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United States v. Silvers

February 21, 1967

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BILLY RAY SILVERS, DEFENDANT-APPELLANT



Duffy, Senior Circuit Judge, and Swygert and Cummings, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge.

This is an appeal from Billy Ray Silvers' conviction for assaulting and putting the life of Vernon E. Laue in jeopardy while aiding and abetting in the robbery of a federally insured bank. The information alleged a violation of Section 2113(d) of the Criminal Code (18 U.S.C. § 2113(d)).

According to the Government's evidence, on the evening of December 15, 1965, Silvers and co-defendant Orrin Scott Reed entered Mr. Laue's home in Rolling Prairie, Indiana. Both men wore transparent nylon stocking masks. Silvers was armed with a sawed-off shotgun. Laue was forced to accompany Reed to the Rolling Prairie branch of the Citizens Bank of Michigan City, Indiana; Laue was manager of that branch. Silvers remained at the Laue home pointing his shotgun at Mrs. Laue and the three Laue children.

When Reed and Laue reached the nearby branch bank, Laue opened the vault, removed $8,509 therefrom and turned it over to Reed. Reed and Laue then returned to the Laue home. Thereupon Reed and Silvers escaped with the loot, approximately 20 minutes after first entering the Laue residence.

Silvers was arrested near Bloomington, Indiana, three days thereafter. He was then using the alias George Blue. A sawed-off shotgun was discovered in his motel room there. In applying for the appointment of counsel, Silvers advised the District Court that he had recently escaped from the Indiana State Prison.

On January 3, 1966, Silvers and Reed were charged by information with the robbery of this branch bank. Under the Criminal Justice Act (18 U.S.C. § 3006A), John O. Humphreys of South Bend, Indiana, was appointed as counsel for Silvers. On January 6, 1966, Humphreys filed a motion for a psychiatric examination of Silvers to determine whether he was sane at the time of the alleged offense and whether he was competent to defend. In support of the motion, Humphreys advised the District Court that he had noticed differences in Silvers' behavior during four conferences with him. Humphreys apprised the District Court of Silvers' reformatory, jail, and prison record from the time he was 14 and mentioned that Silvers was a recent prison escapee. Humphreys also mentioned that Silvers' mother thought he needed psychiatric help from the time he was 16. As a result of this showing, the District Court appointed a psychiatrist to examine Silvers, but only to determine whether he was competent to stand trial. After receiving the psychiatrist's report, the District Court found that Silvers was able to understand the proceedings and to assist in his defense. Thereupon, Silvers pleaded not guilty.

In his opening statement at the trial, Silvers' counsel told the jury that the evidence would show that Silvers was not sane on the evening of the offense.

Silvers complains that prejudicial error occurred at the joint trial of Silvers and Reed because: (1) the jury was permitted to hear evidence that might indicate he had committed other crimes and (2) a dual-shot prison photograph of Silvers was admitted into evidence.

As to the first alleged error, Gene Neff, a state police trooper, was called as a witness for the Government. Without objection, he testified that one of the detectives at the prison*fn1 gave Neff "two mug shots" and requested that Neff show them to Mr. and Mrs. Laue. For that purpose, Neff called on Mrs. Laue on December 17. The following colloquy then occurred during Neff's direct examination by the Assistant United States Attorney:

"Q. You say mug shots, what is that?

A. They are photographs of former inmates of the State Prison.

By Mr. Humphreys: Your Honor, I will object to the testimony by the witness as being unresponsive to the question asked by Mr. Fedder. Also an improper topic to bring out in examination of this or any other witness. By The Court: Yes, the objection is sustained. That's right."

Neff next testified that the two photographs were of Charles Spiker and Billy Ray Silvers, and that Mrs. Laue identified the photograph of Silvers as the intruder who terrorized her and the children ...


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