U.S. v. Rogers

Decision Date30 December 1976
Docket NumberNo. 76-1026,76-1026
Citation549 F.2d 490
Parties, 1 Fed. R. Evid. Serv. 1270 UNITED STATES of America, Appellee, v. George Samuel Walter ROGERS, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Stephen M. Sharum, Fort Smith, Ark., for appellant.

Sam Hugh Park, Asst. U. S. Atty., Fort Smith, Ark., for appellee; Robert E. Johnson, U. S. Atty., Fort Smith, Ark., on brief.

Before GIBSON, Chief Judge, LAY and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

George Samuel W. Rogers appeals from his conviction of armed robbery on a United States military reservation in violation of 18 U.S.C. §§ 2111 and 2. He was sentenced to an indefinite term of imprisonment pursuant to the Youth Corrections Act, 18 U.S.C. §§ 5010 et seq.

Appellant contends that prejudicial error was committed by the District Court in (1) the denial of the motion to suppress evidence The principal facts are undisputed:

seized from his automobile; (2) the denial of the discovery motions insofar as they sought the criminal records of government witnesses; (3) the overruling of a motion for mistrial based on a comment by the prosecutor; and (4) the admission of a statement made to FBI agents by a confederate, Walter Baker, during the investigation of the crime. The fourth contention implicates both the hearsay exceptions to the Federal Rules of Evidence and the Confrontation Clause embodied in the Sixth Amendment of the Constitution.

At approximately 11:15 p. m. on June 3, 1975, four military personnel were robbed by three armed men within the confines of Fort Chaffee, a United States military installation in Arkansas. The victims immediately notified the military police and informed them of the license number and description of the automobile used by their assailants. At approximately 11:45 p. m., the military police discovered inside the fort a 1956 Chevrolet that matched the license number and description given by the victims. Its windows and doors were open and it had apparently been abandoned. An investigator observed in plain view a cardboard box with markings for a Titan .38 pistol and a sales slip from the Oklahoma Tire and Supply Company inside the vehicle. The military police immediately searched the inside of the car and seized the empty box, the sales slip, and other articles. 1

The military police ascertained that a handgun had been purchased earlier in the day at the Oklahoma Tire and Supply Company by Private First Class Walter Baker using appellant's name and identification. Baker was apprehended after midnight while attempting to enter the gate to Fort Chaffee. Civilian authorities arrested appellant on the morning of June 4 after a license identification check of the 1956 Chevrolet disclosed that he was the owner of the vehicle. Baker subsequently made statements incriminating to both himself and appellant. 2

Appellant filed pretrial motions to suppress the evidence obtained from the automobile and to obtain exculpatory information, including the criminal records of any persons the prosecution intended to call as witnesses at trial. The District Court 3 denied these motions. Appellant did receive a list of witnesses prior to trial, however, and the government represented at that time that it had no knowledge of any criminal records pertaining to the intended witnesses other than those concededly known by defense counsel. Appellant was found guilty after trial by jury, and this appeal followed.

I. Preliminary Contentions

We find little merit to the first three of appellant's contentions and thus dispose of them summarily.

A. The Warrantless Search

First, we conclude that the warrantless search of appellant's automobile was reasonable under the circumstances, and the District Court did not err in denying the motion to suppress evidence of the fruits of the search. Exigent circumstances justified the search. See Warden v. Hayden,387 U.S. 294, 298-99, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Thompson v. McManus, 512 F.2d 769, 770 (8th Cir.), cert. denied, 421 U.S. 1014, 95 S.Ct. 2421, 44 L.Ed.2d 683 (1975). In addition, because the search occurred on Fort Chaffee, a closed military base, there is even less reason to question the propriety of the search under the circumstances

of this case. See United States v. Vaughan, 475 F.2d 1262, 1264 (10th Cir. 1973); United States v. Burrow, 396 F.Supp. 890 (D.Md.1975); United States v. Rogers,388 F.Supp. 298 (E.D.Va.1975).

