U.S. v. Dorsey

• Decision Date: 18 January 1995
• Docket Number: No. 94-5082,94-5082
• Citation: 45 F.3d 809
• Parties: , 41 Fed. R. Evid. Serv. 531 UNITED STATES of America, Plaintiff-Appellee, v. Douglas Fred DORSEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 809

45 F.3d 809

63 USLW 2528, 41 Fed. R. Evid. Serv. 531

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Fred DORSEY, Defendant-Appellant.

No. 94-5082.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 4, 1994.

Decided Jan. 18, 1995.

ARGUED: Beth Mina Farber, Asst. Federal Public Defender, Baltimore, MD, for appellant. Susan Moss Ringler, Asst. U.S. Atty., Baltimore, MD, for appellee. ON BRIEF: James K. Bredar, Federal Public Defender, Baltimore, MD, for appellant. Lynne A. Battaglia, U.S. Atty., and Kathleen O. Gavin, Asst. U.S. Atty., Baltimore, MD, for appellee.

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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

OPINION

MURNAGHAN, Circuit Judge:

On June 3, 1993, a federal grand jury returned an indictment in the district court for the District of Maryland, charging the Appellant, Douglas Fred Dorsey, with the May 19, 1993 robbery of the Bank of Baltimore. A superseding indictment was returned on July 8, 1993 adding two additional counts charging Dorsey with the March 31, 1993 robbery of the Custom Savings Bank (Count 1), the April 26, 1993 robbery of a Signet Bank (Count 2), and the May 19, 1993 robbery of the Bank of Baltimore (Count 3).

On July 21, 1993, Dorsey pled not guilty to the superseding indictment. Prior to trial, he filed a motion to suppress evidence seized during the search of his apartment, vehicle, and work locker; he also filed a motion to suppress pretrial identifications by witnesses, and a motion to sever the counts. The motions were denied.

Dorsey's trial on Counts Two and Three of the superseding indictment began on November 1, 1993, the government having elected not to proceed with Count One. When the case went to the jury, a redacted superseding indictment was submitted which renumbered the two remaining counts as Count One (Signet Bank robbery) and Count Two (Bank of Baltimore robbery). Dorsey was convicted on Count Two, and acquitted on Count One.

On November 16, 1993, Dorsey filed a motion for a new trial based on allegations that the district court had erroneously excluded certain expert testimony, had erroneously admitted evidence regarding the identity of Dorsey, and had erroneously failed to declare a mistrial. The motion was denied by the district court.

On January 13, 1994, Dorsey was sentenced to a term of 215 months in prison, with three years of supervised release. Dorsey has appealed his conviction on three separate grounds.

I. Factual Background

The two robberies at issue ¹ occurred in the following manner. The Signet Bank robbery occurred on April 26, 1993. At the time of the robbery, the bank teller, Sharon Keeley, was working at teller station 3 located in the center of the bank. Keeley described the robber as a black male, wearing a sweatshirt tied over his head and a construction vest with orange striping, and carrying a pair of work boots tied together by their laces over his shoulder. The robber caught her attention because he was overdressed on what was a warm day. He dropped a note on Keeley's counter which read: "This is a holdup--no 50s, no 100s, no dye pack or I will shoot you." He then reached over her counter, scooped up $559 and his note, and fled. Keeley testified that she could see the robber's face, but could not see his hair or ears because he was wearing a hood. Although he was wearing sunglasses, Keeley claimed she could see his eyes. The robbery was photographed by the bank surveillance cameras.

Approximately three weeks later, on May 19, 1993, a robbery occurred at the Bank of Baltimore. Betty Habersack, the victim teller, described the robber as a black male, wearing coveralls, a hat, glasses, a dust mask covering part of his face, and work boots laced together and hanging off of his shoulder. Unlike in the Signet Bank robbery, the robber attempted to obscure his appearance by wearing a surgical mask that covered a small portion of his face. As in the prior case, his appearance caught the teller's attention because he was overdressed on what was a warm day.

In her testimony at trial, Habersack stated that because the other tellers were busy, she asked if she could assist the robber. The robber approached the teller station and presented a demand note which stated, "Give me all your money, no dye packs, or I will shoot." Habersack removed $980 cash, including five twenty dollar bait bills, and handed them to the robber. The robber took back his note. The robbery was recorded by the bank surveillance cameras, and Habersack testified that she had ample time to observe the defendant.

