United States v. Kelley

• Decision Date: 26 November 1975
• Docket Number: 75-1408 and 75-1409.,No. 75-1388,75-1388
• Citation: 526 F.2d 615
• Parties: UNITED STATES of America, Appellee, v. Tyrone J. KELLEY et al., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

526 F.2d 615

UNITED STATES of America, Appellee, v. Tyrone J. KELLEY et al., Appellants.

Nos. 75-1388, 75-1408 and 75-1409.

United States Court of Appeals, Eighth Circuit.

Submitted October 13, 1975.

Decided November 26, 1975.

Certiorari Denied March 22, 1976.

COPYRIGHT MATERIAL OMITTED

Michael J. McKitrick, Clayton, Mo., for Kelley.

William Terry Burnet, St. Louis, Mo., for Simmons.

Joseph D. Lehrer, St. Louis, Mo., for Wilson.

Barry A. Short, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before CLARK,^* Associate Justice, and LAY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

Theopolis Wilson, Thomas Simmons and Tyrone Kelley appeal their convictions of aiding and abetting the armed robbery of a federally chartered bank in Moberly, Missouri. They were jointly tried and convicted in district court. We affirm the conviction of each defendant.

On January 10, 1975, three men entered, and robbed at gun point, the City Bank and Trust Company of Moberly, Missouri. One of the principals, Gary Roberson, turned government's witness before trial and implicated the other participants in the plan.¹

At trial, Roberson was the first witness called by the government. Over the objection of defense counsel, he was allowed to relate pertinent statements made by the defendants in furtherance of the common plan to rob the bank. He testified that on January 9, 1975, he received a visit from defendant Tyrone Kelley at his home in Kansas City, Missouri. At that time, Kelley told Roberson that he (Kelley) and defendant Theopolis Wilson had a "bank job" set up in Moberly, Missouri. Kelley also stated that Baron Hemphill was also willing to participate. Roberson told Kelley that he would seek to enlist the support of Charles Rose. Tentative arrangements were made to meet at Roberson's house the next day. After Kelley departed, Roberson contacted Rose who agreed to participate in the scheme.

On January 10, 1975, the plan was carried out. Roberson, Kelley, Hemphill and Rose met at the residence of Kelley's mother. This group joined Wilson and Simmons. At approximately 12:30 p. m., the six men drove from Kansas City to Moberly, Missouri, arriving there at approximately 4 p. m. They then proceeded to the residence of Robert Cason, an acquaintance of Theopolis Wilson.

Shortly after their arrival, Roberson, Rose, Hemphill and Wilson drove to the bank for the purpose of acquainting themselves with the neighborhood. Upon their return to Cason's house, Roberson, Wilson, Kelley and Simmons discussed how many cars were needed. Thereupon Wilson, Simmons and Rose departed and returned with two cars, which later testimony conclusively showed were stolen. Defendant Simmons told the others that two cars had been obtained for the robbery. Simmons also had a dent puller² in his possession at this time.

At this point, Roberson, Wilson, Kelley, Rose and Hemphill proceeded outside. Kelley and Wilson told the others that everything, including the coveralls and gloves, was in the car. Roberson fetched his shotgun and entered the car with Rose and Hemphill. The three men drove to the bank and robbed it at gun-point.

After exiting the bank, the principals drove to the second stolen car and started back to Cason's house. They became lost however, and decided to hide the money in a trash can. After hiding the money, they abandoned the car and started walking back to Cason's. They then encountered Simmons and Wilson in Wilson's car, and were, at that time, driven back to Cason's house. Thereafter Roberson and Wilson drove to the place where the money was hidden. Roberson was arrested as he approached the trash can. Wilson ran from the scene and was wounded by a shotgun blast from pursuing law enforcement personnel.

Robert Cason also testified at trial. He stated that defendants Wilson and Kelley had visited him at his Moberly residence on the morning of January 9, 1975. He stated that all the participants in the crime had come to his home at approximately 4 p. m. on January 10. He related various comings and goings of the group, including the return of Wilson from the attempt to recover the money. His testimony in this regard connected Wilson to the scheme in at least two important respects; Cason observed blood on Wilson's pant leg at this time and Cason heard Wilson exclaim, "Let's get out of here. Trap." He also identified a jacket and hat which Wilson was wearing when he left to retrieve the money. When Wilson returned, according to Cason, he was not wearing the jacket or hat. A Missouri state trooper testified that the same jacket and hat were found near the trash can where the money was hidden.

