UNITED STATES OF AMERICA, APPELLEE
v.
DEBRA LYNN DOSSEY, APPELLANT
No. 77-1181
United States Court of Appeals, Eighth
Circuit
Submitted June 13, 1977
Decided August 2, 1977
558 F.2d 1336 (8th Cir. 1977)
John M. Fincher, North Little Rock, Ark.,
argued, for appellant.
Don N. Curdie, Asst. U.S. Atty., (argued),
and W. H. Dillahunty, U.S. Atty., Little Rock, Ark., on brief, for
appellee.
Appeal from the United States District
Court for the Eastern District of Arkansas.
Before HEANEY, STEPHENSON and HENLEY,
Circuit Judges.
HENLEY, Circuit Judge.
Debra Lynn Dossey appeals her conviction
by a jury of armed bank robbery in violation of 18 U.S.C. § 2113(d).
We affirm.
On July 12, 1976 appellant was indicted
for the robbery of the Capitol Branch of the First National Bank in
Little Rock, Arkansas. At trial the teller at the bank testified that
on February 27, 1976 she was approached by a young white female, who
produced a pistol and demanded money. The teller complied with the
demand and the robber fled. The teller described the robber as being a
blond, about 22 or 23 years of age, weighing about 115 or 120 pounds,
and being about 5'3" tall. At the time of the robbery the robber was
dressed in a blue plaid shirt and blue jeans and wore rose-colored,
wire-framed glasses. The teller could not positively identify
appellant as the robber, but testified that appellant "looks like" the
robber.
Other testimony placed appellant and a
companion, James Weaver,
in Little Rock on the day of the robbery. The day after the robbery
appellant and Weaver flew from Little Rock to Phoenix, Arizona.
Appellant called a Little Rock motel employee and stated that her
sudden departure was due to a death in the family.
Linda Arnold testified that she met
appellant in Mesa, Arizona, on February 28, 1976, and that during the
course of a trip to Las Vegas appellant told her that she (appellant)
and Weaver had thrown away a lot of small bills rather than answer
possible questions about them at the airport.
Ann Louise Jagow testified that she first
met appellant in Phoenix, Arizona, in March, 1976. She testified that
she had a conversation with appellant during which appellant admitted
having done robberies in Little Rock. Appellant told Jagow that she
was wearing a wig and her tinted glasses during one bank robbery, that
she was armed, and that she made her escape by going over a brick wall
and riding off with Weaver in her El Camino.
Miss Jagow further testified that she,
along with appellant, Weaver and others planned and executed a bank
robbery in Mesa, Arizona. She testified that appellant wore a blond
wig and a blue T-shirt during the robbery, along with pinkish-tinted,
wire-framed glasses. Finally, Miss Jagow testified that appellant had
admitted committing bank robbery in Minnesota.
The jury returned a verdict of guilty. The
district court
sentenced appellant under 18 U.S.C. § 4205(b)(2) to eight years
imprisonment, to run consecutively to a sentence she is serving as a
result of her conviction for the Mesa, Arizona, bank robbery, but with
the proviso that her sentence would be reduced to four years if the
Arizona conviction is affirmed on appeal.
Appellant advances the following grounds
for reversal: (1) that the district court abused its discretion in
allowing the government to reopen its case after it had rested and in
denying appellant a continuance; (2) that the district court erred by
not immediately ruling upon appellant's motion for judgment of
acquittal; and (3) that the district court erred in admitting evidence
of other crimes.
Prior to trial the district court had made
a conditional ruling that Miss Jagow would not be allowed to testify
about the Minnesota and Arizona bank robberies. At the close of the
government's case the Assistant United States Attorney asked the court
to reverse its prior decision. The court refused and the Assistant
United States Attorney replied: "I'm going to rest." Defense counsel
then made a motion for judgment of acquittal and asked the court to
recess to allow him to make a written motion. The recess was granted
and counsel met with the court in chambers the following morning. At
that meeting defense counsel based his motion for acquittal on lack of
evidence identifying appellant as the person who robbed the Little
Rock bank.
