United States v. Larry William Pratt

531 F.2d 395, 1976 U.S. App. LEXIS 13166

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 1976
• Docket: 74--1859
• Status: Published

Opinions

OPINION

Before LUMBARD,* ELY and WRIGHT, Circuit Judges.

LUMBARD, Circuit Judge:

Larry William Pratt appeals from his conviction on October 25, 1973, for two bank robberies with a dangerous weapon, 18 U.S.C. § 2113(a) and (d), after a jury trial in the Central District of California. He claimed that errors at his trial in the admission of evidence and misconduct of the prosecutor required a reversal of the verdict. The panel which heard the appeal held, on March 10, 1975, with one judge dissenting, that two errors in the conduct of the trial required a new trial: the exhibition to the jury of a gun during the examination of a witness and the failure to allow preliminary examination of an expert witness regarding photographic evidence, all of which was eventually stricken. Thereafter, the government moved for a rehearing. Upon further consideration we grant the motion for a rehearing, vacate the opinion of the Court filed on March 10, 1975, and affirm the convictions.

The government produced substantial direct evidence that Pratt was the robber of the Bank of America branch in Santa Fe Springs, California, at about 11:30 a.m. on June 6, 1973, and that shortly over an hour later, at about 12:40 p.m., he was also the robber of the Crocker National Bank Branch at Garden Grove, California.

Rosemary Arambel, a teller at the Bank of America, testified that Pratt walked up to her counter, placed an envelope on the counter, pointed a blue, square automatic pistol at her and said: “This is a robbery. I have a gun.” As Miss Arambel was taking money from the cash drawer, he added: “Hurry up, all your money, 5’s, 20’s, everything.” Pratt took up the bills, which a later audit showed totalled $1,691.00, and walked out of the bank’s front entrance. As he turned to leave, Miss Arambel activated the bank’s camera. The man photographed • by the camera was identified as Pratt by Patricia Lackey, a woman who had known him for three years and who was the owner of the 1968 Plymouth in which Pratt got away. Miss Patricia Alvarez identified Pratt as the man who ran past her and across the parking lot immediately after the robbery, carrying a handful of money. She saw Pratt enter the passenger side of the Plymouth automobile and drive away.

Approximately one hour later and 24 miles away, a man entered the Crocker National Bank at Garden Grove, California, stood in line for several minutes and then, when he reached the window of teller Ramona Ramirez, pointed a gun at her and said: “Give me your money.” At trial, Miss Ramirez indicated Pratt as the man who scooped up and then left the bank with $2,313.00 in bills which she had placed on the counter. Five days later, on June 11, Pratt, who had not been working steadily, paid Danny Hudgens $1,000 in cash as a down payment on a motorcycle.

Pratt complains that the prosecutor exhibited a gun in violation of an order of the trial judge and that this was prejudicial. We disagree.

Prior to impanelling the jury, the defendant moved to suppress the loaded .32 caliber automatic pistol which was found in a search conducted upon Pratt’s arrest in a bedroom of a cottage in Tahoe Pines, California, on June 29,1973. The district court denied the motion but instructed the prosecutor that he was neither to display the gun to the jury nor mention it in his opening statement; the trial judge further stated that he would rule on the admission of the gun “when we get to it” . . . “as it has to be identified in some way.”¹

After the first witness, Rosemary Arambel, had described the events of June 6, 1973 and the defendant Pratt at some length, the prosecutor said: “May the clerk place in front of the witness government’s exhibit No. 2?”. The record shows that the gun exhibit was placed before the witness, with no objection from the defense. Miss Arambel then testified that the weapon looked “similar to the weapon” that was pointed at her by the defendant. Cross-examination began with no request for a recess, no motion for a mistrial and no request for a side bar conference. On cross-examination, Miss Arambel was questioned about the gun, how the defendant held the gun at the time of the robbery and then hid it under his jacket and about the difference between revolvers and automatic pistols.

It was not until defense counsel had nearly completed his examination of Miss Arambel — some thirty pages of transcript later— that he reminded the court of its earlier ruling that the prosecutor was to be careful about identifying the gun and was not to wave it around in front of the jury. This statement and what follows occurred in the absence of the jury. Judge Stephens then revealed that he had been surprised at the production of the gun and, addressing the prosecution, said:

“I told you, positively, that you were not to show that gun to any of the witnesses until after there had been sufficient identification of it from what they described to make it possible for them to identify the gun as the one that was used in the robbery.”

