U.S. v. Terry

• Decision Date: 02 July 1985
• Docket Number: No. 84-1048,84-1048
• Parties: 19 Fed. R. Evid. Serv. 502 UNITED STATES of America, Plaintiff-Appellee v. Royal Stafford TERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 939

760 F.2d 939

19 Fed. R. Evid. Serv. 502

UNITED STATES of America, Plaintiff-Appellee v. Royal Stafford TERRY, Defendant-Appellant.

No. 84-1048.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 16, 1985.

Decided May 13, 1985.

As Amended July 2, 1985.

Floy E. Dawson, San Francisco, Cal., for plaintiff-appellee.

A.J. Kramer, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, Senior Circuit Judge, FARRIS and BEEZER, Circuit Judges.

CHOY, Senior Circuit Judge:

Defendant-appellant Royal Stafford Terry was convicted of three counts of armed There is no dispute that three separate bank robberies by a man wielding a gun occurred in 1983. The only issue at trial was whether the defendant was the robber of the three banks. The prosecution introduced surveillance photographs and presented seven eyewitnesses to the robberies (at least two per robbery) who positively identified the defendant in court as the man who committed the respective robberies. Although the evidence suggests that the robber was clean shaven in at least two of the robberies, the witnesses nevertheless identified Terry, who was bearded at the time of the trial, as the robber.

bank robbery under 18 U.S.C. Sec. 2113(a) & (d). He was sentenced to 15 years imprisonment on each count, the sentences to run concurrently.

Members of the defendant's family and a neighbor testified, for the defense, that Terry could not have been the robber because they have always known Terry to wear a full beard and he had a beard around the times of the robberies.

The prosecution introduced photographs of Terry, derived from various police mugshots, taken between 1976 and 1981 showing Terry either clean shaven or in various hirsute states. Agent Lewis, who interviewed Terry after an illegal arrest six days after the last bank robbery, testified that Terry had a new growth of beard of about two or three days.

ISSUES

1) Was there sufficient evidence for a reasonable jury to find that Terry was the man who committed the three bank robberies?

2) Was there sufficient evidence that the robber put life in jeopardy by the use of a dangerous weapon to sustain Terry's conviction for armed robbery?

3) Must this court reverse Terry's convictions because Agent Lewis should not have been allowed to testify about Terry's facial appearance following Terry's illegal arrest?

4) Was the trial court's admission of the altered mugshots of Terry improper because they were irrelevant and unfairly prejudicial?

ANALYSIS

1) Sufficiency of the Evidence to Prove that Terry was the Robber

The eyewitnesses who identified the defendant in court as the robber in each robbery were subjected to cross-examination directed at weakening their identification of Terry. Those who were asked on redirect reasserted their certainty that Terry was the robber and none of the others retracted their initial identification. Were this the extent of the evidence, there could be no doubt that these positive identifications would provide sufficient evidence to sustain the convictions.

Here, however, the defense put on witnesses who testified that Terry had a beard during the times that the robberies were committed whereas the robber at each of the banks did not have a beard. ¹ Many of these witnesses testified that the surveillance photos were not of defendant because the photos depicted clean shaven men.

In determining the sufficiency of the evidence, the standard of review is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the elements of the crime charged beyond a reasonable doubt. United States v. Clevenger, 733 F.2d 1356, 1358 (9th Cir.1984). The credibility of the defense witnesses was somewhat suspect given some discrepancies in their testimony and because some of those who denied that the surveillance photos depicted defendant also refused to acknowledge that certain pictures that were stipulated to be of Terry were in fact pictures of defendant.

Thus, a reasonable jury could have believed the prosecution's eyewitnesses and rejected the testimony of the defense witnesses. We have made clear that "[t]he trier of fact has a wide latitude in which to decide which witnesses to believe or disbelieve." Clevenger, 733 F.2d at 1359.

Furthermore, it is also possible that the defense witnesses were not lying but simply mistaken as to Terry's beard, either because they forgot or because Terry could have worn a fake beard when he was in their presence. Similarly, while the defense makes much of the fact that none of the bank eyewitnesses noticed a scar below the robber's left eye nor one on the robber's neck, it is possible that Terry simply used makeup to cover up these scars before robbing the banks. Since we must view all the evidence in a light most favorable to the government, it is clear that a jury could have concluded beyond a reasonable doubt that Terry was the robber.

2) Sufficiency of the Evidence to Show that the Robber Put Life in Jeopardy by the Use of a Dangerous Weapon

Subsection (d) of 18 U.S.C. Sec. 2113 enhances the penalty for bank robbery when the defendant "puts in jeopardy the life of any person by the use of a dangerous weapon." To fall under this armed robbery provision, the Ninth Circuit requires that the gun be objectively capable of causing harm, i.e., that the gun be loaded and operable. See, e.g., United States v. Booth, 669 F.2d 1231, 1239 (9th Cir.1981); United States v. Jones, 512 F.2d 347, 351 (9th Cir.1975); United States v. De Palma, 414 F.2d 394, 396 (9th Cir.1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690 (1970). However, this court has held that "if a gun is used in the course of a bank robbery the jury may infer, in the absence of evidence to the contrary, that the gun was loaded." United States v. Jones, 512 F.2d 347, 351 (9th Cir.1975).

There is no dispute that at each of the three robberies the robber possessed a gun and pointed it at persons in a threatening manner. These persons testified that they were very frightened at the sight of the robber with his gun. No evidence suggesting that the gun was not loaded or otherwise non-functional was presented. As stated in Wagner v. United States, 264 F.2d 524, 530 n. 8 (9th Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548, reh'g denied, 361 U.S. 857, 80 S.Ct. 48, 4 L.Ed.2d 97 (1959), "[w]hen ... a robber displays a gun to back up his demands, he wants his victim to believe that it is loaded, and the fact-finder may fairly infer that it was." Viewing the evidence and the possible inferences to be drawn from it in the light most favorable to the government, the evidence presented was sufficient to support Terry's conviction under Sec. 2113(d). See United States v. Love, 746 F.2d 477, 479-80 (9th Cir.1984).

Appellant contends, however, that the Jones and Wagner principle as applied to this case represents an unconstitutional shifting of the government's burden to prove all elements of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). He argues that it was impossible for him to provide the contrary evidence required in Jones to refute the inference of objective capability, because he has all along denied participation in the robbery. He could not testify that he did not load the gun for that would amount to an admission that he was the robber.

It is clear, however, that appellant's dilemma is simply the natural result of his decision to deny participation in the robbery. ² 2] The government established the basic facts necessary to support the inference of objective capability allowed in Jones and Wagner. There was...