United States v. Larry Brown

MOORE, Circuit Judge:

Larry Brown, convicted of robbing a branch of the Chittenden Trust Company in Colchester, Vermont on September 24, 1979 after an eight day trial before the Honorable Albert W. Coffrin, United States District Judge for the District of Vermont and a jury, appeals his conviction. The indictment charged Brown with taking by force, violence and intimidation a sum of money in excess of a thousand dollars. Brown was sentenced to 42 months.

On appeal Brown characterizes his defense as one of “mistaken identity” (Appellant’s Br. p. 3). Since “identity” is a factual question, it is necessary to examine the record to ascertain the facts presented to the jury and to determine whether there was reversible error in their admission.

I.

On September 24, 1979 a tall thin black male wearing a ski mask entered the bank a little after noon and by claiming to have explosives with which he would blow them up, received from the tellers such money as was available to them, namely, a sum somewhat in excess of $1000. The tellers inserted the money into a brown paper bag presented by the robber together with a “security pack”.¹ The robber left the bank and apparently dropped the bag in a wooded area where the money and the security pack were later recovered. The “explosives”, consisting of two red emergency road flares bound with masking tape, and two batteries with blue wire attached, were also found.- The money was drenched in the dye.

Because of the ski mask which the robber was wearing, identification had to be limited to such characteristics as were visible, namely, his apparel, visible facial characteristics (very white teeth and very black skin) and the sound of the robber’s voice.

Within an hour of the robbery a telephone call was made to the bank by a person claiming to be “Alex Smith” who inquired as to whether the bank had been robbed. A detective, Bruce Parizo of the Colchester police force to whom the call was referred, testified that the voice he heard sounded the same as that of the robber.²

On September 26, F.B.I. Agent Zabowsky received a telephone call from a person who said he was Larry Brown; that he had heard the F.B.I. was looking for him in connection with a bank robbery in Colches-ter; that he had access to a green truck and that he (Brown) did not want to go to jail. Zabowsky asked him to come into his office so that “we could perhaps eliminate him as a suspect in the case”. Brown agreed to come “at one o’clock that Wednesday” but would not say where he was calling from; neither did he appear. In the course of his conversation, Brown said “Oh, what am I going to use as an alibi”.

Shortly before the robbery Brown had been seen driving a green pick-up truck with dual rear wheels and an unusual superstructure. After the robbery a search of this truck revealed Brown’s wallet under the seat. In addition the hoax explosive had been made with wire, one end of which matched wire found in the room occupied by Brown, as were red flares similar to those used in making the device. As to voice identification, several witnesses testified that Brown’s voice sounded like the voice of the robber.

II.

Brown challenges his conviction by claiming that the police report made by Detective Parizo with regard to the telephone call received at the bank immediately after the robbery was wrongfully withheld by the Government under F.R.Crim.Pro. 16(a)(1). We do not find merit in this contention. Even if Parizo’s report should have been delivered to the defense (as to which there is considerable doubt), defense counsel were aware of the call a week before Parizo testified regarding a voice comparison, and thus suffered no prejudice.

Defense counsel further charges that the Government’s conduct in the case amounted to an attempted “suppression” of exculpatory evidence which would be given by the testimony of a witness, Mrs. Helen Green. Brown claims that the Government knew that Mrs. Green, who lived in the area of the bank and had seen a black male driving an unusual green truck on the day of the robbery, had described a driver different from the defendant. The Government, because Mrs. Green suffered from impaired vision as a result of detached retinas and a cataract operation and had gone to Florida at the time of the trial, decided not to call her as a witness. However, at the request of Brown’s counsel and on the basis of a Government subpoena, Mrs. Green attended the trial and testified. There is no foundation for the defendant’s charge of “suppression” and the trial court properly denied defense counsel’s motion to dismiss on this ground.

Brown contends that an in-court voice identification, which was only one of the many items of evidence connecting Brown with the bank robbery, violated his constitutional right to assistance of counsel and due process. During the trial one of the tellers (Elaine Greenfield) testified that the robber said “Give me your money, all your money, or I am going to blow you up”. At the end of the Government’s examination the prosecutor asked the Court to require Brown to state before the jury the words attributed to him, i. e., “Give me your money or I am going to blow you up”. The witness then testified that his voice sounded very much like that of the robber. Since the robber had disguised his facial features by wearing the ski mask, voice identification was appropriate. The identification was made in the presence of defense counsel who had ample opportunity to cross examine the witness. Moreover, counsel was advised in advance in judge’s chambers that this procedure would be employed. He thus had the opportunity to mitigate any suggestiveness by requiring another person to speak or changing the text of what was spoken. In view of these circumstances, we find no constitutional infirmity in the procedure employed.

