United States v. Quarles

• Decision Date: 30 November 1967
• Docket Number: No. 11133,11134.,11133
• Citation: 387 F.2d 551
• Parties: UNITED STATES of America, Appellee, v. Joseph QUARLES, Appellant. UNITED STATES of America, Appellee, v. Calvin Percy MARTIN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

387 F.2d 551 (1967)

UNITED STATES of America, Appellee, v. Joseph QUARLES, Appellant.

UNITED STATES of America, Appellee, v. Calvin Percy MARTIN, Appellant.

Nos. 11133, 11134.

United States Court of Appeals Fourth Circuit.

Argued June 20, 1967.

Decided November 30, 1967.

Edward A. Tomlinson, Baltimore, Md. (Court-appointed counsel), for appellant Joseph Quarles.

James W. McElhaney, Baltimore, Md. (Court-appointed counsel), for appellant Calvin Percy Martin.

Paul M. Rosenberg, Asst. U. S. Atty. (Thomas J. Kenney, U. S. Atty., on the brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

Convicted of bank robbery, interstate transportation of a stolen car, and related offenses¹ and sentenced to twenty years' imprisonment, defendants Quarles and Martin appeal, assigning numerous errors.

I. SUFFICIENCY OF THE EVIDENCE

On February 17, 1966, a robbery occurred at the Central National Bank, Riggs Plaza Branch, in Hyattsville, Maryland. At approximately ten o'clock that morning a car drove up in front of the bank "real fast." Two men jumped out and rushed into the bank; both wore hooded sweat shirts tied so as to cover their faces except for their noses, eyes and a portion of their foreheads and both wore sunglasses. One man, carrying a small gun and a brown paper shopping bag, went directly to the teller's window of Mrs. Ayres, said, "This is a stickup," and directed Mrs. Ayres to put the money in the shopping bag. The other man stopped at the desk of Mr. Smith, just inside the front door, pointed a gun at him and told him to lie down, then went to Mrs. Evans' window and presented her with another brown paper shopping bag. After a lapse of no more than three minutes, the robbers ran from the bank and drove away in a red and white Pontiac. Mrs. Ayres ran to the front window in time to see the license number and wrote it down. A short time later a car with the same license number was found about four blocks from the bank in the District of Columbia not far from the residence of Martin. The car was the property of Mr. Floyd Corbin who had parked it that morning at his place of work in Maryland. At trial Mrs. Evans identified three pictures of this car as being the get-away vehicle; Mr. Smith was able to identify only the one photograph that showed the license plate; Mrs. Ayres, perhaps because of her concentration on getting the license number, did not recognize the photographs as being pictures of the robbers' car and asserted positively that they were not; Mrs. Vettori, another of the bank employees present during the robbery, was unable to identify any of the pictures.

An Astra Cub pistol was found lying on the front seat of the vehicle. This gun belonged to Mr. John Allen who was Martin's supervisor at the Time Oil Fuel Company, a filling station in Glen Arden, Maryland. Mr. Allen testified that he kept the gun in a drawer in his office. At about 4:00 P.M. on the day of the robbery, Mr. Allen heard a radio report of the bank robbery, looked in the drawer and discovered that the gun was missing; he reported the loss to no one. He testified that he had last seen the gun in the drawer the day before the robbery.

On the afternoon of the robbery Quarles, Martin and two other persons went to a used car lot in Baltimore, Maryland. There Martin arranged to buy a 1965 Oldsmobile for $2,895.00 making a cash down payment of $360.00 consisting of 17 twenty-dollar bills, one ten-dollar bill, and two five-dollar bills. Martin did not have enough money for temporary license plates and borrowed $10.00 from one of the others. Martin and Quarles went into the bathroom; when they returned, a salesman saw Quarles putting money back in his pocket. Mr. Wilbanks, owner of the used car lot, gave all of the money he received from Martin, plus two other twenty-dollar bills, to Agent Hines of the F.B.I.² One of these twenty-dollar bills had the number "500" written on it. Mrs. Evans testified that the "500" looked like her handwriting and that a day or so before the robbery she had written "500" on a twenty-dollar bill, but she could not say that this was the bill or that such a bill was taken during the robbery.

