United States v. Crowder

• Decision Date: 30 September 1965
• Docket Number: No. 15584.,15584.
• Citation: 351 F.2d 101
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ray CROWDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

351 F.2d 101 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ray CROWDER, Defendant-Appellant.

No. 15584.

United States Court of Appeals Sixth Circuit.

September 30, 1965.

Edwin C. Price, Jr. (Court appointed), Cincinnati, Ohio, for appellant.

George I. Cline, U. S. Atty., Lexington, Ky. (James F. Cook, Asst. U. S. Atty., Lexington, Ky., on the brief), for appellee.

Before PHILLIPS and EDWARDS, Circuit Judges, and BOYD, District Judge.^*

HARRY PHILLIPS, Circuit Judge.

Defendant-appellant, Kenneth Ray Crowder, along with Glennis Ronald Tucker and Albert Ray Green, was indicted for robbery of the Acme Federal Savings and Loan Association of Covington, Kentucky, herein called Acme. Tucker and Green entered pleas of guilty. Appellant plead not guilty and was tried and convicted by a jury. His sentence was fixed at fifteen years.

This appeal presents two principal questions: (1) The sufficiency of the evidence to sustain the verdict; and (2) the refusal of the district court to grant a motion for a new trial on grounds of newly discovered evidence.

(1) The Sufficiency of the Evidence

Appellant relied upon an alibi as his principal defense, contending that he was asleep at home at the time of the robbery. He was supported in this contention by his wife and by the testimony of Tucker and Green.

The uncontradicted evidence established that appellant rented an apartment at the "Ida Spence Homes" in Covington; Tucker stayed at appellant's apartment part of the time; on the night of February 28, 1963, Tucker and appellant went to Cincinnati, picked up Green and did a considerable amount of drinking during the rest of the night; these three defendants were involved in an automobile accident about 10:05 a. m., March 1, 1963; one of the vehicles involved in the accident was a white Buick; the accident took place about a quarter of a block from Acme; on the same day at about two or three minutes after 12:00 noon, Acme was robbed; two men definitely identified as Tucker and Green entered Acme and committed the robbery; approximately forty-five minutes later a white 1955 Buick which was identified as the get-away car was found parked near the Ida Spence Homes; shortly afterwards it was learned that the occupants of the car had entered the apartment of appellant; the police then went to this apartment and found the three men upstairs lying across beds, fully clothed, with their eyes closed, asleep or pretending to be asleep; and a search produced the major part of the money and the billfolds which were taken from victims in Acme at the time of the hold-up.

Tucker and Green testified on behalf of the defendant to the effect that the three had returned to Crowder's apartment after the 10:05 a. m. accident; that Crowder went to sleep; that Green then decided to go home and asked Tucker to drive him; that Green and Tucker then left the apartment but on the way they stopped in the vicinity of Acme and had another drink; while there the subject of bank robbery came up and the decision was made to rob Acme, primarily because they had a wreck in the area and it "seemed the logical place to do it;" that they bought caps and sunglasses for a disguise; that they had purchased the pistol used in the robbery about a week and a half before; that there was no advance planning; that they were the only two parties involved; that after the robbery they returned to appellant's apartment because it was closer than Green's house; that the caps, sunglasses and pistol were thrown away behind the Ida Spence Homes; that the proceeds of the robbery were divided between the two and that appellant did not receive any of the stolen money; that Tucker placed part of his share of the money under the mattress of a baby bed and the rest in a pocket of a jacket belonging to appellant which Tucker sometimes wore; and that appellant was not involved in any way in the robbery.

Appellant testifed that he returned home after the accident, went upstairs and went to sleep and did not leave until taken by the police. He stated that the only time that he was awake the other two were in the apartment and he did not ask them what they were doing. His wife testified that Crowder arrived home sometime between five or six and nine or ten o'clock and was at home at the time of the robbery.

The government's evidence showed that the defendants ate, bought gasoline and had an automobile accident in the Acme area; and that Tucker and Green entered Acme, and Green held four persons as hostages in the back room. Each of the four hostages testified that Green informed them that the get-away car would be outside at 12:08.

Billfolds were taken from three of these hostages which were found later at appellant's apartment. A deaf mute who entered Acme immediately after the robbery and gave a description of the car indicated that a third man was in the car at the time the other two left the scene of the robbery. A construction worker saw a white 1955 Buick outside Acme and testified that a man was sitting under the wheel although he could not identify him. A tenant living next door to appellant testified that appellant and Tucker, with a third person, passed by her window about one o'clock. The stolen money and the three wallets were found in appellant's apartment. The money was in three locations, with the larger sum being found on Green, the one who handled the gun, and two approximately equal amounts were found under the mattress of the baby bed and in appellant's jacket pocket, which was hanging in the...