United States v. Tubbs, 71-1427.

• Decision Date: 15 May 1972
• Docket Number: No. 71-1427.,71-1427.
• Citation: 461 F.2d 43
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Harry TUBBS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

461 F.2d 43 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Frank Harry TUBBS, Defendant-Appellant.

No. 71-1427.

United States Court of Appeals, Seventh Circuit.

Argued April 21, 1972.

Decided May 15, 1972.

Joseph F. Phelan, Chicago, Ill., for defendant-appellant.

Stanley B. Miller, U.S. Atty., William F. Thompson, William Andrew Kerr, Asst. U.S. Attys., Indianapolis, Ind., for plaintiff-appellee.

Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and KILEY, Circuit Judge.

CASTLE, Senior Circuit Judge.

The defendant-appellant, Frank Harry Tubbs, prosecutes this appeal from the judgment of conviction and sentence entered by the District Court following his trial before a jury on an indictment charging him with the offense of bank robbery in violation of 18 U.S.C.A. § 2113(a). The court sentenced the defendant to 20 years imprisonment to run concurrently with a sentence previously imposed.

The defendant urges a reversal of his conviction on the grounds (1) that insufficient evidence was presented by the government to support a verdict of guilt; (2) that the court erred in overruling defendant's objections to questions put to him on cross-examination which revealed the defendant's prior convictions for bank robbery and armed robbery; and (3) that the court erred in refusing defense counsel's 4:00 a. m. telephone request that the jury be sequestered at that time and be permitted to resume its deliberation later that day.

The record discloses that at the close of the government's case in chief the defendant made a motion for a judgment of acquittal based on insufficiency of the government's evidence. The motion was denied, and the defendant proceeded to call witnesses and present his defense. By introducing evidence on his own behalf, defendant abandoned his motion for acquittal at the close of the government's case in chief.¹ He made no motion for judgment of acquittal at the close of all the evidence, but by a post-verdict motion did seek a judgment of acquittal n. o. v. or a new trial on the assertion, inter alia, that the verdict was not supported by substantial evidence. This post-trial motion was denied. Consequently, insofar as defendant's contention addressed to sufficiency of the evidence is concerned our determination on review must be made in the light of all the evidence. United States v. Greene, 10 Cir., 442 F.2d 1285, 1286 n. 3. And in resolving the issue tendered concerning the sufficiency of the evidence to sustain defendant's conviction we must view the evidence, together with all reasonable inferences which may be drawn therefrom, in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Mims, 7 Cir., 340 F.2d 851, 852.

The defendant's challenge to the sufficiency of the evidence is based on the fact that the witnesses who were present at the scene of the robbery were unable to positively identify the defendant as the man who robbed the bank.

The evidence establishes that on December 22, 1969, at approximately noon, the branch of the Indiana National Bank located at 215 E. 38th Street, Indianapolis, Indiana, the deposits of which were insured by the FDIC, was robbed of $1435 by a man who appeared at the cage of Phillip Rihm, a teller, exhibited a revolver, announced "this is a holdup", pushed a white pillow case across the counter, and instructed Rihm to fill it with large bills. After receiving the money in the pillow case, the robber immediately turned away and left the premises. Both Rihm, and a bank customer who was standing next to Rihm's window, testified that the robber wore a woman's nylon stocking pulled over his head. Neither was able to describe the robber's facial features or make any identification of the defendant as the robber on such a basis. Each of these witnesses did testify that the defendant resembled the robber in the physical characteristics of height and build.

Concededly, the testimony of Rihm and the bank customer with respect to the resemblance between the defendant and the robber as to height and build was insufficient to establish identity. But there is testimony of additional witnesses which evidences the existence of circumstances which fully warranted the jury in concluding that the defendant was the person who committed the robbery. In this respect there is testimony from which the jury could have found that the defendant's girl friend drove him to the corner of 37th and Delaware streets — within one block of the bank — on the day of the robbery, arriving shortly before noon; that she parked her white convertible 1968 model Buick facing east on 37th street just east of the intersection; that the defendant left the car after requesting her to wait and stating that he would "just be a minute"; that she kept the motor running and the defendant left in the direction toward the rear of the car; that he returned a few minutes later from the same direction and got in the passenger side of the car; when defendant returned he was carrying what appeared to be a coat, all balled-up with something white hanging out; that when the defendant got in the car he slumped down and asked to be driven to his brother's house, where he left the car. And there is the testimony of Eleanor Bottorff who resided at 3708 No. Delaware within one block of the bank. At about noon on the date involved she was at her kitchen window looking for the mailman when she observed a man coming from the bank's parking lot and across the lawn of the first house south of the bank. He had a woman's stocking over his face and was carrying something. He proceeded down Delaware street to a white car parked facing east on 37th street just east of the southeast corner of 37th and Delaware and got into the car from the passenger side. The witness called her husband Ralph to the window and went to call the police. Ralph Bottorff testified that he observed the car before it drove away. He identified it as a Buick convertible — a 1967, '68 or '69 model — from the type of tail lights it had.

The testimony above referred to placed the defendant within a block of the bank a few minutes before the robbery occurred — and with a car waiting with the motor running. And it traced the stocking-masked robber from the bank's premises to the awaiting white Buick convertible. This evidence was ample to sustain the jury's conclusion that the defendant was the stocking-masked man who robbed the bank.

The defendant testified on his own behalf. He admitted that he was in the vicinity of the bank, about a block away, at the time of the robbery but explained that his purpose in having his...