U.S. v. Poindexter, 85-1951
| Decision Date | 12 September 1986 |
| Docket Number | No. 85-1951,85-1951 |
| Citation | 803 F.2d 722 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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. RUDOLPH POINDEXTER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KRUPANSKY, NELSON and RYAN, Circuit Judges.
Defendant Rudolph Poindexter appeals from his jury conviction on two counts of armed bank robbery, 18 U.S.C. Sec. 2113(a)(d), arising out of two robberies of the same branch of the Michigan National Bank in Warren, Michigan on November 2, 1982, and April 15, 1984. Poindexter maintains that the district court should have granted a mistrial because of the prejudice he suffered from witnesses and jurors seeing him in handcuffs prior to trial. He also maintains that the court committed reversible error when it allowed certain rebuttal testimony, failed to give part of a requested jury instruction regarding identification, and improperly curtailed defendant's right of cross-examination.
Because whatever error the trial court committed did not affect defendant's substantial rights, or create a substantial risk of misidentification, the judgment of the district court is affirmed.
Poindexter claims that a substantial likelihood of misidentification resulted when several prosecution witnesses, prior to testifying that Poindexter was the person who robbed them, saw Poindexter in handcuffs and being escorted by United States marshals. Defendant's motion for a mistrial was denied by the district court.
The appropriate standard for review is set forth in United States v. Hamilton, 684 F.2d 380, 383 (6th Cir. 1982):
"'A defendant is denied due process only when the identification evidence is so unreliable that its introduction renders a trial unfair."' Smith v. Perini, 723 F.2d 478, 482 (6th Cir. 1983), quoting Summit v. Bordenkircher, 608 F.2d 247, 253 (6th Cir. 1979), citing Manson v. Brathwaite, 432 U.S. 98 (1977).
Here, three of the government's witnesses made in-court identifications of the defendant; only their testimony could have been affected by seeing the defendant in handcuffs prior to trial. Pamela Kast, a teller during the 1982 robbery, testified that one of the robbers was a black man, about 50 years old, weighing 140 pounds, with a slight mustache, a shiny afro hairstyle, and wearing sunglasses. She testified that the night before the robbery she had attended a seminar concerning bank robberies, and, as a result, paid close attention to the faces of the robbers. She stated that she had observed the robber earlier in the day when he inquired about opening an account, and again when he returned to commit the robbery. She observed the defendant on that occasion for a period of about two minutes and forty-five seconds. About six months after the robbery, she was shown a photographic array of six black males, which did not include the defendant, and she stated that none of the individuals in the photographs committed the robbery. Under the Neil v. Biggers standard, Kast's identification of the defendant was not unreliable, and rested on a basis independent of her seeing Poindexter in handcuffs prior to trial.
Susan Doroucher, another teller who was in the bank during the 1982 robbery, testified that she observed the robbers a few minutes before the robbery. She stated that she observed one of them from a distance of two feet, and described him as a black man in his late 30's, small, with a mustache, receding hairline, and wearing aviator sunglasses. Six months after the robbery, she too was shown a photo array of six black males, not including the defendant, and she stated that none of them committed the robbery. When asked if she had seen the defendant in the hallway, escorted by marshals, she stated that she saw someone, but did not identify him as the defendant. Doroucher's testimony is not unreliable, and it was unaffected by any impermissibly suggestive taint.
Mary DesMarais, a teller during both the 1982 and 1984 robberies, saw the robber early in the day of the 1982 robbery when he inquired about opening an account. During the 1984 robbery, she recognized one of the robbers as having committed the 1982 robbery. She described him as a black man in his late 30's with a receding hairline, who was wearing dark sunglasses and a suit. She identified the defendant in a photo array as the person who robbed her in 1982 and 1984. DesMarais was not questioned about whether she had seen the defendant in handcuffs prior to the trial, thus there is no basis on which to find that her identification of the defendant was tainted.
We conclude that defendant has made no showing that there was a substantial likelihood of misidentification by any of the witnesses who may have seen him in handcuffs.
Defendant contends that a mistrial should have been declared when some of the jurors observed the defendant in handcuffs being escorted down a hallway by the marshals. When the defendant moved for a mistrial, the district judge questioned the jury and found that three jurors had seen Poindexter in handcuffs. The judge asked them if having seen Poindexter in handcuffs would affect their ability to sit as fair jurors, and they answered in the negative. The court then instructed the jurors to ignore the fact that they had seen the defendant in handcuffs and, if it affected their ability, he wanted to know. None of the jurors responded, and the court denied defendant's motion for a mistrial.
Defendant cites no authority for the proposition that the observation of a defendant in handcuffs results in a per se due process violation. In United States v. Carr, 647 F.2d 867, 868 (8th Cir. 1981), quoting United States v. Robinson, 645 F.2d 616, 617 (8th Cir. 1981), the court stated:
"[B]rief and inadvertent exposure of defendants to jurors is not inherently prejudicial; the defendant must bear the burden of affirmatively demonstrating prejudice."
In light of the record of the court's questioning of the jurors, Poindexter has shown no prejudice. The district court did not abuse its discretion in refusing to grant defendant's motion for a mistrial.
Defendant contends that the district court committed reversible error in allowing the government to present, in rebuttal, the testimony of Nona Williams, co-defendant Michael Hawkins' girlfriend. Hawkins had pled guilty prior to trial. Williams was called to rebut defendant's testimony that he did not know the co-defendant, Michael Jack Hawkins, or anyone named Nona Williams. Ms. Williams testified that she knew Michael Hawkins, and that Hawkins had introduced her to Poindexter. She identified both Hawkins and Poindexter in the government's exhibit of surveillance pictures taken in the bank at the time of the robbery, and identified Poindexter in court. While the defendant maintains that Williams' testimony was identification testimony, properly suited for the government's case in...
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