As the robber was leaving the Bank of Baltimore, he was spotted by Raymond Eibner, an off-duty Baltimore City police officer. Eibner testified that he noticed that the robber was wearing overalls, a surgical mask, and boots around his neck. Eibner followed the robber and observed him getting into a red car, either a Mustang or a Datsun. Subsequent to the Bank of Baltimore robbery, FBI agents determined that Dorsey was the registered owner of the red Ford Mustang described by Eibner. As described by Eibner, the Mustang had a missing front license tag.

On May 20, 1993, a photo array containing photographs of Dorsey and of five other black males was shown by the FBI to Habersack. Initially, she was unable to decide which of two of the six photographs portrayed the robber, at which point Special Agent Lane Betts asked her if viewing the bank surveillance photographs would refresh her recollection. After indicating that it would, Habersack identified Dorsey as the man who robbed her.

On the same day, the photo spread was separately shown to Keeley. After viewing the surveillance pictures, Keeley too identified Dorsey as the man who robbed the Signet Bank.

On Saturday, May 22, 1993, FBI agents arrested Dorsey and impounded his vehicle. Special Agent Henry Hanburger testified that he moved the car to the FBI headquarters garage and conducted a search for any contraband. During a comprehensive search of the vehicle on May 25, 1993, pursuant to Dorsey's written consent, Special Agent Betts discovered a folder in the trunk containing Dorsey's household bills and cash, including two of the twenty dollar bait bills stolen from Habersack's teller drawer. Additionally, during a search of Dorsey's residence pursuant to a search warrant, the agents found a pair of work boots with the laces still tied together. The boots were confirmed to be the ones seen during the robbery by both Habersack and Eibner.

At trial, both victim tellers made positive in-court identifications of Dorsey as the man who robbed them. Introduced for the jury's consideration were both the photo arrays shown to the tellers, and numerous surveillance photographs depicting each of the two robberies in progress.

In addition to the identifications made by the tellers, other evidence was presented at trial linking Dorsey to the Bank of Baltimore robbery. For example, the prosecution introduced the two twenty dollar bait bills found in the trunk of Dorsey's red Mustang and the pair of brown work boots with the laces tied together that were seized from his apartment only three days after the robbery. The evidence of Dorsey's involvement in the Signet Bank robbery consisted primarily of eyewitness testimony of the tellers, due to the lapse of time between that robbery and Dorsey's arrest.

At trial, Dorsey presented a defense of mistaken identity. As part of that defense, Dorsey sought to introduce the testimony of two forensic anthropologists who would testify that Dorsey was not the individual depicted in the Bank of Baltimore surveillance photographs. Notice of Dorsey's intention to introduce the testimony of the two anthropologists, however, was not provided to the government until the first day of trial. The district court refused to admit the evidence on the grounds that the experts would not assist the trier of fact and may in fact usurp the jury's role.

At the conclusion of trial, the jury convicted Dorsey of the robbery of the Bank of Baltimore, but acquitted him of the robbery of the Signet Bank. On November 18, 1993, Dorsey filed a motion for a new trial, which was denied by the district court. On January 13, 1994, Dorsey was sentenced on Count Two for a term of 215 months, with three years supervised release. In the instant appeal, Dorsey has challenged his conviction on three separate grounds.

II. Exclusion of Expert Testimony

Dorsey first contends that the district court committed reversible error by excluding the testimony of two defense witnesses in the field of forensic anthropology who were to have testified about their analyses of the bank surveillance photographs from the Signet Bank and Bank of Baltimore robberies. In particular, Dorsey contends that the district court erred in excluding such evidence because the crux of his defense turned on the theory of mistaken identity. We find that under an abuse of discretion standard, the district court did not err.

As part of the defense's presentation of its theory of mistaken identity, Spencer Jay Turkel and James Vandigriff Taylor, both forensic anthropologists, were hired to compare the surveillance photographs of the bank robberies to recent photographs of Dorsey and photographs of the boots which were seized from Dorsey's house. Notice of Dorsey's intention to rely upon the testimony of those experts, however, was first provided to the government by letter not until Monday, November 1, 1993, the first day of trial. It was not until the second day of trial that the government was provided with a report by the two experts, dated November 2, 1993, summarizing their conclusions. According to the report, the experts had been contacted on Friday, October 29, 1993 to serve as experts for the defense. The report concluded that the person depicted in the Bank of Baltimore surveillance videos was...