United States v. Scarpellino, 19823.

• Decision Date: 10 September 1970
• Docket Number: No. 19823.,19823.
• Citation: 431 F.2d 475
• Parties: UNITED STATES of America, Appellee, v. Michael SCARPELLINO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

431 F.2d 475 (1970)

UNITED STATES of America, Appellee, v. Michael SCARPELLINO, Appellant.

No. 19823.

United States Court of Appeals, Eighth Circuit.

September 10, 1970.

King Tristani, Minneapolis, Minn., for appellant.

J. E. Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Robert G. Renner, U. S. Atty., on the brief.

Before VOGEL, Senior Circuit Judge, and GIBSON and BRIGHT, Circuit Judges.

GIBSON, Circuit Judge.

Defendant Michael Scarpellino was indicted for taking $9,527 belonging to Midwest Federal Savings & Loan Association (a federally insured institution) on July 6, 1967, in Minneapolis, Minnesota, and for assaulting and placing in jeopardy the lives of three employees of that association by the use of a hand gun in the commission of the robbery in violation of 18 U.S.C. § 2113(a) and (d). Defendant was found guilty by a jury and was sentenced, upon a judgment of conviction being duly entered, to 20 years imprisonment.

On appeal defendant contends the trial court erred in admitting fingerprint evidence when defendant had not been placed in the vicinity of the alleged getaway car from which the prints were taken, citing Hiet v. United States, 124 U.S.App.D.C. 313, 365 F.2d 504 (1966) and Borum v. United States, 127 U.S. App.D.C. 48, 380 F.2d 595 (1967). Without this fingerprint evidence, defendant alleges there is not sufficient evidence to sustain the conviction.

The record shows that a branch of the Midwest Federal Savings & Loan Association located in the Apache Plaza Shopping Center was robbed shortly after 9 a. m. on July 6, 1967, by two armed men. Defendant was identified by Barbara Korman, an employee of Midwest Federal, as the armed man who remained in the lobby. Korman described the robber as 5'7", 145 to 150 pounds, 35 to 40 years of age, Caucasian, with dark skin and black hair (with a graying effect), perhaps of Syrian, Italian or Greek nationality, and wearing white gloves and sunglasses. While Korman was the only witness who identified defendant as the armed man who remained in the lobby area during the July 6, 1967 robbery, four other employees of Midwest Federal testified defendant resembled the robber.

Korman had ample opportunity to observe the robber identified by her as the defendant,¹ and the weight of the evidence is for the jury's determination. "In a criminal case where there has been a conviction resulting from a jury verdict of guilty, the appellate court must take that view of the evidence that is most favorable to supporting the jury verdict and must accept as established all reasonable inferences that tend to support the action of the jury. Any conflicts in the evidence are resolved in favor of the jury verdict." McClard v. United States, 386 F.2d 495, 497 (8th Cir. 1967), cert. denied, Ussery v. United States, 393 U.S. 866, 89 S.Ct. 149, 21 L.Ed.2d 134 (1968). The fact that the other witnesses were unable to make positive identifications of defendant does not "present any question of infirmity or discredit in the identification testimony arguable as a matter of law." United States v. Stewart, 429 F.2d 15 (8th Cir. 1970). Their inability to make positive identifications presents nothing more than a matter for factual argument to the jury. Therefore, we think the identification evidence set forth above is sufficient to sustain defendant's conviction.

Furthermore, we think there is no doubt that the fingerprint evidence was properly admitted. The record establishes that at approximately 9:10 a. m. on July 6, 1967, two men were seen proceeding from Midwest Federal in a northwesterly direction toward the parking lot. One was carrying a white sack (a white sack was used in the robbery) and the other had a gun in his hand. Truck driver Millard Rollins testified that sometime between 8:30 and 9 a. m. he saw a 1963 or 1964 light blue Buick Riviera leave the Apache Plaza parking lot and speed at 40 to 50 m.p.h. toward 37th Avenue. Rollins was standing on the driver's side of the car and was within five or six feet of the car as it passed by. He testified there were two men in the car and that the driver was dark complected, 30 to 40 years old, and wearing white gloves and sunglasses. Between 9:00 and 9:30 a. m., a two-door Buick Riviera, described as dark blue or black, made a rolling stop at a stop sign at 37th Avenue and Johnson Street, Minneapolis, approximately one mile west of the Apache Plaza Shopping Center. The Riviera, containing two men, proceeded south on Johnson Street. At approximately 9:15 a. m., a silver blue 1963 or 1964 Buick Riviera was parked facing south on Johnson Street near 33d Avenue. A dark complected man with silvery hair appeared to be walking from the Riviera and proceeded toward another car parked down the block which he got into. Upon being notified of the location of the Riviera, the police arrived at 33d and Johnson between 11:00 and 11:30 a. m. Approximately one hour later the Riviera, which had been stolen from a used car lot, was towed to the police garage. The next day Francis R. Grady, a special agent with the FBI, lifted approximately 25 sets of latent fingerprints from the Riviera. Grady testified that one of the fingerprints lifted from the Riviera was made by the left index finger of defendant.

