United States v. Mobley

• Decision Date: 16 January 1970
• Docket Number: No. 27716.,27716.
• Citation: 421 F.2d 345
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leroy MOBLEY, Defendant-Appellant.

421 F.2d 345 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Leroy MOBLEY, Defendant-Appellant.

No. 27716.

United States Court of Appeals, Fifth Circuit.

January 16, 1970.

C. B. King, Albany, Ga., Thomas M. Jackson, Macon, Ga., for defendant-appellant.

Floyd M. Buford, U. S. Atty., Walker P. Johnson, Jr., Asst. U. S. Atty., Macon, Ga., for appellee.

Before BELL, AINSWORTH and CARSWELL, Circuit Judges.

AINSWORTH, Circuit Judge:

This criminal case involves the bizarre story of a cruel and brutal murder committed by two Georgia high school teachers, pressed by financial problems, who kidnapped a Georgia bank president at night from his home, robbed his bank, and killed him after a severe beating climaxed by shooting him.

This matter is before us for the second time. In his first trial, Mobley was convicted and sentenced to death for having violated 18 U.S.C. § 2113, pertaining to bank robbery, accompanied by assault and resultant death of the victim. Mobley appealed, challenging the racial composition of the grand and petit juries. We remanded the matter to the District Court, Mobley v. United States, 5 Cir., 1967, 379 F.2d 768, and an order was entered vacating the judgment and dismissing the indictment. Appellant was subsequently reindicted on the same charges, found guilty, and sentenced to 100 years' imprisonment on each of two counts.

A codefendant, Andrew R. Oliver, pled guilty at both trials. At the first trial, Oliver testified for the Government, admitting his guilt and incriminating Mobley. At the second trial, Oliver was again called as a Government witness, but after having taken the stand he refused to answer any questions. The complete transcript of his former testimony was admitted into evidence and read to the jury. Appellant alleges that the prosecution's introduction into evidence of the so-called "infected" testimony from an antecedent trial violated the confrontation clause of the Sixth Amendment of the United States Constitution. He also alleges that the District Court committed error in permitting the introduction of a statement of the victim as a dying declaration within the exception to the hearsay rule. We have carefully examined all the errors complained of, and for reasons hereinafter set forth in detail, we affirm the conviction.

On March 8, 1965, shortly after 10 p. m., the Exchange Bank of Unadilla, Unadilla, Georgia, the deposits of which are insured by the Federal Deposit Insurance Corporation, was robbed of approximately $3,778. In the early morning hours of the following day, a night policeman in Unadilla, upon entering the bank, discovered the President of the Bank, Thomas E. Woodruff, covered with blood, lying in the area of the bank vault. Woodruff had been beaten and shot. He was taken immediately to a hospital and was there attended by Dr. Christmas, who later described the beating as the most severe one he had ever seen in his medical practice. Mobley was apprehended on the evening following the crime. Two days later, Mr. Woodruff died. Oliver fled the state but returned and surrendered himself to FBI authorities ten days following the robbery, at which time he admitted his participation in the crime and implicated Mobley. Based on information from Oliver, a search warrant was obtained for the Paradise Inn, which had been operated by Mobley, and a search revealed two bank bags containing $756 in coins, an iron reinforcing rod and clothing worn by Oliver and Mobley at the time of the robbery.

Agent Cheek of the FBI, who had investigated the scene of the crime, talked with Woodruff in the emergency room of the hospital, accompanied by Dr. Christmas and another FBI Agent. He obtained from the victim the following account of the robbery, which he was permitted to recount to the jury over defense objections. Woodruff had returned to his home from a Methodist Church stewards' meeting about 10 p. m. on March 8, 1965, and as he was pulling into his driveway he observed another automobile. As he opened the door of his car, two Negro males alighted from the other car. One of them was armed. At gunpoint they ordered him onto the floor of the back seat of their car. Because of the darkness and the fact that the men's faces were covered with masks, Woodruff did not recognize them, but noticed that they were of slender build, approximately 30 years old and appeared to be wearing suits. One was approximately 6 ft. tall; the other about 5 ft. 10 in. tall. He could not determine the color of the car, but it was a late model and possibly a Chevrolet. He remained on the floor of the car, covered with some type of rug, until they arrived at the bank, where at gunpoint he produced a key and opened the rear door of the bank. He handed over $400 from the safety deposit vault, some change from another vault, and $300 from his wallet to the robbers. When Mr. Woodruff protested that he was unable to open the main inner vault because it was secured by a time lock which would not open until the following morning, the assailants began to beat and kick him and to stomp on his chest. One of the men held a revolver; the other, a rod. Woodruff did not remember being shot.

