U.S. v. Rhodes

• Decision Date: 13 March 1978
• Docket Number: No. 77-5120,77-5120
• Citation: U.S. v. Rhodes, 569 F.2d 384 (5th Cir. 1978)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William O'Neal RHODES and Jack Dempsey Waites, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 384

569 F.2d 384

UNITED STATES of America, Plaintiff-Appellee, v.William O'Neal RHODES and Jack Dempsey Waites, Defendants-Appellants.

No. 77-5120.

United States Court of Appeals Fifth Circuit.

March 13, 1978.

William E. Skinner, Montgomery, Ala., (Court-appointed), for Rhodes.

Randolph P. Reaves, Montgomery, Ala., (Court-appointed), for Waites.

Barry E. Teague, U. S. Atty., D. Broward Segrest, Charles R. Niven, Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before GODBOLD, HILL, and FAY, Circuit Judges.

JAMES C. HILL, Circuit Judge:

AppellantsJack Dempsey Waites and William O'Neal Rhodes appeal from the jury verdict and judgment finding each of them guilty of violating 18 U.S.C. § 2113(d).We affirm.

On March 8, 1976, the Chilton County Bank in Thorsby, Alabama, a bank insured by the Federal Deposit Insurance Corporation, was robbed of a sum in excess of $15,000.

On that day, three armed men, each wearing green jump suits and clear plastic masks with "silly grin-like expressions painted on them," entered the bank.One man carried a handgun described as a nickel or chrome plated, large caliber automatic, with etchings on it, a gold trigger and a pearl handle.This weapon was later found in the car of Defendant Rhodes' wife.The robber carrying the distinctive handgun was later identified as Robert Case.

The second robber, armed with a carbine, stood just inside the door of the bank while the money was being collected.In removing the currency from the cash drawer, the surveillance cameras were activated.

The third robber went around the other end of the teller's line where he approached Sarah Benson who told the robber where the money was located.Mrs. Benson later identified defendants Rhodes and Waites as two of the persons who robbed the bank.

Shortly, thereafter, the three men fled the scene in a red 1969 Mustang which had been stolen that afternoon.

Jerry Smith observed the robbers' exit from the bank, followed the Mustang, took down the tag number and gave it to the police.When the car was found, it was processed for fingerprints.One of the fingerprint lifts was identified as the left thumb print of Robert Case.

Robert Case was arrested in Atlanta, Georgia on March 11, 1976.He was found in possession of $1,339 in United States currency.The serial numbers of eight five dollar bills matched the list of bait money taken from the bank.On April 7, 1976, defendant Waites was arrested in Morrow, Georgia in the presence of Deborah Moore.On May 14, 1976, defendant Rhodes was arrested in Smyrna, Georgia in a 1975 Chrysler Cordoba, which an invoice showed was purchased with a fifteen hundred dollar cash deposit on March 9, 1976.In the trunk of the car was found the distinctive handgun referred to previously.

On October 6, 1976, defendants Rhodes, Waites and Robert Case were indicted in a two count indictment charging violations of 18 U.S.C. §§ 2113(a)and2113(d).On October 29, 1976, a hearing was held on the defendants' motions for severance.The motions were denied.

Trial was set for November 8, 1976, but was continued due to the escape of Case and Waites from custody on November 6, 1976.Waites had been apprehended but Case remained a fugitive.Trial began on February 7, 1977.Defendants Rhodes and Waites were found guilty of Count Two of the indictment on February 9, 1977.Each was sentenced to 20 years custody.

At trial, five eyewitnesses to the robbery testified.These were: Gerald Atkinson, President of the Chilton County Bank; Michael Henry, a bank employee; Sarah Benson, the Vice-President and cashier of the bank; Jerry Smith, and Paul Worthy, observers outside the bank.Of these witnesses, Case was consistently identified as one of the robbers.The witnesses testified that they were, with the exception of Sarah Benson, unable positively to identify defendants Rhodes and Waites as perpetrators.Sarah Benson testified that based on their build, hair, facial structure, side profile, and complexion, Rhodes and Waites were two of the robbers.

