U.S. v. Morris

• Decision Date: 11 June 1981
• Docket Number: 80-7444,Nos. 80-7443,s. 80-7443
• Citation: 647 F.2d 568
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Elwood MORRIS, Jr., Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 568

647 F.2d 568

UNITED STATES of America, Plaintiff-Appellee, v. James Elwood MORRIS, Jr., Defendant-Appellant.

Nos. 80-7443, 80-7444.

United States Court of Appeals,

Fifth Circuit.

Unit B

June 11, 1981.

Grace E. Evans, Asst. Federal Public Defender, Augusta, Ga., for defendant-appellant.

J. Michael Faulkner, Asst. U. S. Atty., Augusta, Ga., Melissa S. Mundell, Asst. U. S. Atty., Savannah, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before DYER, TJOFLAT and FAY, Circuit Judges.

FAY, Circuit Judge:

Defendant-appellant, James Morris, seeks reversal of his conviction by a jury on two separate indictments of bank robbery. As grounds for reversal, appellant asserts improper joinder of counts, improper instruction as to reasonable doubt, improper admission of certain money found in appellant's possession, improper charging by the trial court as to possession of recently stolen property, failure to obtain a second search warrant upon discovering a locked box while executing an initial search warrant at appellant's residence, and failure to present sufficient facts to support the issuance of the initial search warrant. Finding appellant's assertions meritless, we affirm both convictions.

FACTS

In the early afternoon of January 10, 1980 the Augusta Federal Savings and Loan Association was robbed of $1,934.50 by a lone black male wearing a green army fatigue jacket and dark pants. He presented to the bank teller a small automatic weapon and demanded money. After receiving the money, the robber fled to a nearby automobile and departed. Witnesses identified the automobile as a red Chevrolet Impala, approximately the 1969 model.

On January 28, 1980 the Georgia Federal Savings and Loan Association, also in Augusta, Georgia, was robbed of $2,678.00 by a lone black male wearing an army fatigue jacket, blue jeans, a ski cap, and sunglasses. The robber presented to the teller a small black automatic weapon, similar to that used in the earlier robbery, and demanded money. In this case, no one observed the robber's getaway.

The tellers at both banks gave similar descriptions of the robber to investigators, except that he was described as being clean shaven by the teller at the first bank and as having a moustache by the teller at the second bank. On January 31, 1980 the investigating agent spotted a reddish colored 1969 Chevrolet Impala parked at appellant's house bearing a license plate number very similar to that which a witness indicated was on the car the robber used to flee the scene of the first robbery. The following day the same agent returned to appellant's home with a search warrant and executed a search of the premises. The agent found $1,150 in cash in a locked jewelry box, an army fatigue jacket, a box of .25 caliber ammunition and two dark ski caps. That same afternoon appellant was arrested by FBI agents while driving the same car seen in front of his home the previous day. At the time of his arrest the agents took a loaded .25 caliber automatic pistol and a maroon ski cap from the appellant.

Appellant was indicted in February 1981 on two separate counts of robbing a federally insured savings and loan association, in violation of Title 18 U.S.C. § 2113(a) and (d). Pursuant to the government's motion and over defense counsel's objection, the district judge ordered that the two indictments be tried together. After a trial, during which appellant was positively identified as the robber of the Augusta Federal Savings and Loan, appellant was convicted on both counts and sentenced to imprisonment of fifteen years for each count, sentences to run concurrently.

CONSOLIDATION OF THE INDICTMENTS

Appellant argues that the District Court 491 F.Supp. 222 erred in failing to order a severance of the counts under Rule 14 of the Federal Rules of Criminal Procedure, on the grounds that the joinder of those counts, ¹ under Rule 8 of the Federal Rules of Criminal Procedure, was prejudicial to the appellant. It is significant to note that appellant does not assert that joinder of the counts would have been impermissible under Rule 8 and that, accordingly, the requirements of Rule 13 were not satisfied. ² The only question which we must determine, therefore, is whether the appellant was in fact prejudiced by the joint trial of the two counts. In ruling on a motion for severance, the trial judge must weigh the likelihood of prejudice against the interests of judicial economy. United States v. Wolford, 614 F.2d 516, 518 (5th Cir. 1980); United States v. Cuesta, 597 F.2d 903, 919 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979). Because that determination is discretionary, this Court will disturb the trial court's ruling only when the appellant can show that the trial court abused its discretion. United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir. 1980). In order to demonstrate abuse of discretion, the defendant bears a heavy burden of showing "specific and compelling" prejudice. United States v. Morrow, 537 F.2d 120, 138 (5th Cir. 1976), ³ cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977).

