United States v. Pierce ( 1998 )


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  •                                   United States Court of Appeals,
    Eleventh Circuit.
    No. 97-8180.
    UNITED STATES of America, Plaintiff-Appellee,
    v.
    Carey Antonio PIERCE, Defendant-Appellant.
    March 6, 1998.
    Appeal from the United States District Court for the Northern District of Georgia. (No. 1:96-CR-
    158-JEC), Julie E. Carnes, Judge.
    Before BLACK and BARKETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.
    BARKETT, Circuit Judge:
    Carey Antonio Pierce appeals his conviction for bank robbery, robbery affecting interstate
    commerce, and use of a firearm during and in relation to the latter robbery, in violation of 
    18 U.S.C. §§ 2113
    (a), 1951, and 924(c), respectively. On appeal, Pierce seeks reversal of his conviction,
    arguing that the district court erred: (1) in denying his pre-trial motion to sever the bank robbery
    count from the two remaining counts; (2) in allowing the government to introduce evidence of five
    prior bank robberies committed by Pierce pursuant to Federal Rule of Evidence 404(b); (3) in
    allowing the government to introduce lay opinion testimony from Pierce's employer as well as his
    probation officer, both of whom identified Pierce as the individual depicted in a still photograph
    taken from a bank surveillance videotape of the robbery; (4) in admitting evidence of an
    out-of-court identification of Pierce as the perpetrator of the § 1951 robbery based on an unduly
    suggestive identification procedure; and (5) in declining to dismiss the bank robbery count of the
    indictment because of the government's alleged misuse of the grand jury process to obtain discovery
    from Pierce's alibi witness. Finding no merit to any of these claims, we AFFIRM. Although we find
    claims (1), (2), (4), and (5) suitable for affirmance without discussion, the issue raised in claim
    (3)—the admissibility of lay opinion testimony identifying a defendant in surveillance
    photographs—is a question of first impression for this Circuit. Accordingly, we address that claim
    below.
    BACKGROUND
    Pierce was charged in a three-count indictment with the February 6, 1996 robbery of a
    Roswell, Georgia branch of the Tucker Federal Savings Bank (count one); the February 12, 1996
    robbery, in the parking lot of another bank, of a restaurant employee en route to deposit the
    restaurant's receipts from the previous night (count two); and the use of a firearm in connection with
    the robbery charged in count two (count three). Following a jury trial, Pierce was convicted of all
    three counts and sentenced to 180 months imprisonment.
    The February 6th bank robbery
    At Pierce's trial, bank tellers Theresa Putnam and Patricia Batchelor and bank customer
    Susan Therrel testified concerning the circumstances of the bank robbery and described the robber's
    physical appearance. Specifically, the witnesses stated that after entering the bank, the robber had
    placed both hands on the teller counter, vaulted over the counter, demanded money, and ordered
    everyone to lie down on the floor.        The witnesses described the robber as a black male,
    approximately six feet tall and weighing 170 to 180 pounds, wearing a baseball cap, sunglasses, a
    wind-breaker-type jacket, and dark pants, and carrying a blue and white gym or duffel bag as if he
    had a weapon inside. Neither Putnam nor Batchelor was able to identify Pierce in a photographic
    array that included Pierce's photograph; however, Batchelor subsequently identified Pierce at trial.
    In addition, Putnam, Batchelor, and Therrel testified that certain items seized from Pierce's residence
    resembled items worn or carried by the robber. Based on his review of a bank surveillance
    videotape depicting the robbery, FBI Special Agent Thomas Forgas, an expert examiner of
    questioned photographic evidence, testified that a pair of sneakers seized from Pierce's home were
    similar to the sneakers worn by the robber in the videotape. However, Forgas was unable to
    positively identify the robber as Pierce.
    The government also introduced evidence of five prior robberies of three different Tucker
    Federal Savings Bank branches committed by Pierce between December 1988 and February 1989,
    three of which occurred at the same Roswell branch involved in this case. FBI Special Agent Robert
    Melnick, who had participated in the investigation of the 1988-89 string of robberies, described
    Pierce's standard method of operation in committing these robberies:
    [The robber] would announce the fact that a robbery was occurring. He would soon
    thereafter vault over the teller counter. He would tell the tellers to back away from the
    counter or to get down onto the floor.
