U.S. v. Shoupe

• Decision Date: 28 January 1977
• Docket Number: Nos. 76-1551,76-1552,s. 76-1551
• Citation: 548 F.2d 636
• Parties: 2 Fed. R. Evid. Serv. 636 UNITED STATES of America, Plaintiff-Appellee, v. Larry Everett SHOUPE and Craig Whitman Williams, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 636

548 F.2d 636

2 Fed. R. Evid. Serv. 636

UNITED STATES of America, Plaintiff-Appellee, v. Larry Everett SHOUPE and Craig Whitman Williams Defendants-Appellants.

Nos. 76-1551, 76-1552.

United States Court of Appeals Sixth Circuit.

Argued Oct. 12, 1976.

Decided Jan. 28, 1977.

George C. Luther, J. Michael McGinley, Weiner, Lippe, Cromley & McGinley, Columbus, Ohio (Court-appointed CJA), for defendants-appellants.

William W. Milligan, U. S. Atty., Thomas D. Thompson, John W. Palmer, Columbus, Ohio, for plaintiff-appellee.

Before CELEBREZZE, PECK and LIVELY, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal of Appellants' convictions after a joint trial by jury for armed robbery of an Ohio bank. We are asked to decide whether the District Court committed reversible error by permitting the prosecutor, in the presence of the jury, to recite to a recalcitrant Government witness a litany of leading questions which incorporated the entire substance of his unsworn, oral statements inculpating the Appellants. Whether we join with the trial court in viewing this suspect procedure as a mechanism to refresh the witness's present recollection or we adopt the position, advanced by the Government on appeal, that it served the legitimate purpose of impeaching a hostile witness's credibility, our reading of the record compels us to reach the conclusion that the trial court erred in allowing the unsworn statements to be presented to the jury. We therefore reverse and remand the case for a new trial.

Appellants were originally named with three other persons in a one-count indictment charging them with armed robbery of a Westerville, Ohio bank in violation of 18 U.S.C. § 2113(a) and (d). Prior to trial, three defendants disposed of their cases through plea negotiations. Of the three, Stephen Patrick Hall and William John Willison became key Government witnesses against the Appellants. It is the trial testimony of Hall and the circumstances surrounding the prosecutor's elicitation of that testimony which are at issue in this appeal.

Appellants were found guilty by a jury after a two-day trial, which commenced on January 19, 1976, in the United States District Court for the Southern District of Ohio. The date of the trial is significant in light of the amended Federal Rules of Evidence which took effect July 1, 1975.

The Government presented ten witnesses, none of whom could identify Appellants as having actively participated in the bank robbery. The evidence most damaging to the defense was received from William John Willison, one of the five men originally indicted, and Glen Ellis Adkins, an acquaintance of Willison. Willison, the Government's last witness, admitted that he had conceived and planned the crime. He testified that, although he had originally intended to execute the robbery himself, assisted by two friends (other than the Appellants), circumstances conspired to cause him to change his mind. Thereupon he approached Appellant Williams with the intent of recruiting him to implement the scheme. According to Willison, Williams promptly agreed, and Williams, Appellant Shoupe, Stephen Patrick Hall and Terry Gene Seth joined Willison in final criminal preparations, with the understanding that the four would actually carry out the plan. Willison was to receive a share of the proceeds.

Willison further testified that he rented Glen Ellis Adkins' apartment for a single day. The apartment was to be used by Appellants and the others after the robbery for changing their clothes and dividing up the money. Willison identified Williams as having participated with him in the theft of the get-away car. He placed Shoupe, on the eve of the robbery, in possession of two ski masks and two pistols which were to be used in committing the crime. He described, in general terms, the clothing and face masks to be worn by the active participants. He outlined the details of his plan as well as the assignments which Appellants would have upon entering the bank. Finally, he testified to admissions, allegedly made to him by each Appellant, on separate occasions, which tended to confirm their involvement in the crime as well as to belie Shoupe's alibi defense.

Willison's credibility was placed in issue by Appellants' counsel who were able to extract from him several significant admissions, including, inter alia, that he had agreed to testify against Appellants as quid pro quo for a promise by the Government that he would not be prosecuted. He also admitted on direct examination by the prosecutor that he was currently serving a federal prison sentence for another bank robbery.

