U.S. v. Fosher, No. 77-1113

• Citation: 568 F.2d 207
• Decision Date: 04 January 1978
• Docket Number: No. 77-1113
• Parties: 3 Fed. R. Evid. Serv. 537 UNITED STATES of America, Appellee, v. Michael FOSHER, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 207

568 F.2d 207

3 Fed. R. Evid. Serv. 537

UNITED STATES of America, Appellee, v. Michael FOSHER, Defendant, Appellant.

No. 77-1113.

United States Court of Appeals First Circuit.

Argued Sept. 7, 1977.

Decided Jan. 4, 1978.

Andrew Good, Boston, Mass., by appointment of the court, for defendant, appellant.

Robert B. Collings, Asst. U. S. Atty., Chief, Crim. Div., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, and CAMPBELL and TUTTLE, ^* Circuit Judges.

TUTTLE, Circuit Judge.

On June 1, 1976, the defendant, Michael Fosher, was indicted for armed robbery of a federally insured bank and assault of bank employees with a dangerous weapon. ¹ Following a three-day jury trial, defendant was convicted of both defenses. He did not testify in his own defense. On appeal, defendant contends that the district court committed reversible error by admitting into evidence a "mug shot" ² taken of him in connection with an earlier and unconnected arrest. Because the probative value of the mug shot in identifying the defendant as one of the robbers was outweighed by the potential prejudice flowing from its admission into evidence, we conclude that the defendant is entitled to a new trial. Accordingly, we reverse.

I.

On the morning of May 12, 1976, the Commercial Bank and Trust Company of Burlington, Massachusetts was robbed by two armed men. Since both of the assailants wore masks over their faces during the entire episode, none of the bank employees were able to identify either of them. ³ Within the next two weeks, however, two individuals positively identified defendant as having been in the vicinity of the bank immediately prior to the holdup. At trial, the testimony of these two witnesses proved crucial to the government's case, which admittedly was based on purely circumstantial evidence. In order to illuminate both the evidentiary context in which the mug shot was introduced and the fragility of the government's other identification evidence, it is necessary to review this testimony in some detail.

The Commercial Bank and Trust Company is located in a small shopping center adjacent to and to the rear of a "Value King" supermarket. On the morning of the robbery, government witness Albert Rankin made a business call at the supermarket, parking his automobile in front of the store. At approximately 10:20 a.m., some ten minutes before the robbers struck, Mr. Rankin left the supermarket and returned to his vehicle. In the parking lot, Rankin came face-to-face with two individuals, one of whom he later identified as the defendant. ⁴ Significantly, Rankin later told police that defendant had been wearing a "wool, plaid mackinaw coat" and a "brown skullcap" rolled up on top of his head. ⁵ Following this brief, five-second encounter, Rankin returned to the Value King and was unable to observe the men enter or depart the bank.

A short time after the robbery, Rankin accompanied a police detective to the Burlington police station where Rankin executed a written account of the events described above and provided a description of the individual whose face he had seen. Later in the day, after consulting an FBI Facial Identification Manual, ⁶ Rankin assisted local FBI agents in constructing a composite sketch.

Mr. Rankin was interviewed by Special Agent James Cullen, a member of the FBI's Bank Robbery Squad, some 10 days after the robbery. On that occasion, Agent Cullen displayed to Rankin an array of eight mug shots, from which Rankin selected a single picture. ⁷ This photograph, which had been taken of defendant at some point in the past, supposedly depicted the man Rankin saw near the bank.

At trial, Mr. Rankin described his chance encounter outside the bank and his various sessions with the police and FBI. On direct examination, Rankin not only testified with respect to a prior corporeal identification, ⁸ but also made a positive in-court identification of defendant. Apparently not content with this identification testimony, the government proceeded to question Rankin concerning his pretrial photographic identification. After corroborating Rankin's in-court identification by eliciting a detailed account of the meeting between Rankin and Agent Cullen, ⁹ the government tendered into evidence the mug shot of defendant and the remaining seven mug shots viewed by Rankin. Defendant's objection to the admission of these photographs precipitated a brief exchange between the court and counsel, after which the photographs were marked for identification but not admitted into evidence. The record indicates that the sole reason the photographs were not received in evidence at this time was the appearance of certain written notations on the back of the prints.

