United States v. Woodring

• Decision Date: 13 August 1971
• Docket Number: No. 590-70.,590-70.
• Citation: 446 F.2d 733
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Alvin WOODRING, aka Carlton D. Woodring, aka Dee Burke, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

446 F.2d 733 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Richard Alvin WOODRING, aka Carlton D. Woodring, aka Dee Burke, Defendant-Appellant.

No. 590-70.

United States Court of Appeals, Tenth Circuit.

August 13, 1971.

Glenn J. Mecham, Asst. U. S. Atty., Salt Lake City, Utah (C. Nelson Day, U. S. Atty., Salt Lake City, Utah, with him on the brief), for plaintiff-appellee.

H. Don Sharp, Ogden. Utah, for defendant-appellant.

Before PICKETT and BARRETT, Circuit Judges.

PICKETT, Circuit Judge.

Appellant Woodring appeals from a conviction for the robbery of the South Ogden Branch of the First Security Bank of Utah in violation of 18 U.S.C. § 2113(a) and (d).

Shortly before the closing hours on December 5, 1969, the aforesaid bank was robbed by a lone gunman who first approached a bank teller and demanded that she deposit her cash in a cloth bag which he furnished. The robber then, at the point of a gun, directed her to go to the cages of three other tellers to obtain the cash in their possession. The robber thereupon left the bank with over $13,000.00. Immediately after the robbery, the four tellers furnished law officers with descriptions of the gunman. Each of the tellers gave substantially the same description. In the days that followed, the tellers examined a myriad of photographs of known criminals, none of which was identified as the robber. Early in February 1970, an F.B.I. agent produced eight photographs, one of which was of Woodring. This group of photographs was presented separately to the tellers, each identifying Woodring as the robber. On February 5, 1970 a number of F.B.I. agents apprehended Woodring as he left an automobile after entering the parking facilities at the Stapleton International Airport at Denver, Colorado. At that time there was an outstanding warrant for Woodring as a federal escaped prisoner. When Woodring was arrested the officers knew that he was wanted for bank robbery in Salt Lake City, Utah, and Woodring was so advised.

The day following his arrest, Woodring was taken before a United States Commissioner in Denver for a hearing. The Commissioner fully advised him of his rights, whereupon Woodring requested a recess in the proceedings to permit him to talk to the F.B.I. agents. The request was granted and the interview was held in a separate room. In this interview Woodring admitted the Utah robbery, furnishing all of the details. No contention is made that prior to making these admissions Woodring was not fully advised of his constitutional rights. It was suggested that the case be disposed of in Colorado under the provisions of Rule 20, Federal Rules of Criminal Procedure. Later, Woodring changed his mind with regard to pleading guilty under Rule 20; removal proceedings were instituted under Rule 40, Federal Rules of Criminal Procedure, and he was removed to Utah for trial.

Relying on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247 (1968), it is contended that the pretrial identification by photographs was so unnecessarily suggestive as to lead to irreparable misidentification, which denied Woodring due process of law. The principal objection to the identification procedure was that when the last group of eight pictures was presented to the bank tellers, the one of Woodring was taken from a microfilm exposure and was printed on different paper than the other seven, which were glossy prints. This question was fully explored by the trial court on a pretrial motion to suppress, and we agree with its conclusions that under the circumstances of the case, the identification procedures used did not necessarily suggest a mistaken identity of Woodring. Aside from wearing colored glasses, the robber did not attempt to conceal his ordinary appearance. Each of the identifying witnesses had an excellent opportunity to carefully observe him during the robbery. Each witness was alone when the photograph identification was made. There was no indication that any of the witnesses had information that any of the persons shown in the pictures were suspects. When called as witnesses the tellers had not seen Woodring since the robbery, but instantly and spontaneously identified him as the person who held up the bank. The record makes it clear that at trial the witnesses retained in their memories the image of Woodring in person, not of the picture. United States v. Mason and Edwards, 440 F.2d 1293 (10th Cir. 1971); Belton v. United States, 429 F.2d 933 (10th Cir. 1970).

