Appeal from the United States District Court for the Eastern District of Illinois, Benton Division. No. CR-76-13-B - William G. Juergens, Judge.
Before Fairchild, Chief Judge, Pell, Circuit Judge, and Kunzig, Judge.*fn*
See 99 S. Ct. 2863. Appellants James Earl Fleming, Jr., Tommie Millender, and Henry Fleming were charged in a three-count indictment with assaulting the employees of a bank during the course of a bank robbery in violation of 18 U.S.C. § 2113(d),*fn1 killing a person while avoiding and attempting to avoid apprehension from the robbery in violation of 18 U.S.C. § 2113(e),*fn2 conspiracy to rob a bank in violation of 18 U.S.C. § 371,*fn3 and commission of that offense in violation of 18 U.S.C. § 2113(a).*fn4 Robert Fisher, Jr. was also charged with these offenses but was deceased prior to the time of the indictment.
After a three-day trial involving testimony by over 40 witnesses, the jury found the defendants guilty on all three counts. The defendants received identical sentences of 25 years for the robbery, 200 years for the killing,*fn5 and five years for the conspiracy. The sentences were to run consecutively to one another and to any and all sentences previously imposed. Each defendant appeals his conviction.
On the morning of July 9, 1973, several witnesses observed a cream and brown Ford LTD occupied by four black males driving through Elkville, Illinois, and De Soto on the way to Carbondale, Illinois.
At 11:30 a. m., Larry Powell, a Carbondale resident, was flagged down by four black males who said they locked the car keys in the trunk and needed tools to retrieve them. The car was a cream and brown LTD, later identified by Powell and other witnesses at FBI request.
At approximately 1:15 p. m. on July 9, several black males robbed the Elkville State Bank in Elkville, Illinois, escaping with $11,355.10, packaged in St. Louis Federal Reserve Bank wrappers. Several witnesses testified to the presence of a green Chevrolet Nova outside the bank at this time and to observing several black men get into the Nova. The car then left the bank area quickly.
At a later time on July 9, a green Chevrolet Nova was seen occupied by a white woman, later identified as Colleen Battaglia, the murder victim, and a black man. A second car occupied by several other black males was observed following the Nova. Even later on the afternoon of July 9, a green Chevrolet Nova was found in the Carbondale dump. The trunk was partially pried open by police and in it was found the nude and bound body of Colleen Battaglia. The back seat of the car contained various pieces of clothing and a purse. The Nova belonged to the murder victim and her husband, Michael Battaglia.
Police investigators took soil samples from the vicinity of the Chevrolet Nova. A rope was also found on the road by the dump. Two bullets were subsequently discovered in the trunk. Michael Battaglia testified that he had a navy blue stocking cap in the trunk of the green Chevrolet Nova which was not present when the car was returned by the police.
An autopsy performed on Colleen Battaglia revealed that she died from hemorrhaging caused by several close range gunshot wounds in the neck and chest. The pathologist who performed the autopsy could not determine the time of death. The rope which bound the victim's hands was preserved for evidence.
On July 11, 1973, Carbondale police received a radio message from the FBI seeking assistance in stopping an evasive vehicle. In response to that call, the Ford LTD, driven by Leon Collins, was stopped. The license plates on the LTD were registered to James Fleming for a 1972 Oldsmobile Cutlass. The LTD was apparently stolen. That same day the Ford LTD was examined. Investigators removed a dark blue stocking cap, some vacuum sweepings, a rug, and assorted other items. Laboratory analysis revealed that the rug found in the LTD contained sisal fibers which were identical to the rope removed from Colleen Battaglia and the rope found at the dump where the green Chevrolet Nova was located. The blue stocking cap found in the LTD matched the description of the cap missing from the green Chevrolet Nova. Moreover, soil samples taken from the cap matched the soil found around the Chevrolet at the dump. The FBI was unable to establish that Negroid hair fragments found in the green Chevrolet Nova came from any of the defendants.
On October 22, 1973, the decomposed body of Robert Fisher was found by the police. The body was clothed in purple pants similar to those worn by one of the four men who flagged Larry Powell down on the day of the robbery.
