U.S. v. Butcher

• Decision Date: 15 July 1977
• Docket Number: No. 76-3439,76-3439
• Parties: 2 Fed. R. Evid. Serv. 143 UNITED STATES of America, Plaintiff-Appellee, v. Gary Thomas BUTCHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 666

557 F.2d 666

2 Fed. R. Evid. Serv. 143

UNITED STATES of America, Plaintiff-Appellee, v. Gary Thomas BUTCHER, Defendant-Appellant.

No. 76-3439.

United States Court of Appeals Ninth Circuit.

July 15, 1977.

Danilo J. Becerra, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Leonard Sharenow, John D. Vandevlede, Earl E. Boyd, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

On Appeal from the United States District Court for the Central District of California.

Before BARNES, WALLACE and SNEED, Circuit Judges.

BARNES, Senior Circuit Judge:

Butcher appeals his conviction by a jury on a one-count bank robbery charge (18 U.S.C. § 2113(a)). He raises two issues:

I. Did the trial court err in permitting law enforcement officers to testify, solely on the basis of prior contacts and conversations with the defendant, that in their opinion the defendant was the person depicted in bank surveillance photographs?

II. Did the trial court err in refusing to give the special jury instruction on eyewitness identification requested by the defendant?

FACTS:

On May 18, 1976, a lone robber took approximately $1,500.00 from the Canoga Park branch of the United California Bank. At trial, the primary issue was whether or not the defendant was that robber. The prosecution presented the testimony of two bank tellers who identified the defendant as the bandit, and the surveillance photographs taken at the time of the robbery. ¹

The defendant's physical appearance at the time of trial was slightly different than his appearance at the time of his arrest and during the period prior to the robbery. ² The trial court permitted the prosecution, over defendant's objection, to introduce the opinion testimony of two law enforcement officials and the defendant's state parole officer to the effect that the defendant was the individual depicted in the surveillance photographs. The bases for their opinion testimony were contacts over varying lengths of time with the defendant. All of the contacts had ended four months prior to the robbery. ³ Before the jury, the police officers were identified as such while the parole officer was merely described as a state employee. All three testified that the defendant was the person in the surveillance photographs.

At the close of trial, the defendant requested special instructions be given regarding the identification testimony. ⁴ The trial court rejected that request, as well as a separate request for special instructions by the prosecution, and instead gave its own instructions. ⁵ The jury returned a guilty verdict and the defendant here appeals.

I. Lay Opinion Testimony by the Police and State Parole Officers.

The propriety of using police and parole officers to obtain lay opinion identifications of the defendant as the person in surveillance photographs must be considered in light of constitutional requisites as well as whether the trial court abused its discretion in permitting the introduction of such testimony.

Initially, it is noted that no reference was ever made to the jury that the defendant had a prior felony conviction or that he had ever been arrested on a charge other than the one involved in the present trial. Hence any error would only stem from the use of lay opinion identifications by the police officers which are solely based upon prior contact with the defendant. Although no federal cases are cited on this issue by either party and none have been found after independent research, it is clear that the introduction of such testimony did not, by itself, amount to an error of constitutional proportions.

Turning to the question of whether the trial court abused its discretion in allowing such testimony, the identifications by the police officers here fall within the perimeters of Rule 701 of the Federal Rules of Evidence in that their opinions were rationally based on prior contacts and conversations with the defendant and definitely pertained to the determination of the fact in issue. ⁶ Cf. United States v. Murray, 523 F.2d 489, 491 n.1 (8th Cir. 1975). Nevertheless, two concomitant problems arise with that testimony. First, there arises a question of whether the testimony improperly invaded the province of the jury. None of the police officers had any knowledge of the way the defendant looked at the time the robbery occurred. Consequently, their identifications were based solely upon their prior perceptions of the defendant. Because the defendant's appearance at the time of trial more closely resembled the individual depicted in the surveillance photographs than it resembled his appearance during the period the officers saw him, ⁷ the determination of whether the defendant was the person in the photographs could perhaps have been made by the jury without the officers' testimony. No evidence was submitted that the photographs did not clearly depict the robber, or that the defendant's appearance had so radically changed that additional identification evidence was necessary. Second, the use of the identifications by the police officers, while constitutionally permissible, did increase the possibility of prejudice to the defendant in that he was presented as a person subject to a certain degree of police scrutiny. Rule 403 of the Federal Rules of Evidence provides that "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ."

