U.S. v. Phillips, s. 79-1321

• Decision Date: 24 October 1979
• Docket Number: 79-1322,Nos. 79-1321,s. 79-1321
• Citation: 607 F.2d 808
• Parties: UNITED STATES of America, Appellee, v. Arzell PHILLIPS, Jr., Appellant. UNITED STATES of America, Appellee, v. Dannie Mitchell WALKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 808

607 F.2d 808

UNITED STATES of America, Appellee, v. Arzell PHILLIPS, Jr., Appellant.

UNITED STATES of America, Appellee, v. Dannie Mitchell WALKER, Appellant.

Nos. 79-1321, 79-1322.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 10, 1979.

Decided Oct. 24, 1979.

Jewell Brown, Little Rock, Ark., for appellant, Phillips.

Manuel L. Pruitt, Little Rock, Ark., for appellant, Walker.

Richard M. Pence, Jr., Asst. U. S. Atty., Little Rock, Ark., for appellee, United States in both cases; W. H. Dillahunty, U. S. Atty., Little Rock, Ark., on both briefs.

Before BRIGHT, Circuit Judge, MARKEY, Chief Judge, ^* and HENLEY, Circuit Judge.

HENLEY, Circuit Judge.

These are appeals from judgments of conviction and sentences imposed by the United States District Court for the Eastern District of Arkansas following jury verdicts finding defendant Phillips and his co-defendant Walker guilty of aggravated robbery of the Wilmar branch of the Union Bank and Trust of Monticello, Arkansas in violation of 18 U.S.C. § 2113(a) and (d). The court sentenced defendant Phillips to twelve years imprisonment and sentenced defendant Walker to ten years imprisonment. We affirm.

The indictments charged that on or about October 26, 1978 defendant Phillips accompanied by defendant Walker committed the offense of aggravated bank robbery by taking by intimidation money from the Union Bank. Defendant Walker claimed that he did not participate in the bank robbery while defendant Phillips contended that he had no intent to rob the bank, but rather was compelled to commit the robbery by an alleged kidnapper of his three year old son. To help refute defendant Phillips' duress defense, the government introduced a handwritten note removed from defendant Phillips' wallet after he was arrested. The note appeared to be a checklist for a robbery, or at least it could be so interpreted. The note was taken from defendant Phillips after he turned himself in to the Little Rock office of the Federal Bureau of Investigation. When Phillips was placed under arrest an FBI agent conducted a search requiring defendant to take his personal property from his person and place it on a table. Somewhat later defendant's personalty was placed in an envelope and delivered to another agent who, outside the presence of the defendant, searched Phillips' wallet and removed the note. The district court admitted the note as having been lawfully obtained during a search and inventory incident to a lawful arrest. Defendant Phillips argues the note was inadmissible as having been taken in violation of his fourth amendment rights. We do not agree.

We note that in United States v. Matthews, 603 F.2d 48 (8th Cir. 1979), this court upheld a district court's admission into evidence of currency seized from defendant's billfold after his arrest. Earlier, in United States v. Swofford, 529 F.2d 119 (8th Cir. 1976), this court upheld the admission into evidence of seven slips of paper found in defendant's wallet after a delayed search of defendant's person at the FBI office following his lawful arrest. Both cases comported with recent Supreme Court precedent; for the Court has not only held that "in the case of a lawful custodial arrest a full search of the person is . . . an exception to the warrant requirement of the Fourth Amendment," and "a reasonable search under the Amendment," United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973); See United States v. Edwards, 415 U.S. 800, 804, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), but also that a search of arrestee's person incident to a lawful arrest does not violate the fourth amendment even if a substantial period of time has elasped between the arrest and subsequent taking of property. United States v. Edwards, supra, 415 U.S. at 807, 94 S.Ct. 1234. We thus conclude that the note taken from Phillips' wallet clearly was admissible in evidence.

Defendant Phillips further argues that the trial court abused its discretion by refusing to grant his motion for a continuance after he was surprised by the testimony of an expert witness. In a laboratory report, the expert allegedly said he could not identify the second figure with defendant Phillips in a photograph taken by bank surveillance cameras. At trial, however, the expert said the second figure with defendant Phillips was probably defendant Walker.

While there is a variation of sorts between the laboratory report and the testimony of the witness, that variation was fully...