U.S. v. Myers, 76-1489

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation550 F.2d 1036,42 A.L.R.Fed. 855
Docket NumberNo. 76-1489,76-1489
Parties, 1 Fed. R. Evid. Serv. 1389 UNITED STATES of America, Plaintiff-Appellee, v. Larry Allen MYERS, Defendant-Appellant.
Decision Date15 April 1977

Richard A. Lazzara (Court-appointed), Tampa, Fla., for defendant-appellant.

John L. Briggs, U.S. Atty., Jacksonville, Fla., Terry Smiljanich, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

CLARK, Circuit Judge:

Larry Allen Myers challenges the validity of his federal bank robbery conviction. He contends that the district court committed reversible error when it (1) refused to strike the testimony of alibi rebuttal witnesses whose identities were not disclosed before the trial, (2) admitted evidence indicating that Myers had previously been convicted of armed bank robbery, and (3) gave the jury a flight instruction that lacked sufficient evidentiary support. We agree, and therefore we reverse the decision of the district court. 1

On June 13, 1974, at approximately two o'clock in the afternoon, a branch of the First Federal Savings and Loan Association of Largo, located in Clearwater, Florida, was robbed by a lone gunman. He escaped with an estimated $1500. After changing cars at a nearby motel, the robber disappeared. There is no dispute about how the robbery was committed; the central issue in this case, despite two eye witnesses and hundreds of still photographs taken by an automatic camera, is by whom. The government has proceeded on the theory that it was Myers who entered the bank brandishing a revolver, ordered a teller to place the contents of her cash drawer in a flimsy brown paper bag, and fled. Myers has steadfastly maintained that it was not.

On September 13, 1975, a federal grand jury charged Myers with three counts of violating 18 U.S.C.A. § 2113(a), (b) & (d) (Supp.1976). The government's task in prosecuting Myers on these charges was complicated when a friend of Myers' named Dennis Coffie, who bears a remarkable physical resemblance to Myers, pled guilty to having been the lone gunman in the Florida robbery. 2 A superseding indictment consolidating the Florida charges into one count was returned against Myers on August 13, 1975. Since then Myers has been tried twice. The first trial ended with the declaration of a mistrial after the jury announced its inability to reach a verdict. A fortnight later, a second jury found Myers guilty as charged. The district court sentenced him to ten years' imprisonment on February 17, 1976.

Nondisclosure of Alibi Rebuttal Witnesses

Myers' primary argument on this appeal is that the district court committed reversible error when it refused to strike the testimony of the witnesses on whom the government relied to discredit his alibi defense. In order to properly assess the merit of this contention, it is necessary to examine in detail some of the circumstances surrounding the first and second trials.

Prior to the first trial, the government served Myers with a written demand for notice of his intent to assert an alibi defense, pursuant to Rule 12.1 of the Federal Rules of Criminal Procedure. 3 Myers responded on December 23, 1975, indicating that he did intend to offer an alibi defense, and named Ronald Akers, Marlin Downey, and Coffie as his proposed alibi witnesses. The following day the government filed a document styled "Government's Response to Notice of Alibi Defense," in which it listed two tellers from the robbed bank and Janice Johns 4 as the witnesses on whose testimony it planned to rely in attempting to establish Myers' presence at the scene of the robbery. It further stated:

Names and addresses of other witnesses to be relied on to rebut testimony of defendant's alibi witnesses shall be made known to defendant as they are ascertained by the Government under its continuing duty pursuant to the Rule.

Neither Myers nor the government ever supplemented their witness lists.

At the first trial Myers used all three of his proposed witnesses in attempting to establish his alibi defense. Coffie testified that he committed the Florida robbery by himself, and Downey stated that on the afternoon of the robbery he had encountered Myers at Disneyworld, an amusement park located approximately 80 miles from Clearwater. Despite the importance of their testimony, the fate of Myers' alibi defense rested largely on the testimony of Ronald Akers. Akers testified that he and Myers had spent the entire afternoon of June 13, 1974 the day on which the robbery occurred at Disneyworld, in the company of two girls whom Akers had met the previous evening. Akers explained that he was certain of the date because the girls had to catch a United Airlines flight to Detroit on Saturday, June 15, 1974. He said that he remembered their airline, destination, and date of departure, because he had seen their tickets and because he drove them to the Tampa airport on Saturday morning.