Glen Ellis Adkins testified for the Government that Willison had asked him if he could rent Adkins' apartment for a 24 hour period for use in "cutting" some illegal drugs. Adkins admitted on cross-examination that he had readily agreed, knowing that his apartment was to be used for criminal purposes. Adkins testified that he was called upon to vacate the premises on the evening prior to commission of the robbery. When he prematurely returned the next morning (after the robbery), ostensibly to retrieve some personal papers, he found three unknown men in the process of changing their clothes. He identified one as Shoupe. Adkins further testified that, upon returning to his apartment at the end of that day, he discovered a duffle bag in a closet in the dining area. Inside the duffle bag he found "casual" men's clothing, including a ski mask, some paper sacks and a revolver. Adkins admitted that he promptly returned the duffle bag and its contents to Willison's brother. Subsequently, the brother paid Adkins $100.00 for the use of the apartment.

Adkins credibility as a witness was also challenged by the defense. He was confronted with prior grand jury testimony in which he had stated unequivocally that he had no recollection of finding a ski mask included in the contents of the duffle bag and that his agreement with Willison called for him to receive a fee for the use of his apartment which differed from the sum which he mentioned at trial. Finally, he admitted that he had not notified law enforcement officers about his discovery of the suspicious duffle bag until he perceived the immediate possibility that he could be implicated in the robbery. Only then did he come forward to testify against Appellants in return for Government assurances that he would not become "involved."

Our appraisal of the strength of the Government's case, unsupported by the contested, out-of-court statements of Steven Patrick Hall, confirms that the weight of the evidence for conviction was far from overwhelming. Eyewitness accounts by three bank employees and a customer provided only partial descriptions of three armed, masked men who were observed within the bank. We find that the details adduced were insufficient to establish that the clothes and masks worn by the gunmen were those uncovered by Adkins in his apartment or that the pistol also found there was the pearl-handled weapon which one of the witnesses saw in the belt of a robber.

These crucial items of physical evidence were never produced at trial. Therefore, no witness was able to positively identify them. Their nexus to Appellants and to the commission of the crime itself remained circumstantial throughout the trial, even after Willison testified to their intended use in the robbery plan. Appellants were no more conclusively tied to the bank robbery by the eyewitness identification of the make, model and license number of the get-away car. This testimony only served to partially corroborate Willison's later account of the steps taken by him and Appellants to secure the vehicle for anticipated use in fleeing the crime scene.

The Government's only direct evidence implicating Appellants was Willison's recital of the substance of their admissions to him after the crime was committed and Hall's unsworn, oral statements allegedly made to the FBI. Hall was one of the five men originally indicted for the robbery. Prior to trial, acting through counsel, he entered into a written plea bargain with the Government pursuant to which he pled guilty to two bank robberies, including the one in Westerville, and agreed to testify for the Government against the Appellants and others involved in five unrelated crimes. In return, he was to receive a "satisfactory" sentence and was to be the beneficiary of an "understanding" that other "local matters" pending against him would not be pressed. Hall was sentenced in the District Court to a term of 20 years imprisonment on the Friday prior to the start of Appellants' trial.

The prosecutor extracted from Hall limited testimony concerning his role in the robbery. Hall described the clothes that he had worn, which corroborated to some extent the testimony of an eyewitness, and admitted that Willison had called him with the idea of committing the crime. He also confirmed elements of Adkins' testimony by conceding that an unknown person had walked in on him in the apartment where he had changed clothes after the robbery and that he had left his clothes and gun there. However, when the prosecutor asked him who had accompanied him into the bank and who was present in the apartment when the proceeds of the crime were distributed Hall steadfastly maintained that he had neither present recollection nor past awareness of these details. He attempted to rationalize this aberration by stating that he had been "shooting a lot of dope at the time (and) was strung up." He also claimed that he was so deeply involved in doing his job during the commission of the crime that he "didn't pay no attention to what else was going on."

At this point, the Government attempted to lay a proper foundation for impeaching Hall's credibility based upon prior inconsistent oral statements allegedly made by him, some two months before the trial, to FBI Agent Richard A. Cleary. The prosecutor, another FBI agent,...