U.S. v. Wiseman, 97-2301

• Decision Date: 05 April 1999
• Docket Number: No. 97-2301,97-2301
• Citation: 172 F.3d 1196
• Parties: 1999 CJ C.A.R. 2124 UNITED STATES of America, Plaintiff-Appellee, v. Lonnie Ray WISEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1196

172 F.3d 1196

1999 CJ C.A.R. 2124

UNITED STATES of America, Plaintiff-Appellee, v. Lonnie Ray WISEMAN, Defendant-Appellant.

No. 97-2301.

United States Court of Appeals,

Tenth Circuit.

April 5, 1999.

Jacquelyn Robins, Albuquerque, New Mexico, for Defendant-Appellant.

Sam Winder, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before MURPHY, HOLLOWAY and MAGILL, ^* Circuit Judges.

HOLLOWAY, Circuit Judge.

This is a direct appeal from convictions and a sentence in a criminal case. Our jurisdiction is conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Defendant/appellant Lonnie Ray Wiseman was convicted by a jury on each count of an eight count indictment based on a series of robberies of grocery stores in New Mexico. Wiseman had been indicted jointly with Thomas Martin, with all counts alleged against each of them. The district judge ordered the cases severed for trial, after which Martin entered into a plea agreement. ¹ Martin did not testify at Wiseman's trial, however. Defendant Wiseman was convicted and received, inter alia, a sentence of imprisonment overall of 595 months.

I

The evidence at trial, including some statements from a confession by Wiseman, taken in the light most favorable to the jury's guilty verdicts on all counts, showed generally as follows: The series of crimes for which Wiseman was convicted began in Santa Fe, New Mexico, on September 22, 1995, when he and Martin robbed a grocery store, getting away with $4,000 or $5,000. ² Two witnesses who were working in the Santa Fe store at the time of the robbery testified at trial: Sandy Zamora, the first employee approached in the store and Angie Montoya, who assisted in putting money in a bag. Ms. Zamora described the first man who approached her as about five feet, six inches tall, with "dirty blond" hair, a thin build and a thin face. V R. at 32. She also saw a second man, taller and dark looking, but didn't see his face. Id. at 33. Ms. Montoya only saw one man, the one who had approached Zamora, and was only able to describe him as Anglo with hair that was "a dirty blond, almost a light brown." Id. at 41. Neither of these witnesses attempted to identify defendant Wiseman at trial.

The day after the Santa Fe robbery, a grocery store in Taos was robbed and about $6,000 or $7,000 was taken. Katherine Duran was working at the cash register when the manager yelled that he had been robbed. Id. at 54. Ms. Duran went out into the parking lot to see if she could see a car leaving. She saw two men walking to a maroon or reddish car. She saw "a blond guy and a Spanish guy." Id. at 50. The one who "looked like he was Hispanic" was "just a big guy" and was "taller than the other one." Ms. Duran realized that the shorter, fairer man was one she had noticed when he first entered the store. He had walked right past her. She testified that she was able to identify Wiseman at trial because when she first saw him, before the robbery, "I was checking out the blond guy, and that's how I knew it was him." Id. at 58-59. Ms. Duran had previously identified a photo of Wiseman from a photo array shown to her by officers about three months after the robbery.

Wiseman and Martin next robbed a grocery store in Carlsbad on October 8, 1995, getting away with $2,500 to $3,000. Merced Carrasco was a manager at the store and at about 10:30 p.m. was working at a cash register when a man came through to purchase a couple of items. A few minutes later the same man came back into the store and approached Carrasco. The man showed a pistol and said, "We are going to rob your store." They went to the service booth where the safe was kept, and Carrasco emptied all of the bills into a grocery bag. Carrasco also saw a second man, whom he described as Hispanic and an inch or two over six feet tall. The second man did not display a weapon. Carrasco identified defendant Wiseman as the robber who had first approached him and who had made a purchase from him just minutes before that. Id. at 75-80. Carrasco had also identified a picture of Wiseman from a photo array shown to him by an officer about two months after the robbery. Id. at 88.