At trial a bank teller, Mrs. Nellie Jean Cochran, identified James Earl Fleming, Jr. and Henry Fleming as participants in the robbery. Mrs. Cochran had earlier identified Henry Fleming from a series of photographs. Mrs. Cochran was unable, however, to identify positively James Earl Fleming, Jr. from a line-up immediately after the bank robbery. Powell was also able to provide a detailed description of the four men.
The Carbondale Police Chief testified that on July 26, 1973, Leon Collins, the Carbondale resident at whose home James Earl Fleming lived at the time of the robbery, contacted the Police Department and indicated that he had found a money wrapper in a cosmetic case which James Earl Fleming had left during his stay. The money wrapper was from the St. Louis Federal Reserve Bank, dated May 3, 1973.
All defendants allegedly made statements connecting them with the events of July 9, 1973. The first government witness, Gerald Smith, testified that James Earl Fleming told him the details of the Elkville robbery and the murder of Colleen Battaglia. Fleming allegedly implicated himself, his brother, and a person nicknamed "Fish." Fleming also allegedly confessed to killing "Fish" because he was a drug addict and, therefore, unreliable.
Another government witness, Otis Philips, testified that Henry Fleming told him of the Elkville Bank robbery in November, 1973. Allegedly Henry Fleming stated that he, his brother, James, and Fisher took $10,000 in the robbery and used some of the money as bond for a brother-in-law. Additionally, Fleming related that a teller was taken hostage, raped, and murdered. James Earl Fleming allegedly confirmed his brother's story. Philips then testified that the Fleming brothers threatened to kill him if he ever disclosed their involvement in the Elkville robbery.
Still another government witness, John Flournoy, testified that in June, 1973, he, James Earl Fleming and Tommie Millender were discussing possible bank targets in the Carbondale area. A similar discussion was held later that month in East St. Louis, Illinois at Millender's house in the presence of Flournoy, James Fleming, Millender, and "Fish." On that occasion, Millender allegedly told Flournoy in confidence that "Fish" was dispensable after the robbery. Flournoy did not participate in the Elkville Bank robbery because he was in the county jail on July 9th. In January or February, 1974, Flournoy again allegedly conversed with James Fleming regarding the Elkville robbery. At this meeting, Fleming recounted the bank robbery, abduction, and murders of Colleen Battaglia and Robert Fisher.
The final incriminating statement was made by Tommie Millender in the presence of Frank Reid and Fred Meyer, both United States Marshals. After having been given a copy of the indictment after his arrest, Millender allegedly stated "whoever told them all this had to be somebody that was there, because they knew exactly how it took place." In addition to testimony regarding the out of court statements by defendants and identification of defendants, several photographs of the car and the nude body of the victim were introduced at trial over defendants' objection.
At the conclusion of the trial, two female jurors were approached by a black male later identified as the brother of Tommie Millender. The jurors were reportedly asked how they were going to vote and later noticed that they were being followed by a car occupied by black individuals. The two female jurors became frightened, and related the incident to three male jurors upon their return. When informed of the incident, James Earl Fleming moved for a mistrial. The motion for a mistrial was denied after the jurors stated they could still deliberate fairly and impartially.
Although in closing argument defendants' counsel argued that statements of the government's witnesses were unreliable because they were made by convicted felons and that other evidence was ambiguous, the jury, after weighing the evidence and determining the credibility of the witnesses, entered guilty verdicts on all counts.
Defendants contend on appeal that: (1) they were denied their Sixth Amendment right of confrontation by the admission into evidence of confessions by co-defendants who did not testify; (2) the trial court erred in failing to instruct the jury on the use of co-defendants' confessions and in failing to instruct the jury that the identity of the perpetrators of the crimes must be proved beyond a reasonable doubt; (3) they were denied effective assistance of counsel; (4) the court abused its discretion in admitting into evidence several photographs of the murder victim; (5) the court erred in refusing to grant a mistrial after the two jurors were confronted before deliberation; (6) the killing of Colleen Battaglia does not ...