Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 CR 1087 - Bernard M. Decker, Judge.
Before Cummings and Sprecher, Circuit Judges, and East, Senior District Judge.*fn*
See 99 S. Ct. 2894.The defendant, Wayne Dolliole, was convicted by a jury for the robbery of a federally-insured savings and loan association in violation of 18 U.S.C. § 2113(a), (d). The defendant appeals primarily on the ground that the trial court committed prejudicial error by admitting evidence of the defendant's participation in crimes other than the one charged.
The defendant was tried for aiding and abetting his brother-in-law, Darnell Collins, in the robbery of the Labe Savings and Loan Association. The first trial resulted in a hung jury. In the second trial the defendant was convicted and sentenced to seven years imprisonment.
Darnell Collins pled guilty to the Labe robbery and thus was not tried with the defendant. It is undisputed that Collins robbed Labe Savings and that the defendant drove him to and from there. The issue presented to the jury was whether the defendant intended to aid Darnell Collins in the robbery of the bank or whether he was merely an unknowing participant. The government presented two types of evidence to substantiate its case that Wayne Dolliole was a willing party to the Labe robbery. First, evidence of the circumstances surrounding the Labe Savings robbery was submitted to the jury. In addition, however, the United States introduced evidence suggesting that the defendant had also planned or participated in two prior bank robberies involving the Main and Hillside banks. This evidence was designed to bolster the government's contention that Dolliole had the requisite intent to commit bank robbery.
The evidence of the Labe robbery, consisted of the following testimony. On November 26, 1976 the defendant, age 23, drove his 18 year old brother-in-law, Darnell Collins, to the Labe Savings and Loan in the defendant's own silver 1955 Bentley. The defendant parked in the bank lot, turned off the engine, and remained in the car throughout the robbery. Collins entered the bank and gave a note and a folded bag to the teller. The teller testified that Collins opened his suit coat to reveal the handle of a gun. The teller gave Collins $1,123 including five bills with previously recorded serial numbers. Collins then returned to the Bentley and got into the back seat. The defendant drove the car about one mile before being stopped by the police.
Collins testified that about two weeks prior to the robbery at Labe Savings, the defendant had told him that he had found a bank that had no guard. The defendant also allegedly told Collins that the Bentley would be an "ideal" car for a robbery. Dolliole reasoned that since he looked Caucasian and the description of the robber would be black, if Collins would hide in the back seat while defendant drove, they would be able to avoid police suspicion.
Collins testified that after he robbed Labe Savings on November 26, he got into the car and hid on the floor of the back seat. He told the defendant to hurry because the teller had pressed the alarm. He also stated that while stopped at a light, he took some of the money out of the bag and reached up to show it to the defendant. Collins said that shortly thereafter the defendant told him that the police had gone by.
The government also introduced the testimony of two auto mechanics employed at an automobile repair shop located near the bank. The two men testified that they saw the 1955 Bentley approach a stop sign shortly after the robbery. They testified that they could see only one person in the car and that the car ran the stop sign. Both testified to seeing the Bentley proceeding slowly in the vicinity of Labe Savings a few days earlier.
Another witness testified that on the day of the robbery he heard police calls on his six-band radio, reporting that Labe Savings, located only four blocks north of his home, had been robbed by one male Negro who fled the scene in a silver Rolls Royce. After hearing the description he saw the described car stopped in heavy traffic in front of his home. The car had two occupants, and he observed a passenger in the back seat lean over the front seat "with what appeared to be something in his hand, it was it was almost like he was playing cards." He also observed the occupants "slap hands, as if in approval" after a police car sped past them.
Another government witness testifying to the events of the Labe Savings robbery was the arresting officer. The officer testified that when he stopped the Bentley, he observed a man lying in the back seat with a gun and a bag in his hand. Both occupants were arrested, and it was later determined that the bag included the stolen, marked bills.
The defendant also testified to the circumstances surrounding the Labe Savings robbery. Dolliole stated that he did not plan to rob the bank and had no knowledge prior to his arrest that Collins had robbed the bank. The defendant claimed instead that he drove Collins to Labe Savings so that Collins could cash a money order. Other evidence, however, established that neither Collins nor Dolliole had any account at Labe and that Dolliole had to drive approximately 4 1/2 miles to reach Labe Savings from his home. The defendant stated that when Collins came out of the bank he did not appear excited and that because the front seat was ripped, Collins sat in the back seat, leaning on the arm rest.
The second category of evidence presented by the government consisted of prior acts of the defendant which tended to rebut his defense that he lacked the requisite intent. Testimony of Joseph Brinson was introduced to establish defendant's participation in an unconsummated plan to rob the Main Bank. Brinson stated that he played in a band with Darnell Collins and that Collins introduced him to the defendant. Brinson testified that, with Collins present, the defendant had outlined the plan for the robbery. Brinson was to rob the bank using a gun which belonged to Collins's brother, climb into the trunk of the Bentley, pull the ...