Fingerprint evidence is of course admissible for the purpose of identifying the accused and of connecting him to the offense. The above sequence of events establishes that the stolen Riviera was used by the robbers in the Midwest Federal robbery. The fact that many people may have had access to the stolen car while it was on the used car lot and that the Government did not prove the car was generally inaccessible to defendant unless he had possession of it did not render inadmissible fingerprints taken from the car. The evidence had probative value and whether it supported the inference that defendant was in the car at the time it was used to flee the scene of the robbery was for the jury to determine.

Hiet and Borum, cited by defendant, are both split decisions. Hiet dealt principally with the sufficiency of the evidence and is of no significance in considering the factual context of the case at bar. Borum, in a separate opinion by Chief Judge Bazelon,² stated that fingerprint evidence alone was insufficient to sustain a conviction in the absence of evidence that the objects from which the prints were taken were generally inaccessible to the defendant prior to the crime. Judge Bazelon's statements appear limited to the amount of weight to be accorded fingerprint evidence in the absence of any other evidence and do not constitute a principle of law recognized in this Circuit or any other circuit that we can find. The identification of defendant by employee Korman, together with the identification of defendant's fingerprints on the getaway car, is more than sufficient to support the jury verdict.

After testifying in his own behalf, defendant was cross-examined with respect to prior convictions. He admitted a conviction for possession of narcotics. On redirect examination defendant explained the circumstances surrounding this conviction and apparently admitted a conviction on a gun charge.

Defendant argues the trial court has the discretion to permit a defendant to testify free of impeachment by prior conviction, citing Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965); Weaver v. United States, 133 U.S.App.D.C. 66, 408 F.2d 1269, cert. denied, 395 U.S. 927, 89 S.Ct. 1785, 23 L.Ed.2d 245 (1969), and a number of other like decisions from the District of Columbia Circuit. Defendant maintains the trial court should not have permitted the Government to utilize his narcotics conviction to impeach him since the conviction occurred when defendant was 18, seven years prior to trial, and because a conviction for possession of narcotics does not rest on dishonest conduct or in any way reflect adversely on defendant's credibility.

The District of Columbia decisions on this point concern a provision of the District of Columbia Code relating to witnesses and impeachment by prior criminal conviction.³ These District of Columbia cases afford no precedential value on this issue for this Circuit. As the Government correctly points out, this Court has consistently held that prior convictions are admissible for impeachment purposes. Tarvestad v. United States, 418 F.2d 1043, 1048 (8th Cir. 1969), cert. denied, 397 U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116 (1970); Montgomery v. United States, 403 F.2d 605, 611 (8th Cir. 1968), cert. denied, 396 U.S. 859, 90 S.Ct. 126, 24 L.Ed.2d 110 (1969); Whitfield v. United States, 376 F.2d 5, 7 (8th Cir.), cert. denied, 389 U.S. 883, 88 S.Ct. 143, 19 L.Ed.2d 179 (1967); Edwards v. United States, 333 F.2d 588, 591 (8th Cir. 1964). "A defendant who takes the stand in his own behalf may be cross-examined with respect to prior felony convictions." Whitfield v. United States, 376 F.2d at 7. See also Proposed Rules of Evidence for the United States District Courts and Magistrates rule 6-09 (Prelim. Draft 1969).

Defendant also contends it was error to compel him to appear in a pretrial lineup, for the only reason he could be forced to appear in a lineup was that he was incarcerated pending his trial (because he was unable to post bail). He views this action as violative of due process and equal protection of law. In support of his position he asserts that the district court cannot require one who is free on bail to reappear for lineup purposes by making such reappearance a condition of granting bail, because such a condition would be in violation of 18 U.S.C. § 3146 and cases which point out that conditions of release in non-capital cases "must be for the sole purpose of reasonably assuring the presence of the defendant at trial," citing Brown v. United States, 392 F.2d 189, 190 (5th Cir. 1968) and Brown v. Fogel, 387 F.2d 692 (4th Cir. 1967), cert. denied, 390 U.S. 1045, 88 S.Ct. 1647, 20 L.Ed.2d 307...