U.S. v. Calhoun

• Citation: 544 F.2d 291
• Decision Date: 02 November 1976
• Docket Number: No. 76-1044,76-1044
• Parties: 1 Fed. R. Evid. Serv. 1226 UNITED STATES of America, Plaintiff-Appellee, v. Willie CALHOUN, a/k/a Calvin Calhoun, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 291

544 F.2d 291

1 Fed. R. Evid. Serv. 1226

UNITED STATES of America, Plaintiff-Appellee, v. Willie CALHOUN, a/k/a Calvin Calhoun, Defendant-Appellant.

No. 76-1044.

United States Court of Appeals,

Sixth Circuit.

Argued June 22, 1976.

Decided Nov. 2, 1976.

Martin J. Marinelli, Bingle, Merrit & Marinelli, Toledo, Ohio, for defendant-appellant.

Frederick M. Coleman, U.S. Atty., James D. Jensen, Reginald S. Jackson, Jr., Toledo, Ohio, for plaintiff-appellee.

Before PHILLIPS, Chief Judge, LIVELY and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

Appellant Willie Calhoun was found guilty by a district court jury of the armed robbery of the Toledo Home Federal Savings & Loan Association on July 29, 1974, in violation of 18 U.S.C. § 2113(d). The sole issue in his direct appeal is the propriety of the use by the government in its case-in-chief of the testimony of Calhoun's parole officer who identified Calhoun as the robber shown in a bank surveillance photograph.

The bank robbery occurred during daylight hours and was witnessed by two female tellers and one Glenna Porter, the confessed driver of the getaway car. At the time of the trial one of the bank tellers was unable to testify, ostensibly because her husband had just suffered a heart attack. It was stipulated, however, that she would have testified that she did not recognize Calhoun because she kept her face down during the entire robbery. The other teller was unable to make a positive identification, but did testify that Calhoun looked similar to the robber. Positive identification was made by Ms. Porter. Ms. Porter had earlier pled guilty to the bank robbery charge in the Lucas County Common Pleas Court and had served 60 days in jail before being released on probation. Calhoun contends that Porter's plea of guilty and her self-interest in protecting her status as a probationer casts doubt upon her credibility.

Porter testified that she had not known Calhoun prior to the day of the robbery, nor had she seen him thereafter. She testified that before the robbery, she picked up Calhoun at his home, that she bought shoe polish from a drugstore and then watched Calhoun put the shoe polish on his face before going into the bank. Contrasting Calhoun's appearance at trial, Porter testified that at the time of the robbery Calhoun had sideburns, goatee, mustache and a fuzzy hat as shown in the bank surveillance photographs.

What happened thereafter is best described directly from the record. The following took place out of the presence of the jury between Mr. Chapman, Assistant United States Attorney, the court, and Mr. Moore, Calhoun's counsel "MR. CHAPMAN: First of all, I'd like to state for the record that the government plans to call as its next witness Bruce Snyder, and that the purpose in the government calling this witness is because we believe that Mr. Snyder will be able to positively identify Willie Calhoun in the photographs marked as Government's Exhibits 3 through 7, from Mr. Snyder's prior association.

For the record and out of the hearing of the jury, I will indicate that Mr. Snyder is employed as a parole and probation officer for the State of Ohio. That I have instructed him not to make any reference to that fact on my questioning on direct or redirect examination, and that his testimony will be restricted solely to the fact he is acquainted with Mr. Calhoun has seen him approximately 10 times and bases his identification on that acquaintance.

THE COURT: Mister Moore, do you want to state your objection?

MR. MOORE: Let the record show defendant's counsel objects strenuously to this method of identification. Defense counsel, due to the fact that Mr. Snyder is Mr. Calhoun's probation officer, will be severely limited on cross examination to the very vital point, that is Mr. Snyder's ability to identify. In other words, I can not go at any length as to the interviews, the type of the interviews, exactly what his relationship was, and I feel that it will prejudice the defendant's case.

The prosecution, or the district attorney, has an opportunity to get in the same type of evidence by a brother of Rodney or half-brother, according to F.B.I. reports of Rodney King, who states he knows Willie Calhoun, that he can identify him. He also knows that Willie Calhoun also knows Rodney King. So, I feel that the jury is going to suspect something when they hear this testimony which by its very nature will have to be somewhat circumspect.

