U.S. v. Sublet, 80-1698
| Decision Date | 25 March 1981 |
| Docket Number | No. 80-1698,80-1698 |
| Citation | 644 F.2d 737 |
| Parties | UNITED STATES of America, Appellee, v. Ronald SUBLET, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
G. Stephen Long, Shughart, Thomson & Kilroy, A Professional Corp., Kansas City, Mo., for appellant.
Ronald S. Reed, Jr., U. S. Atty., Anthony P. Nugent, Jr., First Asst. U. S. Atty., Carol Ann Petren, Asst. U. S. Atty., Kansas City, Mo., for appellee.
Before BRIGHT, STEPHENSON and McMILLIAN, Circuit Judges.
Defendant Ronald Sublet appeals his conviction 1 of bank robbery charges under 18 U.S.C. §§ 2, 2113(a), (d). He claims that an alleged "threat" made to a juror requires a new trial and that a lineup was conducted in violation of his Sixth Amendment right to counsel. Sublet raises two other issues concerning the lineup, challenges an aiding and abetting instruction and questions the sufficiency of the evidence. We affirm the jury conviction.
Viewing the evidence in the light most favorable to the jury conviction, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we shall briefly summarize the record.
Two black men, wearing green ski masks, robbed the Laurel Bank in Kansas City, Missouri, on February 20, 1980. Just as the men entered the bank, a teller triggered a silent alarm which alerted the Kansas City police and started the bank's surveillance camera. The first robber in the bank brandished a handgun. The two escaped with approximately $16,000 in cash.
About the time that the two masked men left the bank, Officer Wilbur Wright arrived at the scene. Officer Wright, a Kansas City, Missouri, policeman, observed the two men, still wearing masks, leave the bank and enter a blue and white Oldsmobile. As they drove away Officer Wright followed. After a high speed chase of several blocks, the suspects' car skidded off the roadway and came to a stop. One of the suspects turned in the direction of Officer Wright with a revolver in his hand as he got out of the car. Officer Wright fired several shots.
The two men fled to a nearby wooded area and the policeman was unable to continue his pursuit. As the robbers ran they abandoned several items including a pair of slippers, a tennis shoe, two green ski masks two handguns, a waste basket from the bank which had been used to carry the money and the $16,000. These items were produced at trial and, except for one of the guns, were all linked to the two men who robbed the Laurel Bank. A bank employee and Officer Wright identified the masks as the same as or very similar to the masks worn by the robbers. The slippers and tennis shoe were also described as those worn by the robbers. One of the handguns was identified by Officer Wright and a bank employee as being the same kind used by one of the robbers. The money found in that area roughly equaled the amount stolen and included "bait" money from the Laurel Bank.
The two suspects ran through the wooded area to the Holiday Apartment complex. Officers later located tracks that started at the blue and white Oldsmobile and went through the woods to the apartment complex. Apparently, the pair of robbers left clear footprints in the snow. This escape route was confirmed by witness Duane Murphy, who was in an apartment in the Holiday complex and watched through a sliding glass door.
Murphy's attention was drawn to this series of events when he heard the shots fired by Officer Wright and the sirens. Murphy saw the two men get out of the blue and white Olds and run into the woods. He lost sight of the pair for several minutes. He saw them again when they emerged from a breezeway in the apartment building across the street from Murphy's vantage point. Murphy observed the two men, now without their masks, from a distance of fifty to sixty feet. The two moved cautiously out of the breezeway, looking from side-to-side, then ran to a waiting maroon four-door Oldsmobile. They hurriedly entered the back seat, one of the men said "let's go" and then ducked down. The Oldsmobile sped away followed closely by an orange Matador automobile.
At trial Murphy positively identified one of the men as Kenneth Rayford and tentatively identified the other as Ronald Sublet, appellant in the case at bar.
