United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1673
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Edwin F. Clay, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: September 21, 1998
Filed: December 1, 1998
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Before LOKEN, LAY, and HANSEN, Circuit Judges.
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PER CURIAM.
Edwin F. Clay appeals his conviction for armed robbery of the Federal
Employees Credit Union in Kansas City in violation of 18 U.S.C. § 2113(a) and (d).
Clay raises three issues on appeal. We affirm.
First, Clay argues the district court1 erred in denying his motion for a mistrial.
Prior to trial, the prosecution advised that it would not seek to admit Clay’s prior bank
1
The HONORABLE NANETTE K. LAUGHREY, United States District Judge
for the Western District of Missouri.
robbery conviction into evidence (unless Clay testified) and would instruct its witnesses
“not to make any inferences or suggestions about a prior conviction.” At the start of
the second day of the two-day trial, the government called the other bank robber,
William Hazen, who described Clay’s role in planning and executing the robbery.
During the preliminary portion of Hazen’s rather lengthy testimony, the following
exchange occurred:
Q. In your conversations with [Clay], did he tell you where he had been
living before moving to Restart in February of ‘97?
A. He mentioned that he lived in Chicago for a period of time, and he had
friends in St. Louis; and that he had been in jail quite a bit.
(Emphasis added.) Clay immediately moved for a mistrial. The district court denied
the motion, confirmed that Clay was not requesting a cautionary instruction to the jury,
and then granted a brief recess so that Hazen could consult with his attorney.
Immediately after the recess, the court instructed the jury to “disregard the last
statement that was made by Mr. Hazen.” Clay argues the district court abused its
discretion by giving a belated cautionary instruction instead of granting a mistrial
because Hazen’s testimony that Clay “had been in jail quite a bit” was necessarily
construed by the jury as a highly prejudicial reference to a prior conviction. We
disagree. As the district court noted in denying the mistrial motion, “[b]eing in jail does
not necessarily mean that he was convicted of a crime.” After careful review of the
trial record, we do not believe Hazen’s unanticipated statement could have substantially
swayed the jury’s verdict despite the district court’s cautionary instruction. See United
States v. Maza, 93 F.3d 1390, 1397 (8th Cir. 1996) (standard of review), cert. denied,
117 S. Ct. 1345 (1997). Accordingly, the court did not abuse its broad discretion in
denying Clay’s motion for a mistrial.
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Second, Clay argues that his in-court identification by four bank tellers was
improperly suggestive because the tellers had limited opportunities to see Clay during
the two-minute bank robbery, because the tellers were no doubt influenced by a photo
array they were shown shortly before trial, and because the district court declined
Clay’s request to seat him somewhere other than the defense table during the in-court
identifications. All four tellers made positive in-court identifications of Clay as the
unmasked robber who shocked teller Stacey Crail with a stun gun and then took money
from teller Carrie Moffett’s desk drawer and from the bank vault. Each teller described
for the jury her opportunity to identify Clay as the robber in question. We conclude the
in-court identification procedures were not impermissibly suggestive and did not create
a substantial likelihood of irreparable misidentification. See United States v. Davis,
103 F.3d 660, 670-71 (8th Cir. 1996) (standard of review), cert. denied, 117 S. Ct.
2424 (1997).
Finally, Clay argues the district court erred in refusing to strike for cause seven
prospective jurors who had accounts at the Federal Employees Credit Union. This
contention cannot be grounds for reversal because none of the seven served on the trial
jury. Clay makes no claim the jury that heard the case was biased. See United States
v. Horsman, 114 F.3d 822, 825 (8th Cir. 1997), cert. denied, 118 S. Ct. 702 (1998).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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United States v. Edwin Clay
Combined Opinion