United States v. Wilkerson

Decision Date15 March 1972
Docket NumberNo. 71-1567-71-1569.,71-1567-71-1569.
Citation456 F.2d 57
PartiesUNITED STATES of America, Plaintiff-Appellee v. Jan Alvord WILKERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee v. Ransom John GRAY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee v. Charles Lee BURNETTE, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Francis Breazeale (Court Appointed), Chattanooga, Tenn., for Jan Alvord Wilkerson.

Thomas A. Williams (Court Appointed), Chattanooga, Tenn., for Ransom John Gray.

John R. Seymour (Court Appointed), Chattanooga, Tenn., for Charles Lee Burnette; Stophel, Caldwell & Heggie, Chattanooga, Tenn., of counsel.

George H. Garrett, Chattanooga, Tenn. (John L. Bowers, Jr., U.S. Atty., Jerry Foster, Asst. U.S. Atty., Chattanooga, Tenn., on the brief), for appellee.

Before WEICK, EDWARDS, and McCREE, Circuit Judges.

PER CURIAM.

Defendants appeal jury convictions of armed bank robbery in violation of 18 U.S.C. §§ 2, 2113(a) and (d), for which Burnette was sentenced to twenty years, Gray to eighteen years, and Wilkerson to fourteen years. We find no reversible error with respect to any of the contentions advanced by appellants and affirm the convictions.

At trial, overwhelming evidence of guilt was introduced. In addition to the in-court identification of Burnette and Gray by several bank employees, there was evidence that the automobile used as the "get-away car" was rented by Wilkerson and contained the fingerprints of Burnette and Gray. Photographs from bank surveillance cameras were also introduced into evidence, as was Burnette's confession. Another witness, a Wells Fargo security guard, testified that Wilkerson told him of her role in the robbery as driver of the get-away car.

Burnette presents four assignments of error: the court erred in overruling his motion to suppress his confession; the court erred in refusing to sever his trial from that of Gray; the court erred in overruling his motion for a mistrial based upon the reading of an alleged alias of his to the jury after the court had ordered the alias stricken from the indictment; and the court erred in refusing to restrict the Government's cross-examination of him, if he should elect to take the stand, to exclude reference to prior convictions.

With respect to the first contention, we hold that the District Court's conclusion that "the evidence established clearly that the defendant was advised properly and fully of his rights, that he gave the statement freely and understandingly" is not erroneous. We agree with the District Court that Burnette was adequately informed of his rights; that it was Burnette who initiated the interview; and that the confession was made freely and voluntarily. We find no coercion or deception on the part of the FBI agent to induce Burnette to confess.

The indictment upon which Burnette was charged was brought against "Charles Lee Burnette alias Ricky Burnette." Upon motion by Burnette before trial, the court ordered this alias stricken from the indictment. Nevertheless, the United States attorney in his opening statement read the alias to the jury in his reading of the indictment, and included in his closing argument the assertion that people with nothing to hide do not use aliases. (The indictments of Gray and Wilkerson also contained alleged aliases, but the court did not strike these.) We strongly disapprove the practice of including aliases in indictments. As the court stated in Petrilli v. United States, 129 F.2d 101, 104 (8th Cir.1942), cert. denied, 317 U.S. 657, 63 S.Ct. 55, 87 L.Ed. 528 (1942), "The preliminary reading of the aliases in an indictment is not a practice which should be encouraged in an ordinary criminal prosecution, but rather one which should be curbed." Only when proof of an alias is relevant to identifying the defendant should a court allow its inclusion in the indictment and its subsequent introduction at trial. Here, the Government did not offer proof of the aliases of Gray and Wilkerson, and it appears that the principal use to which the aliases were put was to indicate to the jury that people who use aliases are inherently suspect. However, in view of the strength of the evidence against the defendants, we hold that neither the error with respect to Burnette's alias nor the prejudicial effect of the Government's references to all the aliases warrants reversal here.

With respect to Burnette's remaining assignments of error, we find no abuse of discretion in the District Court's refusal to grant a severance and in its refusal to preclude the Government from cross-examining Burnette concerning his prior convictions.

We deem only one of the errors urged by Gray to merit extended consideration. Gray contends that the in-court identification of him by certain bank employees was impermissibly suggested by means of the Government attorneys' "conducting rehearsals, lineups, and coaching sessions" with the witnesses. He asserts that each witness "refreshed his memory" by conferring with the United States attorneys before testifying; that witness Sandra Green sat in the courtroom during a hearing on a pretrial motion on the day before trial and thus was able to view the defendant; that other witnesses sat in the courtroom during the voir dire of the jury, which amounted to a "walk-through" that afforded the witnesses an opportunity to view the defendants before testifying; that one Government witness had been arrested the day before trial and threatened with detention without bond; that a policeman had stated to certain witnesses "that he could convict all of the defendants"; and that the witnesses had discussed their testimony among themselves.

Our review of the record convinces us that the in-court identifications were not tainted by impermissibly suggestive procedures. Not all the witnesses who had observed the defendants in the courtroom during the voir dire were able to identify the defendants, and those who did identify one or more of the defendants were subjected to vigorous cross-examination. All witnesses in the latter group maintained that their in-court identifications were based upon their observations of the defendants during the robbery. They admitted that they had been interviewed by Government attorneys before trial, but denied that they had been coached or instructed or told to view the defendants in the courtroom. They also denied comparing their testimony among themselves. Sandra Green, who viewed the defendants during a pretrial hearing, was not able to identify Gray at trial. And the record shows that Carol Landolt, who was arrested before trial as a Government witness, was allowed to sign a $500 personal bond, and was arrested only because she had evaded the service of a subpoena. She was cross-examined by defense counsel at trial concerning the effect of the arrest on her testimony. Further, at a hearing held out of the presence of the jury, defense counsel could not cite a single instance of impropriety or any falsehood in the witness' testimony. The District Court found no evidence of impropriety or intimidation of this witness, and we hold that the record amply supports this determination. We determine also that in the circumstances of this case, the procedures employed by the Government, including...

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