U.S. v. Thomas

• Decision Date: 01 August 1975
• Docket Number: No. 74-1823,74-1823
• Citation: 521 F.2d 76
• Parties: UNITED STATES of America, Appellee, v. William THOMAS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 76

521 F.2d 76

32 A.L.R.Fed. 268

UNITED STATES of America, Appellee, v. William THOMAS, Appellant.

No. 74-1823.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1975.

Decided Aug. 1, 1975.

William C. Rea, Little Rock, Ark., for appellant.

Richard M. Pence, Jr., Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before MATTHES, Senior Circuit Judge, and HEANEY and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

William Thomas was convicted of attempted aggravated bank robbery in violation of 18 U.S.C. § 2113(d). ¹ In his appeal, Thomas challenges (1) the voluntariness of his pre-trial confession, (2) the trial court's instruction to the jury on the meaning of "putting in jeopardy" as used in the statute, (3) the propriety of the court's sending the exhibits to the jury room, (4) the refusal to grant a mistrial after two allegedly inconsistent verdicts were returned, and (5) the sufficiency of the evidence to support the judgment of conviction.

The government's evidence adduced the following facts: On February 25, 1974, a black male wearing a burgundy turtleneck sweater which partially covered his face entered the Palestine, Arkansas, branch of the First National Bank of Eastern Arkansas, a federally insured bank. He approached a teller who was sitting behind a bulletproof glass mounted on a counter and pointed a pistol into the customer exchange slot on the surface of the counter. He said something inaudible while motioning toward the door of the teller's area as if to indicate that he wished to enter. The teller asked, "Are you serious?" and sounded the alarm, whereupon the would-be robber turned and started out the front door. He was observed driving away in a white Ford Fairlane, middle 60's model, with an Arkansas license plate numbered AJC-840.

Approximately one month later, the teller observed Thurston Williams, a customer of the bank, wearing a sweater identical to that worn during the attempted robbery. She knew that Thurston Williams was not the robber. A few months later, she observed appellant Thomas and his brother outside the bank. Thomas fit the description of the man who had attempted to rob the bank, and she noticed that he shook his head in a negative manner and waited outside while his brother entered the bank to transact some business.

A 1967 white Ford Fairlane bearing the Arkansas license number AJC-840 was found abandoned in a field approximately five miles from the bank on March 12, 1974. Two FBI agents, who had received information that appellant had been seen near the vehicle, contacted Thomas and asked him to consent to their taking his fingerprints for elimination purposes, which he did. One of the latent fingerprints lifted by the FBI from the car matched Thomas' left middle fingerprint.

Because Thomas appeared very nervous during the fingerprinting process, he was detained for further interrogation by the FBI. The agents read Thomas his constitutional rights and, stating that he understood those rights, Thomas signed the "Warning of Rights and Waiver Form" which had been read to him. He then admitted that he had stolen the getaway car from a service station where it was parked, ² borrowed the burgundy turtleneck sweater from Thurston Williams, driven to the bank and attempted to rob it. Thereafter, Thomas accompanied the agents to Williams' home where they recovered the sweater. The agents then arrested Thomas and put his statements into writing. Thomas signed and dated the transcribed confession and initialed "WT" in the various places where corrections had been entered.

Thomas then accompanied the agents to a trailer behind his mother's home where, in the presence of his mother and several relatives, the .22 calibre pistol used in the attempted robbery was retrieved from an air conditioning duct. ³ Upon his mother's inquiry, Thomas acknowledged that he had committed the attempted bank robbery. He was thereafter charged with putting in jeopardy the life of the teller, Jennie Lou Hanner, while attempting to rob the Palestine branch bank, in violation of 18 U.S.C. § 2113(d). A jury found him guilty of committing the offense charged.

I. THE CONFESSION

The District Court ⁴ conducted a hearing on the voluntariness of the confession out of the hearing of the jury, See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), at which Thomas testified. According to his version of the circumstances surrounding his confession, he was not advised of his constitutional rights until after the recovery of the sweater and pistol, when the FBI agents began putting his alleged confession into writing. Thomas claimed at the pre-trial hearing on the confession that, once warned, he remained uncertain as to the meaning of his constitutional rights, though he admitted knowing that he was entitled to remain silent and to consult an attorney. He testified that although he asked to see an attorney, he was not permitted to do so but was told that he would see an attorney "in time." He claimed that he had signed the statement only because the FBI agents had threatened to charge him with other crimes. He asserted that he had not voluntarily signed the statement and that he had not initialled the pages of the statement.

