United States v. Ervin W. Stone , 471 F.2d 170 ( 1973 )

SPRECHER, Circuit Judge.

The defendant was convicted by a jury of the robbery of the State Bank of Latham, Illinois.¹ Numerous alleged errors are raised in this appeal, each of which is considered below. We affirm the judgment of conviction.

The bank robbery occurred at approximately 3:00 P.M. on March 11, 1970. Witnesses to the robbery testified that the robber wore a gray cloth mask, gloves and a hat, and carried a gun having a barrel approximately six inches long. The robber was identified as being a man with a fair complexion, dark reddish hair and over six feet tall. The defendant was arrested and charged with the crime eleven months later.

At the trial, the four bank employees who had witnessed the crime testified as to the events of the day in question. None of them was able to make an unequivocal positive identification of the defendant, but two employees thought the defendant was the man who had robbed the bank.

The principal evidence indicating that Stone was the bank robber came from the testimony of two acquaintances of his and from testimony which showed that he was suddenly in possession of large sums of money. Linda Hudspeth, who had known Stone since September, 1969, testified that the defendant told her he was planning to rob the Latham bank and asked her to purchase a gray scarf for him, which she did in February, 1970. She also testified that Stone called her late in the afternoon of March 11, 1970, and told her he had just robbed the bank. The following day Stone reportedly gave her three hundred dollars and told her that he had buried the gun and clothing used in the robbery. Somewhat later an altercation apparently developed between the witness and the defendant. Mrs. Hudspeth stated that she threatened to report the crime and that Stone told her if she did he would kill her. Stone showed her a small pistol which he carried.

A second acquaintance of the defendant, Andrew Skelton, testified that he had gone to school with Stone and been a friend of his for twelve years. According to his testimony, Stone called him on February 13, 1970, and told him he was going to rob a small bank because he needed money for support payments. Skelton testified that he next saw Stone on May 5, 1970, when the defendant drove Skelton to a bank in Greenview, Illinois, where he had previously rented a safe deposit box, and showed the witness a greén tackle box containing white envelopes filled with money. The witness stated that he told Stone he did not wish to become involved but that Stone threatened him with a .22 caliber pistol. Subsequently, Skelton traveled with Stone to various cities in Iowa and Illinois where the defendant converted the allegedly stolen money into cashier’s checks. Testimony from other persons substantiated much of Skelton’s testimony. A green tackle box taken from the defendant’s home when he was arrested was identified by Skelton as the box containing the money.

The government produced numerous witnesses who testified to substantial deposits made to the defendant’s bank account during May of 1970, to expenditures of $4,250 for a truck and $725 for a boat in May, 1970, and to the fact that Stone’s name appeared on money orders and drafts purchased at various banks. Thus, even without the positive identification of the defendant by the bank employees, the evidence was substantial that Stone was the bank robber.

I.

Stone’s first complaint relates to the introduction of a .22 caliber pistol into evidence which was apparently unconnected with the robbery of the Latham State Bank. The revolver was taken from underneath the mattress in the defendant’s home at the time of his arrest. Although a gun was used by the bank robber, testimony indicated that it was unlikely that the gun introduced at trial could have been the firearm used in the robbery.* Government counsel, in his closing argument, conceded as much, stating: “Now, I’m not suggesting, ladies and gentlemen, that this was the gun in which the bank robbery was completed. In fact the barrel isn’t long enough . . . . ” In the remainder of his argument, the prosecutor indicated that the purpose for which the gun had been introduced was to corroborate the testimony of Mrs. Hudspeth and Skelton as well as to promote an image of the defendant as a dangerous and generally disreputable person.^{2 3}

Stone argues that the introduction of this gun for these purposes was improper and prejudicial to his case. In Moore v. Illinois, 408 U.S. 786, 798-800, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), the Supreme Court held that the introduction of a 16-gauge shotgun into evidence in a murder trial in which the victim had been killed by a 12-gauge shotgun was permissible under the due process clause. The prosecutor in that case stated that his purpose in introducing the weapon was to show that the defendant and his companion were “the type of people that use shotguns.” Under this ruling, there can be no question but that the introduction of the gun in this case did not violate the defendant’s right to a fair trial under the due process clause of the Fourteenth Amendment.

Defendant nevertheless argues that under federal evidentiary standards, the introduction of the gun was an abuse of discretion on the part of the trial judge. The trial judge has wide discretion in the admission or exclusion of collateral evidence. There can be no doubt that the gun had probative value in substantiating the statements of Mrs. Hudspeth and Skelton. Defendant argues that evidence of threats against these witnesses was inadmissible, and that even if admissible, there was no showing that the gun introduced into evidence was the weapon with which they were threatened. These arguments ignore the circumstances present in this case. Mrs. Hudspeth and Skelton were both subjected to .rigorous cross-examination designed to discredit their testimony and to show that Mrs. Hudspeth was a disappointed girl friend who in fact threatened to kill the defendant. Both witnesses were cross-examined as to why they had waited so long to tell authorities their stories. Stone did not object at the trial to testimony as to threats. Once the threats were in evidence, and the credibility of the witnesses was attacked, the .22 caliber pistol became highly relevant as tending to prove that the defendant could in fact have carried out the alleged threats.⁴ We cannot say that any possible prejudicial effect outweighed the probative value of the pistol under these circumstances.

