U.S. v. Roach

• Decision Date: 26 February 1979
• Docket Number: No. 77-5656,77-5656
• Citation: 590 F.2d 181
• Parties: 4 Fed. R. Evid. Serv. 120 UNITED STATES of America, Plaintiff-Appellee, v. Beacher Drell ROACH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 181

590 F.2d 181

4 Fed. R. Evid. Serv. 120

UNITED STATES of America, Plaintiff-Appellee, v. Beacher Drell ROACH, Defendant-Appellant.

No. 77-5656.

United States Court of Appeals Fifth Circuit.

Feb. 26, 1979.

Robert K. Finnell, Rome, Ga. (Court-appointed), for defendant-appellant.

Julie Carnes, Asst. U. S. Atty., William L. Harper, U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before COLEMAN, GEE and HILL, Circuit Judges.

GEE, Circuit Judge:

Beacher Drell Roach, along with co-defendant Ronnie Lee Stewart, ¹ was convicted of bank robbery by force in violation of 18 U.S.C. § 2113(a), (d) and carrying a firearm during commission of a felony in violation of 18 U.S.C. § 924(c)(2). His appeal raises several issues and requires a variety of responses. We find his first argument persuasive: because counsel was not present at the preliminary hearing and because no transcript of that proceeding is available, a remand is required to determine whether Roach suffered prejudice by reason of these circumstances. Additionally, though Roach has not raised the question, our precedent requires that we vacate his conviction and sentence on count two in light of Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). Finally, in view of the distinct possibility that upon remand the lack of counsel and transcript will be found harmless error and the conviction on count one reinstated, we have reviewed Roach's other allegations of error and find them meritless.

The evidence tended to establish that Roach and Stewart, wearing masks and carrying guns, robbed a bank in Dallas, Georgia. Bank personnel soon discovered that the robbers had swallowed not only the worm but the hook: a security package containing a dye bomb designed to emit a red, tear-gas-like substance within minutes after removal. They reported this to police, along with a general description of the robbers and their getaway car, and the opinion that a third person had been waiting outside.

Brenda Jackson, Stewart's girlfriend, testified that Roach and Stewart had robbed the bank and that she was driving the getaway car when the dye bomb exploded, making it difficult for them to see. Roach switched places with Jackson and began driving. Stewart threw the shotgun out of the car and, after a bit, fled with the stolen money.

Minutes later a county deputy sheriff, alerted to the car description by radio, stopped Roach and Jackson and asked them to get out of the car. After they had exited, the deputy noticed a large red stain on the car's front seat, some gloves on the floorboard, and a white print shirt on the back seat, all in plain view through the car windows. Roach and Jackson were placed in the police car, and before any interrogation had begun Jackson asked the deputy, "Why are you arresting us?" Roach immediately cut in, "Shut up, you know why." After FBI agents arrived, the car was towed to the police station, where it was searched and the stained parts removed for laboratory analysis. The stain was found to contain the same chemicals used in the bank's security packs.

Stewart was apprehended a month later in Baton Rouge, Louisiana. In a statement admitted into evidence at trial, he told interrogating agents that Jackson was his girlfriend and that he had resided in Dalton, Georgia, until March 1977, when he heard from friends that he was wanted for bank robbery.

I. Absence of Counsel at and Transcript of Preliminary Hearing.

The court file indicates that on March 30, 1977, Roach appeared before a magistrate, waived his right to counsel, signed a waiver-of-counsel form, ² and requested a preliminary hearing which was set for April 8, 1977. When April 8 arrived, Roach requested and received a continuance until April 14 to permit him to retain a certain attorney. By April 14, Roach had not secured counsel and sought another continuance. The magistrate refused and held the hearing that day, finding probable cause to bind Roach over to the grand jury, which returned an indictment five days later.

Ordinarily we would not feel compelled to remand on these facts. ³ Roach does not make very specific or cogent allegations that prejudice resulted from having no attorney at this "critical stage" in the proceedings against him. ⁴ Only one witness, an FBI agent, testified at the preliminary hearing, and he did not appear nor was his earlier testimony used at trial. Our ability to scrutinize the record and determine conclusively whether the error was harmless is hampered, however, by a second defect in the preliminary proceedings. The hearing was not taped or transcribed as required by 18 U.S.C. § 3060(f). ⁵ Moreover, despite a formal motion and renewed requests, the magistrate's meager handwritten notes were not turned over until two days after trial had begun.

