30 to Agent Daugherty during direct examination, to show that McClain's hair was not gray at the time of arrest, and that he then wore a short moustache. Over defense objection the court admitted Exhibit 11, although the government had not produced it during pre-trial discovery, despite McClain's requests pursuant to Rule 16 of the Federal Rules of Criminal Procedure. A black and white copy of that photograph, however, had been furnished.
McClain argues that the court's admission of this photograph violated his Fifth Amendment right to a fair trial, because the government had willfully withheld the exhibits. He argues that, if the evidence had been provided as required, his defense counsel would not have pursued this avenue of misidentification. The evidence does not support a claim of willfulness, however. The government had not intended to use either Exhibit 11 or Exhibit 30 in its case-in-chief, and its first five witnesses had already identified McClain in the courtroom as the robber despite his gray hair and longer moustache. Although McClain also argues that he was unfairly prejudiced, having been "seduced" into a defense which the government then rebutted using previously withheld evidence, he had been provided a black and white copy of the exhibit, and such a defense could have been seen as problematic, at that time. Moreover, because this evidence was of strong probative value on an issue not raised until his counsel's cross-examinations, any prejudice sustained was not unfair.
McClain also contends that admission of Exhibit 11 deprived him of fundamental due process of law, regardless of the government's good faith, on the basis of Brady v. Maryland, 373 U.S. 83, 87 (1963). In Brady, however, the Court held that the prosecution may not withhold requested evidence material either to guilt or to punishment which is favorable to an accused. As these photographs were not evidence favorable to the accused, Brady is inapposite, here.
Although McClain also argues that reversal is mandated by the government's noncompliance with Rule 16, 1 such a failure to comply is not grounds for reversal unless the nondisclosure has prejudiced the defendant's substantial rights. United States v. Brown, 871 F.2d 80, 82 (8th Cir. 1989). Here, such prejudice did not occur, and we find no abuse of discretion in admission of the photographs.
Appellant also claims error in admission of Government Exhibits 10(a) and 10(b), which were photographs of head wounds sustained by bank customer Doyle when struck by Appellant's gun handle. Appellant argues that these photographs were unduly prejudicial and without probative value. We review this ruling for abuse of discretion. United States v. Brady, 595 F.2d 359, 361 (6th Cir.), cert. denied, 444 U.S. 862 (1979). A court may exclude relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice...." Fed.R.Ev. 403. In reviewing the court's ruling, we must view the evidence in the "light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." Brady, 595 F.2d at 361 (citations omitted). In Brady, we determined that the district court did not err in admitting photographs of the bodies of three victims in a pool of blood, where the photographs were highly probative on the issue of whether they were killed in the course of a bank robbery. Id. at 361-362. While we recognized that the photographs were not "absolutely necessary" to prove that element of the crime, we nevertheless determined that their probative value outweighed any potential prejudice. Id. at 362.
In this case, Doyle testified that one of the robbers hit him on the head with a pistol, resulting in injury. The district court determined that the pictures were not excessively "gory," and were relevant to the proofs required of force and violence. The head wounds from blows with this weapon also provide essential corroboration of the testimony of all eyewitnesses that McClain indeed possessed a firearm during these robberies. That fact is a contested one here. The wounds photographed could not have been inflicted with the toy gun which Appellant now argues was equally probable, on the evidence. Moreover, no reasonable robber would have attempted to administer such a head blow with the butt of a mere toy gun. On this record, the probative value of these photographs outweighed whatever unfair prejudice they bore, and the court did not abuse its discretion in their admission.
McClain next claims error in the district court's denial of his motion to suppress the identification evidence of tellers Moore and Thornburg, because the photo arrays shown them were so impermissibly suggestive as to cause a substantial likelihood of irreparable misidentification. We review the denial of a motion to suppress identification evidence under the "clearly erroneous" standard. United States v. Hamilton, 684 F.2d 380, 383 (6th Cir.), cert. denied, 459 U.S. 976 (1982).
The burden rests upon Appellant to demonstrate that the courtroom identifications were based upon an impermissibly suggestive pre-trial procedure. See United States v. Causey, 834 F.2d 1277, 1286 (6th Cir. 1987), cert. denied, 486 U.S. 1034 (1988). To make such a showing, Defendant must demonstrate that: (1) the police performed an unduly suggestive photographic lineup, and (2) the unfair suggestiveness was conducive to a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). To determine whether a photographic lineup was unduly suggestive, "a court must consider several factors, including the size of the...
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