U.S. v. Taylor, 74-2198

• Decision Date: 21 February 1975
• Docket Number: No. 74-2198,74-2198
• Citation: 508 F.2d 761
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold James TAYLOR and Woodrow Hunter, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 761

508 F.2d 761

UNITED STATES of America, Plaintiff-Appellee, v. Harold James TAYLOR and Woodrow Hunter, Defendants-Appellants.

No. 74-2198.

United States Court of Appeals, Fifth Circuit.

Feb. 21, 1975.

David B. Byrne, Jr., Montgomery, Ala., for Taylor.

Michael I. Kent, Opelika, Ala., for Hunter.

Ira DeMent, U.S. Atty., Wade B. Perry, Jr., D. Broward Segrest, Asst. U.S. Attys., Montgomery, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before BELL, AINSWORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Woodrow Hunter and Harold James Taylor were convicted of the armed robbery of the Tuskegee Institute Branch of the City Bank of Tuskegee, Alabama, a bank with federally insured deposits. 18 U.S.C.A. 2113. We affirm the conviction of Hunter against several alleged trial errors. We reverse as to Taylor on the ground that the prosecution placed before the jury a statement of Hunter's implicating Taylor, which the Government in a successful effort to avoid a severance of the two cases had agreed not to introduce into evidence, and which violated Taylor's Sixth Amendment right to confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

About 9:30 in the morning on February 4, 1974, the Tuskegee bank was robbed of $11,375 by two armed men wearing masks and protective clothing so that none of their flesh was exposed. The Government obtained the defendants' convictions with the circumstantial evidence of seventeen witnesses and forty-five exhibits.

Woodrow Hunter

Woodrow Hunter raises six points on this appeal. A complete reading of the transcript of the pretrial and trial proceedings, a study of the briefs, and a review of the oral orgument convinces us that Hunter's conviction should be affirmed.

In accordance with our Local Rule 21, we dispense with a written opinion in connection with all but one of the points raised by Woodrow Hunter because the evidence in support of the jury verdict is not insufficient, no error of law appears, and we determine that an opinion would have no precedential value. In so doing we find that first, the trial judge did not so identify himself with the prosecution, engage in conduct, or make comments that affected a fair trial; second, there was not such prosecutorial misconduct as to constitute a violation of due process; third, there was no error in the admission of various photographs which were used to indicate the height of the bank robbers, contrary to two points asserted by Hunter; and fourth, the trial court properly instructed the jury as to the elements of the offense.

As to the denial of Hunter's motion to suppress statements made to the F.B.I. on the ground that Hunter was under the influence of drugs at the time, there was no positive testimony as to whether the amount of heroin or LSD or both that Hunter had allegedly consumed prior to the statements would affect his voluntariness and reliability. The resolution of this fact issue depended upon a credibility choice among several witnesses. The district court decided the issue against Hunter, there is ample evidence to support the decision, and no room is left for interference by a reviewing court. The mere fact that the defendant had taken drugs prior to giving the statement does not render it inadmissible. The evidence must show the defendant was so affected as to make his statement, after appropriate warnings, unreliable or involuntary. See United States v. Welsh, 417 F.2d 361 (5th Cir. 1969); Ortiz v. United States, 318 F.2d 450 (9th Cir. 1963), cert. denied, 376 U.S. 953, 84 S.Ct. 971, 11 L.Ed.2d 972 (1964).

Harold James Taylor

Crucial evidence against Harold James Taylor was given to the jury when F.B.I. Agent Byrne testified that Hunter told him that 'he and Taylor had hidden the clothes that they used and gun under an abandoned house.' The statement was anchored in the jury's mind when the prosecutor asked, 'And who was the Taylor that Hunter was referring to?' and received the reply that 'Harold Taylor is the man he said.'

Because Taylor's separate counsel was concerned that a statement by Hunter inculpating Taylor might be used against his client, he moved for severance prior to trial. Defendant Taylor would apparently have been entitled to a separate trial under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton held that the admission of a confession made by a co-defendant implicating the defendant, where the codefendant did not take the stand, violated the defendant's right to cross-examination secured by the Confrontation Clause of the Sixth Amendment.

In the hearing on this motion, the Government reported that of the three statements which Hunter had made to the F.B.I., only one inculpated Taylor. To avoid a severance and the Bruton problem in a joint trial, Government counsel told the court that, in this third statement, 'there is material which might, arguably, incriminate Taylor. For that reason we will not use the third statement. Therefore, I think there are no Bruton Grounds left in the case.'

'THE COURT: You mean you will not use the third statement if they are tried together? MR. PERRY: Yes, sir, if they are tried together, and if Hunter does not take the stand.

There is no dispute that the statement testified to by the F.B.I. agent at the trial was in the 'third statement.'

Seeking to justify its violation of the agreement not to use the statement by Hunter against Taylor, and prevent reversal under Bruton, the Government asserts that the incriminating statement was not used on direct, but only upon redirect after Taylor's counsel had 'opened the door' to inquiry about the third statement. The Government relies on several cases which have held that a defendant cannot obtain reversal because of the admission of otherwise inadmissible evidence where the defendant himself has opened up the constitutionally forbidden subject matter. Sometimes called the doctrine of invited error, the accepted rule is that where the injection of allegedly inadmissible evidence is attributable directly to the action of the defense, its introduction does not constitute reversible error. See generally Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Birns v Perini, 426 F.2d 1288 (6th Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971); United States v. Fioravanti, 412 F.2d 407 (3rd Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969). Though the Government argues that cross-examination of the agent by Taylor's counsel placed the 'third statement' in issue and opened the way to interrogation about it on redirect examination, the record neither supports the argument factually nor justifies the application of the principle asserted by the Government.

Prior to the testimony of the agent, another witness testified that one of the weapons used by the robbers was a sawed-off shotgun, possibly double-barrelled. The F.B.I. agent testified on direct examination that he found a sawedoff rifle, which certain witnesses then identified as the weapon. On cross-examination, defense counsel for Taylor was trying to develop the inconsistency between a shotgun and a rifle and this exchange resulted:

Q. . . . Did you ask them to explain the inconsistency between this and a double barrel shotgun or a shotgun? A. I didn't talk with any of those people that you say described the weapon. It was described to me as a rifle, sawed-off rifle, and that's...