United States v. Greene

• Decision Date: 03 January 2013
• Docket Number: No. 11–4683.,11–4683.
• Citation: 704 F.3d 298
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Deshawn Jamel GREENE, a/k/a Train, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

704 F.3d 298

UNITED STATES of America, Plaintiff–Appellee,

v.Deshawn Jamel GREENE, a/k/a Train, Defendant–Appellant.

No. 11–4683.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 26, 2012.

Decided: Jan. 3, 2013.

ARGUED:Dana E. Foster, White & Case, LLP, Washington, D.C., for Appellant. Vernon Rio Kidd, III, Third Year Law Student, Wake Forest University School of Law, Winston–Salem, North Carolina, for Appellee. ON BRIEF:Mika Ikeda, Helen Wong, White & Case, LLP, Washington, D.C., for Appellant. Ripley Rand, United States Attorney, Office of the United States Attorney, Greensboro, North Carolina, for Appellee.

Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge DAVIS wrote the opinion, in which Judge NIEMEYER and Judge MOTZ joined.

OPINION

DAVIS, Circuit Judge:

Appellant Deshawn Greene appeals convictions of armed bank robbery, 18 U.S.C. §§ 2, 2113(a), (d), and brandishing a firearm during and in relation to a crime of violence, 18 U.S.C. §§ 2, 924(c)(1)(A)(ii), for which he received consecutive sentences totaling 30 years in prison. At trial, through a series of leading questions to which no objections were made, the government elicited so-called “resemblance testimony” from a bank teller who had made no out-of-court identification and concededly could not make an in-court identification of Greene as the robber. Furthermore, in the absence of a request by the defense, the district court failed to give a Holley-Telfaire instruction.¹ Greene argues on appeal that we should find plain error and award him a new trial on the basis of these circumstances. For the following reasons, we affirm the judgment.

I.

A.

1.

On May 6, 2009, an armed individual robbed the Fifth Third Bank in Kannapolis, North Carolina. The individual entered the bank around 11:30 a.m., pointed a silver-colored revolver at two employees, and demanded money. The robber first walked up to the counter of teller Alice Bolder, who was so frightened that she got under her counter. He then turned toward teller Kevin Morrison, pointed the gun at Morrison's chest, and demanded money. Morrison emptied a cash drawer and put the money into a bag. The robber then returned his attention to Bolder, pointing the gun at her and telling her to get up. Bolder did so, and she placed cash, along with a dye pack, into a purple bag given to her by the robber. The robber then left the bank. The total amount taken was $1,798.

2.

Witnesses gave police varying accounts of the appearance of the robber, who was wearing a disguise, in the immediate aftermathof the event, and they later testified to varying descriptions at trial. Shortly after the robbery, Bolder described the robber as an African–American male wearing a female wig, a long skirt, pants underneath the skirt, sneakers, a felt-type jacket with an emblem on it, large sunglasses, and carrying a purple tote bag. On one page of a robbery description form, Bolder described the robber as being 6–feet–5–inches tall and weighing about 160 pounds. On a second page of the form, she wrote that the robber was 6–foot–2. Morrison described the robber as a male wearing a long black skirt, a wig, large sunglasses, and a black hoodie. In a robbery description form, Morrison wrote that the robber was between 6 feet and 6–foot–2 and appeared to weigh between 140 and 160 pounds.

At trial, bank employee Kathy Jarvis testified the robber was an African–American “dressed in all black,” but provided no further description. J.A. 74. She said she could not tell if the robber was a man or a woman. Jarvis testified that the robbery took three minutes. Morrison testified that it took five to ten minutes, and Bolder testified that it lasted ten to fifteen minutes.

A witness standing outside the bank, Sonya Shell, testified that she saw a “strangely dressed” person with a red wig, but could not tell if the person was a man or a woman. J.A. 172–73. Shell testified that after the robber left the bank, she saw the dye pack explode—“a big cloud of pink smoke went up in the air”—and the robber got into a silver car and “they took off.” J.A. 168.

3.

