U.S. v. Pisari, 79-1079

Decision Date07 January 1981
Docket NumberNo. 79-1079,79-1079
Parties7 Fed. R. Evid. Serv. 552 UNITED STATES of America, Appellee, v. Richard PISARI, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Richard J. Vita and Robert J. Granich, Boston, Mass., on brief on rehearing for appellant.

Edward F. Harrington, U. S. Atty., and Paul F. Healy, Jr., Asst. U. S. Atty., Boston, Mass., on brief on rehearing for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

On June 5, 1980 we issued our opinion in this case, reversing appellant's conviction and holding that rebuttal testimony of a government witness, Coombs, was improperly admitted, being admissible neither as independent proof of appellant's identity, Fed.R.Evid. 404(b), nor as impeachment by prior inconsistent statement. On August 4 we granted the government's petition for rehearing and withdrew our opinion. After receiving and considering new briefs from the parties, we arrive at the same result, a reversal, via a different analysis.

After a trial by jury, appellant was found guilty of committing a robbery by knife on February 24, 1978, of a postal installation located in the Lambert Pharmacy in Medford, Massachusetts, in violation of 18 U.S.C. § 2114. 1

Appellant claims that the district court's admission of rebuttal testimony that appellant had told an undercover agent that he had committed a prior robbery by the use of a knife was prejudicial error. He also claims a deprivation of his Sixth Amendment right to effective assistance of counsel.

The government's case consisted principally of the testimony of William Meehan and Rose Puccia, employees of the pharmacy and victims of the robbery. Their testimony and that of the Medford police officer who assisted them following the robbery were offered to establish the identity of the defendant. Meehan testified that he first saw the defendant when he waited on him at the cigarette counter moments before the robbery. Subsequently, another man asked Meehan for assistance and then drew a gun, directing him to fill a sack with certain named prescription drugs. At the same time, according to Mrs. Puccia, defendant went to the Post Office counter, where she was waiting on customers, held a knife to her side and ordered her to give him the contents of the case drawer.

That same evening, Meehan and Puccia were separately shown several hundred photographs from police books. They were unable to make an identification. That night, at the Medford Police Department, they were each shown about three hundred more photographs and were unable to positively identify the man who robbed the Post Office, nor could they agree on a composite drawing.

Two days later, at the Somerville Police Department, Meehan picked out the defendant from among approximately two hundred photographs as one of the men who committed the robbery. Later in the evening, Mrs. Puccia was shown about fifteen individual photographs, one of which she positively identified as the person who held a knife to her, defendant Pisari.

The following day they both went to Malden District Court at the request of the police, who told them they had arrested Pisari in connection with the robbery. They were told to wait in the corridor and indicate independently of each other if he emerged from the courtroom, which he would do if he made bail. Both witnesses identified defendant as he left the courtroom approximately two hours later, after having observed a constant flow of people in and out. The in-court identification of the defendant was similarly positive, and Mrs. Puccia testified that she had no doubt whatsoever that defendant was the robber.

At the conclusion of the government's case, a bench conference was held, in which the government urged that it be allowed to call an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms, Coombs, who would testify that defendant, three months before the robbery, had told him that he had robbed a drug dealer, using a knife. The government's theory, articulated in a memorandum of law for the court, was that the use of a knife in a prior crime was probative of appellant's identity under Rule 404(b). 2 The district court and counsel engaged in the following colloquy:

"MR. HEALY (prosecutor): Essentially, that is my case. I submitted a memo ...

THE COURT: I read the memo and I would say, in the interest of quitting while you are ahead, at the present time I will confine you to your case.

I don't know what George has for a defense. You might try and get it in rebuttal, if it gets to that point.

MR. HIGGINS (counsel for defendant): Mine is strictly alibi, your Honor.

THE COURT: This business I am sure you have a copy (indicating).

MR. HIGGINS: I am going to be eating large chunks of the rug, if he starts with that stuff.

THE COURT: It is arguably admissible, if you read Heatherton (sic) and Wright cases (United States v. Eatherton, 519 F.2d 603 (1st Cir. 1975); United States v. Wright, 573 F.2d 681 (1st Cir. 1978)), it is arguably admissible. I won't say I won't let it come in, but, for your direct case, I don't think you need it at the moment.