Nancy Rodden, an employee of Atlanta Costume Company, testified that on March 2, 1976, she sold three clear plastic masks (like those used to disguise the robbers) to two men who handed her a hundred dollar bill to pay for the $5.95 purchase.She identified one of these men as defendant Waites.FBI agent, Robert T. Parker, testified as to the recovery of the gun from the car of Rhodes' wife and to the invoice found in the car, indicating that a fifteen hundred dollar cash deposit was paid on the car the day following the robbery.Agent Parker also testified that he arrested W. T. Ridings, now deceased, and from Ridings seized two pairs of green jump suits and the clear masks.

Deborah Moore, whom the Court found not to be the common law wife of defendant Waites and therefore competent to testify against him, testified that Waites had introduced her to both Case and Rhodes.She testified that she overheard Waites calling Rhodes on March 7, 1976, concerning a trip and that on March 8, Waites departed and returned that evening with stacks of money which they started spending the next day.She further testified that Waites had brought a suitcase to their trailer which contained dark jump suits, masks, and guns, including a gun with a pearl handle and gold trigger.Mrs. Moore testified that, upon his arrest, Waites instructed her to take the suitcase and its contents to W. T. Ridings.

Testimony was also received from an expert witness, who, by comparison of the bank surveillance film with film taken at the bank of height charts in various locations, was able to testify as to the approximate height of the robbers.Evidence was also received, showing that Case and Waites had escaped from custody pending trial.

After denial of their motions for acquittal, the defendants presented evidence.Defendant Rhodes relied upon the defense of an alibi.His wife, mother-in-law, and two friends of his wife testified that Rhodes was in Atlanta at the relevant times on March 8, 1976.

Rhodes also called Leon Johnson to the stand.He testified that he had met Rhodes in the Atlanta Penitentiary and that actually he, his brother and Case had robbed the bank.He was able to give details of the robbery.He also claimed ownership of the gun with the pearl handle and gold trigger.He testified that he had borrowed Mrs. Rhodes' car and had left the gun in it.Johnson explained that the reason for his coming forward to testify was "to get it over with" because he was serving thirty years for another bank robbery.

On cross-examination, Johnson admitted that he had been convicted the previous week of robbing a bank in South Carolina.At that trial, Rhodes had testified on behalf of Johnson.Furthermore, the testimony disclosed that Johnson and Rhodes had been transported together from South Carolina to Montgomery, Alabama and a Deputy Marshal testified that they had whispered together during the entire trip.

Defendant Waite's defense consisted in the main of attacking the identification of him by Mrs. Benson.

The case went to the jury who found both defendants guilty as charged in Count Two of the indictment.

I.Defendant Waites' Appeal

In his first enumeration of error, appellant Waites contends that the prosecution failed to disclose Brady material, thereby depriving him of a fair trial.

Appellant contends that he was denied a fair trial because the prosecution did not inform him, before trial, that certain eyewitnesses to the robbery were unable to identify him.

These witnesses testified at trial, were cross-examined by appellant, and admitted their inability to make a positive identification of the appellant.The jury was well aware of the lack of positive identification by these witnesses.Defense counsel in closing argument heavily stressed the lack of identification evidence.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215(1963), the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution."

Recently, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342(1976), the Supreme Court again addressed the Brady rule and established principles which guide us in the resolution of the issue at bar.

In Agurs, the Court addressed the situation where defense counsel makes a request for "all Brady material,""anything exculpatory" or fails to make a request.Stressing the importance of putting the prosecution on notice of arguably exculpatory evidence, the Court stated that such a request "really gives the prosecutor no better notice than if no request is made.If there is a duty to respond to a general request of that kind, it must derive from the obviously exculpatory character of certain evidence in the hands of the prosecutor.But if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made.Whether we focus on the desirability of a precise definition of the prosecutor's duty or on the potential harm to the defendant, we conclude that there is no significant difference between cases in which there has been merely a general request for exculpatory matter and cases, like the one we must now decide, in which there has been no request at all."

The Court further held that unless nondisclosure deprives the defendant of a fair trial, there is no constitutional violation requiring that the verdict be set aside, and absent a constitutional violation, there is no breach of the prosecutor's constitutional duty to disclose.

In the instant case, defense counsel's request for "all exculpatory material," as held in Agurs,...