On cross-examination, defendant's counsel launched a vigorous assault on virtually every aspect of Rankin's identification testimony. Significantly, Rankin admitted that (1) certain discrepancies existed between defendant's actual features and the facial characteristics previously described to the police; ¹⁰ (2) his identification of the defendant at the prior hearing had been qualified to the extent that defendant had longer hair than the man outside the bank; and (3) he had been reluctant to make a positive photographic identification of defendant because of the difference in hair length. Despite the obvious gains made during cross-examination, Rankin never recanted his in-court identification.

Upon initiating redirect examination, the government again offered the controversial mug shots. By this time, however, the government had masked certain portions of the photographs. A chest placard, which bore a police identification number, had been covered with tape, and the written notations on the back had been concealed by an index card stapled to the print itself. ¹¹ The defendant again voiced an objection, arguing at a bench conference that

(the) pictures (were) obviously mugshot-type pictures taken from a police mugshot collection. And although . . . the numbers (were) blacked out, . . . the clear inference . . . (was) that (the defendant) and others in the pictures had been in trouble before.

These protestations proved unsuccessful, and the mug shots were admitted into evidence. ¹²

The government next called Mary Barbato, who testified that she too had been in the vicinity of the bank on the morning of the robbery and, from a vantage point inside the Value King, had observed two young men walk in front of the store and toward the bank. Several minutes later, Mrs. Barbato observed the same two men burst through the front door of the bank, their arms laden with currency.

Later that morning, Mrs. Barbato examined some 50 photographs at the Burlington Police Department, but was unable to identify any of the persons portrayed. Within the next several weeks, however, Barbato made a photographic identification ¹³ and identified defendant at the probable cause hearing.

At trial, on direct examination, Mrs. Barbato positively identified defendant as one of the robbers and described in detail the various pretrial identifications she had made. After testifying with respect to her pretrial photographic identification, Barbato identified both the spread of mug shots shown to her by Agent Cullen and the mug shot she had designated as an accurate depiction of one of the robbers. These photographs were marked for identification, but were not offered into evidence.

On cross-examination, the mug shots previously marked for identification were introduced into evidence without objection as Defense Exhibits 8 and 9. ¹⁴ Exhibit 9 was the photograph Mrs. Barbato had identified as being one of the robbers. In response to defense counsel's questioning, she reaffirmed that the man appearing in Exhibit 9 robbed the bank. The record discloses, however, that Exhibit 9 was a photograph of one other than defendant and that Exhibit 8, the balance of the photographs exhibited by Agent Cullen, contained a photograph of defendant which Mrs. Barbato testified she had not selected. Thus, Mrs. Barbato incorrectly testified that Exhibit 9 was a photograph of defendant and that no photograph of defendant was contained in Exhibit 8.

The final government witness was Special Agent Cullen. Agent Cullen described his interview with Mrs. Barbato and, on direct examination, testified that although Mrs. Barbato had made some comment about the hair length of the person depicted in Exhibit 9, she had previously selected defendant's photograph. The photograph actually selected was identical to the mug shot previously identified by Mr. Rankin. The government then offered as Exhibit 11 a mug shot of defendant taken on May 21, 1976, the date of his arrest in connection with the robbery. ¹⁵ This photograph, admitted into evidence over objection, bore a fully-inscribed chest placard not appearing in the other mug shot. In addition, the length of defendant's hair was different in the two photographs. These obvious distinctions and the undisputed testimony that Rankin and Barbato had been shown photographs of the defendant prior to his arrest for the robbery concededly could have led the jury to infer that defendant had been photographed by the police in connection with an earlier offense.

II.

It is a basic tenet of our jurisprudence that evidence of a criminal defendant's prior criminal acts, which are not charged in the indictment or information, is inadmissible when the defendant elects not to testify. See United States v. Barrett, 539 F.2d 244, 248 (1st Cir. 1976); United States v. Forgione, 487 F.2d 364, 366 (1st Cir. 1973), cert. denied, 415 U.S. 976, 94 S.Ct. 1561, 39 L.Ed.2d 872 (1974); Fed.R.Evid. 404(b). ¹⁶ This is but a specific instance of the broader prohibition against permitting the government initially to place the defendant's character in issue. See United States v. Fierson, 419 F.2d 1020, 1022 (7th Cir. 1969); ...