U.S. v. Sims

• Decision Date: 30 April 1980
• Docket Number: No. 79-1540,79-1540
• Citation: 617 F.2d 1371
• Parties: 6 Fed. R. Evid. Serv. 148 UNITED STATES of America, Plaintiff-Appellee, v. Jerald Lee SIMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1371

617 F.2d 1371

6 Fed. R. Evid. Serv. 148

UNITED STATES of America, Plaintiff-Appellee, v. Jerald Lee SIMS, Defendant-Appellant.

No. 79-1540.

United States Court of Appeals, Ninth Circuit.

April 30, 1980.

Michael R. Shinn, Portland, Or., for defendant-appellant.

Ronald H. Hoevet, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before DUNIWAY and ANDERSON, Circuit Judges, and GRANT, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

After a jury trial, Sims was convicted of one count of bank robbery. ¹ On appeal, Sims challenges: (1) the sufficiency of the evidence; (2) an eyewitness identification; (3) the failure to appoint an expert witness; (4) the failure to admit an FBI report; and (5) the admission of evidence relating to his failure to return to a halfway house. We find no error justifying reversal and affirm his conviction.

I. BACKGROUND

On the afternoon of December 21, 1978, two men robbed the Lombard Branch of the Lincoln Savings & Loan Association. The only people in the bank when the robbers entered were Marilyn Endicott, the bank's supervisor, and an elderly gentleman named Romansky, who was a customer. The robbers pushed Romansky against the counter and then ordered him onto the floor. Endicott was also ordered to the floor, and while going down she pushed the alarm button. Endicott was then ordered to get up and open the cash drawer. After one of the robbers removed the bills from the drawer, they both left the bank.

The robbers wore stocking caps over their heads and scarves pulled up around their mouths. After the robbery, Endicott described one of the robbers as having a slight build and being five feet seven or eight inches, and the other as stockier and about five feet six. Five days later, Endicott was shown a photo spread of seven men. She picked out Sims because of his eyes.

Approximately one block from the bank, on the afternoon of the robbery, two men walked in front of Charles Dodge's car. Dodge wrote down the license plate number of their parked car: FMK 762. A few minutes later, Dodge saw the two men, with their faces covered, running down the street from the bank. Larry Rasmussen also saw two men running in the same area. Because of the unusual behavior, Rasmussen wrote down part of the license plate number from the two men's car: 762.

Sims had borrowed his nephew's (Daryl's) car on the morning of the robbery. The car's license plate numbers were FMK 762. Sims returned the car to his nephew around 2:00 p. m. on the 21st and then they both drove to the home of Daryl's grandmother. Upon arrival there, the grandmother, who had already been contacted by the police, told Daryl and Sims that the car had been involved in a bank robbery.

Prior to the robbery, Sims had been staying at the Federal Halfway House in Vancouver, Washington. He checked out on the morning of December 21st and was scheduled to return that evening. He never did. He was arrested weeks later and charged with the robbery of the Lombard bank.

II. DISCUSSION

1. Sufficiency of the Evidence

The evidence, considered most favorably to the government, was sufficient to permit the jury to rationally conclude that Sims was guilty beyond a reasonable doubt. See United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969). The minor inconsistencies and discrepancies which Sims relies upon might make a good jury argument, but are not sufficient to overcome the adverse verdict. The victim, Endicott, positively identified Sims as one of the two robbers. Sims was concretely linked to the car which was shown to have been the probable getaway car. And finally, it was permissible to infer a consciousness of guilt from Sims' failure to return to the halfway house.

2. Eyewitness Identification

Although Sims claims that his due process rights were violated by Endicott's identification of him, he totally fails to offer any support for his argument. Sims does not allege that the pretrial identification was impermissibly suggestive, nor could he make such an argument. Mata v. Sumner, 611 F.2d 754, 757-758 (9th Cir. 1979); United States v. Cook, 608 F.2d 1175, 1178-1179 (9th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 706, 62 L.Ed.2d 670. And, as the government points out, the factors relied upon in evaluating the reliability of the identification (opportunity to view, attention, description, certainty, time elapsed) do not support Sims' argument. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); Manson v. Braithwaite, 432 U.S. 98, 114-116, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); see Green v. Loggins, 614 F.2d 219, 224-225 (9th Cir. 1980); Washington v. Cupp, 586 F.2d 134, 136-137 (9th Cir. 1978), cert. denied, 441 U.S. 909, 99 S.Ct. 2003, 60 L.Ed.2d 379.

