United States v. Ray Anthony Hollins ( 2005 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-1989
    ___________
    United States of America,                *
    *
    Appellee,                  *
    * Appeal From the United States
    v.                                 * District Court for the
    * Western District of Arkansas.
    Ray Anthony Hollins,                     *
    *
    Appellant.                  *
    ___________
    Submitted: October 28, 2005
    Filed: December 22, 2005
    ___________
    Before MURPHY, HEANEY, and MELLOY, Circuit Judges.
    ___________
    HEANEY, Circuit Judge.
    Ray Anthony Hollins was charged with bank robbery, in violation of 18 U.S.C.
    § 2113(a) and (d). Hollins was found guilty after a jury trial, and was sentenced to 78
    months’ imprisonment. He argues on appeal that the trial court erred: (1) in denying
    his motion for acquittal; (2) in denying his motion for a mistrial on the basis that a
    government witness made references to Hollins’s prior criminal activity by
    mentioning that she had observed his “mug shot”; and (3) in enhancing his offense
    level by two points because he made a death threat during the robbery, a fact the jury
    had not decided.
    I. Background
    On July 27, 2004, at approximately 12:15 p.m., a masked man wearing an
    orange hard hat and wielding a filet knife entered the Community Bank of Crossett in
    Crossett, Arkansas. The robber demanded that the tellers empty their cash drawers
    and place the money in a rolled-up brown paper sack. After collecting the money, the
    robber instructed the two tellers to lie on the floor behind the teller counter. He told
    them that he would send someone back inside in ten minutes, and if they called the
    police, he would kill them. The robber then left the bank on foot, taking $13,634.50
    in cash with him. Immediately thereafter, one of the tellers called 911 to report the
    robbery.
    Three witnesses–Kimberly Bankston and Gail Reed, the bank tellers, and
    Oliver Quint Couey II, the owner of a business located behind the bank–were
    interviewed by the police. Bankston was shown a picture of Hollins, his mug shot,
    before she identified him in a photographic line-up that showed only the mouth area
    of several black males. Reed identified Hollins from a photographic line-up that
    showed only the eyes of several black males. Couey stated that he had seen Hollins
    running behind the bank around the time the robbery occurred.
    The Crossett police identified Hollins as a suspect in the case and arrested him
    several hours after the robbery. They were unable to locate the money, the knife, or
    the clothing associated with the robbery. Authorities also failed to uncover
    fingerprints. A bank video surveillance camera caught the robbery on tape, and the
    FBI performed an analysis of the video and bank lobby to determine the approximate
    height of the robber, which was consistent with Hollins’s height. The government’s
    case against Hollins was based primarily upon the eyewitness testimony of three
    witnesses who had been interviewed by the police.
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    A two-day jury trial was held, and Hollins was found guilty of one count of
    bank robbery by force or violence. At the sentencing hearing, Hollins was sentenced
    to 78 months of imprisonment, due in part to an increase in his offense level because
    he threatened death during the course of the robbery. Hollins appeals.
    II. Discussion
    Hollins first argues that the trial court erred in denying his motion for an
    acquittal because no rational trier of fact could have found beyond a reasonable doubt
    that he was the person who robbed the bank. He asserts that no physical evidence
    linked him to the crime, with the exception of a boot that Hollins’s wife gave to the
    police, and which appeared to be similar to a boot worn by the robber. The
    government failed to present the stolen money, the knife, the mask, or the hard hat.
    A fingerprint was recovered from the bank, but it did not match Hollins’s print.
    Hollins also asserts that the witness’s testimony was tainted by police conduct because
    investigating officers showed Bankston a picture of Hollins before she identified him
    in a photographic line-up. He also argues that the witnesses’ testimony is unreliable
    because Reed did not notice that the robber was wearing an orange hard hat and
    Couey only saw the side and the back of the suspect’s head.
    Evidence is sufficient to sustain a conviction if, viewing the evidence in the
    light most favorable to the government, a rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt. United States v. Ryan, 
    227 F.3d 1058
    , 1063 (8th Cir. 2000). The jury verdict is reversed only if no reasonable
    jury could have made such a finding. United States v. Serrano-Lopez, 
    366 F.3d 628
    ,
    634 (8th Cir. 2004). We find there was sufficient evidence to sustain the conviction.
