United States v. Davila-Nater

Decision Date26 March 1973
Docket NumberNo. 72-2324.,72-2324.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Teodoro DAVILA-NATER, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

COPYRIGHT MATERIAL OMITTED

Joseph A. Calamia, John L. Fashing, El Paso, Tex., for defendant-appellant.

William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marques, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

Before WISDOM, BELL and COLEMAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 26, 1973.

COLEMAN, Circuit Judge:

A few minutes before closing time, August 5, 1971, when only one woman employee was present at either facility, the State National Bank of El Paso and the El Paso National Bank were simultaneously robbed by three men. The total amount taken was $36,176.94. Both banks were located in the same building, with a common lobby, on the grounds of the William Beaumont Hospital.

It was later developed that the offense had been committed by Teodoro Davila-Nater (Davila) (age 24), Jose Felix Hernandez (age 25), and Juan Jesus Martinez (age 26).

Hernandez and Martinez pleaded guilty, in one count, to the robbery of the State National Bank. The counts with reference to the El Paso National Bank were dismissed.

A jury convicted Davila of violating 18 U.S.C. § 2113(a), the Bank Robbery statute, in that on August 5, 1971, he robbed the El Paso National Bank of $22,500 in money. He was also convicted of violating 18 U.S.C. § 2113(d) in that he assaulted and put in jeopardy the life of a bank employee by the use of a gun.

He was acquitted of the robbery of State National Bank. His co-defendants testified that Davila never physically entered the space assigned to that bank, although they, in furtherance of the common enterprise, did so. See 18 U.S. C. § 2, Principals.

When the case came to trial, both Hernandez and Martinez described not only the genesis of the criminal plan but also its execution, including a detailed resume of Davila's performance at the scene. Angel Sanchez was one of Davila's friends, who loaned him the car in which he got out of El Paso and ultimately landed in Puerto Rico. Sanchez testified that on more than one occasion, both before going to Puerto Rico and after his return, Davila privately told him of his part in the robbery, including the use of a gun.

In this state of affairs, the appellant sought refuge behind a strongly implemented psychiatrical defense that at the time of the robbery he was suffering from a mental disease or defect from which he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, Blake v. United States, 5 Cir., 1969, 407 F.2d 908. This is the ground over which the trial was fought vehemently to a finish.

Davila was sentenced to concurrent terms of fifteen years each, to be eligible for parole at the discretion of the Board, 18 U.S.C. § 4208(a) (2). Apparently no one directed the attention of the court to the fact that this was an erroneous sentence. See Burger v. United States, 5 Cir., 1972, 454 F.2d 723, and the three prior decisions of this Court therein cited. Separate penalties under the various sections of the Federal Bank Robbery statute are improper, whether imposed consecutively or concurrently.

Within the foregoing context we shall discuss individually the errors assigned in search of reversal.1

I. Mrs. Rosch's Unexpected Change of her Identification Testimony

When the robbery occurred Mrs. Bernice Ruth Rosch was the teller on duty at the El Paso National Bank.

At a pre-trial hearing, the prosecution made it known that Mrs. Rosch could not identify the robber or robbers.

In his opening statement, the Assistant United States Attorney, informed the jury:

"I don\'t expect any identity from the two ladies that will be taking the stand as to who was the ones that held them up. The identification will come, I feel and believe, through the testimony that will be given to this jury by the other two individuals that held up the bank. As the Court indicated to you at the beginning of the case, Jose Felix Hernandez has plead guilty to the offense. Juan Jesus Martinez has also plead guilty to the offense, and they are going to come into this courtroom and tell you today that this Defendant Davila-Nater was the third individual involved in this robbery."

Mrs. Rosch soon took the stand. She had been an employee of the El Paso National Bank for a total of thirty-one years. On August 5, 1971, she had been working at the Beaumont Branch as relief for a male employee who was on vacation. She then described the robbery. Then came the surprise:

"Q. I will ask you to take a look at the Defendant Davila. Can you identify him as being the man that held you up, Mrs. Rosch?
"A. He was one of them, yeah.
"Q. He was one of the men? Do you recall if he was the one that actually held you up?
"A. Well, I wouldn\'t want to say that, sir."

