United States v. Hibler

Decision Date05 July 1972
Docket NumberNo. 71-1322.,71-1322.
Citation463 F.2d 455
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Allen HIBLER, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Victor Sherman (argued), of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for appellant.

William D. Keller, U. S. Atty., Joseph H. Golant, Asst. U. S. Attys., Eric A. Nobles, Los Angeles, Cal., for appellee.

Before CHAMBERS and DUNIWAY, Circuit Judges, and ANDERSON, District Judge.*

DUNIWAY, Circuit Judge:

Hibler appeals from his convictions of robbing a United States mail carrier (18 U.S.C. § 2114) and possessing stolen mail (18 U.S.C. § 1708), asserting insufficiency of the evidence, failure of the prosecutor to disclose evidence valuable to the defense, and various procedural errors of the trial judge. After one trial ended in a mistrial, Hibler was found guilty by a jury on both counts at his second trial. We reverse.

The facts concerning the robbery itself are undisputed: the victim was delivering mail on August 13, 1970, when he was stopped at approximately 11:30 a. m. by three Negro men in a 1958 black Chevrolet parked in a driveway which crossed the sidewalk on which he was proceeding. The man sitting in the front passenger seat of the car exhibited a gun and ordered the victim to "come here." The victim complied. He was then told to put the mail in his hand in his bag, drop the mailbag and run away. He did as he was told, but managed to get the license number of the car (IAF 570). The victim testified that the man with the gun wore a black hat with a wide, floppy brim, and a black T-shirt. At approximately 3:00 p. m. the same day Hibler was arrested near his home while driving a 1958 black Chevrolet, license IAF 570, belonging to one Aldridge Haynes, the only other occupant of the car at that time.

A. Sufficiency of the Evidence.

The only evidence which connected Hibler with the robbery was the testimony of Haynes, who admitted being one of the three robbers. This is the story told by Haynes on the witness stand. Hibler originally suggested the idea of robbing a mailman. Pursuant to that suggestion Haynes met Hibler at Hibler's home on August 13, 1970, at 10:00 a. m. The two men were joined by a third man whom Haynes had seen once before but whose name he did not know. The three took Haynes' car and robbed the mailman at about 11:30 a. m. The third man drove; Hibler sat in the front passenger seat and did the talking to the mailman; Haynes sat in the rear seat during the robbery. The third man produced a gun, removed the bullets from it, and handed the gun to Hibler and the bullets to Haynes. Haynes put the bullets in his pocket. Hibler used the gun in the manner described by the victim. The robbers drove back to Hibler's house, where they went through the mail and found three or four checks. Haynes said that he had seen the mailman writing down the license number of the car as it drew away from the robbery and Hibler suggested moving the car from its on-street parking place. Haynes, at Hibler's suggestion, left for a few minutes and moved his car from the street to the parking lot of a nearby restaurant. After Haynes returned to the house he helped Hibler take the mail out in back of the house to "something like an outhouse." The third man left; then Haynes and Hibler went to cash the checks, but were arrested in Haynes' car. The bullets, the gun and the checks were left on top of a stereo at Hibler's house.

Haynes' version of the facts is not corroborated by any other evidence and is contradicted in several respects by his own previous statements and by the testimony of others.

First, identification: The victim, who testified that he got a good look at the robber in the front passenger seat of the car, and that he would possibly recognize that man if he saw him again, was unable to identify Hibler as the robber at the trial. Moreover, Hibler, after his arrest, asked for a lineup. The request was granted, and Hibler was one of twelve men in the lineup. The victim, however, was unable to identify him at the lineup. At trial, the victim recognized Hibler as one of those whom he had seen at the lineup, but still could not identify him as the robber. This was in spite of the fact that, at the lineup, Hibler not only appeared, but was required to say the words spoken by the robber to the victim. In theory, a line-up has two objectives—to assist in the identification of the guilty by providing an opportunity, under controlled conditions, for victims to make an identification, and to protect the innocent by giving the accused an opportunity, under controlled conditions, to show that he is not the offender. Here, Hibler asked for the lineup, and in spite of what happened there, it did him no good. We do not for a moment suggest that the result of the lineup is conclusive. What is important is that the victim was the only government witness beside Haynes who could have identified Hibler as the robber. His inability to do so, either at the lineup or at trial, strongly contradicts Haynes' story.