You have a pretty strong case and I suggest you quit while you are ahead.

At the end of his case, if you want to take a shot at it and offer it, we will see about it then."

Defendant then presented his case, testifying that he had been elsewhere at the time of the robbery. In the course of defendant's cross-examination by the government, the relevant questions and answers were as follows:

"Q. In late 1977, did you commit any robberies by knife?

A. In 1977? By knife? Did I commit any robberies?

MR. HIGGINS: I object to that, your Honor.

THE WITNESS: No.

THE COURT: He said no. All right.

THE WITNESS: No. I didn't, wait a minute, 1977? Did I commit any robberies?

Q. Late 1977, any robberies by knife?

A. I no. I have not committed any robberies by knife in 1977."

After the defendant presented his case, the government sought once again to introduce agent Coombs' testimony. The following colloquy tells what happened.

"MR. HEALY: There were certain matters that I had written a memorandum on and I want to put out in my case in chief and at this time there is one in particular and that is my recollection of the defendant's testimony was that he denied

THE COURT: Conducting a robbery in late 1977 by the use of a knife, and you have a witness that is going to say he admitted that and that is admissible on the limited issue of his credibility.

MR. HEALY: Yes.

MR. HIGGINS: Your Honor, please note my objection. It will be my position that that is so prejudicial as to warrant its exclusion; and, further, that matter was not raised on direct.

THE COURT: It was raised on cross-examination and the defendant's credibility is critical in this case where it is an alibi defense and there are Court of Appeals opinions indicating that when a defendant's testimony is critical that cross-examination is permissible on the issue of credibility.

I will take it with a limiting instruction that I will give to the jury that it is admissible on the defendant's credibility.

I will, of course, note your objection."

The parties, the district court, and this court have been mistaken in various ways in their analysis of the admissibility of agent Coombs' statement. The district court, as noted, admitted the evidence as proof of a prior inconsistent statement relevant to the credibility of the defendant. The government defends the district court's admission of the evidence for impeachment purposes, or as a proper resort to Rule 404(b), the testimony tending to prove that defendant had committed an earlier "strikingly similar" crime and therefore was the person who committed the crime at bar. Appellant has attacked the testimony as constituting extrinsic evidence of specific conduct, in violation of Rule 608(b). He opposes the application of Rule 404(b), arguing that the testimony was not admitted on this basis and that in any event the evidence of misconduct was neither direct nor competent. As for the impeachment ground, appellant argues that defendant's denial of having engaged in robbery by knife is not necessarily inconsistent with his having falsely told the undercover agent that he had committed such an act. In our earlier opinion, we rejected both proffered grounds for admissibility on the rationale now understandably defended on rehearing by appellant.

In our rethinking of the admissibility of the Coombs testimony, we consider first the impeachment ground specifically relied on by the district court. The government has suggested the proper starting point for analysis by acknowledging that a denial on cross-examination which relates to a collateral matter cannot be disputed by extrinsic evidence, citing McCormick, Law of Evidence, ch. 56, § 36 at 70 (2d ed. 1972). See also Saltzburg and Redden, Federal Rules of Evidence Manual, 390 (2d ed. 1977). As one treatise summarizes the test at common law,

"The test for collateralness proposed by Wigmore and endorsed by a number of federal courts (footnote omitted) is

Could the fact, as to which the prior self-contradiction is predicated, have been shown in evidence for any purpose independently of the self-contradiction? (Footnote omitted.)

In other words, the (prior inconsistent) statement may be proved if it relates to a matter which the examiner could have proven even if the witness had said nothing on the subject. (Footnote omitted.)" 3 3 Weinstein's Evidence, P 607(06), at 607-69, -70 (1978).

While at common law the test for collateralness was frequently mechanical, we are advised by commentators that: "The better approach and one in accord with the structure of the federal rules would be to eliminate mechanical application of the 'collateral' test in favor of the balancing approach mandated by Rule 403. Evidence at which the collateral test is...

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