The conflict between appellant's version of the circumstances surrounding his confession and that of the government presented a question of credibility for the trier of fact. United States v. Harvey, 483 F.2d 448, 449 (5th Cir. 1973), Cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 112 (1974); United States v. Crovedi, 467 F.2d 1032, 1036 (7th Cir. 1972), Cert. denied, 410 U.S. 990, 93 S.Ct. 1510, 36 L.Ed.2d 189 (1973). At the close of the pre-trial hearing, Judge Eisele resolved this conflict in favor of the government, stating "I am convinced by the proof that the statement is voluntary and was given by the defendant with full knowledge and awareness of his rights that is, after he had been advised of his rights." He further found that the fingerprints were furnished voluntarily, as were the sweater and the gun and overruled the motion to suppress. Such findings are not clearly erroneous, and we perceive no error of law in the admission of the sweater, the pistol, and the confession. Mullins v. United States, 487 F.2d 581, 583 (8th Cir. 1973); United States v. McNally, 485 F.2d 398, 406 (8th Cir. 1973), Cert. denied, 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874 (1974).

II. "PUTTING IN JEOPARDY"

The teller testified at trial that she had been afraid and concerned for her safety during the incident.

The offense under 18 U.S.C. § 2113(d) ⁵ is defined as including all of the elements of attempted bank robbery by means of intimidation, 18 U.S.C. § 2113(a), plus the additional element of placing in jeopardy the life of a person by means of a dangerous weapon or device. It is often referred to as aggravated bank robbery and carries a maximum punishment of twenty-five years imprisonment compared with twenty years for a violation of 18 U.S.C. § 2113(a). ⁶

In his charge to the jury, Judge Eisele defined "dangerous weapon or device" and "to put in jeopardy the life of a person," as follows:

(A) 'dangerous weapon or device' includes anything capable of being readily operated, manipulated, wielded, or otherwise used by one or more persons to inflict severe bodily harm or injury upon another person. So, an operable firearm, such as a pistol, revolver, or other gun, capable of firing a bullet or other ammunition, may be found to be a dangerous weapon or device.

To 'put in jeopardy the life' of a person 'by the use of a dangerous weapon or device' means, then, to expose such person to a risk of death, or to the fear of death, by the use of such dangerous weapon or device.

You may find that the defendant put in jeopardy the life of another person even though the defendant did not have actual ability to inflict severe bodily harm or injury. It is sufficient if the defendant created in the mind of a reasonable person the apprehension of death or serious bodily harm or injury by the use of an apparently dangerous weapon or device.

Appellant objects to the giving of the instruction because he contends there was insufficient evidence of putting in jeopardy to submit the aggravated offense to the jury. He asserts that, since there was no evidence that the pistol used in the robbery was loaded, at most the lesser included offense of attempted robbery by intimidation, 18 U.S.C. § 2113(a), should have been submitted to the jury.

While objection at trial to the first two paragraphs of the quoted instruction can be found, if at all, only in Thomas' general objection on sufficiency grounds, he did specifically object to the third paragraph of the quoted instruction on the ground that it permitted "jeopardy" to be established without objective evidence that at the time of the robbery he possessed the ability to inflict severe bodily harm or injury. The latter objection was well taken.

The instructions on putting in jeopardy, especially the third quoted paragraph, conflict with our holding in Morrow v. United States, 408 F.2d 1390, 1391 (8th Cir. 1969), in which we said:

The test of whether a victim's life has been placed in danger is an objective one; "not whether the employee was put in fear but whether his life Was put in danger by the use of a dangerous weapon." (Emphasis supplied.) United States v. Donovan, 242 F.2d 61, 63 (2d Cir. 1957), rev'd on other grounds sub nom. Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). ⁷

In satisfying the objective test, however, express proof that the gun used in a bank robbery was loaded is not required. The jury may infer this fact from the circumstance itself. United States v. Cady, 495 F.2d 742, 746 n. 7 (8th Cir. 1974); Morrow v. United States, Supra. ⁸

The jurors were not so instructed, however, because the third quoted paragraph permitted them to find that defendant had placed...