U.S. v. Stevens

• Citation: 935 F.2d 1380
• Decision Date: 12 June 1991
• Docket Number: No. 90-5450,90-5450
• Parties: 33 Fed. R. Evid. Serv. 831 UNITED STATES of America v. Richard STEVENS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1380

935 F.2d 1380

33 Fed. R. Evid. Serv. 831

UNITED STATES of America v. Richard STEVENS, Appellant.

No. 90-5450.

United States Court of Appeals, Third Circuit.

Argued Nov. 27, 1990.

Decided June 12, 1991.

David E. Schafer (argued), Asst. Federal Public Defender, Trenton, N.J., for appellant.

Michael Chertoff, U.S. Atty., Eric L. Muller (argued), Asst. U.S. Atty., Newark, N.J., for appellee.

Before BECKER, and NYGAARD, Circuit Judges, and POLLAK, District Judge. ^*

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal by defendant Richard Stevens from the judgment of sentence of the district court for the District of New Jersey presents a number of substantial issues. Stevens, having been convicted of aggravated sexual assault and robbery, both within the special territorial jurisdiction of the United States in violation of 18 U.S.C. Secs. 2241 and 2111 respectively, mounts a multi-pronged challenge to his conviction. Two of these challenges are bottomed on the fifth amendment's due process clause. To begin with, he objects under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to the government's "destruction" of the one item of physical evidence that might have exonerated him--a saliva/semen sample taken from the mouth of one of the victims. Stevens also complains of the procedure used to identify him, claiming that it failed to pass muster under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

Stevens advances several evidentiary challenges as well. He objects to the introduction of the testimony of his Pretrial Services Officer concerning a defense witness's alleged prior inconsistent statement on the ground that pretrial services information is rendered confidential by 18 U.S.C. Sec. 3153(c)(1) (1982). Stevens also protests the extent to which the district court, applying our opinion in United States v. Downing, 753 F.2d 1224 (3d Cir.1985), limited the testimony of his expert witness regarding the reliability of eyewitness identification. He further remonstrates about the district court's refusal to admit the testimony of one Tyrone Mitchell under Fed.R.Evid. 404(b), or, more accurately, under a seldomly used subspecies of Rule 404(b) known as "reverse 404(b)." Stevens proffered Mitchell's testimony that he (Mitchell) was the victim of a crime which was so similar to the instant crime that the investigating officers believed that the same individual had committed both. Mitchell also would have testified that he, unlike the victims here, did not identify Stevens as his assailant. According to Stevens, Mitchell's testimony would have tended to show that some unknown third person had perpetrated both crimes, and that the victims had misidentified him as their attacker.

We will affirm the district court's Brady and Simmons determinations, its admission of the testimony of Stevens's Pretrial Services Officer, and the majority of its Downing rulings. Stevens's Brady argument fails because there is insufficient evidence of governmental bad faith to satisfy the standard for relief laid down in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Nor has Stevens shown that the "identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of ... misidentification," Simmons, 390 U.S. at 384, 88 S.Ct. at 971, especially since the victims' identifications were unusually reliable under Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We also think that the admission of the testimony of Stevens's Pretrial Services Officer to impeach a defense witness did not abrogate the confidentiality requirement of section 3153(c)(1) in light of the clear language of subsection (c)(3), under which only testimony on the issue of guilt is inadmissible. Finally, we agree with the district court's exclusion of Stevens's expert testimony on two of the three disputed points in that such testimony would not have been "helpful"--the touchstone of Fed.R.Evid. 702--to the jury.

We believe, however, that Downing requires that Stevens's expert be permitted to testify concerning the lack of a correlation between confidence and accuracy in eyewitness identifications. Both of the victims expressed a great deal of confidence in their identifications of Stevens. To counteract this highly damaging testimony, Stevens offered expert testimony that, contrary to popular belief, scientific studies have shown "a fairly weak relationship" between confidence and accuracy. We conclude that the district court erred in holding that there was no "fit" between this testimony and the facts at bar. We also are satisfied that such testimony would have proven helpful to the jury in assessing the victims' identifications.

