UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 92-1408
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHARLES HARDIN MURPHY, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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(July 13, 1993)
Before REAVLEY, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:
Charles Hardin Murphy, Jr., appeals his jury conviction of two
counts of robbery of a financial institution in violation of 18
U.S.C. § 2113(a) and (d), and two counts of carrying a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c), and
his sentence. We affirm.
BACKGROUND
On September 26, 1991, a clean-shaven male entered the
Southwest Savings Bank, Dallas, Texas, and demanded money at
gunpoint from tellers Garrett and Alexander. The robber absconded
with $5,794. Both Garrett and Alexander gave detailed descriptions
of the robber. Alexander also identified a .38 caliber pistol,
which was recovered, approximately a month later, from a Mercury
Sable automobile driven by Murphy, as either the same weapon or
identical to the one which was brandished at her during the
robbery.
Darryl Neff, a bank customer, observed the robber leave the
bank and enter a blue Honda. Later on the day of the robbery, the
car was recovered a few blocks from the bank. Its ignition had
been damaged so that it could be operated without a key. A Dallas
Police Investigator testified that the damage to the ignition could
have been accomplished with a dent puller.
On October 3, 1991, a clean-shaven male entered the United
Savings Bank, Dallas, Texas, and approached one of the tellers.
The man robbed the teller at gunpoint using a .38 caliber pistol.
Teller Irvin, who was in the next teller's booth, gave a detailed
description of the robber. She observed the robber leave the
building and enter a tan car. Before he exited, she activated her
surveillance camera. Some of the money taken during the second
robbery contained an electronic tracking device concealed in a
cutout of the center of some of the bills.
A light colored Honda was found approximately one block from
the United Savings Bank shortly after the robbery. Its ignition
had been altered in a manner similar to the blue Honda. On the
same day as the first robbery, a red Honda was stolen from a
location close to Southwest Savings Bank. It was found after the
second robbery. The ignition had been removed in a manner similar
to the other two cars. Found in the vehicle was a photograph given
to Murphy by a friend, a beer can with Murphy's fingerprint on it,
a tracker dollar bill with the center removed, and a bag containing
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assorted screwdrivers, pliers, and a dent puller. None of the
items were in the vehicle before its theft.
One month later, a police officer made a routine traffic stop
of a Mercury Sable near Cap City, Texas. Murphy was driving and
Randy Floyd was a front seat passenger. While the officer was
performing a license and warrant check, Floyd drove the Sable away,
leaving Murphy by the roadside. The officer pursued and overtook
Floyd a short distance down the road. Murphy fled on foot but was
located and arrested the next day. When inventoried, the Mercury
Sable contained a rental agreement in Murphy's name, the earlier
referenced .38 caliber short barrel revolver which matched the one
used in both robberies, a police scanner with a book of police
frequencies, a collection of tools, including a dent puller, a pair
of sunglasses, and a bloody syringe located on the drivers side of
the car.
Richard Crum, an FBI agent who specialized in firearms and
tool mark identification, testified that the tool marks on the
ignitions of the blue and tan Hondas could have been made with some
of the tools found in the red Honda and/or the rented Sable.
Randy Floyd, who had known Murphy for ten or more years,
identified him as the robber depicted in the surveillance photos.
Floyd further testified that Murphy offered him $1,000 to rent a
home for Murphy in Floyd's name. He also testified that Murphy
instructed him to drive off in the Sable when the two men were
stopped.
Murphy's mother testified that she last saw him on October 3,
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1991, the day of the second robbery, but that he had stopped
visiting her thereafter.
DISCUSSION
I. Flight Instruction. Murphy contends that the district court
erred in submitting a flight instruction to the jury. He alleges
that there was no evidence that he knew that he was a bank robbery
suspect, and the alleged flight occurred over a month after the
second robbery. Murphy does not challenge the jury instruction
itself, but asserts only that the instruction was improper based on
the evidence.
Evidence of an accused's flight is generally admissible as
tending to establish guilt. United States v. Williams, 775 F.2d
1295, 1300 (5th Cir. 1985), cert. denied, 475 U.S. 1089 (1986). A
flight instruction is proper when the evidence supports four
inferences: 1) the defendant's conduct constituted flight; 2) the
defendant's flight was the result of consciousness of guilt; 3) the
defendant's guilt related to the crime with which he was charged;
and, 4) the defendant felt guilty about the crime charged because
he, in fact, committed the crime. United States v. Myers, 550 F.2d
1036, 1049 (5th Cir. 1977), cert. denied, 439 U.S. 847 (1978).