After discussing the evidence already
admitted, the district court reversed its earlier position and allowed
the government to reopen its case and question Miss Jagow about the
Minnesota and Arizona robberies. The court refused to rule on
appellant's motion for judgment of acquittal, but indicated that the
motion should be renewed when the government concluded its case. Miss
Jagow then testified and the government again rested. Appellant
renewed her motion for judgment of acquittal, which was overruled, and
sought a continuance, which was denied.
Questions relating to the order of proof
and permission for a party to reopen its case after resting are
entrusted to the trial court's wide discretion. United States v.
Webb, 533 F.2d 391, 395 (8th Cir. 1976); Lucas v. United
States, 343 F.2d 1, 3 (8th Cir.), cert. denied, 382 U.S.
862, 86 S.Ct. 125, 15 L.Ed.2d 100 (1965). In determining whether that
discretion was properly exercised, relevant factors to consider are
whether the evidence surprised the defendant, whether the defendant
was given adequate opportunity to meet the proof, and whether the
evidence was more detrimental to the defendant because of the order in
which it was introduced. United States v. Webb, supra. The
evidence at question here was well known to appellant long before
trial, although she makes a plausible argument that she was surprised
by its admission only one day after the district court had reaffirmed
its earlier decision to exclude the evidence. Appellant had ample
opportunity to meet the proof as presented; indeed, defense counsel
engaged in a long, penetrating cross-examination of the witness Jagow,
based largely on prior, arguably inconsistent statements she had given
to federal authorities.
Finally, the evidence, although damaging to appellant, was no more so
than it would have been if presented the day before. In these
circumstances, we are unable to conclude that the district court
abused its discretion in allowing the government to reopen its case.
Appellant also contends that the district
court erred in denying a continuance after the government was allowed
to reopen its case. The basis for seeking the continuance was to allow
appellant to subpoena certain witnesses to meet the newly-admitted
evidence. The parties, however, stipulated as to what the testimony of
these witnesses would have been and there was thus no prejudice to
appellant.
Appellant next contends that the district
court erred in not ruling on the initial motion for judgment of
acquittal. When such a motion is made at the close of the government's
evidence, the court must render a decision thereon, and reservation of
the question is error. United States v. House, 551 F.2d 756,
758 (8th Cir. 1977). In this case, however, the court allowed the
government to reopen its case and present additional evidence.
Therefore, the initial motion for judgment of acquittal became
premature because there was additional evidence which the government
was going to introduce. After this evidence was introduced and the
government again rested, appellant renewed her motion and the court
promptly denied it. In these unusual circumstances, the district court
properly deferred decision on the motion until all of the government's
evidence was introduced.
Appellant's final contention is that the
court erred in admitting evidence of other crimes. We are of the
opinion that the evidence of the Arizona robbery was admissible to
prove identification of the person who robbed the Little Rock bank, an
issue that was important due to the teller's inability positively to
identify appellant. Miss Jagow testified that appellant, armed with a
pistol, entered the Arizona bank alone, wearing a blond wig, a blue
shirt and pinkish-tinted, wire-framed glasses. The similarity in modus
operandi and disguise is great and the incidents were close in time.
See United States v. Davis, 551 F.2d 233 (8th Cir. 1977);
United States v. Clemons, 503 F.2d 486 (8th Cir. 1974). The
substantial probative value of this evidence was not outweighed by the
possibility of unfair prejudice and it was properly admitted.
It is questionable whether the district
court should have admitted Miss Jagow's testimony about the Minnesota
robberies. This testimony was of very limited probative value because
its only connection with the Little Rock robbery was appellant's
statement that she wore disguises in Minnesota. However, this
testimony was limited to two brief answers and was not again referred
to by the government. The district court also gave appropriate
limiting instructions. In these circumstances, we are convinced that
the error, if any, was harmless beyond a reasonable doubt.
The judgment of conviction is affirmed.