It is next urged that the admissions of Woodring made to F.B.I. agents following the recess in the hearing before the United States Commissioner violated the provisions of Rule 20(c), Federal Rules of Criminal Procedure, which provides that "(t)he defendant's statement that he wishes to plead guilty or nolo contendere shall not be used against him" if he pleads not guilty after a transfer in a Rule 20 proceeding. Apparently, contemplated proceedings under Rule 20 were abandoned before Woodring was called on to plead in Colorado. In any event, Woodring solicited the opportunity to admit his participation in the Utah bank robbery. There is no evidence of, and no claim is made, that the admissions resulted from coercion, promises, threats or undue pressure by anyone, or that they were not voluntary. They were not made as part of Rule 20 proceedings and were statements made voluntarily and for Woodring's own reasons. We have said that "admissions or confessions of defendants in criminal cases, even after arrest, if voluntarily made, are admissible in evidence. Fowler v. United States, 239 F.2d 93, 94 (10th Cir. 1956).¹ See also, United States v. Littlejohn, 441 F.2d 26 (10th Cir. 1971), and cases cited therein.

During the course of the trial, the prosecution identified a .22 caliber revolver which witnesses described as being similar in size and appearance to that used by Woodring in the robbery. The prosecution advised the court that the gun would be connected with the defendant by later evidence. It is assumed by the parties that the gun was obtained from a search of the car used by Woodring at the time of his arrest. This search was vigorously questioned by the defense in a motion to suppress and objections to testimony relative to articles seized. After argument on the objections, the prosecution decided to abandon the introduction of material seized in the search. It does not appear that the jury was prejudicially influenced by identification of the gun during the trial. Smith v. United States, 103 U.S.App. D.C. 48, 254 F.2d 751 (1958), cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958); State v. Wilson, 130 Wash. 444, 227 P. 850 (1924). The court instructed the jury that "(a)ny exhibits which have not been received, you should not consider them; and you should base your verdict entirely on the evidence received in open court, in the light of the instructions as to the law which the Court has given you * * *." While we do not condone the use of demonstrative evidence that is produced as an exhibit and not thereafter offered, particularly a gun in this kind of case, we find no prejudicial error in view of all the circumstances of the case and the instructions of the court. This is particularly true in view of Woodring's admission that he used a gun in the robbery which was later disposed of by him and not available.

We find no merit in appellant's contentions that counsel for the government (1) did not prove all of the statements made in his opening remarks to the jury, and (2) that the testimony of an F.B.I. agent was prejudicial when he said that when arrested Woodring was told that "we had a warrant for him for a federal charge. In addition we had authorization for another charge emanating from Salt Lake City." In its opening statement the prosecution told the jury that it would prove the expenditure by Woodring of substantial sums of money shortly after the robbery.² This approach was abandoned during the trial. However, Woodring testified on cross-examination that shortly after the robbery he purchased an automobile from a dealer in Sterling, Colorado for $1,800.00 cash. Ordinarily, a defendant in a criminal case is not entitled to a new trial because the government fails to sustain by evidence all of his statements in his opening remarks to a jury unless they are manifestly prejudicial. In Frazier v. Cupp, 394 U.S. 731, 736, 89 S.Ct. 1420, 1423, 22 L.Ed.2d 684 (1969), the Court said:

"* * * It may be that some remarks included in an opening or closing statement could be so prejudicial that a finding of error, or even constitutional error, would be unavoidable. But here we have no more than an objective summary of evidence which the prosecutor reasonably expected to produce. Many things might happen during the course of the trial which would prevent the presentation of all the evidence described in advance. Certainly not every variance between the advance description and the actual presentation constitutes reversible error, when a proper limiting instruction has been given. * * *"

United States v. Mason and Edwards, 440 F.2d 1293 (10th Cir. 1971); Mares v. United States, 409 F.2d 1083 (10th Cir. 1968), cert. denied, 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969). At the commencement of the trial the court advised the jury that opening statements are not evidence. Later the jury was also told that "(o)pening statements and closing arguments of the attorneys are intended to help you in...