Murphy's contention that the flight instruction was improper
under Myers is unavailing. Neither party disputes that Murphy's
conduct constituted flight. Additionally, the evidence is clear
that, when he fled, Murphy was aware that he was a suspect in the
bank robberies. His mother testified that he stopped visiting her
after the date of the second robbery. FBI agents had visited his
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mother, sister, and brother-in-law, between the second robbery and
his flight and informed each of them that he was a suspect in the
bank robberies. Murphy also asked Floyd to rent a house for him in
Floyd's name in exchange for $1,000. Murphy instructed Floyd to
drive off, leaving Murphy behind to effect his escape.
Furthermore, after inventorying the Sable, a police scanner with a
list of police frequencies was inventoried, indicating that Murphy
was paying attention to police communications.
Additionally, nothing in the record indicates that Murphy fled
out of fear of being arrested for another crime. Murphy asserts
that when they were stopped, he and Floyd were injecting heroin,
and that he fled because he was afraid of getting caught using
drugs. As noted, a bloody syringe was found in the Sable.
However, the officer who stopped the vehicle testified that it was
a routine traffic stop and that Murphy passed a field sobriety
test. In fact, Murphy instructed Floyd to drive off while the
officer was running a routine check for warrants. Unlike Myers,
the instant record does not indicate another crime from which
Murphy could have been fleeing. Myers, 550 F.2d at 1050.
Murphy also asserts that his flight occurred over a month
after the offense, and thus, he was not aware that he was a suspect
at the time of his flight. In Myers, the alleged flight occurred
three to six weeks after the commission of the charged offense.
Id. However, Myers did not hold that a specific time interval
between the crime and flight negates the defendant's awareness that
he was a suspect. Id. at 1050-51. No Fifth Circuit precedent
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supports this contention. We conclude that, although a month had
passed since the robberies, Murphy was fully aware at the time of
his flight that he was a suspect. The trial court's instruction
was proper.
II. Prosecutorial Misconduct. Appellant contends that the
prosecution engaged in misconduct during closing argument by
commenting on defense counsel's failure to ask certain witnesses
whether they believed that the bank surveillance photographs
depicted Murphy. He also argues that it was plain error for the
prosecutor to state that he believed Murphy committed bank
robberies other than those for which he was on trial.
A. Failure to Ask Specific Question
Murphy contends that the prosecutor "impermissibly shifted the
burden of proof when it commented on defense counsel's failure to
ask certain witness[es] whether they believed the bank surveillance
photographs depicted [him] when those witnesses were equally
available to the prosecution."1 However, he cites no persuasive
authority.
Counsel is accorded wide latitude during closing argument, and
this court gives deference to a district court's determination
regarding whether those arguments are prejudicial and/or
inflammatory. United States v. Williams, 822 F.2d 512, 518 (5th
1
In closing argument, defense counsel asked the jury to compare
Murphy, as he looked in the courtroom, to bank surveillance
pictures which the prosecutor claimed were of Murphy. He argued
that the prosecutor's witnesses who had identified Murphy during
the trial should not be believed. Defense counsel, however, did
not ask Murphy's mother, sister, or brother-in-law to try and
identify Murphy from the bank surveillance pictures.
6
Cir. 1987). The district court overruled defense counsel's
objections to the prosecution's remarks. That determination is
entitled to deference. Williams, 822 F.2d at 518. Further,
defense counsel invited the response when he challenged the jury to
compare Murphy, as he looked in the courtroom, to the photographs.
He also stated that the photographs did not depict Murphy. The
prosecution's remarks fall within the ambit of the wide latitude
accorded counsel in closing argument. Id.
B. Statements Allegedly Concerning Robberies
Murphy contends that the prosecution stated, in closing
argument, that he committed bank robberies other than those for
which he was on trial. He is mistaken.
During closing argument, the prosecution stated:
Members of the jury, what you have here is,
based on the evidence, is a smart robber.
Yes, the first two witnesses, it was a painful
experience. I think you can understand that.
They came down here and they told you of
course, they selected the photographs and you
will have those things like Mr. Stickney said.
