U.S. v. Porter

• Decision Date: 07 October 1987
• Docket Number: 87-1086,Nos. 87-1085,s. 87-1085
• Citation: 831 F.2d 760
• Parties: UNITED STATES of America, Appellee, v. Clark PORTER, Appellant. UNITED STATES of America, Appellee, v. Paul KOONCE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 760

831 F.2d 760

UNITED STATES of America, Appellee, v. Clark PORTER, Appellant.

UNITED STATES of America, Appellee, v. Paul KOONCE, Appellant.

Nos. 87-1085, 87-1086.

United States Court of Appeals,

Eighth Circuit.

Submitted June 11, 1987.

Decided Oct. 7, 1987.

Robert G. Lancaster, St. Louis, Mo., for appellant Koonce.

David R. Freeman, St. Louis, Mo., for appellant Porter.

James K. Steitz, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ROSS, Circuit Judge, ^* BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

ROSS, Circuit Judge.

Appellant Paul Koonce was convicted of armed robbery of a United States Post Office, 18 U.S.C. Sec. 2114 (1982), and possession of a firearm by a convicted felon, 18 U.S.C.App. Sec. 1202 (1982 & Supp. II 1984). Koonce received a prison sentence of 25 years on the armed robbery conviction and a consecutive 15 year sentence enhanced by the dangerous special offender statute, 18 U.S.C. Sec. 3575 (1982), for possession of the firearm.

Clark Porter was charged as a codefendant in the robbery and in a separate trial, Porter, age seventeen, was tried as an adult and was convicted of armed robbery of a post office, 18 U.S.C. Sec. 2114 (1982), and possession of an unregistered firearm, 26 U.S.C. Sec. 5861(d) and Sec. 5871. Porter received consecutive prison terms of 25 years and 10 years, respectively.

In their separate appeals, which are here consolidated, Porter and Koonce raise numerous issues which they contend require reversal of their convictions. Koonce argues that the district court made erroneous evidentiary rulings including the admission into evidence of 1) a shotgun and a pistol, 2) stamps and currency seized from Koonce's apartment, and 3) improper identification testimony. Koonce also argues that the government lacked sufficient evidence to prove his guilt beyond a reasonable doubt and finally that the court improperly enhanced his sentence under the dangerous special offender statute.

Clark Porter argues that the district court abused its discretion in transferring him to adult status, that the prosecutor unconstitutionally exercised his peremptory challenges, and finally, that the district court erred in refusing Porter's proffered jury instruction on coercion.

After carefully considering the briefs and arguments of the parties, we affirm the decision of the district court.

Background

The government's evidence establishes that on June 23, 1986, at approximately 4:30 p.m., Koonce and Porter entered the Jefferson Memorial Postal Station in downtown St. Louis, Missouri, Koonce wearing a "50/50 Car Wash" hat and Porter carrying a blue gym bag containing handcuffs and a sawed off shotgun. After initially pretending to fill out postal forms, Koonce pulled a .38 caliber pistol on postal employee, Marie McWilliams, while Porter aimed the shotgun at postal employee, Chester Ward. Ward and McWilliams were then forced into a back room and were handcuffed face down on the floor. While Porter and Koonce searched the premises for money, customers came in and were also forced into the back room and handcuffed on the floor with Ward and McWilliams. Unable to find the cash reserves, the defendants took books and rolls of stamps and a small amount of currency from the postal station and fled the scene.

After the robbery, postal inspectors initiated an investigation which soon targeted Clark Porter as a suspect. During a search of Porter's home, consented to by Porter's mother, the keys to the handcuffs used on the robbery victims were found in the ceiling of the bathroom. Porter was then arrested, and, after being advised of his constitutional rights, made a detailed statement to postal inspectors. Porter told the inspectors that the shotgun used in the robbery could be found in the basement of Koonce's apartment building, and that the currency and stamps taken during the robbery were in Koonce's apartment. The postal inspectors obtained a warrant to search for the shotgun, stamps and currency in Koonce's apartment and in the common basement area of the apartment building. The search revealed a sawed off shotgun in the basement and a small amount of stamps and currency in Koonce's apartment. Shortly thereafter, Koonce was arrested for the armed robbery of the postal station.

