U.S. v. Wright

• Decision Date: 14 October 1977
• Docket Number: 77-1297 and 77-1298,Nos. 77-1277,s. 77-1277
• Citation: 564 F.2d 785
• Parties: , 2 Fed. R. Evid. Serv. 189 UNITED STATES of America, Appellee, v. Lloyd WRIGHT, Appellant. UNITED STATES of America, Appellee, v. Marcus FRANKLIN, Appellant. UNITED STATES of America, Appellee, v. Leonard CROSS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 785

564 F.2d 785

48 A.L.R.Fed. 119, 2 Fed. R. Evid. Serv. 189

UNITED STATES of America, Appellee, v. Lloyd WRIGHT, Appellant.

UNITED STATES of America, Appellee, v. Marcus FRANKLIN, Appellant.

UNITED STATES of America, Appellee, v. Leonard CROSS, Appellant.

Nos. 77-1277, 77-1297 and 77-1298.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 15, 1977.

Decided Oct. 14, 1977.

David M. Duree, St. Louis, Mo., for appellant Lloyd Wright.

Mark S. Fredman, St. Louis, Mo., for appellant Marcus Franklin.

Steven G. Schumaier, Clayton, Mo., for appellant Leonard Cross.

Frederick R. Buckles, Asst. U. S. Atty., St. Louis, Mo., argued, Barry A. Short, U. S. Atty., on brief, for appellee.

Before VAN OOSTERHOUT and MATTHES, Senior Circuit Judges, and STEPHENSON, Circuit Judge.

MATTHES, Senior Circuit Judge.

Lloyd Wright, Marcus Franklin, and Leonard Cross were jointly indicted, tried, and found guilty of robbing the Charter Bank of Jennings, Missouri, and of assaulting and putting in jeopardy the lives of three employees of the bank by means and use of a dangerous weapon, in violation of 18 U.S.C. § 2113(a)-(b). ¹ Appellants are individually represented in this court by the same counsel who represented them at trial. They do not challenge the sufficiency of the evidence, and, as is true in numerous criminal appeals, they make no pretense that they are innocent. Rather, appellants claim that prejudicial error pervaded the proceeding, entitling them to another trial. Thus, the posture of this appeal dispenses with the necessity of a protracted statement of the evidence.

The holdup took place on the morning of January 5, 1977. The uncontradicted evidence establishes that four individuals disguised by ski masks or stockings covering their faces entered the bank. One of them stationed himself inside the front door holding an operable shotgun in his hands while the other three vaulted over the counter and purloined approximately $8,000 from three female bank tellers. Some of the currency taken by the robbers was so-called bait money. Threats were directed against the bank employees and customers by the robbers. No one resisted or attempted to interfere while the holdup was in progress. The robbers made their getaway in an automobile, but their freedom was short-lived. That same afternoon and evening all four were arrested. Bait money was found in the possession of one or more of appellants. In addition, other incriminating tangible evidence was seized and incriminating statements were made.

None of the appellants testified at the trial. Franklin called two alibi witnesses in his defense, but the jury obviously discredited their testimony.

Appellants press six issues:

I. Denial of a pretrial motion for severance.

II. Error in the instructions.

III. Failure to grant a mistrial after it was discovered that several of the jurors might have seen the appellants in handcuffs.

IV. Failure to grant a motion to suppress items seized in a warrantless search of appellant Cross' home.

V. Denial of the cross-examination of a government witness relating to the witness' prior inconsistent statement.

VI. Denial of appellants' motion to recall a government witness for further cross-examination.

We will elaborate upon the foregoing contentions in our discussion and rejection of all of them.

I Severance Issue

Appellants assert that a severance was mandated because evidence was admitted in the joint trial which was material and prejudicial to each appellant and would not have been admitted against them in separate trials.

Fed.R.Crim.P. 8(b) provides that two or more defendants may be charged in the same indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense. It is settled doctrine, and logic dictates, that a broad interpretation of Rule 8(b) is encouraged in the interest of more efficient administration of criminal trials. Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966), cert. denied, 386 U.S. 1023, 87 S.Ct. 1379, 18 L.Ed.2d 461 (1967). The root question is whether any of the defendants was prejudiced by the denial of a severance. The rule regarding prejudice is clearly stated in an opinion authored by then Chief Judge Van Oosterhout:

"The existence of prejudice, in large measure, depends upon the facts and circumstances of each case, * * * and it is axiomatic that the granting of a severance is within the discretion of the trial judge. * * * The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review. * * * The defendant must show something more than the fact that 'a separate trial might offer him a better chance of acquittal.' " (citations omitted.)