Yes, they are in evidence. They told you that
the appearance--I believe all the witnesses
told you that the appearance of the Defendant
had changed. Other witnesses told you, and it
is established and we have the photographs to
prove that, the appearance of the Defendant
has changed and that is because the evidence
shown him to be the smart robber. This isn't
any bumbling, juvenile 7-11 robbery. This is
a robbery, these are robberies that have been
planned, you have to pick the time, the place.
There are obviously some more and I won't get
into that. You have seen for yourself. You
have to pick the getaway car like on the 26th
with that red Honda.
No objection was made to this statement. Thus, the standard
of review is plain error. United States v. Okenfuss, 632 F.2d 483,
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485 (5th Cir. 1980); Fed.R. Crim. P. 52(b).
Appellant asserts that the sentence "There are obviously some
more and I won't get into that," should be construed as a statement
by the prosecution that Murphy had committed other bank robberies.
When the statement is taken in context, while perhaps ambiguous, it
reasonably referred only to other factors which would demonstrate
that the bank robberies had been well-planned.
Murphy relies on United States v. Labarbera, 581 F.2d 107,
109-10 (5th Cir. 1978), in which this Court reversed a conviction
because the prosecution inferred to the jury that there was
evidence of the defendant's guilt which it had been unable to
present. Id. at 109-10. We also reversed based on improper
impeachment evidence. Id. at 110. The record in the instant case
does not yield the same result. There was no plain error.
III. Expert Testimony. Appellant contends that the district
court improperly admitted expert testimony regarding tools and the
marks on the ignitions. He asserts that FBI Agent Crum's opinion
that the marks on the ignitions of the stolen cars may have been
made by two of the screwdrivers found in the red Honda and the
Mercury Sable was improper. Murphy argues that the mechanics who
later removed the ignitions from the stolen cars testified that the
ignitions had been removed by a chisel or screwdriver and that
those tools may have made the marks on the ignitions as opposed to
the tools associated with Murphy. He finally claims that the
district court abused its discretion because the Government failed
to establish that the marks on the ignitions were not made when
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those ignitions were removed from the automobiles.
A trial court's decision to admit expert testimony over
objection is reviewed for an abuse of discretion. Salem v. United
States Lines Co., 370 U.S. 31, 35 (1962).
Murphy first relies on Federal Rule of Evidence 703 and
Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1110-12 (5th
Cir. 1991) (en banc), cert. denied, 112 S. Ct. 1280 (1992).
Evidence that the marks may have been made during removal did not
render unreliable the opinion that they may also have been made by
Appellant. Each event was possible. Appellant has not shown that
Crum's testimony was based on unreliable facts.
Additionally, the trial court instructed the jury, regarding
the expert testimony, that it
should consider each opinion received in
evidence in this case and give it such weight
as you may think it deserves. If you should
decide that the opinion of an expert witness
is not based upon sufficient education and
experience, or if you should conclude that the
reasons given in support of an opinion are not
sound, or that an opinion is outweighed by
other evidence, then you may disregard the
opinion entirely.
The district court exercised caution in its limiting instruction
and did not abuse its discretion. Murphy has cited no authority
sustaining his contention.
Murphy also contends that the expert testimony should have
been excluded pursuant to Federal Rule of Evidence 403 because the
probative value of the testimony was outweighed by its prejudicial
impact when the Government failed to establish that the marks on
the ignitions were not made when the ignitions were removed by the
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mechanics. Once again, Murphy fails to cite any persuasive
authority for his contention. Additionally, given the jury
instruction permitting the jury to disregard an opinion it found
unsound or unsupported, his contention has little merit. Agent
Crum testified that the tools such as the screwdriver associated
with Murphy "could" have made the marks on the ignitions but that
he could not positively attribute the marks to the tools identified
with Murphy. Crum did not specifically assert that the marks on
the ignitions were made by the tools associated with Murphy,
therefore one would be hard pressed to see how the testimony could
be unfairly prejudicial or confusing.
For the foregoing reasons, the judgment is
AFFIRMED.2
2
Murphy also challenged his sentence. However, he withdrew this
issue at oral argument in light of the Supreme Court's affirmance
of our opinion in United States v. Deal, 954 F.2d 262 (5th Cir.
1992), aff'd. 113 S.Ct. 1993 (1993).
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