U.S. v. McCoy, No. 87-3754

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore MARTIN, WELLFORD and NELSON; BOYCE F. MARTIN, Jr.; DAVID A. NELSON
Citation848 F.2d 743
Parties25 Fed. R. Evid. Serv. 1258 UNITED STATES of America, Plaintiff-Appellee, v. Lewis Arnold McCOY, Defendant-Appellant.
Docket NumberNo. 87-3754
Decision Date10 June 1988

Page 743

848 F.2d 743
25 Fed. R. Evid. Serv. 1258
UNITED STATES of America, Plaintiff-Appellee,
v.
Lewis Arnold McCOY, Defendant-Appellant.
No. 87-3754.
United States Court of Appeals,
Sixth Circuit.
Argued April 6, 1988.
Decided June 10, 1988.

Page 744

Hal R. Arenstein (argued), Cincinnati, Ohio, for defendant-appellant.

Robert Behlen (argued), Asst. U.S. Atty., Cincinnati, Ohio, for plaintiff-appellee.

Before MARTIN, WELLFORD and NELSON, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Lewis Arnold McCoy appeals his jury conviction for bank robbery in violation of 18 U.S.C. Sec. 2113(a). McCoy argues, among other things, that his defense was unfairly prejudiced by the admission into evidence of photographs taken at a lineup. While we believe that the district court improperly overruled McCoy's objection, we hold that this error was harmless. Therefore, we affirm.

On April 2, 1987, McCoy was indicted by a federal grand jury on three counts of bank robbery. The first count charged McCoy with the armed robbery of a bank in Middletown, Ohio on November 7, 1986. The second count charged McCoy with the unarmed robbery of the Forest Park, Ohio branch of the Central Trust Company on December 22, 1986. The third count charged him with the unarmed robbery of the same Forest Park bank on February 25, 1987.

McCoy asked the district court to conduct separate trials on each of the three counts. The court granted McCoy's motion in part and denied it in part. The district court ordered that the third count be tried separately because McCoy intended to offer an alibi defense to that charge, but the court ruled that the first and second counts were of the same or similar character and should be tried jointly. At the first trial, McCoy was acquitted of the February 1987 robbery charged in the third count. Following a subsequent trial, a jury adquitted McCoy of the November 1986 robbery charged in the first count, but the jury convicted him of the December 1986 robbery charged in the second count. McCoy now appeals that conviction.

First, McCoy claims that the district court's refusal to conduct separate trials on the first and second counts of the indictment compromised his right to a fair trial on the alleged offenses. McCoy contends that the joint trial prejudiced his defense because the jury may have viewed the evidence cumulatively, or because the jury may have improperly used evidence pertaining to one charge to infer that he was inclined to have committed the other crime. We are not persuaded.

Under Fed.R.Crim.P. 8(a), two or more offenses may be charged in the same indictment if the offenses "are of the same or similar character." Rule 14, however, authorizes the district court to order separate trials if it appears that the defendant or the government is prejudiced by a joinder of offenses. "A motion for severance pursuant to Rule 14 is committed to the sound discretion of the trial court." United States v. Wirsing, 719 F.2d 859, 864 (6th Cir.1983). We believe the district court did not abuse its discretion when it denied McCoy's motion to have the first and second counts tried separately. McCoy has failed to cite specific instances where the joint trial may have prejudiced his defense. His general allegations are clearly not sufficient

Page 745

to outweigh the public's interest in avoiding multiple litigation.

McCoy next claims that his rights under the fourteenth amendment were violated. He argues that the prosecuting attorney unconstitutionally exercised a peremptory challenge to excuse a potential juror solely on the basis of race.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that purposeful racial discrimination in the selection of a jury violates a defendant's right to equal protection. In order to establish a prima facie case, the defendant must prove three things: 1) that the defendant is a member of a cognizable racial group; 2) that the prosecutor has exercised peremptory challenges against members of the defendant's race; and 3) that the relevant circumstances raise an inference of purposeful discrimination. If the defendant can make out a prima facie case, the prosecutor must then present a neutral explanation for having excluded the jurors.

During voir dire, the prosecuting attorney excused a prospective juror who was black. At a sidebar conference, McCoy's attorney contested this challenge, arguing that this woman was being dismissed solely because she was a member of the same racial group as McCoy. The prosecuting attorney responded that she was being dismissed because she was unemployed.