    He would then remove money, which he placed in a blue bag, which was similar to
    a gym type bag or a small duffel bag, which had white handles on it. He would also keep
    his hand, one of his hands inside that bag at times, at all times during the robbery and direct
    it and point it at the tellers, implying that he had some type of a weapon in the bag, although
    he never did show a weapon.
    Melnick further testified that, following his arrest, Pierce told him that he chose to rob Tucker
    Federal Savings Banks "because they were easy to rob." In addition, several bank tellers who had
    witnessed one or more of the prior robberies testified concerning the circumstances of those
    offenses.
    The government also called two witnesses familiar with Pierce's appearance, both of whom
    had previously identified Pierce as the individual depicted in a bank surveillance photograph of the
    robbery. Federal probation officer Beth Hammond testified that she had served as Pierce's
    supervisor during a period of supervised release imposed as part of his sentence for the prior bank
    robberies and that, in this capacity, she had met with Pierce ten times during the seven months prior
    to his arrest for the offenses charged in this case. Hammond further testified that when the FBI
    agents investigating this case showed her the bank surveillance photograph, she had stated that she
    was "ninety percent certain that [the robber] was Mr. Pierce." In addition, Freddie Hammonds,
    Pierce's workplace supervisor during the five- or six-month period prior to his arrest, testified that
    when shown a bank surveillance photograph by the FBI, he had identified the Pierce as the robber.
    Finally, inmate Terry Burston testified that Pierce had discussed various aspects of both robberies
    with him.
    The February 12th robbery of a restaurant employee
    The government's primary witness with respect to the offenses charged in counts two and
    three of the indictment was Kenneth Knowles, the victim of the § 1951 robbery. At trial, Knowles
    testified that on February 12, 1996, he was robbed at gunpoint in the parking lot of the First Union
    Bank when he attempted to exit his vehicle in order to deposit funds on behalf of his employer.
    Knowles positively identified Pierce as his assailant and also stated that he had previously identified
    Pierce's photograph in a photographic array.
    DISCUSSION
    We address only Pierce's contention that the admission of lay opinion identification
    testimony from Beth Hammond and Freddie Hammonds was improper under Federal Rules of
    Evidence 701 and 403.
    Rule 701
    Rule 701 permits the admission of opinion testimony from a lay witness only where the
    witness's opinions are "(a) rationally based on the perception of the witness and (b) helpful to a clear
    understanding of the witness' testimony or the determination of a fact in issue." Fed.R.Evid. 701.
    "The ultimate decision as to the admissibility of lay opinion testimony is committed to the sound
    discretion of the district court and will not be overturned on appeal unless there is a clear abuse of
    discretion." United States v. Myers, 
    972 F.2d 1566
    , 1576-77 (11th Cir.1992).
    The parties do not dispute that the lay opinion identification testimony at issue in this case
    was "rationally based on the perception of the witness[es]," as both Hammond and Hammonds
    identified Pierce based on their personal observations of his appearance during their prior contacts
    with him. Rather, the parties disagree as to whether the identification testimony was "helpful ... to
    the determination of a fact in issue."
    Asserting that Pierce's appearance had not changed in any way between the bank robbery and
    trial, and that Pierce was in no way obscured from view in the surveillance photograph, Pierce
    argues that the lay opinion identification testimony was not helpful because the witnesses were no
    better equipped than the jury to compare Pierce's appearance at trial with the appearance of the
    individual depicted in the surveillance photograph. Pierce further contends that Beth Hammond's
    identification testimony was not helpful for the additional reason that Hammond herself conceded
    that she could not be one hundred percent certain that the individual in the photograph was Pierce.
    The government responds that the identification testimony was helpful to the jury because both of
    the witnesses had a sufficient level of familiarity with Pierce that they were more likely to identify
    him correctly than was the jury, particularly in light of the grainy quality of the surveillance
    photograph and the dark glasses and hat worn by the person in the photograph in an effort to
    disguise his identity. The government also maintains that Beth Hammond's ninety percent level of
    certainty that the robber depicted in the photographs was Pierce was sufficient to render her opinion
    helpful to the jury.
