U.S. v. Ingram, 77-1926

• Citation: 600 F.2d 260
• Decision Date: 11 June 1979
• Docket Number: No. 77-1926,77-1926
• Parties: 4 Fed. R. Evid. Serv. 679 UNITED STATES of America, Plaintiff-Appellee, v. Kendal INGRAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 260

600 F.2d 260

4 Fed. R. Evid. Serv. 679

UNITED STATES of America, Plaintiff-Appellee, v. Kendal INGRAM, Defendant-Appellant.

No. 77-1926.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Jan. 24, 1979.

Decided June 11, 1979.

Carole C. Dominguin, Denver, Colo. (Joseph F. Dolan, U. S. Atty., and Rodney W Snow, Asst. U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Lynn W. Lehmann, Denver, Colo., for defendant-appellant.

Before McWILLIAMS, DOYLE, and McKAY, Circuit Judges.

McWILLIAMS, Circuit Judge.

In separate indictments Kendal Ingram and his older brother, Keith Ingram, were charged with the robbery of the Key Savings and Loan Association, a federally insured corporation maintaining a branch office at 2400 West Alameda Avenue in Denver, Colorado, in violation of 18 U.S.C. § 2113(a) and (d). In separate trials both defendants were convicted and Kendal Ingram appeals his conviction.

The Government's case-in-chief established that Kendal Ingram and his brother Keith had robbed the Key Savings and Loan Association of some $1,740 in money and approximately $4,800 in travelers cheques on December 29, 1976. Keith Ingram was armed with a gun. The two fled the scene, and Kendal Ingram was arrested some six months later, in St. Louis, Missouri.

One of the two tellers in the office of the Key Savings and Loan Association identified Kendal Ingram at trial as being one of the two robbers. The other teller could not identify Kendal Ingram. A surveillance camera located in the Savings and Loan office took photographs of the robbery in progress, and twenty-four of these exhibits were introduced into evidence and viewed by the jury.

Two Government witnesses who were acquainted with Kendal Ingram had been shown, prior to trial, certain of these surveillance photographs and each admitted in a pre-trial identification statement that she had at that time identified Kendal and Keith Ingram as being the two robbers depicted therein. At trial, however, neither witness would identify Kendal Ingram as being one of the robbers shown in the photographs, though one did identify Kendal's brother, Keith Ingram. ^*

Kendal Ingram testified in his own behalf and denied that he had participated in the robbery. He admitted being in Denver, Colorado on December 29, 1976, the day of the robbery, but said that at the time of the robbery he was several miles away from the Savings and Loan office in the home of a friend playing cards. He testified that he was not one of the two robbers depicted in the surveillance pictures, and other persons who were acquainted with him offered similar testimony.

On appeal counsel asserts that it was error for the trial court to have permitted certain Government witnesses to identify Kendal Ingram as one of the two robbers depicted in the surveillance pictures. It is argued that such opinion testimony by a lay witness is of doubtful help to the members of the jury, who had before them the surveillance pictures and could make their own comparison between the person depicted in the pictures and the defendant, who was before them in open court. This argument, however, overlooks one important fact, namely, that the jurors were not previously acquainted with the defendant, whereas the two Government witnesses were close acquaintances of Ingram. Further, there was some evidence that Kendal Ingram's appearance had changed between the time of the robbery and the trial. In such circumstance the identification by these two witnesses could conceivably have been of aid and assistance to the jury. We fail to see how the admission of such evidence could constitute reversible error. United States v. Jones, 557 F.2d 1237, 1238 (8th Cir. 1977).

In United States v. Butcher, 557 F.2d 666 (9th Cir. 1977), the Ninth Circuit held that so-called lay opinions identifying a defendant as the person depicted in a surveillance photograph, when based on prior contacts and conversation, fall within the parameters of Fed.R.Evid. 701. In Butcher, the persons who identified the defendant in the surveillance photograph were police and parole officers who knew the defendant. Though the calling of policemen and parole officers to offer such lay opinion evidence was described as a practice "not to be encouraged," the Ninth Circuit held that under the circumstances there was no prejudicial error.

In United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976), the Sixth Circuit held that the trial court erred in permitting the defendant's parole officer to identify the defendant as being in the surveillance photograph, because such necessarily impinged on the right to freely bring out the relationship between the witness and the defendant, which would reveal the defendant's status as a parolee. In thus holding, the Sixth Circuit indicated, however, that such testimony might well be admissible if it were not coming from a parole officer, although under the circumstances of that case, such testimony, coming from anyone, "teases the outer limits of Rule 701."

Here, of course, the identification testimony did not come from police or parole officers who were acquainted with the defendant. We are not, therefore, faced with the precise problem presented in Butcher or Calhoun. Rather, the two Government witnesses who had identified Kendal Ingram in the surveillance photographs soon after the robbery were the friends in whose home Kendal was temporarily residing at the time of the robbery. We hold that such lay opinion evidence was admissible under Fed.R.Evid. 701. See United States v. Murray, 523 F.2d 489, 491 n.1 (8th Cir. 1975).

As above indicated, Ingram was arrested some six months after the robbery at the home of his mother in St. Louis, Missouri. When F.B.I. agents, armed with an arrest warrant, knocked at the front door of the home, Kendal ran out the back door and was arrested by an agent covering the rear of the house. At that time, Kendal Ingram gave the name of his younger brother and misstated his age as being only seventeen. After being informed as to the reason for his arrest and after a Miranda warning, Ingram was asked as to his whereabouts on December 29, 1976, the date of the robbery. Ingram replied that though he wasn't sure, he believed that he was at Fort Carson, Colorado on the day of the robbery and had not left the military base until around six o'clock in the evening, several hours after the robbery. At trial the Government established that such was incorrect, and that the truth of the matter was that Ingram had left Fort Carson on December 23, 1976, some six days before the robbery.

The Government sought, and the trial court gave over objection, an instruction regarding false exculpatory statements, and such is now assigned as reversible error. We have held that false exculpatory statements are admissible to prove consciousness of guilt and unlawful intent. United...