We also think that Stevens should have been allowed to call Tyrone Mitchell as a witness, and to introduce other evidence concerning the parallels between the Mitchell crime and the crime sub judice. When a defendant proffers "other crimes" evidence under Rule 404(b), there is no possibility of prejudice to the defendant; therefore, the other crime need not be a "signature" crime. Instead, it only need be sufficiently similar to the crime at bar so that it is relevant under Fed.R.Evid. 401 and 402, and that its probative value is not substantially outweighed by Fed.R.Evid. 403 considerations. Applying this standard to the instant case, we are satisfied that the Mitchell crime clears the relatively low relevancy hurdle. We find it significant that the investigating authorities thought that the same individual had committed both crimes, and that the fruits of both crimes, which occurred within a few hundred yards of one another at Fort Dix, New Jersey, ended up at the same time in Fort Meade, Maryland. We also are confident that the probative value of Mitchell's testimony is not trumped by Rule 403 factors such as undue waste of time or confusion of the issues.

Given the closeness of the case against Stevens--his first trial ended in a mistrial after the jury could not agree upon a verdict--we think that these errors cannot be deemed harmless. We therefore will reverse Stevens's conviction and remand for a new trial, at which Stevens's expert will be allowed to testify about the lack of a correlation between confidence and accuracy in eyewitness identifications and evidence will be admitted about the similarities between the Mitchell crime and the crime at issue here.

I. FACTS AND PROCEDURAL HISTORY

At about 9:30 p.m. on April 15, 1989, a damp and chilly Saturday evening, two white Air Force police officers, Jane Smith ¹ and Tony McCormack, were strolling back to their dormitories at Fort Dix, New Jersey, after having seen a movie at a nearby shopping mall. Because a light rain was falling, the officers decided to sit and chat under a glass-enclosed bus shelter.

A few minutes later, a black male, wearing a wool cap and a tan nylon jogging suit, entered the shelter, paused for a moment about ten feet away from the officers, and then asked them who they were. Both officers stood, but neither responded to the inquiry. The man approached the officers and, standing just a few feet away, reached his right hand into the small of his back and drew a small, silver handgun from his pants. Pointing the gun at McCormack's chest, the man demanded McCormack's wallet. McCormack handed over his wallet, which contained an unsigned $100 money order. To assure himself that McCormack was not withholding any cash, the man quickly frisked him; once satisfied, he told McCormack to sit down.

The man then turned his attention, and his gun, to Smith. He asked for her money, but she had none. After patting down Smith's pockets, the man ordered her to drop her pants; totally helpless, Smith complied. As he pulled down his own pants, the man leveled his gun at McCormack's head and demanded that Smith kneel before him. He told Smith that unless she performed fellatio on him, he would "blow [McCormack's] brains out." Not wanting to endanger her friend's life, Smith again complied. Three or four minutes later, the man sat down on the bench and directed McCormack to sit beside him. Placing the gun on McCormack's left temple, he insisted that Smith complete the act. She did.

Soon afterward, a car drove by with its headlights on, and all three stood up. The man told McCormack to leave the bus shelter and run across an adjacent field, which McCormack did. Seconds later, the man turned and faced Smith, instructing her to run across the field as well. Smith followed after her friend. The two ran to the nearest building, the non-commissioned officers' club, where they telephoned the military police. Within five minutes, two military police officers arrived and escorted Smith and McCormack to the Fort Dix military police station.

At the station, Smith and McCormack met Christine Amos, a military police investigator. Smith advised Amos that she needed to go to the hospital, because she believed that traces of her attacker's semen remained in her mouth and on the sleeve of her jacket. Before leaving to arrange for transportation to the hospital, Amos invited Smith and McCormack to take a look at the wanted board on the wall and to see if anyone resembled their assailant. This wanted board consisted of eight posters, containing mostly composite sketches but also some photographs. McCormack rose, approached the wanted board, and almost immediately focused upon a photograph of the defendant, Richard Stevens. McCormack said: "[T]his is him. This is the man." Smith agreed that the photograph resembled their attacker, but thought that it made him appear a bit heavier. When Amos returned, Smith and McCormack informed her that they had identified a photograph of their assailant. Amos removed the poster of Stevens from the wall and then accompanied Smith to Walson Army Community Hospital.

Upon arriving at the hospital, Smith was taken...