    Although this court has not previously addressed whether lay opinion testimony identifying
    a defendant in surveillance photographs is admissible under Rule 701, several other circuits have
    held such testimony admissible in some circumstances. Because we find, as have most of those
    circuits, that lay opinion identification testimony may be helpful to the jury where, as here, "there
    is some basis for concluding that the witness is more likely to correctly identify the defendant from
    the photograph than is the jury," we hold that the district court acted within its discretion in
    admitting identification testimony from Hammond and Hammonds. United States v. Farnsworth,
    
    729 F.2d 1158
    , 1160 (8th Cir.1984); see also United States v. Jackman, 
    48 F.3d 1
    , 4-5 (1st
    Cir.1995) (holding lay opinion identification testimony admissible "at least when the witness
    possesses sufficiently relevant familiarity with the defendant that the jury cannot also possess, and
    when the photographs are not either so unmistakably clear or so hopelessly obscure that the witness
    is no better-suited than the jury to make the identification"); United States v. Robinson, 
    804 F.2d 280
    , 282 (4th Cir.1986) ("A lay witness may give an opinion concerning the identity of a person
    depicted in a surveillance photograph if there is some basis for concluding that the witness is more
    likely to correctly identify the defendant from the photograph than is the jury." (quoting Farnsworth,
    729 F.2d at 1160)); United States v. Towns, 
    913 F.2d 434
    , 445 (7th Cir.1990) (same); United States
    v. LaPierre, 
    998 F.2d 1460
    , 1465 (9th Cir.1993) (holding lay opinion identification testimony
    admissible where "there is reason to believe that the witness is more likely to identify correctly the
    person than is the jury"); United States v. Borrelli, 
    621 F.2d 1092
    , 1095 (10th Cir.1980) (upholding
    the admission of lay opinion testimony regarding defendant's resemblance to the subject of a bank
    surveillance photograph where the witness "was in a much better position than the jury to give an
    opinion as to the resemblance between [defendant] at the approximate date of the robbery and the
    man in the surveillance photograph").
    We agree with our sister courts that whether a particular witness is better suited than the jury
    correctly to identify a defendant as the individual depicted in surveillance photographs turns on a
    number of factors. Perhaps most critical to this determination is the witness's level of familiarity
    with the defendant's appearance. As the Fourth Circuit observed in United States v. Allen, 
    787 F.2d 933
    , 936 (4th Cir.1986), vacated on other grounds, 
    479 U.S. 1077
    , 
    107 S.Ct. 1271
    , 
    94 L.Ed.2d 132
    (1987):
    testimony by those who knew defendants over a period of time and in a variety of
    circumstances offers to the jury a perspective it could not acquire in its limited exposure to
    defendants. Human features develop in the mind's eye over time. These witnesses had
    interacted with defendants in a way the jury could not, and in natural settings that gave them
    a greater appreciation of defendants' normal appearance. Thus, their testimony provided the
    jury with the opinion of those whose exposure was not limited to three days in a sterile
    courtroom setting.
    Accordingly, while familiarity derived from a witness's close relationship to, or substantial and
    sustained contact with, the defendant weighs heavily in favor of admitting the witness's
    identification testimony, knowledge of the defendant's appearance based entirely on the witness's
    "review of photographs of [the defendant] and witnesses' descriptions of him" does not, as it is not
    based on anything more than the evidence the jury would have before it at trial. See LaPierre, 
    998 F.2d at 1465
    .
    Similarly, factors such as the witness's familiarity with the defendant's appearance at the
    time the surveillance photographs were taken or dressed in a manner similar to the individual
    depicted in the photographs, and whether the defendant had either disguised his appearance at the
    time of the offense or altered his appearance prior to trial, would also have some bearing on whether
    the witness is better able than the jury to make a correct identification. See United States v. Ellis,
    
    121 F.3d 908
    , 926 (4th Cir.1997), cert. denied, --- U.S. ----, 
    118 S.Ct. 738
    , --- L.Ed.2d ---- (1998)
    (upholding the admission of lay opinion identification testimony by a witness who had known
    defendant for approximately five years, where defendant had disguised himself with a mask and a
    hooded sweatshirt at the time of the offense); Towns, 913 F.2d at 445 (upholding identification
    testimony from defendant's former girlfriend, who had observed defendant's appearance on the day
    of the bank robbery, where the surveillance photograph depicted the robber "wearing a stocking cap,
    sunglasses, and a sweatsuit that potentially made him appear heavier than he really was" and where
    defendant had shaved his moustache off prior to trial); Borrelli, 621 F.2d at 1095 (finding lay
    opinion identification testimony helpful where witness, defendant's stepfather, "had independent
    knowledge of [defendant's] appearance both before and at the time of the robber" and defendant "had
    significantly altered his appearance by changing his hairstyle and growing a moustache").
