United States v. Close

• Decision Date: 09 August 1965
• Docket Number: No. 9379.,9379.
• Parties: UNITED STATES of America, Appellee, v. Harold Stanley CLOSE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

349 F.2d 841 (1965)

UNITED STATES of America, Appellee, v. Harold Stanley CLOSE, Appellant.

No. 9379.

United States Court of Appeals Fourth Circuit.

Argued November 19, 1964.

Decided August 9, 1965.

Lewis T. Booker (Court-assigned counsel), Richmond, Va., for appellant.

Robert W. Kernan, First Asst. U. S. Atty. (Thomas J. Kenney, U. S. Atty., on brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge:

Harold Stanley Close, appellant, and Carl Close, his brother, were jointly tried and convicted by jury on December 20, 1963, on a four-count indictment charging them with robbing the Edmondson Village Branch of the Equitable Trust Company, Baltimore, Maryland, on March 8, 1963, the bank's deposits being insured by the Federal Deposit Insurance Corporation. The undisputed evidence disclosed that two men were involved in the robbery and at trial Carl freely admitted his participation but undertook to exonerate Harold, claiming that an unnamed and unidentified prisoner whom he, Carl, had befriended when both were in the Federal Penitentiary at Leavenworth, was his accomplice. Harold Close has appealed but we think the judgment of conviction and sentence must be affirmed.

The sufficiency of the evidence to sustain the conviction is challenged and we find it necessary to review the evidence in some detail. The appellant will be referred to as "Harold" and his brother, as "Carl." Their married sister, Betty Lou O'Donnell, will be referred to as "Betty."

Harold was an electrician by trade. He had received personal injury settlements of $8,600 in 1953, $24,000 in 1958, and $2,760 in July of 1961. From September 1960 to October 1961, Harold engaged in a used automobile business in Pittsburgh, Pennsylvania, under the trade name of Close Auto Sales, but this venture proved to be financially disastrous and he returned to his trade. During 1962 he had left his wife and children and lived with his sister, Ann Silver, and her husband, Jack, in Pittsburgh. Harold took Jack Silver as an apprentice but they were unable to find steady work and in early December 1962 they traveled in Harold's automobile to South Carolina and in Florida, unsuccessfully seeking employment. They then went to Nokomis, Florida, where Harold's parents and some of his brothers and sisters resided. There they worked for a very short period.

Harold renewed his acquaintance with his brother, Carl, who had been convicted on a Federal charge of bank robbery in 1949, and who had been released on parole about eighteen months before they met in Nokomis. Carl had been employed as a sheet metal worker but was hospitalized and unable to work for several weeks after Christmas 1962. While in Nokomis, Harold traded his Cadillac automobile to his father for a 1950 Oldsmobile sedan which he registered in the name of Robert Reis, obtaining 1963 Florida license tags bearing the number 16W15697. Harold later offered the explanation that he used the name "Reis" because his wife was attempting to charge him with nonsupport and he feared she would trace him if he used his real name.

Jack Silver had left Florida and in early March 1963, Harold and Carl decided to go north. By arrangement their sister Betty was to accompany them and attempt to regain custody of three of her children who were with Betty's estranged husband in New Jersey. Their sister, Mrs. Silver, had sent Harold $500 in cash and had sent Carl a money order for $150.

Pursuant to plan, Harold, Carl, and Betty left Florida early in March but the exact time of their departure was not shown by the evidence. They traveled in the old 1950 Oldsmobile which had been wrecked and could not be driven fast. After several days they reached Winchester, Virginia, where they registered at a motel. The motel proprietress, whose testimony was stipulated, stated that, at about nine o'clock on the morning of March 7, 1963, a man registered under the name of Robert Wilson and gave a Pittsburgh address; that there were three in the party, two men and a woman, and "Wilson" made an advance payment for one day's rental of one room; that "Wilson" said they were on their way from Florida to Pittsburgh and had traveled all night. The proprietress selected a photograph of Harold as resembling the man who registered as "Wilson." In filling out the motel registration card, he gave his vehicle license number as Florida, 1615697, and the Pittsburgh address given was that of the Jack Silvers. This witness saw the woman and two men around later that same day but she could not say when they left since it was customary for departing guests to leave the key in the door; they made no further payment, however.