Second, absence of physical evidence. There is no evidence that any incriminating evidence was found on Haynes or Hibler when they were arrested. A search of Hibler's house later in the day, after he and Haynes were arrested, revealed no gun, no bullets, no checks, and no bag of stolen mail in a back-yard "outhouse." Nor did the search turn up the floppy brimmed black hat or black T-shirt.

Third, inconsistencies in Haynes' testimony. Haynes' testimony contained several inconsistencies with his earlier statements to federal investigators and at Hibler's first trial—e. g., when and where Haynes first saw Hibler on the day of the robbery; when, where and how many times the three robbers met to discuss the proposed robbery. In addition Haynes was unable to explain why, if he and Hibler were on their way to cash the stolen checks when arrested, neither had the checks at that time.

Hibler's defense was an alibi. This is his story: A friend drove him to the Urban League to interview a job counsellor at approximately 11:30 a. m. on the day of the robbery. He arrived at the Urban League office at about noon and was told by the receptionist that the job counsellor whom he wanted to see had already left for lunch. He returned home by bus and arrived shortly after 12:30. Later in the afternoon Haynes came to his house and asked him to help Haynes start his car. Hibler went to the parking lot of a nearby restaurant, helped start Haynes' car, and was arrested while in the car.

Hibler's alibi was supported by his sister and his girl friend, both of whom were at his home when he allegedly left for the Urban League and returned, and by Lacy Gibson, the friend who allegedly drove Hibler to the Urban League. The jury, of course, could discount their testimony. The receptionist at the Urban League testified that Hibler did arrive at the office to see a job counsellor at noon on either the day of the robbery or one week earlier, but she was unable to say positively which of the two Thursdays it was. She did say that he only came once. In addition Hibler's version of the facts received some support from Haynes' own statements prior to the trial. For example, at the first trial Haynes testified that when he saw Hibler on the day of the robbery, Hibler stated that he had just returned from the Urban League. Haynes also initially told the federal investigator that Hibler had arrived home at about 12:30 p. m. (an hour after the robbery) and that he asked Hibler to help start the car.

This circuit has reiterated in many cases the rule in federal courts that an accused may be convicted on the uncorroborated testimony of an accomplice. Caminetti v. United States, 1917, 242 U. S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442. However, in most of those cases the opinions state or show that there was some independent evidence to corroborate the accomplice's testimony.1 Those cases which rely solely on the rule to affirm convictions do not indicate in the opinions whether or not there was any independent corroborative evidence.2

Here, however, the transcript establishes clearly that the accomplice's testimony received no corroboration whatsoever from any other evidence adduced by the prosecution or the defense. We do not reject the established rule that an accomplice's testimony need not be corroborated before an accused can be convicted. Haynes' testimony was enough to convict.

This case, however is unique in this writer's experience in two respects. First, there is no evidence to corroborate the accomplice. Second, some of the government's own evidence tends to contradict, rather than to corroborate, the accomplice. Haynes' car was certainly used in the robbery. That was the one solid piece of evidence that the government had to show who committed the crime. Thus Haynes had a strong motive to "dump" the case on someone, and he did just that. His testimony, like that of every accomplice, is suspect. Under these circumstances, we are under a special obligation to examine the other asserted errors in the conduct of the trial to insure that a miscarriage of justice does not occur. Lyda v. United States, 9 Cir., 1963, 321 F.2d 788, 795.

B. Failure of the prosecutor to disclose favorable evidence.

Hibler's explanation of his being in the driver's seat of Haynes' car at the time of his arrest was that he was responding to Haynes' request for assistance in starting the car. This explanation was not supported by any evidence other than Hibler's own testimony and in some degree by the fact that Haynes originally told the federal investigator that he had gone to Hibler's house in the afternoon and requested such assistance and that Hibler had helped him. In fact, the stipulated testimony of John Helvin, a Los Angeles Police detective who had spotted Haynes' car parked in the restaurant parking lot on the afternoon of the robbery and kept it under observation,...

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