U.S. v. Washington, 76-1750

• Citation: 550 F.2d 320
• Decision Date: 11 April 1977
• Docket Number: No. 76-1750,76-1750
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard WASHINGTON and Stanley Jules Johnson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 320

550 F.2d 320

UNITED STATES of America, Plaintiff-Appellee, v. Leonard WASHINGTON and Stanley Jules Johnson, Defendants-Appellants.

No. 76-1750.

United States Court of Appeals, Fifth Circuit.

April 11, 1977.

John T. Mulvehill, Asst. Federal Public Defender, La. (Court appointed), for Leonard Washington.

John Volz, Federal Public Defender, Richard T. Simmons, Jr., Asst. Federal Public Defender, Arthur L. Harris, Sr., New Orleans, La. (Court appointed), for Stanley Johnson.

Gerald J. Gallinghouse, U. S. Atty., Ernest C. Chen, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, Chief Judge, AINSWORTH, Circuit Judge, and JAMESON ^*, District Judge.

JAMESON, District Judge:

Appellants, Stanley Jules Johnson and Leonard Washington, were convicted following a jury trial, on one count of armed bank robbery and assault, in violation of 18 U.S.C. §§ 2, 2113(a), and 2113(d), and on one count of kidnapping and murder incident to bank robbery, in violation of 18 U.S.C. § 2113(e). Each appellant was sentenced to 99 years imprisonment. We affirm.

Facts

At 11:35 A.M. on October 31, 1974, three black men armed with handguns entered the Bank of St. Charles in Boutte, Louisiana. After forcing the bank employees and a customer into the vault, the men robbed the bank of $21,982.75, and left the scene in a 1973 Mercury Comet (white with a brown top), which had been parked in front of the bank. Judy Gibbs, a witness who was parked in front of the bank, saw three black men leave the bank, get into the Mercury Comet, back out "real fast" and head west on Highway 90.

At about noon Joyce Bernard, who had been driving west on Highway 90, turned onto Bayou Gauche Road where she saw two cars in the righthand lane (her lane) of traffic a late model two-toned compact car and a larger late model white car. Two black men stood between the cars conversing. One of them entered the larger car, drove past the compact, made a U-turn, and stopped next to the compact. The other man, who was wearing a red bandana around his throat, a "multiple-colored flannelette shirt", and a "little hat", squatted down behind the trunk of the compact as if he was "unlocking the trunk or fixing a flat". Both men then drove off in the larger car. ¹

Susan Lewis was also driving on Bayou Gauche Road at about noon. As she stopped behind a two-toned compact car parked in the right lane in order to let a truck pass from the opposite direction, she noticed blood dripping from the trunk of the car. Upon the arrival of police, the car's trunk was pried open, revealing the body of Irwin Brown, who had died of a gunshot wound in the head. The car was identified as a 1973 Mercury Comet belonging to Brown. Recovered from the roadside near the car were an orange hardhat, a red bandana, a glove, a blue workshirt, and a button identified as coming from the shirt. An examination of the car revealed a latent palm print on the right-front door handle, a spent .45 caliber shell casing, and the .45 caliber bullet which killed Brown.

The evidence disclosed that Irwin Brown, a customs broker and international freight forwarder in New Orleans, had a parking contract with the Holiday Inn on Royal Street and always parked his car, a white 1973 Mercury Comet with a brown top, there. On the morning of October 31, 1974, Brown followed his daily routine of dropping his son off at school and proceeding to work, but Brown never appeared for work.

Emile Carmouche, an employee of the Holiday Inn, testified that between 7:30 and 8:00 A.M. on October 31 he noticed two men, one wearing a red bandana on his head, enter the Holiday Inn from Exchange Alley and walk up the stairwell leading to the parking lot. Carmouche identified one of the men as appellant Washington, although he could not be "sure beyond a reasonable doubt".

Employees of the bank identified one of the robbers as wearing a "bluish-gray shirt" and another as wearing a "red scarf", an orange hardhat, and a flannelette shirt, black with red stripes. The articles of clothing found near the car on Bayou Gauche Road were identified by the employees as similar to those worn by the robbers. Two of the employees, Myra Fields and Mona Scott, testified that they had been shown photo spreads by the F.B.I. following the robbery and had identified the picture of Johnson as being similar to one of the men involved. Mrs. Fields testified that, although she was not positive, Johnson "could be the person that had come to my window". Mrs. Scott identified Johnson in court as one of the robbers and testified that she was "about ninety per cent sure" of her identification. A third employee, Gilda Rachael, identified Johnson as "almost definitely" being one of the robbers, and testified that she had previously identified Johnson at a police lineup on May 20, 1975.