The most significant evidence was provided by Diana Glover. According to her testimony, Diana was a passenger in the maroon Oldsmobile that picked up the two men in the Holiday Apartment complex. She testified that although unaware of the purpose of the trip, she had accompanied her husband, Michael Glover, that morning. Michael met and talked with Rayford and Sublet at several different locations during approximately two hours preceding the robbery of the Laurel Bank. The Glovers then drove to a side street near the Holiday Apartment complex. Diana saw the blue and white Oldsmobile skid off the road and saw the two men run into the woods. Michael Glover drove the maroon Oldsmobile into the apartment complex. Diana Glover positively identified Kenneth Rayford and Ronald Sublet as the two men who got into the maroon Oldsmobile.
The Glovers took Rayford and Sublet to the William Poole residence. They entered the house by separate doors. Poole testified that they looked tired and that the two, along with Michael Glover, watched a televised news account of the robbery with interest.
That afternoon Diana and another woman, Marlene Fue, were instructed by either Sublet or Rayford to return to the woods near the Holiday Apartment. Presumably they were to attempt to retrieve the money that had been dropped. Diana and Marlene used the orange Matador. Murphy and others had by this time told police that an orange Matador had accompanied the get-away car. When the Matador was spotted in the area of the Holiday Apartments, it was stopped and both Diana and Marlene were arrested. Diana led the police to the Poole residence where, early the next morning, Rayford and Sublet were captured.
Kenneth Rayford pled guilty to the bank robbery charge and was sentenced to twenty-five years.
The most troublesome question presented by appellant Sublet concerns an alleged "threat" made to an alternate juror during the trial. Although the exact nature of the incident is in dispute, the following facts are clear. Alternate juror DeMaria was leaving the courthouse on the first day of trial, a Monday, when she was passed by two black persons, a man and a woman, whom she recognized as spectators of the trial. DeMaria heard the black woman say, "You better make the right decision." The juror testified at a later in camera hearing that she thought the statement was directed to her and that she did not think she had overheard a conversation between the black man and woman, but she was not certain. 2
DeMaria did not report the comment. On the following Thursday, after the close of evidence and prior to closing arguments, the court became aware of the incident for the first time. On that day, DeMaria related the story during lunch to three non-alternate jurors: Coleman, Parker and Carr. Parker told the jury foreman, Coppage, who then notified one of the prosecutors. The court then interviewed the five jurors individually in his chambers on the record with counsel and the defendant present. There is nothing in the record to suggest that any other jurors were aware of the incident in question.
None of the jurors interviewed characterized the comment by the black woman as a threat. The four non-alternate jurors indicated that the comment had not been made directly to DeMaria and that she may have just overheard a conversation not connected to the trial. Juror Parker said that the comment "may not have been in connection with the trial." Juror Carr's version made the comment seem somewhat more significant. She said that DeMaria described the black woman as having a "very mean look on her face." On the record DeMaria described the woman as "tall, black and pretty."
Jurors Coleman, Parker and Carr, and alternate juror DeMaria all stated that their impartiality would not be affected by this incident. Foreman Coppage was not asked if it would have any effect on his view of the case. The district court adopted a special instruction drafted with the approval of defense counsel, without waiver of his motion for mistrial, to minimize any possible prejudice. The instruction stated:
(I)t has come to the Court's attention that early in the week one of the jury members overheard a comment by a courtroom spectator in the lobby at the front of the Courthouse. The Court has been assured by those members of the jury who may have had some knowledge of the substance of the comment, that their impartiality would not in any way be affected by their knowledge of this remark.
It is my duty now to simply repeat my previous instruction that only evidence in the courtroom is to be considered in arriving at your verdict in this case.
(T)he out of Court comment to which I am referring, was of course not made by either party to this case, nor (was) the comment in any way attributed to any party in the case. Under no circumstances should this minor incident cause you to be distracted from your responsibility of deciding the case solely on the basis of the evidence presented during the course of this trial in this courtroom.
Alternate juror DeMaria did not take part in the deliberation of this case.
It is well established that any private communication during a trial, directly or indirectly, with a juror about the matter pending before the jury is deemed presumptively prejudicial and the burden is upon the government to show that the contact was harmless. Remmer v. United States, 347 U.S. 227, 230, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). In this case the district court conducted a careful investigation in the presence of counsel and the defendant to determine the nature of the private contact and its...
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