OpenJurist

921 F2d 272 United States v. Johnson

921 F.2d 272
Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
v.
Jay Joseph JOHNSON, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Maurice NEAL, Defendant-Appellant.

Nos. 90-5467, 90-5470.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 2, 1990.
Decided Dec. 26, 1990.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeals from the United States District Court for the District of Maryland, at Baltimore. Herbert N. Maletz, Senior District Judge. (CR-89-308-K)

Paul R. Kramer, Paul R. Kramer, P.A., Baltimore, Md., for appellant Johnson.

William Richard Teets, Jr., Baltimore, Md., for appellant Neal.

Barbara Slaymaker Sale, Assistant United States Attorney, Baltimore, Md., (argued) for appellee; Breckinbridge L. Willcox, United States Attorney, Ethan L. Bauman, Assistant United States Attorney, Baltimore, Md., on brief.

D.Md.

AFFIRMED.

Before MURNAGHAM and WILKINS, Circuit Judges, and STAMP, United States District Judge for the Northern District of West Virginia, Sitting by Designation.

PER CURIAM:

1

Jay Joseph Johnson ("Johnson") and Maurice Neal ("Neal") appeal their convictions for two counts of bank robbery in violation of 18 U.S.C. Secs. 2113(a), 2113(b) and 2113(g), one count of assault in connection therewith in violation of 18 U.S.C. Secs. 2113(d) and 2113(g), and one count of carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c). A co-defendant, Eric Fisher ("Fisher"), the driver of the getaway car, pled guilty to being an accessory after the fact and testified against his accomplices. Johnson and Neal contend that (1) the evidence presented at trial was insufficient to support their convictions; and (2) the trial judge's advance ruling that Johnson's prior convictions would be admissible for impeachment purposes if he testified was erroneous. Because no reversible error occurred, the convictions are affirmed.

I.

2

Johnson and Neal argue that the evidence presented at their trial was insufficient to establish their guilt beyond a reasonable doubt. The basis for their argument is that there was conflicting evidence concerning the identities of the bank robbers such that a rational trier of fact would have had a reasonable doubt whether they were the ones who committed the crimes.

3

When assessing the sufficiency of evidence to sustain a conviction on appeal, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). A reviewing court must "allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established." United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982) (citations omitted).

A.

4

Three witnesses positively identified Johnson as one of the three robbers who entered the bank. Teller Marsha Rollins, who was in the bank employees' break room when the robbery commenced, testified that she was "100 percent sure" that the person she picked out of a photo array and identified in court as Johnson was the robber who first entered the bank and held her at gunpoint. Rollins testified that the robber was wearing a gray hooded sweatshirt, a baseball cap and sunglasses. She saw him enter the store on a video monitor in the break room. She testified that she saw him face to face when he entered the break room and told her to lie on the floor.

5

Gregory Coates testified that he had known Johnson ten or fifteen years; that he spoke briefly to Johnson on the day of the robbery; that Johnson was wearing a gray jogging suit and sunglasses; that he saw Johnson go into the bank; that he later saw Johnson running from the bank; that he saw Johnson get tripped by a white male and then turn and fire a gun; and that he saw Johnson and Maurice Neal get into a maroon cab. Coates was later recalled and testified that he had mistaken Carl Neal for Maurice Neal and that it was actually Maurice's brother, Carl, that he had seen running with Johnson.

6

Fisher, a co-defendant who pled guilty to being an accessory after the fact, testified that Johnson, Maurice Neal and Carl Neal had planned the robbery in advance and requested that Fisher meet them after the robbery in his maroon taxicab. Fisher described the guns that Johnson and Maurice Neal had when they were sitting in his cab prior to the robbery. Fisher testified that Johnson went into the bank first, followed by the Neal brothers who were both wearing ski masks. Fisher then testified that he picked up Johnson and Carl Neal after the robbery and drove them downtown.

7

Although there were some inconsistent identifications by some witnesses who looked at photo arrays, given all of the evidence together and the above-described testimony in particular, any rational trier of fact would likely be convinced of the guilt of Johnson beyond a reasonable doubt.

B.

8

Maurice Neal, on the other hand, was convicted primarily based upon the testimony of Fisher. The two robbers accompanying Johnson were wearing ski masks so there was no opportunity for anyone in the bank to identify them. Officer Powell, a relative of Fisher, testified and read his police report verifying that Fisher called him two days after the robbery to recount the details of the robbery to Officer Powell over the telephone. The report was consistent with Fisher's testimony.

9

Neal's argument focuses upon the credibility of Fisher and identification errors by witnesses looking at photo arrays. The record shows, however, sufficient evidence in the form of sworn testimony to support appellants' convictions. The credibility of witnesses lies within the sole province of the factfinder. Pigford v. United States, 518 F.2d 831, 836 (4th Cir.1975). Consequently, we must sustain the jury verdict against Neal if, after taking the view most favorable to the government, there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80 (1942). While the evidence is weaker with respect to Maurice Neal, there is still sufficient evidence that a rational trier of fact could have found him guilty beyond a reasonable doubt.

II.

10

Johnson and Neal argue further that the trial court erred when it ruled in advance of the trial that their prior convictions for drug-related offenses and Johnson's additional conviction for making a false statement would be admissible for impeachment purposes if they testified.

11

The standard for reviewing a trial court's determination that the probative value of evidence of a prior conviction outweighs its prejudicial effect to the defendant is whether the court abused its discretion. See United States v. King, 768 F.2d 586, 588 (4th Cir.1985).

Fed.R.Evid. 609(a) provides that:

12

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

13

The short answer to the argument of Johnson and Neal is that since they did not testify at trial, they did not preserve the issue for appeal. Luce v. United States, 469 U.S. 38, 43 (1984). Luce is factually indistinguishable from the instant case. The trial court in Luce denied a motion in limine for a ruling to preclude the government from using the defendant's prior drug conviction for impeachment purposes if he took the stand. The defendant decided not to testify. The Supreme Court stated that without the benefit of a defendant's testimony, a reviewing court is handicapped in weighing the probative value of a prior conviction against its prejudicial effect. Id. at 41. The Supreme Court further stated that any possible harm resulting from the lower court's ruling is "wholly speculative." Id. Thus, appellants' argument has been expressly foreclosed by the Supreme Court.

14

AFFIRMED.