A juvenile transfer hearing was held on October 3, 1986 where it was determined that Clark Porter, seventeen years old at the time of the crime, was to be tried as an adult pursuant to 18 U.S.C. Sec. 5032. Following separate jury trials, Porter and Koonce were both convicted of armed robbery of a post office as well as firearm violations. In a consolidated appeal, Koonce and Porter now seek reversal of these convictions.

Discussion

I. Paul Koonce

A.

Koonce, first argues on appeal that the district court erred in failing to suppress evidence of the shotgun and .38 caliber pistol as the weapons used in the postal station robbery. Koonce contends the government failed to establish a proper evidentiary foundation demonstrating the relevance of the weapons produced at trial to the crime for which he was charged.

Ward and McWilliams, two of the robbery victims, testified that the shotgun and .38 caliber pistol introduced at trial were similar to the guns used by appellants during the robbery. Additionally, two witnesses by the names of Alonzo Jones and Issac Hale, Clark Porter's cousins, testified that on an earlier occasion they had seen the guns in a blue gym bag being used by Porter, the same bag carried by Porter during the robbery. Arthur Dye, a friend of Jones and Hale, also testified that the pistol he had seen in the blue gym bag had a broken hammer and he was able to identify the pistol introduced at trial in this manner. Finally, the shotgun introduced at trial was found in a common area of Koonce's apartment building.

An appellant bears a heavy burden under the appellate standard of review of a district court's evidentiary ruling. The trial court's ruling will not be reversed on appeal absent a showing that a clear abuse of discretion has occurred. United States v. Mays, 822 F.2d 793, 796 (8th Cir.1987). The district court in the instant case did not abuse its discretion by admitting the pistol and shotgun into evidence. Through the identification of the weapons by eyewitnesses, a sufficient foundation was laid to establish the relevance and probative value of this evidence.

B.

Koonce next contends that the stamps and currency seized from his home should have been suppressed at trial. Koonce argues that contrary to constitutional mandate the warrant authorizing the search and seizure did not state with particularity the items to be seized. Further, Koonce argues that the evidence of the stamps and currency was inadmissible due to the government's failure to establish the relevancy of this evidence to the robbery.

Pursuant to the search warrant, a roll of 52 twenty-two cent postage stamps, 14 one dollar bills and $1.17 in loose change were seized from appellant's home. The search warrant directed the seizure of a variety of items, including "currency" and "United States postage stock (stamps; envelopes; checks)." Appellant argues that this description was overly broad and violated the fourth amendment prohibition against "general warrants." See Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971).

The fourth amendment's specificity requirement has been construed by the courts to provide a practical margin of flexibility in the degree of specificity required in search warrant descriptions. The Eighth Circuit has stated that the standard used to determine the adequacy of the warrant description is one of "practical accuracy," United States v. Johnson, 541 F.2d 1311, 1313 (8th Cir.1976), and that the degree of specificity may necessarily vary according to the circumstances and type of items involved. Id. at 1314. "Where the precise identity of goods cannot be ascertained at the time the warrant is issued, naming only the generic class of items will suffice." Id. See also United States v. Peters, 791 F.2d 1270, 1278 n. 3 (7th Cir.1986); United States v. De Luna, 763 F.2d 897, 908 (8th Cir.), cert denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985) and cases cited therein.

At the time of the application and issuance of the warrant in the instant case, a more precise description of the stamps and currency taken during the robbery was unascertainable. Although the postal inspectors knew that stamps and currency had been stolen, no further information was available to more particularly describe the items in the warrant. We find that the description of the stamps and currency by generic classes was reasonably specific under the circumstances of this case.

We also reject Koonce's argument concerning the relevancy of the currency and coil of stamps introduced at trial. The stamps were in a coil and bore the fingerprints of both Koonce and Porter, thereby adequately establishing their relevancy to the crime charged. In contrast, the relevancy of the currency seized and introduced at trial is tenuous. Fourteen one dollar bills and $1.17 in loose change, without more, is not probative of the appellant's guilt in the crime charged. The admission of this evidence, however, does not constitute the type of prejudicial error affecting substantial rights that warrants reversal. FED.R.EVID. 103(a). No prejudice whatsoever has been demonstrated by the admission of this evidence.

C.

Koonce next argues that the photospread shown to the eyewitnesses of the post office robbery was impermissibly suggestive and unreliable and that the district court erred by denying his motion to suppress the photo identification testimony. He argues that the identification procedure was flawed first, because the witnesses did not view the photospread until seven weeks after the robbery, and second, because both Porter and Koonce were in position number three of the...