U.S. v. Jackman, 94-1759

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation48 F.3d 1
Docket NumberNo. 94-1759,94-1759
Parties41 Fed. R. Evid. Serv. 361 UNITED STATES, Appellee, v. Gary Wayne JACKMAN, Appellant. . Heard
Decision Date09 December 1994

Miriam Conrad, Federal Public Defender, Boston, MA, for appellant.

Robert E. Richardson, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

In this appeal of his conviction for bank robbery, defendant-appellant Gary W. Jackman alleges an abuse of discretion in certain of the district court's evidentiary rulings. Finding no abuse of discretion, we affirm.

I. BACKGROUND

On December 24, 1992, a man wearing a Florida Marlins baseball cap and a bulky winter jacket walked into the Boston Five Cents Savings Bank in Revere, Massachusetts, handed teller Deanna Megna a note demanding money, stating he had a gun, and walked out after being given $1,740 from the teller's drawer. Megna described the man immediately after the robbery as "skinny" and "blond." About a month later, Megna easily picked Jackman as the Revere robber out of a six-man lineup in Glastonbury, Connecticut, where Jackman was being held in connection with a bank robbery in Avon, Connecticut. Photographs of the Revere robber, taken by the bank's surveillance camera, were shown by investigators to Jackman's ex-wife, Deborah Jackman, and to two acquaintances of Jackman, Harry Stetson and David Hurlock. Although the photographs showed only part of the robber's face beneath a baseball cap and were somewhat grainy, Deborah Jackman, Stetson and Hurlock all told investigators that the man in the photographs was Jackman. Prior to identifying Jackman as the man in the Revere robbery photos, Deborah Jackman, Stetson and Hurlock all viewed a much clearer photograph of the Connecticut robber taken during the course of that robbery and identified the robber as Jackman. Both the Connecticut robber and the Revere robber appear to be wearing a Florida Marlins baseball cap and a heavy winter coat.

At trial, Megna testified about the robbery and her identification of Jackman at the lineup, but she was unable to make an in-court identification of Jackman. 1 James Genco Q. Could you tell--give the jury a general description of those six individuals [in the lineup]?

the Assistant United States Attorney who prosecuted Jackman in Connecticut and who oversaw the Glastonbury lineup (which was viewed by witnesses to both the Revere and Connecticut bank robberies), testified about the composition of the lineup and Megna's identification of Jackman as the Revere robber. The district court warned the government to advise Genco not to make any references to the fact that he was a federal prosecutor from Connecticut and not Massachusetts, or that Jackman had been tried and convicted of another bank robbery. Nevertheless, the following colloquy took place as the prosecutor questioned Genco on direct examination about the Glastonbury lineup:

A. They were all basically selected because they fit the description of the robber. They were white males--

Ms. Conrad: Objection.

A. --with mustaches.

The court: Overruled.

A. They were all white males with mustaches and approximately the same color of hair that we had described to us.

Conrad, Jackman's attorney, objected again, was overruled, and subsequently moved for a mistrial. On the videotape of the lineup shown to the jury, the six men appeared to have brown or darker hair; Megna had already testified that immediately after the robbery she had described the robber as having blond hair. Thus, Conrad argued, the jury could easily have inferred either that Megna or someone else had provided authorities with another description of the Revere robber as having darker hair, or, more sinister, that Genco arranged the lineup based on a description provided in another robbery altogether, and that Jackman was a suspect in that robbery as well. The court denied Jackman's motion for a mistrial, but it instructed the jury "to disregard any of the testimony of this witness with respect to the description of the individual and how this witness went about choosing the other members of the lineup. That evidence has been stricken and you're not to consider it."

Deborah Jackman, Stetson and Hurlock also testified at trial, offering their opinions as to the identity of the man in the Revere robbery photographs as is sometimes permitted under Fed.R.Evid. 701, which allows non-expert opinion testimony under certain conditions.