Williams v. United States, 416 F.2d 1064, 1070 (8th Cir. 1969), quoting Tillman v. United States, 406 F.2d 930, 934-35 (5th Cir.), vacated in part on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). The court in Tillman relied partially on Butler v. United States, 317 F.2d 249 (8th Cir.), cert. denied, 375 U.S. 838, 84 S.Ct. 77, 11 L.Ed.2d 65 (1963), where we stated that "(t)he trial court's refusal to order separate trials or grant severance is not grounds for reversal unless the record indicates an abuse of discretion." Id. at 264, citing Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954); see also United States v. Schmaltz, 562 F.2d 558, at 560 (8th Cir. 1977); United States v. Losing, 560 F.2d 906 (8th Cir. 1977); United States v. Jackson, 549 F.2d 517, 523-24 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977).

The appellants, especially Wright and Franklin, claim that they were prejudiced because certain items seized from appellant Cross' home were admitted against all of them. They rely upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1967). However, Bruton is inapposite. Furthermore, as Judge Lay aptly observed in Haggard v. United States, supra, in dealing with the severance issue.

(n)or do we think that "participation" in the "same series" requires "participation in each transaction of the series." * * * The language of Rule 8(b) assumes certain evidence may be admitted against one defendant not necessarily applicable to another.

Id. at 973. This record convincingly and unequivocally demonstrates that the three appellants and Stewart actively participated in the actual robbing of the bank. Viewing the evidence in the light most favorable to the verdict, the jury was fully justified in finding that they acted in concert from the beginning of their illegal endeavor. Beyond any speculation, this was a classic case for joinder.

II Instructions

The instructions to the jury are challenged on several grounds. Appellants complain that some of the instructions given were erroneous and prejudicial. They also contend that the district court erred in refusing to give certain requested instructions. We hold that the district court's charge to the jury was proper and sufficient.

Appellants' contention that the district court's instructions "undermine(d) the presumption of innocence" borders on the frivolous. The court repeatedly informed the jury that the government had the burden of proving guilt beyond a reasonable doubt. Moreover, the substance of the instruction on reasonable doubt has recently been approved by this court. United States v. Knight, 547 F.2d 75, 77 (8th Cir. 1976); United States v. Conley, 523 F.2d 650, 655 (8th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1125, 47 L.Ed.2d 327 (1976).

Appellants also contend that the court committed reversible error in instructing the jury on aiding and abetting, asserting in support of that argument that there was no evidence to support such a charge. We disagree. As shown above, it stands uncontroverted that appellants and Stewart committed the robbery. During the affray, each played a slightly different role, but manifestly their objective was to hold up the bank employees at gunpoint. They successfully carried out their mission, and in doing so, threatened bank employees and customers and placed their lives in jeopardy. Considering the interplay of the four participants and their roles before, at, and subsequent to the holdup, this was a proper case for submitting the aiding and abetting element. United States v. Marx, 485 F.2d 1179, 1185 (10th Cir. 1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974); Caton v. United States, 407 F.2d 367 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969); see also Cunha v. Brewer, 511 F.2d 894 (8th Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 108, 46 L.Ed.2d 83 (1975).

Throughout the trial, appellants unsuccessfully attempted to show that Alma Rice, a key government witness and a cousin of appellant Wright, had been a party to the crime. They now insist that the district court erred in not giving an accomplice instruction concerning her testimony. This challenge must fail since there is a complete lack of any credible evidence showing that Rice aided and abetted the appellants and Stewart in the robbery. Only two facts link her to the crime: she was in an automobile with appellant Wright on the morning of the robbery, and bait money was found in a purse in her possession when she and Wright were apprehended. But according to her testimony, which apparently the district court credited, she was neither directly nor indirectly involved in the robbery, did not know of appellants' plan to commit the offense, and was unaware of its commission until she was apprehended. Although she did have a purse in her possession when arrested, she testified that the purse was not hers and that she only learned of its contents when it was opened in her presence by one of the arresting officers. In sum, the record does not establish that Rice was an accomplice.

The claim is also...