    Because we find that, under the circumstances, "there is some basis for concluding that the
    witness[es][are] more likely to correctly identify the defendant from the photograph than is the jury,"
    we hold that the district court acted within its discretion in admitting lay opinion identification
    testimony from Hammond and Hammonds. The surveillance photograph on which these witnesses
    based their identifications depicted a robber disguised with dark glasses and a baseball hat. In
    addition, both of the government's identification witnesses had become familiar with Pierce's
    appearance and, in particular, his facial features through repeated contacts with Pierce over
    significant periods of time. Beth Hammond had met with Pierce on ten occasions during the
    seven-month period prior to the robberies charged in this case, some of those meetings taking place
    in Hammond's office and others occurring at Pierce's home. Freddie Hammonds had served as
    Pierce's workplace supervisor for the five or six months prior to Pierce's arrest and, during that time,
    had viewed Pierce wearing sunglasses and a baseball hat, the same items worn by the robber
    depicted in the photograph. As Pierce suggests, because the surveillance photograph was admitted
    into evidence, the jury was certainly able to compare Pierce's appearance at trial with the appearance
    of the individual depicted in the photograph. In view of the disguise worn by the robber pictured
    in the photograph and the level of familiarity with Pierce's appearance both Hammond and
    Hammonds possessed, however, we conclude that the lay opinion identification testimony admitted
    was "helpful ... to the determination of a fact in issue" within the meaning of Rule 701.
    Rule 403
    Pierce further argues that even if the lay opinion identification testimony was admissible
    under Rule 701, that testimony should have been excluded pursuant to Rule 403. Rule 403 permits
    the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger
    of unfair prejudice." Fed.R.Evid. 403. We review the district court's decision not to exclude
    evidence pursuant to Rule 403 for an abuse of discretion. United States v. Ross, 
    33 F.3d 1507
    , 1524
    (11th Cir.1994).
    Pierce contends that the identification testimony admitted was of low probative value
    because both Hammond and Hammonds were aware of Pierce's prior bank robbery convictions at
    the time they viewed the surveillance photograph. Pierce also maintains that Beth Hammond's
    testimony was unfairly prejudicial because, testifying as Pierce's probation officer, Hammond's
    identification highlighted Pierce's past contact with the criminal justice system.
    In upholding the admissibility of lay opinion identification testimony under Rule 701, courts
    have nevertheless recognized the danger of unfair prejudice that arises when the source of such
    testimony is a police, probation, or parole officer. See United States v. Calhoun, 
    544 F.2d 291
    , 296
    (6th Cir.1976); United States v. Henderson, 
    68 F.3d 323
    , 327 (9th Cir.1995); United States v.
    Butcher, 
    557 F.2d 666
    , 669 (9th Cir.1977). Identification testimony from law enforcement or
    corrections personnel may increase the possibility of prejudice to the defendant either by
    highlighting the defendant's prior contact with the criminal justice system, if the witness's occupation
    is revealed to the jury, or by effectively constraining defense counsel's ability to undermine the basis
    for the witness's identification on cross-examination, if the witness's occupation is to remain
    concealed. See Calhoun, 544 F.2d at 295-96; Farnsworth, 729 F.2d at 1161; Henderson, 
    68 F.3d at 327
    . Indeed, concern regarding both types of prejudice has led at least two appellate court to
    discourage the use of lay opinion identification by policemen and parole officers, unless such
    persons are the only source of adequate identification testimony. See Farnsworth, 729 F.2d at 1161;
    Butcher, 557 F.2d at 670.
    We share this concern, and, likewise, caution trial courts to admit this kind of identification
    testimony only in limited and necessary circumstances with all appropriate safeguards. However,
    in this case we see no abuse of discretion. Although Beth Hammond testified that she knew Pierce
    solely in her capacity as his probation officer, Hammond's testimony was neither the only, nor even
    the primary, source of the jury's information concerning Pierce's prior contact with the criminal
    justice system. Rather, the jury was otherwise aware of Pierce's criminal history because the
    government introduced evidence of five previous bank robberies committed by Pierce. Moreover,
    Pierce has pointed to no unfair prejudice stemming from Freddie Hammonds's identification
    testimony. In these circumstances, we cannot say that the probative value of the identification
    testimony presented by the government in this case was substantially outweighed by any unfair
    prejudice.
    AFFIRMED.
    BLACK, Circuit Judge, concurring in the result:
    I concur in the result in this case.