B. Discovery of Criminal Records of Witnesses

Second, the District Court had full discretion to deny appellant's motion for a list of prospective witnesses and their criminal records, if any, since such discovery is not required under Fed.R.Crim.P. 16(a). 4 United States v. Taylor, 542 F.2d 1023 (8th Cir., 1976), slip op. at 5. See United States v. Barnes, 486 F.2d 776, 777-78 (8th Cir. 1973); United States v. Hamilton, 452 F.2d 472, 479 (8th Cir. 1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972). See also Will v. United States, 389 U.S. 90, 99, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). Moreover, the prosecution fulfilled any duty it might arguably have had under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by disclosing its intended witnesses to appellant twenty-four hours before trial and by informing him at that time of the only witnesses with criminal records: Baker and Curtis, both of whom were participants in the crime with which Rogers was charged. We thus find no prejudical error in the denial of the discovery motion.

C. Prosecutor's Comments

Third, while it was improper for the prosecutor to characterize a check introduced into evidence by appellant as "hot," 5 we do not, in light of the substantial evidence of guilt on the record, find that such error was so prejudicial as to deprive him of a fair trial.

II. Use of Baker's Extrajudicial Statement

The most serious contention on appeal relates to the government's use at trial of an extrajudicial statement made by Walter Baker, appellant's alleged confederate. The facts relating to the statement are as follows:

Baker had previously entered a plea of guilty in a military court-martial to the same robbery at Fort Chaffee with which appellant is charged. The government called him as a witness at appellant's trial. Baker essentially testified that he could not identify appellant; that, while he had pleaded guilty to the offense of robbery, he could not remember the robbery incident; and that, although he recalled giving a statement regarding the incident to an FBI agent, he did not remember the content of that statement. After this testimony, the District Court sequestered the jury in order to question Baker further about his lack of memory. Baker was allowed to read the statement, but he could not determine that it was the statement he had made. Counsel for appellant, asserting a belief that statements the prosecution sought to elicit from Baker might be self-incriminating, moved that the Court advise Baker of his Fifth Amendment privilege. The District Court, noting its own concern with possibilities of perjury, then admonished Baker that he had the right not to testify because of potential self-incrimination. When the jury returned, the prosecution attempted further examination, with the following result Q. Mr. Baker, I wish to ask you as to whether you wish to testify further after as to the involvement of Mr. Rogers in the purported armed robbery that you and Mr. Curtis were involved in?

A. No, I ain't got nothing to say, because I really don't remember anything anyway.

Q. You are saying you do not wish to make any further statements or are you saying you just don't remember?

A. The only thing I would say I cannot be sure whether or not I was telling the truth anyway, so rather just not say anything else.

Q. Are you invoking what is commonly called the Fifth Amendment?

A. Yes, I do.

Q. At this time, Your Honor, we would offer the witness for cross examination.

THE COURT. All right. You may cross examine * * *.

CROSS EXAMINATION

Q. I believe I have no questions of this witness.

Baker was excused and FBI Special Agent Thomas H. Brown was called as the next government witness. Brown testified that he had interviewed Baker on August 18, 1975, while Baker was incarcerated at Fort Hood, Texas, and that Baker had, with full knowledge of his constitutional rights and in the presence of an attorney, made a statement to Brown which was subsequently transcribed. Defense counsel objected to the reading of this unsworn and unsigned statement as hearsay. The District Court ruled:

Be partly sustained and partly overruled. Ladies and gentlemen of the jury, you will consider any testimony from Mr. Brown concerning Mr. Baker as being testimony to impeach Mr. Baker. Any testimony concerning any other person including the defendant in this case will not be received in evidence in this case.

The statement was then read into evidence in its entirety.

The statement disclosed that earlier on the day of the crime Baker had accompanied appellant to the Oklahoma Tire and Supply Company, where, following appellant's instructions, Baker had purchased a gun using appellant's identification. The statement further described the robbery and placed appellant with Baker as two of the three who held up the soldiers.

Determining the propriety of permitting Baker's extrajudicial statement to be read to the jury requires the resolution of two issues: (1) whether the statement was admissible under evidentiary standards, and (2) whether admission of the statement violated appellant's Sixth Amendment right of confrontation.

A. Evidentiary Standards

Appellant contends that allowing Baker's statement to be read to the jury amounted to the use of prejudicial hearsay. We conclude, however, that use of the statement was proper as impeachment of Baker's in-court testimony. 6 Several requirements founded in fundamental fairness govern...

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