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United States v. Tory

filed*fn*: April 3, 1995.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MARK ALLYN TORY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CR-93-00275-MLR. Manuel L. Real, District Judge, Presiding.

Before: James R. Browning, Jerome Farris, and Edward Leavy, Circuit Judges. Opinion by Judge Leavy; Dissent by Judge Farris.

Author: Leavy

LEAVY, Circuit Judge:

Mark Allyn Tory was indicted on five counts of bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). Counts one and four charged armed robbery. Counts two, three, and five charged unarmed robbery. Tory admitted to having committed the robberies but denied being armed during any of them. The jury found Tory guilty of armed bank robbery as alleged in count one and unarmed bank robbery as alleged in counts two, three, and five. On count four, the jury found him guilty of the lesser offense of unarmed bank robbery. Tory argues that four rulings of the court denied him a fair trial on the issue of whether he was armed as charged in count one.

FACTS

The evidence relative to count one was that on January 12, 1993, Tory entered the bank, walked directly to a teller station, and slid a piece of paper across the counter. On the paper, Tory had written "Give me all the cash in your top drawer or I will shoot you in the face." The teller gave Tory $2,020 cash, and Tory ran from the bank.

1) Before trial, the district court ruled that the government could not introduce evidence of a holster and gunbelt found in Tory's garage. However, the court said that the government could introduce that evidence if Tory "in some way denies that he ever owned a gun in any fashion." The government elicited testimony from FBI Agent Dick regarding a toy gun that he saw in Tory's home. A second FBI agent, Keven Kelly, was asked by Tory's attorney whether any gun had been found in the search of Tory's home.*fn1 After Kelly testified that no gun had been found, the court ruled that the door had been opened for evidence regarding the holster and gunbelt. The government later introduced the holster and gunbelt.

2) The teller, Ms. Scholle, on direct examination testified that Tory had raised his shirt to reveal the butt of a gun stuffed in the waist of his pants. Scholle testified on cross-examination, "I never recall him wearing jogging pants, no. . . . It was my memory that he had on like a white painter - white baggy-jean-like looking pants, like painter pants up here, white in color." She denied remembering that she had told Agent Dick that Tory was wearing sweatpants, but instead remembered telling him that Tory was wearing "a white type of pant."

Agent Dick had interviewed Scholle after the robbery. On cross-examination, Tory's attorney asked Agent Dick whether Scholle had told him that Tory was wearing sweatpants at the time of the robbery.*fn2 The government objected to the question as calling for hearsay, and the trial court sustained the objection. The court held that the statement to which Agent Dick would testify was not inconsistent with Scholle's testimony and, therefore, would not be admissible even for the limited purpose of impeachment.

3) During closing argument, Tory's attorney attempted to argue that if the defendant was wearing sweatpants it would be a reasonable inference that he could not have been carrying a gun because it would have fallen when he ran. The court ruled that there was no evidence as to that matter and prevented the argument.

4) The defense attempted to argue that if the prosecution had presented bank surveillance photographs in its possession, it would have cleared up the question of whether the defendant was wearing sweatpants. The trial court again sustained the government's objection saying that there was no evidence of that fact.

ANALYSIS

I. Admission of Holster and Gunbelt

The trial court's finding that the defense opened the door to the introduction of evidence is reviewed for an abuse of discretion. Cf. United States v. Segall, 833 F.2d 144, 148 (9th Cir. 1987); United States v. Taylor, 716 F.2d 701, 710 (9th Cir. 1983). The issue is whether Tory asserted that he never owned a gun by asking Agent Kelly whether he had found a gun at Tory's residence.

Tory's examination of Agent Kelly did not amount to an assertion that Tory had never owned a gun. Tory's questions concerned solely what the government did or did not find in its search of his home. The defendant did not open the door and, therefore, admission of the evidence was an abuse of discretion. United States v. Brooke, 4 F.3d 1480, 1487 (9th Cir. 1993).

II. Impeachment of Ms. Scholle

Inconsistent statements are admissible under Fed. R. Evid. 613 for the purpose of impeaching a witness's testimony. United States v. Monroe, 943 F.2d 1007 (9th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1585 (1992). A trial Judge, however, has discretion in deciding the preliminary issues of relevance and inconsistency. Fed. R. Evid. Rule 402 and United States v. Hale, 422 U.S. 171, 176, 45 L. Ed. 2d 99, 95 S. Ct. 2133 (1975).

Based on his interview report, Agent Dick would have testified that Ms. Scholle had told him that Tory was wearing sweatpants at the time of the robbery. Yet, Ms. Scholle, when explicitly asked whether she had described Tory's pants to Agent Dick as "sweatpants," stated that she did not remember describing them in that particular way but did remember describing them "as a white type of pant."

The trial Judge's ruling that the statement was not inconsistent with Ms. Scholle's testimony was error. The statements in question are inconsistent and relevant to the ability of the sole prosecution eyewitness on the question of whether Tory ...


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