United States v. Irons, 72-1309.

• Decision Date: 09 March 1973
• Docket Number: No. 72-1309.,72-1309.
• Citation: 475 F.2d 40
• Parties: UNITED STATES of America, Appellee, v. George Robert IRONS and Loretta Fay Irons, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

475 F.2d 40 (1973)

UNITED STATES of America, Appellee, v. George Robert IRONS and Loretta Fay Irons, Appellants.

No. 72-1309.

United States Court of Appeals, Eighth Circuit.

Submitted December 6, 1972.

Decided March 9, 1973.

Certiorari Denied June 18, 1973.

Jack S. Nordby, St. Paul, Minn., for appellants.

J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before MEHAFFY, BRIGHT and STEPHENSON, Circuit Judges.

Certiorari Denied June 18, 1973. See 93 S.Ct. 3020.

MEHAFFY, Circuit Judge.

Defendants, George Robert Irons, Jr. (hereafter Irons)¹ and his wife, Loretta Fay Irons (hereafter Mrs. Irons), were convicted by trial to a jury under an indictment which charged them with a violation of 18 U.S.C. § 2113(a) for attempting to commit a felony by entering the State Bank of Dennison, Minnesota, the deposits of which were insured by the Federal Deposit Insurance Corporation. Each defendant was sentenced to a term of two years. Mrs. Irons' sentence contained a proviso that after she had served six months of her sentence the remainder was to be suspended and she was placed on probation for eighteen months.

Defendants were jointly tried and represented by the same appointed counsel. Upon the close of the government's case defense counsel moved for a judgment of acquittal in behalf of Mrs. Irons. This motion was denied and was followed by a motion for severance with the request that the case against Mrs. Irons be submitted to the jury at that point. This motion also was denied. There had been no request for separate counsel at any level prior to this time. Apparently after the close of the government's case defense counsel concluded that the government had failed to make a case against Mrs. Irons and that her best interests would be served by resting her case at this point. Thereafter Irons took the witness stand as the only witness for the defense.

For reasons hereinafter set forth, we sustain the conviction of Irons and reverse the conviction as to Mrs. Irons.

The issues on appeal are the sufficiency of the evidence to sustain the conviction in both cases and whether defendants were denied their right to separate attorneys.

The case against Irons. The offense was committed in the small village of Dennison, Minnesota, a community of some two hundred fifty residents, approximately fifty miles south of Minneapolis-St. Paul. The few business buildings of Dennison are located on Dennison's Main Street and run for about five blocks. They include the State Bank of Dennison. Eugene Gillispie, an employee of the local grain elevator, also serves Dennison as its constable and only law enforcement officer. The constable and his wife were at home and had fallen asleep while listening to television. The constable's home is on Thorpe Street, one block east of Main Street and parallel to it, and is approximately three hundred fifty feet from the rear of the bank building. Mrs. Gillispie awakened at about 3:00 a. m. and noticed a station wagon on her front lawn. The constable went outside to observe, took the license number of the station wagon, went back in the house, armed himself and called the Northfield, Minnesota police, giving them the license number on the station wagon which was registered in the name of Irons. The constable then took a position where he could observe the figures in the shadows at the rear of the bank building. There is a path that runs across the vacant area in an east-west direction from the rear of the bank to the constable's home. This property is virtually vacant but does contain a storage shed or two. When the constable and his wife first stepped outside his house, they heard a steady pounding noise emanating from the direction of the rear of the bank. This pounding continued up until the arrival of the Northfield police. Additionally, the constable observed a flashlight in operation. Upon the arrival of the Northfield police the pounding ceased and two figures were seen to emerge from the shadows behind the bank and run in the direction of the station wagon parked on the lawn of the constable's house. The vantage point from which the constable was looking gave him an unobstructed view of the rear of the bank. He observed that the two figures paused a moment by the storage shed and continued to run in the direction of the station wagon. When the two figures were about thirty feet from the constable he ordered them to stop but one of the figures ran off and the other ( Irons ) continued towards the constable feigning intoxication. Not only the constable but Clifford Witt, a deputy sheriff, testified that there was nothing to indicate Irons' intoxication.

In their investigation of the area the officers found a gaping hole approximately two feet by three feet in the rear wall of the bank building and some burglar tools, including an eight pound maul, a punch bar and a piece of pipe. The officers observed a reddish substance or dust on Irons' pants and shoes which resembled the brick dust on the rear wall of the bank. Their search of Irons' station wagon produced a police radio with inoperative batteries and the dome light cover which was found on the rear seat without a light bulb in its receptacle. When the officers were canvassing the wooded area, they found Mrs. Irons lying on the ground behind a tree. This was approximately ten minutes after the officers had arrived.

It was at this point that the government rested and counsel elected not to put Mrs. Irons on the stand.

Irons categorically denied that he participated in the crime or ever was near the rear of the bank building. If the jury saw fit...