I. ADMISSIBILITY OF THE EXTRA-JUDICIAL STATEMENTS

Each defendant argues that the trial judge erred by ruling that Roberson's testimony as to extra-judicial statements of the coparticipants was admissible prior to an independent showing of concert of action. We disagree.

It is well settled that if a concert of action is established by independent evidence, statements made in furtherance of the unlawful association are not hearsay and are admissible. United States v. Frol, 518 F.2d 1134, 1136 (8th Cir. 1975); United States v. Sanders, 463 F.2d 1086, 1088 (8th Cir. 1972). The order of proof is within the discretion of the trial judge. Brinlee v. United States, 496 F.2d 351, 354 (8th Cir.), cert. denied, 419 U.S. 878, 95 S.Ct. 142, 42 L.Ed.2d 118 (1974). The statements may be conditionally admitted subject to being "connected up" by subsequent independent proof of concert of action. United States v. Sanders, supra, 463 F.2d at 1088; United States v. Reed, 446 F.2d 1226, 1231 (8th Cir. 1971); Fabian v. United States, 358 F.2d 187, 192 (8th Cir. 1966). The requisite showing of concert of action may be established by evidence of a likelihood of illicit association between the declarant and the defendants. United States v. Frol, supra, 518 F.2d at 1136; United States v. Sanders, supra, 463 F.2d at 1088. The quantum of evidence required to show unlawful association must be ". . . at least enough to take the question to the jury." United States v. Nixon, 418 U.S. 683, 701 n. 14, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974).

The independent evidence linking defendant Wilson to the concert of action was overwhelming. The testimony of Cason established that Wilson visited Cason's residence the day before the robbery. At trial a salesperson employed by a local Kansas City drug store identified Wilson as having purchased a duffel bag on the morning of the robbery. The duffel bag was later identified as the bag in which the stolen money was carried from the bank.

Furthermore, Roberson offered independently admissible testimony that Wilson accompanied the other participants to Moberly on the day of the robbery. Before the robbery, according to Roberson, Wilson, Rose and Simmons departed Cason's residence and returned with two stolen cars. After the robbery, Wilson and Simmons picked up the principals in Wilson's Vega.

Roberson further testified that Wilson accompanied him to recover the money from the trash can. This testimony was supported by a great deal of corroborative evidence. A Missouri state patrolman testified that he found a blue hat and jacket near the place where the money was hidden. Cason testified that Wilson was wearing the same jacket and hat at the time Wilson purportedly departed to recover the money. Cason also testified that Wilson returned with blood on his pant leg. And when he reached the Cason residence, Cason heard Wilson utter the spontaneous declaration, "Let's get out of here. Trap." Roberson testified that a shot was fired shortly after he was apprehended. This testimony was corroborated by Sergeant Relford, the policeman who fired the shot. Relford testified that he fired when the person accompanying Roberson started to flee the scene.

The independently admissible evidence of Simmons' participation was also convincing. Roberson testified that Simmons also accompanied the other participants to Cason's residence in Moberly on the day of the robbery. Cason confirmed that Simmons had arrived at his residence with the others on the day of the robbery. Shortly before the robbery, according to Roberson, Simmons departed with Wilson and Rose and returned with the two stolen cars which were later used in the robbery. In addition, Roberson testified that Simmons had a dent puller in his possession at this time. The dent puller was subsequently found by a Moberly policeman in Cason's front yard. Furthermore, Roberson testified that Simmons and Wilson drove himself and the other principals back to Cason's residence after the robbery.

The independent evidence of Kelley's participation also established a likelihood of illicit association. Roberson testified that two of the three principals in the robbery, Rose and Hemphill, met Kelley at his mother's house immediately before they departed for Moberly on January 10. Kelley then accompanied all of the participants to Moberly. Cason confirmed that Kelley arrived at his residence with the others on the day of the robbery. Kelley was also present when Roberson, Rose and Hemphill departed for the bank. Furthermore, Kelley's declaration against his penal interest implicated him directly in the scheme. Roberson testified that Kelley told him that ". . . he and Theopolis Wilson had a `B' meaning bank set-up in Moberly." While this statement would arguably be inadmissible hearsay in the absence of other corroborating evidence, we feel the circumstances above (e. g. Kelley's association with Wilson) indicates its trustworthiness.

In short, our review of the record convinces us that the independently admissible evidence was sufficient to link Wilson, Simmons and Kelley to the witness Roberson and the unlawful association.³ Therefore, Roberson's testimony as to the extra-judicial statements made in furtherance of that unlawful association was admissible.⁴

II. CONFRONTATION

At trial, Roberson was...