Finally, Brown asserts reversible error by the trial court in not excusing for cause a potential juror, Edith Gonyaw. Voir dire examination revealed that she was employed by the Chittenden Trust Company but at a branch in a different part of the State from the one robbed. The trial judge elicited responses from Mrs. Gonyaw that she would base her decision upon the evidence presented and that her employment with the Chittenden Trust Company would not affect her judgment or incline her to give the testimony of witnesses employed by the bank greater weight. Defendant’s counsel did not follow up the opportunity to pose additional questions to probe the possibility of partiality. Although the Judge declined to excuse this juror for cause, she was excused when defense counsel exercised a peremptory challenge. Failure to excuse for cause, argues Brown, deprived him of a peremptory challenge. This, he claims, is a ground for reversal.

How this challenge would have been exercised and the benefits, if any, to Brown’s defense are unknown. No claim is advanced that the jury which ultimately did serve was incapable of a fair and impartial appraisal of the facts. The fact that Mrs. Gonyaw did not serve on the jury also makes attacks upon the extent of her partiality academic. Brown’s contention would require an appellate court to engage in speculation regarding the possible consequences of the defense having an additional peremptory challenge, when no actual prejudice has been proved.

Even if we were to assume that it might have been better had the trial judge excused Mrs. Gonyaw for cause, it is the function of the reviewing court to decide whether an error is sufficient to have adversely influenced the jury in their determination of their verdict. The “harmless error” doctrine came into being to enable courts to place such errors in proper perspective in relation to the entire trial. In almost every trial of any duration a microscopic examination of the record will reveal some errors— technical or otherwise. With the benefit of the entire record, a reviewing court can better make a determination as to whether an error rises to a reversible level. Every asserted error does not require a new trial. The absence of proof here that the jury that heard Brown’s case was in fact partial precludes the defendant from successfully claiming a deprivation of due process.

Since Mrs. Gonyaw did not serve as a juror, there was no way in which her views could influence the jurors who passed upon Brown’s innocence or guilt. Brown was deprived of one peremptory challenge. How loss of this challenge would have affected the case would only be speculation. The issue is: was the jury ultimately selected fair and impartial? No proof has been presented or even suggested that casts any doubt on the conclusion that Brown was convicted by a fair and impartial jury.

Brown, however, refers us to a bank robbery case in another Circuit in which failure to excuse two jurors for cause was held to be reversible error. In United States v. Allsup, 566 F.2d 68 (9th Cir. 1977), the failure to excuse for cause two prospective jurors who worked as tellers at different branches of the bank that was robbed was held to be error. The court presumed bias on the part of these jurors because of their employment relationship with the bank and the reasonable apprehension of violence from bank robbers on the part of bank employees. “The potential for substantial emotional involvement” which would affect impartiality is the test for determining whether a juror should be removed for cause. 566 F.2d at 71. This Circuit has generally relied on the trial court’s discretion, absent clear abuse, in ruling on challenges for cause in the empaneling of a jury, United States v. Ploof, 464 F.2d 116, 118 n.4 (2d Cir.), cert. denied, 409 U.S. 952, 93 S.Ct. 298, 34 L.Ed.2d 224 (1972); accord, United States v. Murray, 618 F.2d 892, 899 (2d Cir. 1980). In order for a trial judge’s determination of a juror’s impartiality to be set aside there must be shown “manifest” prejudice. Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed. 244 (1878).

In Mikus v. United States, 433 F.2d 719 (1970), this court declined to find that certain occupations or relationships per se constituted grounds for a prospective jur- or’s dismissal. Specifically, the court found that in a bank robbery case the wife of a bank board chairman, a former local police officer and the wife of a state police officer (who would hear testimony from other state troopers) should not be dismissed from the jury for cause. The court chose not “to create a set of unreasonably constricting presumptions that jurors be excused for cause due to certain occupational or other special relationships which might bear directly or indirectly on the circumstances of a given case, where, as here, there is no showing of actual bias or prejudice”. 433 F.2d at 724.

On these bases we choose not to follow United States v. Allsup, supra. Consistent with our decision in Mikus v. United States, supra, we do not wish to institute a series of presumptions of implied bias in other employment or familial relationships which might affect a juror’s impartiality. To do so would burden the courts needlessly with a responsibility of endless speculation on the presumptive bias of potential jurors.

Further, we do not find in the instant case the manifest prejudice which would require reversal in this Circuit. Appellant has made no showing of actual bias or prejudice on the part of Edith Gonyaw. A defendant must “raise a contention of bias from the realm of speculation to the realm of fact”. Mikus v. United States, supra, at 724, quoting United States v. Dennis, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734. Defendant’s counsel here, as in Mikus, was given the opportunity to prove the contention that there was actual bias on the prospective juror’s part. This opportunity was not pursued. Thus the trial court cannot be found to have committed error by not finding bias.

The judgment of the district court is affirmed.

1 . A security pack is designed to release tear gas and a red dye which is designed to aid in identifying the robber.

2 . Detective Parizo prepared a report of his activities.