In United States v. Johnson, 514 F.2d 92 (5th Cir.), Cert. denied, 423 U.S. 1020, 96 S.Ct. 459, 46 L.Ed.2d 393 (1975), we held a magistrate's refusal to grant a verbatim transcript of preliminary hearing proceedings to be harmless error. But a large part of our reasoning was that the defendant's trial attorney had been present at the hearing and carried out cross-examination and that available tapes had been turned over four days before trial. Such circumstances are not present here. Thus, the combination of these two errors renders us uniquely unable to determine from the appellate record that Roach has not suffered prejudice.

Recognizing the great difficulty a validly convicted appellant faces in proving he suffered prejudice, ⁶ we nevertheless think he must be given the chance to try. We therefore vacate Roach's conviction on count one and remand for a determination whether Roach was prejudiced by the effects of lack of counsel and/or transcript. The test to be applied is the Chapman v. California harmless-error test. 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). If prejudice is found, a new trial must be had. If, on the other hand, the error is found harmless, the count one conviction is to be reinstated since, as discussed below, there are no other grounds for setting aside that verdict.

II. The Simpson Prohibition of Multiple Punishment.

As was the case with his co-defendant Stewart, Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), requires the vacation of Roach's conviction and sentence on count two, brought pursuant to18 U.S.C. § 924(c). With the panel that considered Stewart's appeal, we think it inappropriate to remand for re-sentencing, especially in view of the district court's decision to impose less than the enhanced maximum under either count and to impose the sentences concurrently. United States v. Stewart,585 F.2d 799, 801 n.5 (5th Cir. 1978); United States v. Stewart, 579 F.2d 356, 357 (5th Cir.), Cert. denied, --- U.S. ----, 99 S.Ct. 332, 58 L.Ed.2d 332 (1978). But see United States v. Shillingford, 586 F.2d 372 (5th Cir. 1978).

III. Warrantless Search and Seizure

Pieces of the dye-stained car seat were introduced at trial after the court denied Roach's motion to suppress. Roach does not complain of the highway stop, the arrest, the viewing of the stained seat through the window, or even the car's impoundment. His argument seems rather to be that once he and Jackson had been arrested and the car taken to the station, there was no danger the evidence would be lost no further exigency. Officers then had sufficient opportunity and thus, the argument goes, the duty to secure a warrant before further search or seizure of the front seat.

As we have noted in our en banc opinion in United States v. Mitchell, 538 F.2d 1230 (5th Cir. 1976), this analytic avenue was foreclosed by the Supreme Court in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). "(E) xigence is to be determined as of the time of seizure of an automobile, not as of the time of its search; the fact that in these cases sufficient time to obtain a warrant had passed between each seizure and the corresponding search did not invalidate either." 538 F.2d at 1232.

That Roach complains of the seizure of a part of the car, rather than of the car itself or of a generalized search for evidence, does not require a different analysis. Where the initial intrusion that brings police within plain view of an incriminating item of property is supported either by a lawful warrant or by one of the recognized exceptions to the warrant requirement, the seizure of that property for use as evidence is also legitimate. Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States v. Kaiser, 545 F.2d 467, 476-77 (5th Cir. 1977). As the Court reiterated in Cardwell, 417 U.S. at 589, 94 S.Ct. at 2469, "Rather than property rights, the primary object of the Fourth Amendment was determined to be the protection of privacy." If Roach had insufficient expectation of privacy to withstand the right of the police to stop him on the highway and thereby view the car seat, he may not complain of seizures of property incident to those intrusions, unless perhaps the manner of search or extent of seizure is colorably challenged as unreasonable. Such claims are not present here.

IV. Admissibility of Co-Defendant Stewart's Statement.

Roach contends that the admission of Stewart's post-arrest statement regarding Stewart's friendship with Jackson and the circumstances that caused him to leave Dalton denied Roach his right to confront witnesses against him. But the important principles established in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), attach only where the extrajudicial statement Implicates the complaining co-defendant. Stewart's statement barely implicates himself, much less...