During the week following the first trial, the government investigated Akers' story. On the day before the defense began to present its evidence in the second trial, the United States Attorney prosecuting the case contacted Myers' counsel and suggested that he warn his witnesses against perjuring themselves. He did not mention the possibility that the government might call additional witnesses at the second trial.

The testimony of Coffie, Akers, and Downey at the second trial was substantially the same as it had been at the first. But in reply the government called four witnesses not listed in its response to Myers' notice of his intent to offer an alibi defense, whose statements were designed to discredit Akers' testimony. One of them was Robert Labrenz, an employee of United Airlines. He testified that United had no flight from Tampa to Detroit on June 15, 1974, but that other airlines had such flights. The other three witnesses, Patricia Coogle, Raymond LaBranch, and Roy Pruitt were all employees of a car dealership in Tampa, Florida. Their combined testimony indicated that Akers had been employed at the same car dealership as a mechanic, and had worked 48 hours during the week of June 10, 1974. This was inconsistent with Akers' testimony that he had been unemployed during June of 1974, and tended to conflict with his statement that he had not worked on Thursday and Friday of the week of June 10, 1974.

Before the case was given to the jury, defendant's counsel moved for a mistrial, and, in the alternative, for an order striking the testimony of the four new government witnesses, on the grounds that their names had not been disclosed prior to trial as required by Rule 12.1. The district court denied both motions. It held, first, that the government had not violated the rule, and second, that if it had, good cause existed to grant the government an exemption from the requirements of sections (b) and (c).

Rule 12.1(a) of the Federal Rules of Criminal Procedure requires a defendant to disclose, upon receipt of a written government request, whether he intends to offer an alibi defense, the place where he claims to have been at the time the alleged offense was committed, and the names and addresses of the witnesses upon whom he intends to rely in attempting to establish his alibi. Section (b) of the Rule requires reciprocal disclosure of witnesses unearthed by the government, 5 and section (c) makes the duty to disclose a continuing obligation for both parties. Section (e) authorizes the district court to excuse a party from compliance with the disclosure requirements upon a showing of good cause, and section (d) empowers him to penalize unexcused noncompliance by excluding the testimony of undisclosed witnesses. At issue here is the scope of the government's duty to disclose under sections (b) and (c).

The language of section (b) appears to require disclosure of two types of witnesses: (1) those relied upon "to establish the defendant's presence at the scene of the alleged offense", and (2) "any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses." We think that all four of the undisclosed government witnesses fall within the class delineated by the second phrase. Rebuttal evidence is evidence introduced to refute, contradict, or disprove evidence adduced by an adverse party. Since the testimony of the undisclosed witnesses was concededly introduced for the purpose of showing that Akers' testimony concerning his activities during the week of June 10, 1974, was false, they are alibi rebuttal witnesses within the meaning of Rule 12.1(b). Accordingly, the government had a continuing duty under section (c) to notify the defendant of their existence.

The government's duty to disclose was not discharged by the oblique warning which counsel for the government gave Myers' attorney orally on the eve of the second trial. Section 12.1(b) expressly requires "a written notice stating the names and addresses of the witnesses upon whom the government intends to rely."

The government's position is that section (b) requires disclosure only of witnesses who actually place the defendant at the scene of the crime, and that it does not apply to the undisclosed witnesses in this case, because they were used solely to impeach the credibility of one of the defendant's alibi witnesses. It argues that when section (b) is read with section (d), which gives the district courts the discretionary power to "exclude the testimony of any undisclosed witness offered by (either) party as to the defendant's absence from or presence at, the scene of the alleged offense", it is at best unclear whether section (b) defines two classes of witnesses whose identities must be divulged, or merely one. In view of this alleged uncertainty in the language of the Rule, the government urges that section (b) should be construed to...

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