U.S. v. West
| Decision Date | 04 June 1975 |
| Docket Number | 74-1960,Nos. 74-1939,s. 74-1939 |
| Citation | 517 F.2d 483 |
| Parties | UNITED STATES of America, Appellee, v. Ronald Udale WEST, Appellant. UNITED STATES of America, Appellee, v. James Vernoise ANDERSON, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David Robards, Asst. Fed. Public Defender, Kansas City, Mo., for appellants.
J. Whitfield, Asst. U. S. Atty., Kansas City, Mo., for appellee.
Before LAY and HENLEY, Circuit Judges, and REGAN, * District Judge.
The defendants Ronald Udale West and James Vernoise Anderson were convicted of bank robbery in violation of 18 U.S.C.A. § 2113(a) and (d) in the United States District Court for the Western District of Missouri, the Honorable Elmo B. Hunter presiding. The charges arose from the robbery of the Merchant's Produce Bank of Kansas City, Missouri, on the morning of May 31, 1974. On that day three black males wearing wigs and women's clothing held up the bank. The automobile in which the robbers escaped was followed to an apartment complex called Guinotte Manor at 336 Tracy Street in Kansas City. Police officers in pursuit saw one of the men enter the building and thereafter the officers recovered all of the money, totaling $22,938, and certain weapons from an apartment within. The defendants were arrested a short distance from the building within 10 or 15 minutes after the robbery. They were identified in a lineup by eyewitnesses to the robbery.
On appeal the defendants assert that the district court erred in failing (a) to grant a severance, (b) to suppress the in-court identification evidence, (c) to find that the defendant West was arrested illegally, and (d) to suppress evidence concerning the defendant Anderson's shoes and hair samples. Upon review of the record and briefs we find no prejudicial error and affirm the judgments of conviction.
The defendant Anderson complains that the district court erred in denying his pretrial motion for a separate trial. The motion was not renewed in the course of the trial, either at the close of the government's case or at the close of all of the evidence, and the defendant's failure to renew the motion ordinarily constitutes a waiver of the claim that he was entitled to a severance. United States v. Porter, 441 F.2d 1204 (8th Cir. 1971). In any event, the question of whether or not Anderson should have been granted a separate trial was one that addressed itself to the discretion of the district court, and we do not find any abuse of discretion in the denial of Anderson's motion. See United States v. Scott, 511 F.2d 15 (8th Cir. 1975); United States v. Guy, 456 F.2d 1157 (8th Cir. 1972).
The in-court identification was not challenged at trial. The lineup, which counsel challenges as suggestive, was thoroughly investigated by the trial court and found proper. Judge Hunter reasoned:
The lineup in this case was clearly not unduly suggestive so as to violate the defendants' rights to due process. The witnesses were not advised in any manner which individual or individuals in the lineup were actually suspected by the police, nor was any suggestion made to them which could be viewed as a suggestion as to which of the individuals, if any, at the lineup should be identified. In this case, the lineup and the events occurring prior thereto, were not conducted in a manner so unduly prejudicial so as to fatally "taint" a late in-court identification of the defendants West, Anderson, and Strong. Notably, all three of the witnesses made their identification of the defendants prior to the defendants and other participants wearing wigs and sunglasses in the lineup. Defendants were displayed along with three other men of the same race and approximately same age. The slight variations in the weight and height of the members of the lineup was not so great as to be impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. And, it is clear that the manner of dress did not aid the witnesses in their identification of the defendants as the bank robbers. Although three of the lineup participants had a slight moustache as compared to the three defendants who were relatively clean-shaven, there is no indication from the record that this fact aided the witnesses in their individual identification of the defendants, or that this variance was impermissibly suggestive to cause the lineup in question to be constitutionally defective in composition. Testimony at the hearing revealed that some of the descriptions given to police at the bank indicated that the robbers had "stubble" on...
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