U.S. v. Taylor

• Citation: 530 F.2d 639
• Decision Date: 21 April 1976
• Docket Number: No. 75--2558,75--2558
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Freddie Lee TAYLOR and James Crawford Hicks, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 639

530 F.2d 639

UNITED STATES of America, Plaintiff-Appellee, v. Freddie Lee TAYLOR and James Crawford Hicks, Defendants-Appellants.

No. 75--2558.

United States Court of Appeals Fifth Circuit.

April 21, 1976.

E. C. Deeno Kitchen (Court appointed), Brian S. Duffy, Tallahassee, Fla., for Taylor.

Daniel J. Wiser, Tallahassee, Fla. (Court appointed), for Hicks.

Clinton Ashmore, U.S. Atty., Stewart J. Carrouth, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Florida.

Before BROWN, Chief Judge, TUTTLE and GEE, Circuit Judges:

TUTTLE, Circuit Judge:

Appellants James Crawford Hicks and Freddie Lee Taylor were convicted by a jury under 18 U.S.C. §§ 2113(a) and (d) and 18 U.S.C. § 2, for armed robbery of a federally-insured state bank. Briefly stated, the facts surrounding the robbery and their arrests are as follows: at approximately 9 A.M. on February 10, 1975, the Havana State Bank in Havana, Florida, was robbed of about $6,700 at gunpoint by two men wearing masks. The robbers took the money, ordered everyone present into the bank vault, and locked them inside. A bank camera, tripped after the bank personnel were locked in the vault, took pictures of the robbers. A local grocer saw two men pass his storefront window immediately after the robbery, and saw one of the men's faces. Approximately one hour later, appellants Hicks and Taylor were stopped, questioned, and their car searched by consent in Bainbridge, Georgia by a county sheriff. Two bank tellers present during the robbery then went to Bainbridge but were unable to identify appellants as the perpetrators of the robbery when contronted face to face with them. Appellants were thereupon released, but were arrested the following day in Tallahassee, Florida, by F.B.I. agents, on the strength of some of the bank photographs taken during the robbery. Appellants were indicted under the federal statutes cited above on April 2, 1975, pleaded not guilty, and trial commenced on June 4, 1975, with the jury returning a guilty verdict on June 6th. This appeal followed.

Since appellants have raised a number of issues, not all of which pertain to both of them, we will discuss their arguments individually.

JAMES CRAWFORD HICKS:

Appellant Hicks' first contention is that the district court erred in admitting into evidence certain in-court identifications of him by government witnesses; these identifications, appellant argues, were tainted by a lineup conducted without the presence of any defense counsel, on February 13, 1975 at the Tallahassee Police Department. The government asserts that Hicks voluntarily waived any right to counsel at the time the lineup was held.

Appellant's argument is without merit in light of the holdings in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), in which the Supreme Court determined that a pre-indictment lineup is not a 'critical' stage for purposes of the Sixth Amendment right to counsel. The due process standards for evaluating pre-indictment lineups without counsel, the Court held, are those enunciated in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), forbidding lineups that are 'unnecessarily suggestive and conductive to irreparable mistaken identification.' 406 U.S. at 691, 92 S.Ct. at 1883, 32 L.Ed.2d at 418. Here the lineup at issue occurred three days after the robbery, prior to any preliminary hearing, and well over a month and a half prior to the time at which both appellants were finally indicted, on April 2nd. Thus, the only question for this Court to consider is whether the lineup itself was conducted under circumstances which were unnecessarily suggestive or conducive to irreparable mistaken identification. Appellant has not alleged the existence of any such lineup conditions as would justify our finding that the in-court identifications by the government witnesses who were present at the lineup were tainted in any way. There have been, for example, no allegations that the other persons in the lineup possessed physical characteristics drastically dissimilar to those of appellant, thus clearly singling him out and suggesting him for identification to the government witnesses. Consequently, we find that the preindictment lineup at issue here did not violate appellant's due process rights.

Hicks next argues that the district court erred in admitting into evidence contact prints made from the film taken by the bank camera after the tellers and a bank official, Henry Slappey, were locked in the bank vault. Appellant contends that the government failed to lay the proper foundation for admission of these photographs since none of the eyewitnesses to the robbery testified that the pictures accurately represented the bank interior and the events that transpired. See Mikus v. United States, 433 F.2d 719 (2d Cir. 1970); United States v. Hobbs, 403 F.2d 977 (6th Cir. 1968).

In the case before us it was, of course, impossible for any of the tellers to testify that the film accurately depicted the events as witnessed by them, since the camera was activated only after the bank personnel were locked in the vault. The only testimony offered as foundation for the introduction of the photographs was by government witnesses who were not present during the actual robbery. These witnesses, however testified as to the manner in which the film was installed in the camera, how the camera was activated, the fact that the film was removed immediately after the robbery, the chain of its possession, and the fact that it was properly developed and contact prints made from it. Under the circumstances of this case, we find that such testimony furnished sufficient authentication for the admission of the contact prints into evidence. Admission of this type of photographic evidence is a matter largely within the discretion of the court, Moore v. Louisville & Nashville R.R. Co., 223 F.2d 214, 216 (5th Cir. 1955), and it is clear that the district court did not abuse its discretion here. See People v. Bowley, 59 Cal.2d 855, 859, 31 Cal.Rptr. 471, 382 P.2d 591, 594 (1963), where the California Supreme Court recognized that in certain instances photographs may be admissible as probative evidence in themselves, rather than solely as illustrative evidence to support a witness' testimony, provided that sufficient foundation evidence is adduced to show the circumstances under which it was taken and the reliability of the reproduction process.

Appellant Hicks' final alleged ground for reversal is the allegedly improper introduction into evidence, ostensibly for impeachment purposes, of the testimony of a government witness. Hicks contends that: (1) the testimony at issue was not admissible to impeach the other government witness involved, Mary Ruth Cromartie, because the testimony of Ms. Cromartie did not take the government by surprise; and (2) that even if the testimony were admissible for impeachment purposes, the district court erred in permitting the prosecution to argue it to the jury in his closing statement as substantive evidence.

During the trial the government offered as a witness Mary Ruth Cromartie, a woman who had been living with appellant Taylor at the time of the events in question. On direct examination, Ms. Cromartie repeatedly denied that she had ever had any conversations with Taylor in which he had implicated himself in the instant bank robbery. Immediately following her testimony, the government called Special Agent Kessler, over defense counsel's objections, for the purpose of impeachment. Kessler testified he had interviewed Ms. Cromartie prior to trial and that she had said that on February 9, 1975, Taylor had told her he was going to get a lot of money for her and the baby, that there was 'talk' that Taylor and Hicks had stashed the money and changed clothes in Georgia, and that...