Shortly after 10:00 A.M. on the day of the robbery Lawrence Berry, Jr., a thirteen-year-old eighth grader, looked out of a window in his house and saw the Pontiac stop in the place where it was later found by the police. From a distance of twenty-five feet he observed a man jump out of the car. He had on boots, khaki pants, a hooded sweat shirt, black jacket and sunglasses and carried two "brownish colored" bags. At preliminary hearing and again at trial, Berry identified this man as Quarles. Although Berry seemed to be in some confusion as to whether Quarles wore a moustache or a goatee and none of the bank employees remembered his wearing either, an F.B.I. picture of Quarles taken on February 23, 1966, indicated that Quarles had a moustache at that time.

Six days after the robbery F.B.I. Agents Mulholland and O'Neill went to Berwyn Fuel and Feed Company where Quarles was employed. The two agents and Quarles left there on an unsuccessful search for witness Berry a little after 8:00 A.M. At about 10:00 A.M. they came to the bank. Quarles and O'Neill stood outside the bank in front of a glass window while Agent Mulholland went inside and asked Mr. Smith, Mrs. Vettori, Mrs. Ayres, and Mrs. Evans to observe Quarles. Both Mrs. Evans and Mrs. Ayres asked Mulholland to have Quarles come in the bank; Quarles did so and was identified as one of the robbers. Then Quarles was formally placed under arrest and searched. A set of keys, some of which opened the door and started the motor of Mr. Corbin's Pontiac, was found on his person.

Three days later on February 26, 1966, Agents Mulholland and O'Neill took two of the bank employees, Mrs. Ayres and Mrs. Evans, to the Time Oil Fuel Company where Martin was working. Three Negro males were congregated together three to five feet from the car. The two women identified Martin as one of the bank robbers at this time and again at trial. The testimony disclosed that the F.B.I. agents did not point out Martin to the witnesses, and the witnesses did not speak with each other while making their identifications.

At trial Mrs. Evans based her identification of the defendants on size, complexion and walk. Mrs. Ayres, when asked for the basis of her identification, said, "Upon seeing them again after the robbery, their mannerisms, their size, their shape, their voice, the way they walked." Mr. Smith, able to identify only Quarles, based his identification on "the general characteristics of the individual, that being height, weight, general coloration of the skin." Mrs. Vettori was unable to identify either of the defendants. None of the witnesses testified on direct examination to the pre-trial identifications, but were cross-examined about them by counsel for defendants. See generally, United States v. Wade, 388 U.S. 218, 247, 87 S.Ct. 1926, 1942, 18 L.Ed.2d 1149, 1169 (1967) (dissenting opinion).

The record also showed that neither appellant was at his place of employment on the day of the robbery and that Martin had obtained an advance of $20.00 on his wages the day before the robbery.

There is no doubt that a robbery took place on February 17, 1966; the only real question at trial was the identity of the robbers. Both appellants assert that the evidence is insufficient to support a verdict which implicitly identified them as the bank robbers. We cannot agree. The accepted test is "whether there is substantial evidence which, taken in the light most favorable to the United States, tends to show that the defendant is guilty beyond a reasonable doubt." Bell v. United States, 185 F.2d 302, 310 (4th Cir. 1950).

Here we have not only so-called "positive identification," but strong corroborating circumstances which, although not susceptible to quantitative measurement, nevertheless indicate guilt. Quarles possessed the keys to the escape vehicle. The gun used in the robbery was found in that vehicle and belonged to Martin's employer. Martin had the opportunity to get it. Quarles was seen departing from the vehicle with two bags similar to those used in the robbery. The car was found close to where Martin lived. Quarles and Martin spent a good portion of the day in the company of each other. A bill, probably taken from the bank, was spent by Martin the afternoon of the robbery. Martin on the afternoon of the robbery had $360.00 although he had borrowed $20.00 on the day before. No one of these facts standing alone would be sufficient from which to infer guilt, but together they are highly incriminating if not conclusive. It is hard to see how there could be a reasonable doubt but it matters not, for the "possibility that a jury may have a reasonable doubt upon the evidence as to the guilt of the defendant is not the criterion which determines the action of the trial judge." Bell v. United States, supra at 310.

II. PRE-TRIAL IDENTIFICATIONS

The most serious problem relates to pre-trial identifications. Quarles asserts a violation of his right to counsel under the Sixth Amendment and a violation of Fed.R.Crim.P. 5(a). Martin asks that we exercise our supervisory powers under the McNabb doctrine to exclude evidence which is the product of unfair police methods. None of these points was raised below but, even though we do not find plain error within the meaning of Fed.R.Crim.P. 52(b), an exposition of our reasons for failing to so find is not inappropriate.³

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and in Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Supreme Court for the first time held that the Sixth Amendment includes the right to counsel at a lineup, but in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court held...