The admissibility of dying declarations, on behalf of and against an accused, has long been recognized by the Supreme Court as an exception to hearsay evidence. Such declarations are admissible to the fact of a homicide and to the person by whom it was committed, contingent, however, upon a showing that the declarer was aware of impending death at the time the statement was made. Mattox v. United States, 146 U.S. 140, 151, 152, 13 S.Ct. 50, 53, 54, 36 L.Ed. 917 (1892).¹

Appellant contends that the Government failed to prove Woodruff's awareness of the gravity of his condition and that the admission in evidence of his declaration to FBI Agent Cheek was therefore error. Appellant predicates this conclusion on two premises. First, Woodruff was never told or never said that he was about to die. Secondly, he was given hope of recovery by the attending physician, who testified on cross-examination that he told his patient that he was in no condition to be transferred to another hospital, but in the event that he did improve he probably would be moved to a hospital where he would receive the attention of a specialist.

It is, of course, true that admission of utterances of a dying person should be received with great caution. However, a declarant's sense of impending death may be made to appear "from the nature and extent of the wounds inflicted being obviously such that he must have felt or known that he could not survive." Mattox v. United States, supra, 146 U.S. at 151, 13 S.Ct. at 54. The gravity and extent of those wounds were testified to by Dr. Christmas, the attending physician, who is also the County Medical Examiner. He repeatedly emphasized that he did not expect the patient to live through the day, or that he would die momentarily. Dr. Christmas testified that when Woodruff was admitted to the emergency room, his hair was matted with blood; there was consciousness but no detectable blood pressure. Multiple lacerations of the scalp extending all the way to the bone were so numerous that the scalp gave the appearance of having been beaten to a pulp. The chest, right upper arm and right shoulder were completely discolored with bruises. One thumb and a finger were broken; his hands were bruised and there was a wound in his right side. He was so badly disfigured that Dr. Christmas did not recognize him. X-rays revealed a fractured skull and a bullet lodged in the victim's chest. While Woodruff was in the X-ray Room, Mr. Cheek, the FBI Agent who had investigated the scene of the robbery, arrived and asked permission to speak with the patient. Because of the doctor's opinion that the patient's death was imminent, he felt that it was best that Cheek talk to him quickly while he was still conscious. When the doctor was asked by counsel if Woodruff knew of his condition, defense counsel objected and the jury was withdrawn. Dr. Christmas then answered that although Woodruff had not been told that death was imminent and he verbally expressed no awareness thereof, he, Dr. Christmas, was of the opinion that the patient knew that his chances for living were "very slim." Later, in the presence of the jury, the doctor testified that Woodruff was aware that he had coronary artery disease and carried nitroglycerin with him. The patient was told by him that he would be able to see his family, his minister and bank officials. Prior to allowing the statement to be read to the jury the Court thoroughly instructed the jury that unless they found that the declarant knew of his impending death, they should not consider the contents of the statement. In an abundance of caution, the Court first withdrew the jury, prior to receiving the doctor's opinion of Woodruff's awareness of imminent death. We find no error of the Court in allowing the jury to hear Woodruff's statement. Moreover, there was overwhelming evidence of appellant's guilt independent of the statement. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The only information that the victim furnished other than the obvious facts that he had been brutally assaulted and a bank robbery had occurred, was a general description of the assailants whom he did not recognize.

Immediately following the discovery of the victim, an investigation was made at the scene of the crime by the Federal Bureau of Investigation. Woodruff's blood-soaked coat was found at the bank. Yarn adhering to the coat was identical to fibers in a carpet taken from appellant's car. Just prior to the robbery, two Negro males in a maroon-colored 1965 Ford Falcon had purchased three cans of "Colt 45" malt liquor from a service station, whose manager positively identified appellant as one of the...