Deborah Jackman testified that she had known Jackman since 1972 and was married to him from 1976 until 1990 (the couple separated in 1988). After the couple separated, she continued to see Jackman every other weekend when Jackman, exercising his visitation rights, would pick up and return their children. She testified that Jackman had worn a dirty-blond mustache for many years, that he wore baseball caps, and that the coat worn by the Revere robber in the photographs was similar to one worn by Jackman before the couple separated. She told the jury that she recognized the man in the surveillance photographs as her ex-husband, and answered in the negative when asked if there was any doubt in her mind that it was he.

Hurlock testified that he had known Jackman since 1986, when Jackman lived in Unionville, Connecticut. Hurlock told the jury that Jackman was an occasional customer at his convenience store, that both he and Jackman were involved in coaching youth baseball teams from 1987 until 1990, and that in late 1990, Jackman came to his store wearing a bulky jacket not unlike that pictured in the Revere robbery photographs to discuss the possibility of coaching youth basketball. He also testified that Jackman wore a baseball cap the vast majority of the times he had seen him. Hurlock told the jury that he recognized the man in the surveillance photographs as Jackman.

Stetson testified that he had known Jackman since 1985 when Jackman and his former wife moved next door to him. In 1989, after the Jackmans separated, Jackman lived with Stetson for about six months and Stetson continued to see Jackman occasionally until November 1991. Stetson, too, told the jury that he recognized the man pictured in the surveillance photographs and had no doubt that the man was Jackman.

The jury also heard testimony from John Jackman, the defendant's brother. He testified that, in his opinion, the man in the surveillance photographs was not his brother, and he pointed out to the jury what he thought were features distinguishing his brother from the man in the picture.

The jury convicted Jackman of one count of bank robbery, 18 U.S.C. Sec. 2113(a). Jackman raises several issues on appeal. He contends that the testimony of Deborah Jackman, Stetson and Hurlock should have been excluded because it was not helpful to the jury, it was not susceptible to cross-examination, and it presented dangers of unfair prejudice that substantially outweighed its probative value. Jackman also argues that the district court committed reversible error by allowing Genco to testify at all, as well as by refusing to grant a mistrial after Genco alluded to a description of the robber not provided by anyone who testified in the case. We address each of these arguments in turn.

II. DISCUSSION
A. Admissibility of Lay Opinion Testimony

We review a district court's admission of lay opinion testimony under Fed.R.Evid. 701 for manifest abuse of discretion. Keller v. United States, 38 F.3d 16, 31 (1st Cir.1994); United States v. Paiva, 892 F.2d 148, 156 (1st Cir.1989).

1. Helpfulness

Rule 701 allows for the admission of lay opinion testimony only if the testimony is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." Jackman challenges the admission of the testimony of his ex-wife, Hurlock and Stetson under the second prong of Rule 701, arguing that the jury was in as good a position as these three witnesses to compare the surveillance photographs to Jackman, and that therefore their testimony was not helpful.

The admissibility of opinion testimony identifying a defendant from surveillance photographs is an issue of first impression for this Circuit. A number of other circuits, however, have ruled in a variety of circumstances that such testimony may indeed be helpful to the jury and is therefore admissible in the trial court's discretion. 2 We agree that such testimony is 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. See United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir.1984) ("A witness's opinion concerning the identity of a person depicted in a surveillance photograph is admissible 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."); cf. United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir.1993) (excluding opinion testimony by investigating police officer identifying defendant in surveillance photograph because defendant's appearance had not changed between time of robbery and trial and officer had never seen defendant before in person). 3 Familiarity with the defendant's appearance at the time the crime was committed would be relevant; so, too, would familiarity with the defendant in clothing similar to that worn by the person in the photograph at issue, or general familiarity with the defendant's appearance acquired over a period of time and in a variety of contexts. As the Fourth Circuit has stated:

[T]estimony by those who knew defendants over...

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