The Assistant United States Attorney explained that he had misunderstood the entire thing. Judge Stephens nonetheless responded that the jury would be instructed “that the only purpose that there was in showing that gun to the jury is to simply make the difference between a revolver and an automatic pistol.” At this time defense counsel made no request and the jury was called back.

The gun was not displayed again; it was never received in evidence. In his charge several days later, the trial judge instructed the jury that the gun was displayed for illustrative purposes only and that there was no evidence to connect the gun displayed with the defendant.²

We do not think it can fairly be claimed that there was deliberate misconduct on the part of the prosecutor in his use of the gun which requires a reversal of the conviction. It is apparent that defense counsel did not consider the use of the gun to be a serious matter. When the prosecutor said “May the clerk place in front of the witness [Arambel] Government’s Exhibit No. 2?” he gave fair notice and an opportunity to the defense to make any objection outside the presence of the jury. The defense did nothing at this point and the prosecutor and defense counsel proceeded, as we have stated above, with questions put to the witness about the gun. It was only when the examination of Miss Arambel had concluded that counsel thought to gain some advantage by referring to the colloquy at the preliminary hearing. As the afterthought came too late, as the gun had not been put to an improper use, and as any possible prejudice was minimal at most, Judge Stephens in the proper exercise of his discretion thought it quite sufficient, as we do, to instruct the jury regarding the limited relevance of the testimony regarding the gun.

We turn now to the error claimed in the refusal of the trial judge to require that the government make an offer of proof, out of the jury’s presence, regarding the evidence to be given by Joseph M. Avignone, an FBI photographic identification expert. The intended thrust of Avignone’s testimony was to point out similarities in the features of the man photographed by the Bank of America’s surveillance camera and a police photograph of Pratt. Defense counsel’s cross-examination successfully challenged Avignone’s qualifications. As a result, the trial judge struck the testimony of the witness and directed the jury “to disregard it entirely just as though it had not been interjected into the case.” Since the jury subsequently heard Patricia Lackey testify, on the basis of her personal acquaintance with Pratt, that the man photographed by the bank camera was the defendant, Avignone’s testimony was only cumulative at most and the curative instruction adequately purged any prejudicial impact.³

We also hold that there was no error in denying the defendant’s request that the trial be postponed. As the counsel first appointed to represent Pratt was present throughout the trial and assisted counsel who was substituted the day before the trial commenced, Judge Stephens acted well within his discretion in denying any further postponement.

Finally, the impeachment of Pratt by eliciting from him an admission of a prior felony conviction, battery against a California Highway Patrol Officer, was in accordance with the established rule in the Ninth Circuit. United States v. Haili, 443 F.2d 1295, 1298-1299 (1971); United States v. O’Day, 467 F.2d 1387 (1972). Cf. Rule 609(a) Rules of Evidence, effective July 1, 1975.

We have examined the other claims of error and find them to be without merit.

Convictions affirmed.

1 . The trial judge was concerned about the government’s ability to establish the relevance of a gun found three weeks after the commission of the robberies. The court accordingly instructed the United States Attorney to avoid prejudicing the defendant’s rights by prematurely displaying the gun before having laid a proper foundation for its admission.

2 . “Now, you will recall that early in the trial when Mr. MacIntyre was asking questions of a witness with respect to the gun, which they mentioned, he used two terms: revolver and pistol. And there was exhibited to the jury a pistol, an automatic pistol. This was done to clarify the testimony of the witness, the questions of lawyers and to clarify the matter for the sake of the jury to show that when the witness testified as to what kind of gun was used, it was an automatic pistol, such as you were shown. However, there was no evidence in this case, which in any way connects that particular gun with the defendant or identifies it as having been used in the robbery, and you must bear that in mind. In other words, it was for illustrative purposes only.”

3 . In United States v. Brown, 501 F.2d 146, 150 n. 1 (9th Cir. 1974) decided eight months after the trial of this case, the Ninth Circuit noted , that the admission of expert testimony as to broad physical resemblances between the defendant and a poor quality surveillance photograph “would be error, perhaps prejudicial, depending upon the state of other evidence.” However, under the circumstances of this case, Judge Stephen’s order to strike Avignone’s testimony, coupled with the substantial amount of other evidence directly inculpating Pratt, convinces us that this defendant was not disadvantaged by the trial judge’s failure to require an offer of proof.