THE BANK ROBBERY

The branch bank where the robbery was staged is located in the suburbs of Baltimore in the Edmondson Village Shopping Center. At the rear of the shopping center there is a large parking lot. Another parking lot abuts a sixteen-foot sidewalk in front of the buildings where diagonal parking spaces are provided. On the west side and adjacent to the bank is a shoe store located at a corner of the shopping center.

Carl Grimm, forty-six years of age, who had owned or operated a Baltimore Sun paper route for seventeen years, parked his station wagon in front of the bank about 4:45 p. m. on March 8, 1963. He remained in the front seat while he awaited the return of his wife and daughter who were at a nearby doctor's office. From that position he had a clear and unobstructed view of the large front window of the bank. Shortly after five o'clock he observed two men wearing hooded sweat shirts or parkas, one red and one green, walking in his direction along the sidewalk in front of the shoe store some twenty or thirty feet away. They appeared to be in conversation and the man in red was nearer the curb. They entered the front door of the bank and Grimm's attention was particularly attracted to them because the day was warm and they were wearing the parkas with the hoods up over their heads although their faces were not covered.

Grimm watched them enter the bank and proceed therein a distance which he estimated to be somewhere between seven and fifteen feet, or to the limit of his vision, into the interior of the bank. The man wearing the red parka turned and came back close to the front window and peered out; his face was not covered and Grimm thought he "looked straight through" him; the man then turned facing the rear of the bank; as he turned, Grimm saw him move his hand toward his face and then observed that he apparently prevented someone from leaving the bank by the front door.

His suspicions aroused, Grimm backed his car out and drove across the street where he attempted to telephone the police. While there he saw the two men come out of the bank, run in front of the shoe store, around the corner, and along the side of the building, dropping money as they ran. Two other witnesses saw the men running, saw the money, concluded that a robbery had taken place, undertook to follow them, and obtained the Florida license number on the rear tag of the getaway 1950 Oldsmobile which they reported to the police. A report of the robbery and a description of the Oldsmobile and the Florida license number were broadcast by police by radio about 5:30 p. m. This broadcast was heard by witness Hagstrom who was driving with his wife toward Alexandria, Virginia, and Washington, D. C. As they later stopped at a traffic light in Washington, an Oldsmobile occupied by two persons was driven alongside and one asked the location of Cathedral Street. Mr. Hagstrom could not furnish the information and the car pulled away, but at that time Mrs. Hagstrom wrote on a map the following:

"Cathedral 16W-15697 green Olds"

Mr. Hagstrom, realizing that this was the getaway car, followed it for a distance but lost it. The evidence disclosed that the occupants of the Oldsmobile made other inquiries concerning Cathedral Street which was shown to be one route to the Memorial Bridge leading directly into Virginia. Shortly after seven o'clock in the evening, Mr. Hagstrom reported to Washington police what he and his wife had observed.

At the time of the robbery there were several bank employees on duty and several customers were in the bank. The story told by witnesses was that, after the robbers entered the bank, they separated, each being armed with a pistol, the man in the red parka returned to the front of the bank, looked out through the window, took up a position near the front door, faced toward the rear of the bank, and placed a scarf over the lower half of his face; that the man in the green parka proceeded to the rear of the bank, placed a scarf over part of his face, vaulted over the counter, announced a "stick-up," scooped up money of all denominations in a brown shopping bag, vaulted back over the counter, joined his companion, and they rushed out; that the robbery took only a few minutes. Three bank employees positively identified Carl from photographs and in open court as the robber who was wearing the green parka. None of those inside the bank was able to identify Harold as the one wearing the red parka since his face was partially covered from the very instant he faced the interior of the bank. The amount of money taken was over $20,000 but about $4,000 was dropped by the robbers and was recovered in and near the parking lot. Mr. Grimm positively identified Harold as the man in the red parka but this identification is the subject of later comment.

OTHER PERTINENT DEVELOPMENTS

The 1950 green Oldsmobile was not seen again until approximately 10:00 p. m. on Saturday, March 9, when a resident of Winchester, Virginia, noticed a car being driven into a circular space across the street from her residence. The driver left in another automobile which had driven up. When the automobile was found, the Florida license tags had been removed and instead it bore a temporary Pennsylvania...