The investigation of the robbery that ultimately led to Appellant Greene first focused on the silver getaway vehicle. An anonymous tip alerted police that the car involved in the robbery could be found at a house in nearby Enochville, North Carolina. An officer went to the house and found a silver Honda belonging to Angela Lear. During a consent search of the vehicle, the officer noted red stains inside the car consistent with the discharge of a red dye pack, and later testing confirmed that the stains were consistent with substances contained in such packs. Officers located Angela Lear's husband, Jay Dustin Lear, who told police at first that he had loaned the silver Honda to a crack dealer named “Slim” on the day of the robbery. In a second interview soon thereafter, Lear changed his story. He admitted that he and Greene (known to Lear by his street name, “Train”) planned the bank robbery and that Greene was the one who entered the bank.²

Specifically, Lear testified as follows, pursuant to a plea agreement after pleading guilty to his role in the robbery. On the morning of the robbery, he picked up Greene at the home he shared with his girlfriend. Greene had a chrome handgun. He dropped Greene off at the Fifth Third Bank, drove down the block, and then drove back to the bank to pick up Greene after the robbery. They then drove to a nearby apartment where they stashed the stolen money and the costume Greene wore in the robbery. Lear gave some of the money to two friends, who took it to car washes to “recycle” it by exchanging it for coins. J.A. 119. Later, police found red-stained United States currency in the car wash change machines.

Police found no physical evidence linking Greene to the crime. They searched for but did not find any identifiable prints at the bank. They did not find any of Greene's fingerprints in the silver Honda. Police did not process for fingerprints the currency recovered from the change machines. Police searched for but could not locate the articles used in the robbery—the purple bag, the dress, the wig, and the gun (although they recovered a pair of sunglasses from Greene's residence). Police never asked any witnesses to the robbery, including the bank employees, to identify any potential suspect in a lineup or photo array. Thus, the only direct evidence of Greene's participation in the robbery was Lear's testimony to that effect. Lear, a longtime drug addict and a convicted felon, was subjected to vigorous cross examination.

4.

On direct examination at trial, some seventeen months after the robbery, bank teller Bolder described the robber as a black male wearing a skirt, a wig, and sunglasses, but she was not asked to attempt an identification of Greene and she did not identify him as the robber. On cross examination, she said the robber was about 6 feet tall but acknowledged that on the robbery description form, she had described the robber as 6–foot–5. She also stated that she was never asked to identify the robber through a lineup or photo array.

Then, on redirect examination, the following exchange occurred between the prosecutor and Bolder:

Q: Now, have you had an opportunity to look at the defendant today while you're here?

A: No, I haven't.

Q: Have you looked at him over here while we've been in the courtroom?

A: I tried not to.

Q: Can you look at him for a moment?

A: Yes.

Q: Do you see any similarities with Mr. Greene and the person that took the money from you there on May the 6th, 2009?

A: Yes.

Q: Tell the members of the jury and the Court what those similarities are.

A: The nose, I remember the teeth, the slimness of the face, and vaguely the mouth.

J.A. 93–94. The defense did not object to this line of questioning.

B.

The jury found Greene guilty of bank robbery, 18 U.S.C. § 2113(a); armed bank robbery, 18 U.S.C. § 2113(a), (d); and brandishing a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). The district court merged the bank robbery conviction into the armed robbery count and imposed a sentence of twenty-three years for armed bank robbery and seven years for brandishing a firearm, to be served consecutively, for a total of 30 years.

Greene noted a timely appeal to this Court. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Greene appeals his convictions on two grounds. First, he argues the district court erred in admitting Bolder's testimony, which he claims was the product of unnecessarily suggestive questioning that resulted in the admission of unreliable identification evidence violative of due process. Second, he argues the district court erred in not providing the jury with a Holley–Telfaire instruction regarding eyewitness identification.

As to both issues, our standard of review is plain error because Greene did not object at trial to the identification testimony or the lack of a Holley–Telfaire instruction. SeeFed.R.Crim.P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.”). Under the plain error standard, the appellant must show (1) there was error; (2) the error was plain under current law; and (3) the error affected appellant's substantial rights. United States v. Rolle, 204 F.3d 133, 138 (4th Cir.2000). Finally, for this Court to notice the error, the error “must seriously affect the fairness, integrity or public reputation of judicial proceedings.” Id. (citation and internal quotation marks omitted). This Court must notice an error that “causes the conviction or sentencing of an actually innocent defendant.” Id. at 139 (citation and internal quotation marks omitted).

III.

A.

We first consider whether the government erred in eliciting, and the district court erred in admitting, the testimony of bank teller Bolder.

We begin by examining the background of so-called ...