On October 13, 1995, Wiseman and Martin robbed a grocery store in Alamogordo and made away with about $20,000. Larry Clark was an assistant manager at that store and was in the office at about 11:00 p.m. when a man came into the office. The man lifted his shirt to show a pistol in his waistband, which he clutched and shook. The man demanded all of the money. Two other people were in the office, and the three employees loaded the money into bags. During this process, Clark looked up and saw a man standing on the outside of the window to the service booth. This man placed a gun on the counter. The first man was Anglo, with brown-blond hair. The other man was Hispanic. Clark identified Wiseman at trial. He also picked a photograph of Wiseman from the array shown to him by officers some weeks after the robbery. Id. 98-103. Clark was shown two pistols, Exhibits 3 and 4, which he said looked like the guns used in the robbery. Id. at 103-04. (Those pistols were later identified as two air pistols which were in the car in which Wiseman had been a passenger just before his arrest in Arkansas in late November 1995, as discussed below.)

The fifth robbery committed by the pair in New Mexico was in Silver City on November 7, 1995, where $3,000 or $4,000 was taken. Marty Martinez was an assistant manager at that store and was approached by a man with a gun who ordered him to open the safe. Martinez was not able to describe the man except to say that he was "light-complected" but with a "pretty good tan, like he worked outside," and had "light brownish" hair. He also saw a slight scar on his face. While the robbery was going on, Martinez looked around the store and saw a "dark and heavyset" man, who opened his coat to show that he was holding a gun. Martinez identified Exhibit 4 as being like the pistol carried by the first man. Martinez identified Exhibit 7 (later proved to have been a "Tec-9" which had been thrown from the car in which Wiseman was riding just before his arrest in Arkansas) as the type of gun the second man had shown during the robbery. VI R. at 215-19. Martinez said he would not be able to identify the robber if he were to see him again. He had not made an identification from the photo array he had been shown, either.

The sixth and final robbery charged occurred on November 15, 1995, in Clovis, with more than $5,000 being taken. William Bargman, a store manager, testified at trial that the robbery occurred at about 3:00 p.m. Bargman and two other employees were talking in an aisle when a man approached and asked if one of them was the manager. Bargman said that he was and shook hands with the man, asking what he could do for him. The man opened his jacket to show that he was carrying a gun and said, "This is a real gun, this is a real robbery." Bargman looked around to see another man who opened his jacket to show that he was carrying a gun. Bargman's description of the first man was "slight built, sandy brown hair, mustache." He estimated the man's height at five feet four inches. The second man was over six feet tall and over 250 pounds. Bargman identified Wiseman as the first of the two robbers and identified Exhibit 7 as the gun carried by the second man. V R. at 112-116. ³

About two weeks after the last of these six robberies, Martin and Wiseman were approached by a state trooper in Arkansas as they were stopped at a service station or a convenience store. The two men fled from the trooper and a high speed chase ensued. During the chase, the authorities saw the suspects throw a duffle bag out of the car. When the bag was later recovered it was found to have cash and a semi-automatic firearm of the kind known as a Tec-9. The pursued car finally ran off the road, at which time defendant was taken into custody, but only after he first had attempted to run back to the car and officers had fired at least three shots at him. VI R. at 209-13. Martin avoided capture at that time but was later arrested near Abilene, Texas. After Wiseman's arrest, two air pistols were recovered from the car in which he had been riding, which were introduced at trial and identified by some of the witnesses to the robberies, as we have noted.

After his arrest, Wiseman was treated briefly at a local hospital for the minor injuries he had sustained when the car went off the road, then taken to a local jail. The next day, beginning at about 11:30 a.m., he was questioned for several hours by members of the Arkansas State Police, the Fayetteville Police, and F.B.I. Special Agent Mark Jessie. At first, Wiseman claimed that his name was Leonardo Hirsch and denied any role in any robberies. He ultimately gave a detailed statement which included admissions to five of the six New Mexico robberies. At trial, Agent Jessie testified to the substance of Wiseman's statement, including the admissions that he and Martin had committed the robberies in Santa Fe, Taos, Carlsbad, Alamogordo, and Silver City. V R. at 131-35. ⁴ Jessie testified that at some point after the advice of rights form was signed by Wiseman, "[h]e proceeded to confess to the armed robberies of five grocery stores in New Mexico," id. at 131, his confession not mentioning the Clovis robbery, id. at 135.

The defense called four witnesses at trial, all of them law enforcement officers. Detective Byrd of the Alamogordo Police testified that he interviewed Larry Clark, manager of the store which was robbed in that city, shortly after the robbery. In that interview, Clark told Byrd that he had noticed a man, the same man who later robbed the store, whom he suspected might be a shoplifter. Clark had said that he followed the man to the liquor section of the store.

The defense then called Sergeant Trujillo of...