United States v. Edwin Clay ( 1998 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 98-1673
    ___________
    United States of America,                 *
    *
    Plaintiff - Appellee,               *
    * Appeal from the United States
    v.                                  * District Court for the
    * Western District of Missouri.
    Edwin F. Clay,                            *
    *      [UNPUBLISHED]
    Defendant - Appellant.              *
    ___________
    Submitted: September 21, 1998
    Filed: December 1, 1998
    ___________
    Before LOKEN, LAY, and HANSEN, Circuit Judges.
    ___________
    PER CURIAM.
    Edwin F. Clay appeals his conviction for armed robbery of the Federal
    Employees Credit Union in Kansas City in violation of 18 U.S.C. § 2113(a) and (d).
    Clay raises three issues on appeal. We affirm.
    First, Clay argues the district court1 erred in denying his motion for a mistrial.
    Prior to trial, the prosecution advised that it would not seek to admit Clay’s prior bank
    1
    The HONORABLE NANETTE K. LAUGHREY, United States District Judge
    for the Western District of Missouri.
    robbery conviction into evidence (unless Clay testified) and would instruct its witnesses
    “not to make any inferences or suggestions about a prior conviction.” At the start of
    the second day of the two-day trial, the government called the other bank robber,
    William Hazen, who described Clay’s role in planning and executing the robbery.
    During the preliminary portion of Hazen’s rather lengthy testimony, the following
    exchange occurred:
    Q. In your conversations with [Clay], did he tell you where he had been
    living before moving to Restart in February of ‘97?
    A. He mentioned that he lived in Chicago for a period of time, and he had
    friends in St. Louis; and that he had been in jail quite a bit.
    (Emphasis added.) Clay immediately moved for a mistrial. The district court denied
    the motion, confirmed that Clay was not requesting a cautionary instruction to the jury,
    and then granted a brief recess so that Hazen could consult with his attorney.
    Immediately after the recess, the court instructed the jury to “disregard the last
    statement that was made by Mr. Hazen.” Clay argues the district court abused its
    discretion by giving a belated cautionary instruction instead of granting a mistrial
    because Hazen’s testimony that Clay “had been in jail quite a bit” was necessarily
    construed by the jury as a highly prejudicial reference to a prior conviction. We
    disagree. As the district court noted in denying the mistrial motion, “[b]eing in jail does
    not necessarily mean that he was convicted of a crime.” After careful review of the
    trial record, we do not believe Hazen’s unanticipated statement could have substantially
    swayed the jury’s verdict despite the district court’s cautionary instruction. See United
    States v. Maza, 
    93 F.3d 1390
    , 1397 (8th Cir. 1996) (standard of review), cert. denied,
    
    117 S. Ct. 1345
    (1997). Accordingly, the court did not abuse its broad discretion in
    denying Clay’s motion for a mistrial.
    -2-
    Second, Clay argues that his in-court identification by four bank tellers was
    improperly suggestive because the tellers had limited opportunities to see Clay during
    the two-minute bank robbery, because the tellers were no doubt influenced by a photo
    array they were shown shortly before trial, and because the district court declined
    Clay’s request to seat him somewhere other than the defense table during the in-court
    identifications. All four tellers made positive in-court identifications of Clay as the
    unmasked robber who shocked teller Stacey Crail with a stun gun and then took money
    from teller Carrie Moffett’s desk drawer and from the bank vault. Each teller described
    for the jury her opportunity to identify Clay as the robber in question. We conclude the
    in-court identification procedures were not impermissibly suggestive and did not create
    a substantial likelihood of irreparable misidentification. See United States v. Davis,
    
    103 F.3d 660
    , 670-71 (8th Cir. 1996) (standard of review), cert. denied, 
    117 S. Ct. 2424
    (1997).
    Finally, Clay argues the district court erred in refusing to strike for cause seven
    prospective jurors who had accounts at the Federal Employees Credit Union. This
    contention cannot be grounds for reversal because none of the seven served on the trial
    jury. Clay makes no claim the jury that heard the case was biased. See United States
    v. Horsman, 
    114 F.3d 822
    , 825 (8th Cir. 1997), cert. denied, 
    118 S. Ct. 702
    (1998).
    The judgment of the district court is affirmed.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-