In deciding this issue, and in weighing the matter, two cases appear somewhat, if not directly, in point. ⁸ In People v. Van Perry, 60 Cal.App.3d 608, 613, 131 Cal.Rptr. 629, 632 (1976), a California Appellate Court permitted similar identifications of a robber in surveillance photographs both by a police officer who had prior contact with the defendant, and by the defendant's parole officer. The court justified the admission of those identifications, and other testimony, stating: ⁹

"Evidence was introduced that defendant, prior to trial, altered his appearance by shaving his mustache. The witnesses were able to apply their knowledge of his prior appearance to the subject in the film. Such perception of knowledge was not available directly to the jury. The opinions of the witnesses were sufficiently based upon personal knowledge to permit their introduction; the question of the degree of knowledge goes to the weight rather than to the admissibility of the opinion."

Conversely, the Sixth Circuit in United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976), held that the trial court abused its discretion in admitting lay opinion testimony of defendant's parole officer, identifying defendant as the robber shown in surveillance photographs, without requiring an initial demonstration from the government of the necessity of using the probation officer, instead of some other witness. The reasoning for the holding was that the defendant could not freely examine the relationship between the defendant and the witness without revealing the prejudicial fact that the defendant was on probation at the time of the robbery. We need not decide the validity of the rule established in Calhoun as we deem it inapplicable to the present case. Here, a hearing on the admissibility of the police and the parole officers' testimony was conducted outside the presence of the jury, similar to the one suggested in United States v. Brown, 501 F.2d 146, 149 (9th Cir. 1974), rev'd on other grounds, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). At that time, the defendant could have, but failed to, extensively examine the relationship between the defendant and the witnesses.

Balancing the probative value of the lay opinion testimony with the potential prejudice to the defendant, it is not grossly evident that the balance clearly tips in favor of the admission of such testimony. Given the level of review inherent in the abuse of discretion standard, however, it is likewise not obvious that the trial court judge committed reversible error in permitting such identification. His "discretion . . . may not be disturbed absent (a) clear abuse." Id. See also, United States v. Pierson, 164 U.S.App.D.C. 82, 503 F.2d 173, 176 (1974); Unitec Corporation v. Beatty Safway Scaffold Co. of Oregon, 358 F.2d 470, 477, 478 (9th Cir. 1966). In this case there was ample evidence in the record to support the conviction, aside from the testimony of the officers. Therefore, even if the admission of the testimony was in error it was not prejudicial. Cf. United States v. Pratt,531 F.2d 395, 398 (9th Cir. 1976); United States v. Trejo, 501 F.2d 138, 143 (9th Cir. 1974); Brown, supra, 501 F.2d at 150. We do think, however, that use of lay opinion identification by policemen or parole officers is not to be encouraged, and should be used only if no other adequate identification testimony is available to the prosecution.

II. Jury Instruction on Identification.

It is clearly the law of this circuit that the giving of a jury instruction on identification is largely within the discretion of the trial judge. United States v. Masterson, 529 F.2d 30, 32 (9th Cir.), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976); United States v. Sambrano, 505 F.2d 284, 286 (9th Cir. 1974). The identifications by the witnesses herein were not, in total, so nebulous or unfounded as to warrant the particularly restrictive instructions requested by the defendant. Likewise, the presence of the surveillance photographs and the available eyewitness identification diminished the need for the cautionary instructions. Masterson, supra, 529 F.2d at 32. Reviewing the lengthy instructions given by the trial court, we find them to be, taken as a whole, undoubtedly adequate and fair to the defendant.

The judgment of the District Court is AFFIRMED.

1 The main defense argument was that the defendant was not the robber and that the "only similarity between Mr. Butcher and that bandit is the fact that he has...