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United States v. Brown

decided: March 16, 1981.

UNITED STATES OF AMERICA, APPELLEE,
v.
LARRY BROWN, APPELLANT.



Defendant was convicted in the United States District Court for the District of Vermont, Honorable Albert W. Coffrin, Judge, of bank robbery and defendant appeals. This Court held that the Government had not wrongfully withheld from the defense a police report; that the Government had not suppressed exculpatory evidence; that the in-court voice identification was permissible; that the denial of a challenge for cause by the trial judge against a prospective juror who was employed at another branch of the bank which was robbed was not a basis for reversal; and this juror did not, in fact, serve on the jury. Affirmed.

Before Moore, Mulligan and Oakes, Circuit Judges.

Author: Moore

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".*fn1 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.*fn2

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 Colchester; 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 ...


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