The record substantiates the prosecuting attorney's neutral explanation. The United States exercised two peremptory challenges. The prosecution challenged a young black woman and a young white man. Both prospective jurors, though, were unemployed. McCoy was also young and unemployed, and the prosecution believed that these two individuals might improperly sympathize with McCoy. Although three white jurors who were not challenged also did not work, the prosecution could reasonably assume that they, a 63-year-old male, a 62-year-old male, and a 41-year-old married female, would not excessively sympathize with McCoy. Moreover, two blacks who were employed did serve on the jury.

McCoy also claims that he was denied a fair trial when photographs of a lineup were admitted into evidence. During the trial, the prosecuting attorney elicited testimony from several witnesses concerning a lineup. Although McCoy did not challenge the fairness of the lineup, the prosecution offered the photographs as evidence in order to show that the lineup was not improperly suggestive. McCoy argues that, because he and the other individuals were dressed in "prison garb," the photographs suggest that he was incarcerated and their admission unfairly prejudiced his defense. McCoy compares this situation to the admission of "mug" shots, a practice which "has been strongly condemned ... as effectively eliminating the presumption of innocence and replacing it with an unmistakable badge of criminality." Eberhardt v. Bordenkircher, 605 F.2d 275, 280 (6th Cir.1979). McCoy's attorney advanced this argument at trial, but the district court overruled his objection.

Fed.R.Evid. 403 provides that evidence, though relevant, "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." The advisory notes which follow this rule define "unfair prejudice" as "an undue tendency to suggest decision on an improper basis, commonly, though not...

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47 practice notes
  • Besser v. Walsh, No. 02 Civ. 6775 (LAK) (AJP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 10, 2003
    ...States v. Valley, 928 F.2d 130, 136 (5th Cir. 1991); United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988); United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988); Owens v. Portuondo, 1999 WL 378343 at 66. See also, e.g., Davidson v. Harris, 30 F.3d 963, 965 (8th Cir. 1994) ("`In t......
  • U.S. v. Lopez-Medina, No. 05-5891.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 2006
    ...in particular, are highly prejudicial, and their visual impact can leave a lasting impression on a jury. See United States v. McCoy, 848 F.2d 743, 745-46 (6th Cir. 1988). Furthermore, the prosecutor referred to Jackson as a "multi-convicted drug felon" and a "multi-convicted cocaine dealer"......
  • Mitchell v. Rees, Nos. 95-6232
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 12, 1997
    ...the criminal defendant, 476 U.S. at 96, 106 S.Ct. at 1722 (setting forth the prima facie case, for Batson Step 1); United States v. McCoy, 848 F.2d 743, 745 (6th Cir.1988) (same), subsequent opinions hold that the inquiry is whether a potential juror was excluded because of his race, regard......
  • Riley v. Taylor, No. 98-9009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 28, 2001
    ...States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991); United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988); United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988); United States v. Lewis, 837 F.2d 415, 417 n.5 (9th Cir. 10. Batson, 476 U.S. at 98 n.21. 11. This case is very differen......
  • Request a trial to view additional results
47 cases
  • Besser v. Walsh, No. 02 Civ. 6775 (LAK) (AJP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 10, 2003
    ...States v. Valley, 928 F.2d 130, 136 (5th Cir. 1991); United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988); United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988); Owens v. Portuondo, 1999 WL 378343 at 66. See also, e.g., Davidson v. Harris, 30 F.3d 963, 965 (8th Cir. 1994) ("`In t......
  • U.S. v. Lopez-Medina, No. 05-5891.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 2006
    ...in particular, are highly prejudicial, and their visual impact can leave a lasting impression on a jury. See United States v. McCoy, 848 F.2d 743, 745-46 (6th Cir. 1988). Furthermore, the prosecutor referred to Jackson as a "multi-convicted drug felon" and a "multi-convicted cocaine dealer"......
  • Mitchell v. Rees, Nos. 95-6232
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 12, 1997
    ...the criminal defendant, 476 U.S. at 96, 106 S.Ct. at 1722 (setting forth the prima facie case, for Batson Step 1); United States v. McCoy, 848 F.2d 743, 745 (6th Cir.1988) (same), subsequent opinions hold that the inquiry is whether a potential juror was excluded because of his race, regard......
  • Riley v. Taylor, No. 98-9009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 28, 2001
    ...States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991); United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988); United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988); United States v. Lewis, 837 F.2d 415, 417 n.5 (9th Cir. 10. Batson, 476 U.S. at 98 n.21. 11. This case is very differen......
  • Request a trial to view additional results

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