    The suspect entered the bank wearing a mask with a hole cut in the center of the
    face, exposing his mouth, lips, nose, and eyes, permitting the tellers to observe his
    facial features and later identify him in a photo line-up. The robber wore a hard hat,
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    khaki pants, a dark shirt, and carried a brown paper grocery bag. He left the bank on
    foot, carrying the brown bag that contained the cash the tellers had placed in it; Couey
    observed a black male wearing khaki pants and carrying a brown paper bag running
    behind the bank, acting in an evasive manner. Couey recognized him as the same man
    who had requested employment at Couey’s business the week prior to the robbery.
    Hollins’s wife provided authorities with a boot that matched the description of the
    shoes worn by the robber. Additionally, investigators recovered a video surveillance
    tape containing footage of the robbery from the bank. An FBI analyst reviewed the
    tape to determine the approximate height of the robber and concluded that the robber
    was approximately the same height and build as that of Hollins. Finally, after
    Hollins’s arrest, he attempted to provide an alibi for his location during the time of the
    robbery, but no one could substantiate his alibi. The totality of this circumstantial
    evidence supports the guilty verdict.
    Next, Hollins asserts that the trial court erred in denying his motion for a
    mistrial based on Bankston’s disclosure that she had observed a mug shot of Hollins
    prior to identifying him in a photographic line-up.1 After Bankston’s testimony,
    Hollins’s counsel made an objection at a bench conference:
    Counsel:             We filed a motion in limine, Your Honor, to
    keep out all prior convictions and it was
    violated by that witness’s statement that she
    observed the old mug shot of Mr. Hollins. I
    believe it is prejudicial to our defense because
    now we are forced to put him on and it was
    1
    During direct examination of the government’s second witness, Kimberly
    Bankston, the government asked her if she had seen a photograph of Hollins prior to
    her identification of him in the photo line-up. She responded, “[w]ell, Dennis Roberts
    came up to me and showed me a mug shot of him. It was not a recent mug shot, it had
    been maybe a year ago.” (Tr. at 73.)
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    unresponsive to the question and we would
    move for a mistrial.
    The Court:           I’m going to deny that. I don’t know if they
    even picked it up, as such. I think it would be
    harmless, at best.
    (Tr. at 84.) Hollins asserts that the improper introduction of evidence of his past
    criminal record justifies his request for a new trial. He argues that the mention of an
    old mug shot of himself caused the jury to conclude that he had a prior criminal record
    and was predisposed to criminal activity, causing the jury to convict him. The
    government argues in response that the witness’s remark about the mug shot was
    unresponsive to the question posed by the government’s attorney. No reference was
    made to any prior convictions or arrests, nor were any questions related to Hollins’s
    criminal history asked during the trial.
    The standard of review of a denial of a motion for a mistrial is abuse of
    discretion. United States v. Flores, 
    73 F.3d 826
    , 831 (8th Cir. 1996). The prejudicial
    effect of any improper testimony is determined by examining the context of the error
    and the strength of the evidence of the defendant’s guilt. United States v. Nelson, 
    984 F.2d 894
    , 897 (8th Cir. 1993). “The district court ‘[i]s in a far better position to
    measure the effect of an improper question on the jury than an appellate court which
    reviews only the cold record.’” 
    Id. (citations omitted).
    In the face of the evidence
    presented against Hollins and the “wide array of testimony” against Hollins, we
    conclude that “one objectionable statement by a prosecution witness was not sufficient
    to create prejudicial error.” United States v. Cole, 
    380 F.3d 422
    , 427 (8th Cir. 2004).
    We therefore hold that the district court did not err in refusing to grant a mistrial.
    Finally, Hollins asserts that the trial court erred by adding two points to his
    guidelines offense level because he made a death threat during the course of the
    robbery, even though the jury had not made such a finding. The district court found
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    Hollins’s total offense level to be 27, his criminal history category to be II, for a
    resulting guidelines range of 78 to 97 months. The court sentenced him to 78 months’
    imprisonment.
    This court reviews de novo whether the district court correctly interpreted and
    applied the sentencing guidelines. United States v. Mashek, 
    406 F.3d 1012
    , 1016 (8th
    Cir. 2005). Our circuit has held that in the wake of Booker, district courts should
    continue to calculate the appropriate guidelines sentencing range, making their own
    findings of fact, but should then use the appropriate sentencing range in an advisory
    capacity only. United States v. Haack, 
    403 F.3d 997
    , 1002-03 (8th Cir. 2005). The
    district court noted that there was direct evidence that Hollins made a death threat to
    the tellers during the commission of the robbery. We find no error in this conclusion,
    and therefore affirm the district court’s two-level enhancement of Hollins’s offense
    level.
    For the reasons cited above, we affirm the district court.
    ______________________________
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