Althea Tolliver, a friend of Johnson and Washington, was called as a witness by the Government. Tolliver, on October 31, 1974, was awaiting trial on charges of armed robbery. She agreed with a Government detective to assist in this case in return for his assistance in the disposition of the charges against her. Tolliver testified that upon her release on bail, she met Johnson, who told her that he "knew just what went down" at the bank robbery. Johnson said that one of the women at the bank had on a blue dress and that he knew one of the black women who worked there but wasn't worried. He told Tolliver that her "pistol sure came in handy that day". ² When Tolliver asked him for some money, Johnson replied: "Well, I don't have any right now. If you would have come to me a couple of weeks ago, I had a fist full of fifties . . . ."

Tolliver testified that she later met Washington. Upon being asked about the robbery, he said: "Well, I did it (but) I didn't get my share of the money". When asked about the guns used in the robbery, Washington replied: "I got a prettier .38 than your .45". Tolliver further testified that the hardhat was similar to one owned by Washington and that the workshirt was similar to one owned by Johnson.

A .45 caliber colt automatic pistol was received in evidence as Exhibit 17. Testimony revealed that the gun had been purchased from Gretna Gun Works, Inc. by Charles Strickland, who sold it to George Evans, who in turn sold it to J. Bruton. As noted supra, Tolliver testified that she stole the gun from Bruton and gave it to Washington. She identified Exhibit 17 as similar to the gun she stole from Bruton. A firearms expert testified that the shell casing found in the trunk of the Mercury Comet had been fired from that pistol "to the exclusion of all other weapons in existence". He also testified that the slug recovered from the trunk could have been fired from the gun. ³

A fingerprint expert testified that a latent palm print found on the right front door handle of Brown's Comet was definitely the palm print of Stanley Johnson. Records of South Central Bell Telephone Company showed that at 2:35 P.M. on October 31, 1974, Johnson made a person-to-person phone call from a phone booth in Luling, Louisiana, to his home in Marrero, Louisiana. The phone booth was three miles from Boutte on River Road, which connects Boutte with New Orleans.

Washington did not take the stand or call any witnesses. Johnson called several witnesses who testified that after 3:00 P.M. on the afternoon of October 31, 1974, Johnson had attended a football game and had helped a friend clean graves. Johnson himself testified about his activities on the afternoon of October 31, but could not recall what he had done that morning. He denied participating in the robbery of the Bank of St. Charles, denied making any statements to Althea Tolliver, and denied owning a .45 automatic. Johnson further testified that he didn't know how his palm print got on Brown's car.

Comments by Court

Both appellants argue that the court erred in remarks concerning the acceptability of a proffered Government expert in lifting latent fingerprints. In accepting the expert over defense counsel's objection that the witness was unfamiliar with leading texts and articles on the lifting of latent prints and was not an expert in the field of fingerprint analysis, the court stated:

"He's totally acceptable to the Court as an expert.

"I say that he has had more experience than any F.B.I. agent that's worth his salt.

"He's had more experience than any police officer who's worth his salt.

"He's had more experience than all of those nutty professors that you have talked about.

"It's done by the school of hard knocks, is where you learn to dust something and lift fingerprints, and not by some professor sitting in some university who doesn't know his neck from third base."

Johnson contends that these remarks denied him effective cross-examination of the expert's qualifications. Both appellants contend that the court's statement adversely affected the credibility of Johnson's expert witness, Dr. Elder, a psychologist and professor, who testified about the possibility of error in photographic identifications. Appellants claim that the court violated its duty to remain neutral and improperly trespassed on the jury's fact-finding duties. See United States v. Williams, 447 F.2d 894 (5 Cir. 1971).

While the remarks were unfortunate, viewing the record as a whole they do not constitute reversible error. First, they took but a few moments of a five day trial, concerned a procedural matter, and did not reflect on appellants' guilt or innocence. See United States v. James, 510 F.2d 546, 550 (5 Cir. 1975), cert. denied 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1976). Second, the comments were made long before appellants' expert took the stand, and were not directed toward him. ⁴Comments by Witness

The Government's first witness was Sandra Brown, widow of the murder victim. Following her testimony, defense counsel...