United States v. Cole

• Decision Date: 18 January 1972
• Docket Number: No. 71-1010.,71-1010.
• Citation: 453 F.2d 902
• Parties: UNITED STATES of America, Appellee, v. Earl Thomas COLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

453 F.2d 902 (1972)

UNITED STATES of America, Appellee, v. Earl Thomas COLE, Appellant.

No. 71-1010.

United States Court of Appeals, Eighth Circuit.

January 18, 1972.

Gary E. Haggerty, Legal Aid & Defender Society of Greater Kansas City, Kansas City, Mo., for appellant.

Anthony P. Nugent, Jr., Asst. U. S. Atty., Bert C. Hurn, U. S. Atty., Kansas City, Mo., for appellee.

Before GIBSON, BRIGHT and ROSS, Circuit Judges.

ROSS, Circuit Judge.

The defendant, Earl Thomas Cole (Cole), was found guilty under 18 U.S. C. §§ 2, 2113(a), and 2113(d) of willfully aiding and abetting the robbery of the Empire State Bank of Kansas City, Missouri, and under 18 U.S.C. § 371 of conspiring to commit the same offense. We affirm the judgment of conviction as to both counts.

This case is a companion case to United States v. Kelton, 446 F.2d 669 (8th Cir. 1971). In that case, the conviction of Hilton Jerry Kelton (Jerry), one of the alleged co-conspirators and the only one who was tried with Cole, was reversed because the evidence was insufficient to show that Jerry engaged in any affirmative conduct in furtherance of the crime. At least one of the other alleged co-conspirators, Daris White (White), was convicted of the same crime in a separate trial, and that conviction was affirmed by this Court. United States v. White, 451 F.2d 351 (8th Cir. 1971). Another of the alleged co-conspirators, Milton Terry Kelton (Terry), pleaded guilty to the same charge.

The Empire State Bank of Kansas City, Missouri was robbed at 1:55 p. m. on July 29, 1970 by three armed youths. These youths were captured shortly after the robbery in a stolen car which an employee of the bank identified as the one in which they fled the robbery scene. These three young men admitted the robbery and testified at the trial of Cole and Jerry that they had been recruited for the job by Cole and White, and that the guns and the instructions as to how to accomplish the robbery were furnished by Cole, White, Terry, and others.

After receiving their instructions and after the car to be used had been stolen by one of the three boys, Terry, and possibly Cole, the three boys and at least two of the others drove in separate cars to the bank where the three boys committed the robbery. After the robbery, the three boys departed the scene in the stolen car, threw the money into another car driven by an unidentified co-conspirator, and were then apprehended.

On this appeal, counsel for Cole does not question the sufficiency of the evidence as to Cole, but poses the following questions for determination by this Court:

1. Whether it was error for the trial court to refuse to grant pretrial discovery and inspection of material in preparation of the defense.

2. Whether it was error for the court to instruct that reasonable doubt was a substantial doubt.

3. Whether it was error to fail to instruct the jury as to alibi when defendant had requested same and there was evidence thereof.

4. Whether it was error to fail to instruct the jury on the issue of identification when defendant requested same and identification was an issue.

5. Whether it was error to fail to instruct the jury on prior inconsistent statements of government witnesses when defendant requested same and prior inconsistent statements were shown.

6. Whether the court\'s comments on the evidence during the charge prejudiced appellant.

I. DENIAL OF PRETRIAL DISCOVERY

Four days prior to the trial, Cole moved for an order under Rule 16(b) of the Federal Rules of Criminal Procedure requiring the Government to permit the defendant to:

"1. Inspect and copy or photograph any and all photographs, documents, notes, and related materials utilized by the United States in various identification and line-up procedures focused upon the defendant and to furnish the names of all witnesses viewing line-ups and photographs from the date of the alleged offense to and including the date of the filing of this motion.

2. Inspect and copy or photograph the statements of any witnesses the Government does not propose to call.

3. Inspect and copy or photograph the statements of all co-defendants and co-conspirators charged in the Indictment."

This motion was apparently overruled the first day of the trial. The motion was timely filed inasmuch as counsel for Cole had been notified of his appointment only three days prior to filing the motion.