3. Failure to Appoint an Expert Witness

Prior to trial, Sims made a timely motion for the appointment of a psychologist to assist his defense under 18 U.S.C. § 3006A(e)(1). ² Because of the importance of the eyewitness identification, Sims sought the services of a psychologist to assist the defense prior to trial and "to testify on behalf of the defense regarding the scientific proof which exists on the unreliable nature of eyewitness identification and the various cognitive and social factors that affected the accuracy of the particular identification in the case at hand." On appeal, Sims claims that the failure to appoint the psychologist violated his Fifth Amendment, Sixth Amendment, and statutory (18 U.S.C. § 3006A) rights.

We recognize that the government's duty "to provide an indigent criminal defendant with the essential tools of trial defense is of both a constitutional and statutory dimension." United States v. Rosales-Lopez, 617 F.2d 1349, 1355, (9th Cir., 1980). Sims does not attempt to explain, nor are we able to perceive, how the failure to appoint an expert rose to the level of a constitutional violation in this case.

Turning to the statutory part of his argument, this court has established the following standard for determining when an expert must be appointed for an indigent defendant under 18 U.S.C. § 3006A(e)(1) of the Criminal Justice Act:

"Where expert services are necessary to an adequate defense the court must authorize them. E. g., Christian v. United States, 398 F.2d 517, 519, 6 A.L.R.Fed. 1001 (10th Cir. 1968). A clear standard for deciding what constitutes 'necessity' under § 3006A(e) has not yet been stated in this circuit. We agree with the views of Judge Wisdom, concurring in United States v. Theriault, 440 F.2d 713, 716-717 (5th Cir. 1971). The statute requires the district judge to authorize defense services when the defense attorney makes a timely request in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them." (emphasis added)

United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973). This approach has been followed in several other cases. United States v. Hartfield, 513 F.2d 254, 257 (9th Cir. 1975); Brinkley v. United States, 498 F.2d 505, 509-510 (8th Cir. 1974); see United States v. Durant, 545 F.2d 823, 827 (2d Cir. 1976). The question, therefore, becomes whether a reasonable attorney would have engaged an eyewitness expert in this type of case. The answer is probably not. The admissibility of this type of expert testimony is strongly disfavored by most courts. See United States v. Amaral, 488 F.2d 1148, 1152-1154 (9th Cir. 1973); United States v. Fosher, 590 F.2d 381, 382-384 (1st Cir. 1979). ³ Moreover, this court has held that a defendant has the burden of showing prejudice, by clear and convincing evidence, caused by the court's failure to appoint an expert. United States v. Washabaugh, 442 F.2d 1127, 1130 (9th Cir. 1971); United States v. Spaulding, 588 F.2d 669 (9th Cir. 1978). Sims has not shown how his cross-examination of the eyewitness was any less effective without the services of the expert. He also has not shown how the expert could have assisted the defense in any other way. Therefore, it does not appear that a "reasonable attorney" would employ an expert in this situation or that Sims suffered any prejudice.

4. Failure to Admit the FBI Report

At trial, Sims' attorney attempted to read a portion of an FBI report into evidence. Romansky, the only other witness to the robbery, had died before the case came to trial. However, prior to his death, Romansky had given a description of both robbers to the investigating FBI agent who had included it in his report. According to Sims' attorney, this description conflicted with the one which was given by the other eyewitness, Endicott. ⁴

The government objected based on the ground that it was hearsay. Sims' counsel then responded that the report should come in under the business records exception to the hearsay rule. After both attorneys had the opportunity to argue, the trial judge impliedly ruled that the report was not admissible. ⁵

On appeal, Sims offers three separate grounds under which the report should have been admissible. First, he argues that Romansky's statement in the report was not hearsay since it was not offered to prove the truth of the statement. ⁶ Second, he repeats his argument about the report qualifying as a business record. ⁷ And third, Sims claims that the report was admissible under the public records exception to the hearsay rule. ⁸

We will first address the one basis for admissibility which was raised in the district court, that is the business records exception. Sims claims that, relying entirely upon cases decided prior to the adoption of the Federal Rules of Evidence, "police reports (were) business records within the meaning of the Act." ⁹ Contrary to this contention, there was no broad sweeping rule in favor of the admission of police reports. While limited portions of police reports were admissible (United States...