Mrs. Rosch then agreed that she had viewed a lineup but did not then identify the defendant.

On cross examination:

"Q. Do you remember seeing the Defendant there at the lineup at that time?
"A. Yes.
"Q. My question is, at that lineup, Mrs. Rosch, you never made any indication or did you ever say that this Defendant appeared to be one of the men involved in the bank robbery, isn\'t that true, that you never did?
"A. I did not, but that isn\'t true, that I didn\'t think it sir.
"Q. I see. But you were asked several times if anyone in that lineup was involved — just a moment, let me finish my question, was involved in the bank robbery and if so, would you please point him out, and weren\'t you asked that question very carefully?
"A. I was asked that question once and I said that the first one on the end looked familiar to me.
"Q. And do you recall in which position the Defendant was?
"A. He was the third in the lineup.
"Q. The third in the lineup? And at no time — my question is, at no time did you tell — I am not asking what you thought, I am asking what you told in response to the question by the Federal Bureau of Investigation man, did you tell me or Mr. Turtle (emphasis added) that this Defendant appeared to be one of the men? Can you answer that `yes\' or `no\'?
"A. No.
"Q. Did you tell us?
"A. I did not tell you.
"Q. All right you kept your own reservations to yourself, is that what you are saying.
"A. That is what I am saying.
"Q. Wasn\'t it explained to you by Mr. Turtle that it was very important, the process and necessity of a lineup?
"A. He explained it to me and told me this fellow said I could not identify him.
"Q. Before the lineup, Mrs. Rosch, weren\'t you told that it was very important that you be careful to properly examine, observe and then make your identification known or non-identification known?
"A. Right.
"Q. And isn\'t it a fact that this is the first time that you have told anyone that this Defendant appears to be or is the man that robbed you that day or took part in the robbery.
"A. I told the District Attorney and the FBI agent as we left that the third fellow on the lineup, this Davila did look familiar but his heighth was so that I was thrown off. Davila was the fourth man.
"Q. Did you tell Mr. Eddie — have you talked with Mr. Edward Marquez concerning this case, the District Attorney that just interrogated you here?
"A. I talked to him.
"Q. Did you tell him that you could and you were going to identify Teodoro Davila-Nater as being one of the men involved in this bank robbery or did you tell him that you could not identify him?
"A. I told him I could identify him.
"MR. CALAMIA: Your Honor, I am going to invoke the theory and holding of Brady vs. Maryland so that if there is anything incorrect in this testimony I expect the United States Attorney to make it known to the Court and to the jury."

The record reveals that at the noon recess the prosecution informed defense counsel that Mrs. Rosch had, indeed, told him that she could not identify the defendant and that he was willing to take the stand and would so testify. It may be hindsight, but it seems strange to us that apparently it never occurred to either counsel that the prosecutor could have quickly filed a written stipulation of these facts and it could have been read to the jury. No one suggested this course. Failing this approach, the United States Attorney could, of course, have entered a verbal stipulation.

What actually happened was that, considerably later, defense counsel, without stating his purpose, asked to call the United States Attorney as a witness. Whereupon the Court announced, "I won't permit you to call the District Attorney".

Thereafter, the defense called the F. B.I. agent, Eugene Patrick Turtle, Jr., who testified that Mrs. Rosch did not identify Davila at the lineup but was not specifically asked whether she had (as she stated) told him later that she could identify Davila.

In the closing arguments to the jury the prosecutor made no reference to Mrs. Rosch's testimony, but defense counsel dwelt on it at some length:

"The Government makes an opening statement saying neither lady can identify him and they put on Mrs. Rosch and she said she told the District Attorney that she was going to identify him and she said `I told the FBI agent and the District Attorney on the day of the lineup that I thought, yes, it was the number three man in the lineup. I didn\'t say it in front of the defense counsel but I told the FBI and I told the United States Attorney as we were going out.\' The Government knew that the facts were otherwise. The Government did not get up and say `Wait a minute, I want to clear this up for the jury. Mrs. Rosch never told me that. She never told me she was going to identify the Defendant.\' Why? Because why would I have said in my opening statement that neither of my witnesses are going to identify the Defendant? We had to call the FBI agent, and
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