The law of this Circuit is well established that "an application for relief under the discovery rules . . . is a matter within the sound discretion of the district court and is reviewable only for an abuse of discretion." Hemphill v. United States, 392 F.2d 45, 48 (8th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L. Ed.2d 149 (1968) and quoted in United States v. Hamilton, 452 F.2d 472 (8th Cir. 1971); and an error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant. Meyer v. United States, 396 F.2d 279, 283 (8th Cir. 1968), cert. denied sub nom Dugger v. United States, 393 U.S. 1017, 89 S.Ct. 621, 21 L.Ed.2d 561; Hansen v. United States, 393 F.2d 763, 770 (8th Cir. 1968), and Hemphill v. United States, supra. Accord, United States v. Saitta, 443 F.2d 830, 831 (5th Cir. 1971) (appeal pending).

Cole claims that he needed to inspect and copy or photograph the photos and other materials used in the lineup procedures to show that the three boys had viewed Cole in a lineup and had not identified him. However, this was brought out fully at the trial. Two of the three boys identified Cole in the courtroom and said they hadn't identified him in the lineup because they "didn't want to." The third boy identified Cole from a picture but indicated in court that Cole did not look like this picture and refused to positively identify him in court. Cole simply does not show how the denial of the lineup photos and other materials resulted in any prejudice to his defense. Their production could have produced no greater revelation than that which occurred at trial.

As to Cole's request concerning the "names of all witnesses viewing line-ups and photographs," it is well established that the Government is not required in non-capital cases to furnish the names of its witnesses. United States v. Cole, 449 F.2d 194, 198 (8th Cir. 1971); United States v. Harflinger, 436 F.2d 928, 936 (8th Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971); Spinelli v. United States, 382 F.2d 871, 889 (8th Cir. 1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Ray v. United States, 367 F.2d 258, 263 n.5 (8th Cir.), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1966); Dean v. United States, 265 F.2d 544, 547 (8th Cir. 1959).

The request for "the statements of any witnesses the government does not propose to call" was recently dealt with by this Court in United States v. Hamilton, supra:

"The request for statements of witnesses not to be called at trial is merely another way of determining whether the co-conspirators named in the indictment would be witnesses at the trial, but the identity of witnesses is information \'the government is not normally required to supply . . . to the criminal defendant.\' Spinelli v. United States, 382 F.2d 871, 889 (8th Cir. 1967), rev\'d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968)."

Cole's request for "statements of all . . . co-conspirators charged in the Indictment," who were also Government witnesses, was made under Rule 16(b). Rule 16(b) provides in pertinent part: "This rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses . . . to agents of the government except as provided in 18 U.S.C. § 3500."¹

It should be noted that counsel for Cole also filed (on the same date) a motion for a bill of particulars. In response to that motion, the Government provided Cole's counsel with the names of the co-conspirators, the addresses of those known to the Government (except the addresses of the three boys), and the identification of the stolen auto and of the guns. The Government did not furnish the addresses of the three boys because of the possibility of threats to them as witnesses. Statements of the Government's witnesses were given to counsel for Cole after each witness had testified. This practice is in full accord with the established rule in this Circuit. See United States v. Cole, supra, 449 F. 2d at 198, and cases cited therein. Cole relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) but that case dealt with failure of the prosecution to disclose exculpatory information at the trial—not prior thereto.

Under these circumstances, the trial court's denial of the pretrial discovery motion was not an abuse of discretion, especially since Cole has not demonstrated any resulting prejudice to his defense.

II. JURY INSTRUCTIONS

We have examined each of Cole's contentions concerning the instructions given to the jury and have found them to be without merit.

The reasonable doubt instruction given by the trial court was as follows:

"You are further charged that a reasonable doubt is a doubt based upon reason, and which is reasonable in view of all the evidence, and if after careful and impartial consideration of all the evidence, you can candidly say that you are not satisfied of the defendant\'s guilt, you have a reasonable doubt. But if after a careful and an impartial consideration of all the evidence, you truthfully can say that you have an abiding conviction of the defendant\'s guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt. Putting it another way, a reasonable doubt means a substantial doubt and

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