We have thoroughly reviewed the entire record in this case and find it totally lacking of any suggestion that the appellant was prejudiced by the joint trial of the two counts. Any inference that the jury might otherwise have drawn, from the possible cumulation of evidence, that appellant was a "bad guy," was totally negated by the thorough and oft repeated cautionary instruction that the jury should consider the evidence going to each count separately. At the close of the trial of the first count the district judge properly explained to the jury that that was the totality of the evidence they could consider on that count and that they should consider what they were about to hear going to the second count independent of what they had previously heard. The court repeated this several times during the trial of the second count and thoroughly explained it twice again during his final instructions to the jury. We think this adequately rebuts appellant's suggestion that prejudice must be inferred from the fact of the joint trials. ⁴

Though we think the assertion may be meritorious, we do not reach the government's contention that joint trial was not prejudicial because evidence from the first trial would have been admissible at a separate second trial under Rule 404(b) of the Federal Rules of Evidence.

THE "REASONABLE DOUBT" INSTRUCTION

Appellant asserts that the trial court's definition of "reasonable doubt" constitutes reversible error under the decision of this Court in United States v. Baptiste, 608 F.2d 666 (5th Cir. 1979). We find no merit in that contention and, accordingly, hold that the trial court's instruction on reasonable doubt was proper.

In Baptiste, we held that it was error to charge the jury that "(p)roof beyond a reasonable doubt is the kind of proof that you would be willing to rely and act upon in the management of your own personal affairs." 608 F.2d at 688. That charge, we concluded, impermissibly lessened the government's burden of proof in a criminal prosecution. The charge in this case, although similar to that in Baptiste, included qualifying language that we conclude rendered it adequate. The court in this case charged the jury that "(p)roof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs." Transcript at 235. The District Court added the language thought critical to this Court, and omitted in Baptiste, "without hesitation." United States v. Tobin, 576 F.2d 687, 694 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978). ⁵ Additionally, the trial court changed the Baptiste charge from "in the management of your own personal affairs" to "in the most important of your own affairs." We hold that these distinctions from the infirm Baptiste charge were sufficient to render the charge adequate. Appellant makes much of the fact that the charge differs from that which we have approved in United States v. Prince, 515 F.2d 564, 566 n.1 (5th Cir.), cert. denied, 423 U.S. 1032, 96 S.Ct. 563, 46 L.Ed.2d 406 (1975). See Tobin, supra; United States v. Turk, 526 F.2d 654, 659 (5th Cir.), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976). We are at a loss to understand how Prince supports appellant's position. It is true that in Prince the "cause a reasonable person to hesitate" language is framed in the affirmative, whereas the "act without hesitation" language in this case is framed in the negative. Such a distinction, however, is without substance. The operative word is "hesitate", not the tense in which it is used. See Tobin at 694. Moreover, the instruction given by the District Court here was superior to that in Prince in that, in Prince, the hesitation referred to "making a decision or in taking an important step in some serious matter in his own private affairs," whereas here the hesitation referred to "the most important of your own affairs." We think "most important" is a higher standard than "some serious". In any event, we conclude the jury was given a correct understanding of the concept of "reasonable doubt' as used in the parlance of criminal law.

ADMISSION OF $1,150 INTO EVIDENCE

Appellant urges that the trial court erred in admitting into evidence $1,150 cash found in his home during the conduct of a search pursuant to a search warrant. The money consisted of one $50 bill, fifty $20 bills, and one-hundred $1 bills. Appellant insists that there was nothing to link that money to the banks robbed. To the extent that none of it was "bait money" bearing serial numbers traceable to either bank, appellant is correct. There are two reasons, however, why appellant's basic premise is incorrect.

The money was admitted...