II.

Defendant also alleges error in admission into evidence of the fruits of a search of his home made pursuant to his wife’s consent shortly after Stone’s arrest. Stone insists, first, that his wife could not legally give consent to such a search unless an “agency” relationship is established; and second, that even if a spouse’s consent were otherwise sufficient, the consent in this case was the product of coercion. The first part of this argument is without merit. In United States v. Sferas, 210 F.2d 69, 74 (7th Cir.), cert. denied, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086 (1954), this court held that “where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.” This holding is applicable here and the wife’s consent, unless given under coercion, is binding upon her husband. See also United States v. Johnson, 413 F.2d 1396, 1400 (5th Cir. 1969); Roberts v. United States, 332 F.2d 892, 896-897 (8th Cir.), cert. denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1964).

The question of whether a consent is given voluntarily and without coercion is one of fact. Stone argues that two factors allegedly present in the instant case preclude a finding that the consent was freely given. Mrs. Stone executed the consent form giving F.B.I. agents authority to search the house approximately eight minutes after defendant’s arrest. There was some testimony that she was upset at the time but the record does not indicate that she was any more disturbed than any other person would be likely to be at the sudden intrusion of police officials under these circumstances. To hold that the mere condition of being “upset” by the presence at one’s home of F.B.I. agents is enough to make any consent the product of coercion might effectively foreclose almost all searches conducted pursuant to a voluntary consent. We decline to so hold.

The defendant also argues that the F.B.I. agents told Mrs. Stone that if she did not consent they could obtain a search warrant. The testimony on this point is conflicting. Mrs. Stone testified that she was positive that the F.B.I. agents said they could get a search warrant. The F.B.I. agent in charge of the Stone ease testified that to his knowledge no one stated that the F.B.I. could obtain a warrant. He further testified that it would have been highly unlikely that anyone would so state since the F. B.I. had previously been advised that there was insufficient probable cause for authorization of a warrant. The trial judge heard the testimony of these witnesses and observed their demeanor on the witness stand and believed the testimony of F.B.I. agent Joseph Giglio. There is no basis for overturning this conclusion. Mrs. Stone testified that no threats were made to her by the F.B.I. agents and that she read and signed the consent form voluntarily. We conclude that there was no error in the ruling of the district court.

III.

The defendant argues that the government failed to disclose evidence favorable to the accused prior to trial. This argument is premised on the fact that the government had knowledge, prior to trial, that two of the bank employees could not identify the defendant. Stone insists that failure to inform the defendant of this evidence before trial violated his due process rights under the holding of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, in Brady, the defendant never had the benefit of the exculpatory statement. The government in this case produced the two witnesses at trial and they testified that they could not identify the defendant. Stone has failed to show that any prejudice resulted from a failure to make the testimony available to him at an earlier time.

IV.

Additional errors are alleged relating to a jury instruction as to reasonable doubt; separate instructions as to each count of the indictment; failure to give an instruction on the weight and credibility to be given the testimony of Skelton and Mrs. Hudspeth; failure to grant a mistrial when a witness wept on the stand; failure to declare a mistrial because the prosecutor referred to a juror by name; and failure to grant a mistrial because of adverse newspaper publicity. Defendant also attacks the sufficiency of the evidence to sustain the guilty verdict. We have examined these contentions and find them to be without merit. The judgment is affirmed.

Affirmed.

1 . The indictment charged defendant with violating 18 U.S.C. § 2113 (a), (b) and (d).

2 . The bank employees testified that the gun used in the robbery had a long barrel.

3 . The prosecutor stated :

“I’m asking you to look at the threats of violence made to these people in the bank. I’m asking you to look at what Linda told us. You don’t tell anybody, or you’ll get a bullet in the head. I’m asking you to look at what Joe Skelton told us, don’t you do anything or I’ll kill you. I’ll shoot you with this gun. If I don’t get you, somebody else will, and then I finally ask you to consider, here’s a man sleeping in his bed in his home with young children running around the house, his wife and young children running around the house, sleeping in bed at approximately twelve noon, on a weekday, with a fully loaded revolver right under the mattress where lie’s sleeping.” (R. 493-94)

4 . The Revised Draft of the Proposed Rules of Evidence for the United States Courts and Magistrates, Rule 401 (March 1971), defines relevant evidence as “evidence liaving any tendency to make the exist-' ence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” 51 F.R.D. 315, 342.