THE COURT: At this point, Mr. Moore I will overrule the objection. The fact that Mr. Snyder is Mr. Calhoun's probation or parole officer will not be brought out as part of the prosecution's case and can only be brought out by error.

I don't think you will be limited in your cross examination as to the frequency or times or places. And if you bring out why he was meeting with him, that will be up to you, but I think you can attest his identification adequately.

MR. MOORE: How friendly are they? that's the point.

MR. CHAPMAN: You can ask that question.

THE COURT: The answer at that point, Mr. Snyder, should be you are business acquaintances.

And I will caution the witness not to mention anything about being a probation or parole officer, or particularly Mr. Calhoun's, that you have no control over him at this time. By reason of business relations you are not free to talk about it. You have met him on 10 occasions, and you can identify him.

You understand that?

MR. SNYDER: Yes.

THE COURT: The objection, for the record, will be overruled."

Thereafter the government, over the continued objection of the defense, called parole officer Bruce Snyder. The direct and cross examination of Mr. Snyder which then took place before the jury is set out in the margin. ¹

In exercising our responsibilities to review the propriety of the challenged testimony Defendant on appeal argues that the district court erred in admitting opinion evidence that the person in the bank photograph was the defendant. Appellant also argues that the dilemma posed by the government's use of Snyder as an identification witness denied Calhoun's constitutional right to confrontation under the Sixth Amendment. See Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

we do so with the understanding first, that the parole officer was offered as a lay witness and not as an expert witness, and second, that the government concedes there was no showing of any necessity for employing Calhoun's parole officer for identification instead of some other witness whose relationship to Calhoun would not pose the instant problem. ² We emphasize that this case does not involve the propriety of testimony by a res gestae witness who coincidentally may have had a prior relationship with the defendant based on defendant's past criminal conduct. We finally note that no basis existed in the instant case for the interjection into the trial of Calhoun's status as a parolee.

Upon careful consideration, we elect not to reach the constitutional issues and hold instead that, upon the record here, it was an abuse of discretion by the trial judge to have permitted the testimony by We think it is important to note here that it is not claimed that Snyder's opinion testimony was that of an expert and thus subject to the more specialized rules concerning expert opinion testimony embodied in Rule 702, Federal Rules of Evidence. Unlike United States v. Cairns, 434 F.2d 643, 644 (9th Cir. 1970); United States v. Brown, 501 F.2d 146, 148 (9th Cir. 1974), reversed on other grounds, United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); United States v. Green, 525 F.2d 386, 391 (8th Cir. 1975), and United States v. Trejo, 501 F.2d 138, 142 (9th Cir. 1974), it cannot be claimed that Snyder was possessed of any expertise superior to that of the jury. See also United States v. Burke, 506 F.2d 1165, 1170 (9th Cir. 1974) cert. den. 421 U.S. 915, 95 S.Ct. 1576, 43 L.Ed.2d 781 (1975); United States v. Fernandez, 480 F.2d 726, 739 (2d Cir. 1973). On the contrary, Snyder's testimony was offered solely as that of a lay witness whose close familiarity with Calhoun at the time of the robbery enabled him to make an ordinary identification of Calhoun, as he then appeared, from the surveillance photograph which had been offered and received in evidence. See United States v. Murray, 523 F.2d 489, 491, n. 1 (8th Cir. 1975).

the parole officer. We further conclude that the error affected the substantial rights of the defendant and was not harmless within the meaning of Rule 52, Federal Rules of Criminal Procedure.

Rule 701 of the Federal Rules of Evidence governs opinion testimony by lay witnesses:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

In considering Snyder's testimony as a lay witness, we note that his testimony or indeed the testimony of anyone who might have known Calhoun at the time, teases the outer limits of Rule 701. The bank surveillance photos themselves had already been received in evidence. The jury could see both the photographs and Mr. Calhoun.

An examination of the testimony given by Snyder shows that it meets the requirement of Rule 701(a) as being rationally based on the perception of the witness. However, whether this testimony was "helpful to the determination of a fact in issue" under Rule 701(b) is not at all clear. According to the testimony of Glenna Porter, at least, Calhoun's appearance at the time of trial was different from that on the day of the offense. Thus one intimately acquainted with Calhoun at the time of the robbery might conceivably be in a better position than the jury to recall his appearance then and...