United States v. Dobbs, 30457.

• Decision Date: 27 September 1971
• Docket Number: No. 30457.,30457.
• Citation: 448 F.2d 1262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Franklin DOBBS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

448 F.2d 1262 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Franklin DOBBS, Defendant-Appellant.

No. 30457.

United States Court of Appeals, Fifth Circuit.

September 27, 1971.

N. P. Callahan, Jr., Birmingham, Ala. (Court-Appointed), for defendant-appellant.

Wayman G. Sherrer, U. S. Atty., L. Scott Atkins, A. C. Bowen, Jr., Asst. U. S. Attys., Birmingham, Ala., for plaintiff-appellee.

Before COLEMAN, SIMPSON and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This is an appeal by the defendant who was convicted of robbing the Lenlock Branch of the Commercial National Bank of Anniston, Alabama, in violation of 18 U.S.C. § 2113(a). Defendant complains that an out-of-court statement of a co-defendant, David Wayne Stansell, was improperly read to the jury and that an incriminating remark by defendant to an FBI agent was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We agree with defendant that the hearsay statement was improperly used and reverse and remand for a new trial.

At defendant's trial, the government called as a witness co-defendant Stansell, who had already pleaded guilty to the offense. After a few introductory questions, Stansell was asked who owned the car in which the demand note used in the robbery was written. Stansell refused to answer. After admitting robbing the bank, Stansell refused to say who was with him. Thereafter, Stansell stated that a white Ford was used to rob the bank, although previous witnesses had testified a white Chevrolet was used. The government claimed surprise and asked to cross-examine the witness.

The government then read in its entirety a statement given by Stansell to the FBI. The statement was read to Stansell in the presence of the jury over defense objections. Stansell denied making the statement. The statement said that on October 31, 1969, Jerry Dobbs and Stansell had decided to rob a bank to pay bills and legal expenses; that they had cased the subject bank and decided that the bank and one of the tellers was an easy mark; that Dobbs and Stansell felt that because of racial difficulties police officers would be assigned to duty at the high school; that Dobbs drove his white 1962 Chevrolet to the vicinity of the bank; that they had a blank pistol and an eight millimeter mauser rifle; that Dobbs drove his car to the teller's window; that Stansell held up the teller with a note on the back of a check obtained from Dobbs; that the teller gave the money to them and they drove to Jacksonville, Alabama, where the money wrappers were flushed down a toilet; and that the money was split evenly between Dobbs and Stansell.

The principle permitting impeachment of one's own witness has been succinctly stated by this Court.

"It is the established rule that impeachment of one\'s own witness may be resorted to where his testimony has surprised the party offering him. However, the impeaching matter is to be limited to the point of surprise and even where there is a real surprise it is not proper to permit the

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