U.S.A. v. Gray

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before Boudin, Circuit Judge, Coffin and Campbell; COFFIN
• Citation: U.S.A. v. Gray, 199 F.3d 547 (1st Cir. 1999)
• Decision Date: 17 September 1999
• Docket Number: No. 99-1189,99-1189
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. SEAN GRAY, Defendant, Appellant. . Heard

Page 547

199 F.3d 547 (1st Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. SEAN GRAY, Defendant, Appellant.

No. 99-1189.

United States Court of Appeals, for the First Circuit.

Heard Sept. 17, 1999.

Decided December 23, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Steven J. McAuliffe, U.S. District Judge.

Bjorn Lange, Assistant Federal Defender, for appellant.

Mark E. Howard, Assistant U.S. Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.

Before Boudin, Circuit Judge, Coffin and Campbell, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Appellant Sean Gray was convicted by a jury on one count of bank robbery and sentenced to 71 months in prison. His sole claim on appeal is that the district court committed prejudicial error when it instructed the jury that its view of the robber's escape route was not evidence in the case. Although we acknowledge that a jury view may at times be treated as evidence, we find no reversible error and therefore affirm appellant's conviction.

I. Factual Background

The Community Bank and Trust in Exeter, New Hampshire, was robbed shortly after 1 p.m. on June 23, 1998. Bank employees described the lone robber as a male with a goatee and "Fu Manchu" mustache who was wearing mirrored sunglasses and a blue hooded sweatshirt. He approached the center teller window, pulled a bag from under the sweatshirt, and said, "This is no joke; give me your money." Two bank employees described the robber as having a significant limp. He "left in a hurry" and was seen running across the street, along railroad tracks, and then up a hill toward a bridge that passes over the tracks near Park Street (the "Park Street bridge"), where he apparently was picked up by a woman in a white car with Florida license plates. A teacher who lives near the Park Street bridge saw a man emerge from the footpath near the railroad tracks and described him as having a very distinct gait irregularity, or limp. The man was clutching a bag at the time. Police found a blue hooded sweatshirt on the footpath leading up to Park Street and a pair of shattered mirrored sunglasses on the street where the white vehicle had been parked.

Gray was arrested a week later and charged with bank robbery. The district court granted Gray's unopposed motion seeking to allow the jury to view the bank and the robber's escape route, but refused his requested instruction that the jury consider the view as evidence. Instead, the court advised the jurors that their view of the bank and surrounding area was not evidence, explaining that it was "intended simply to provide you with points of reference or a context in which to consider the evidence in this case."

Defense counsel objected to the instruction, though recognizing that it was consistent with First Circuit case law. In Clemente v. Carnicon-Puerto Rico Management Assocs., 52 F.3d 383 (lst Cir. 1995), we stated that "the rule in this circuit is that a view does not itself constitute or generate evidence," id. at 386, reflecting the widely adopted position that a view is permitted in the discretion of the trial judge "only to assist the trier of fact in understanding and evaluating the evidence" introduced in court, see 2 John W. Strong et al., McCormick on Evidence § 216, at 29 (5th ed. 1999).

On appeal, Gray argues that the language in Clemente was dictum, and therefore not binding, and that, in any event, it is illogical as well as incorrect by contemporary standards to exclude a view from consideration as evidence. He argues that he is entitled to a new trial because the view was integral to his defense and the court's instruction unfairly prejudiced him. He had attempted at trial to prove that he could not have been the robber because a work-related leg injury left him physically incapable of fleeing quickly along the uneven, hilly escape route that the robber had followed. He maintains that the court's instruction precluded him from relying on the jury's own experiences with the difficult terrain to support his doctor's testimony that he could not have covered the route as quickly as the robber.

Our review of the relevant law and commentary now leads us to conclude that it is unrealistic to exclude a view from the status of evidence in every circumstance. We do not go further in this opinion than to remove this blanket prohibition. But even if the court's instruction on the view was error, it must be deemed harmless because, as we shall explain, it foreclosed very little benefit from the view that a permissive instruction would have allowed, and because the testimonial evidence points so overwhelmingly to the appellant's guilt.

II. The Nature of the View

Although our unconditional statement in Clemente that a jury view "does not itself constitute or generate evidence" may represent the majority position, see 52 F.3d at 386 & n.3, the momentum appears to be headed in the opposite direction. Indeed, most of the usual commentators on matters of evidence either question the rationale for excluding views from evidentiary status, observe that that position has lost favor, or both. See McCormick on Evidence § 216, at 29 (the "preferable" position is that a view is "evidence like any other"); 22 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure § 5176, at 141 (1978) ("The notion that a view is not 'evidence' has been discredited by the writers, and explicitly rejected by one modern code.") (citations omitted); 2 Joseph McLaughlin, ed., Weinstein's Federal Evidence § 403.07[4] (2d ed. 1999) ("[T]he modern position is that the view does provide independent evidence."); 4 John Henry Wigmore, Wigmore on Evidence § 1168, at 391, 388 (1972) (referring to the "unsound theory" that a view "does not involve the consideration of evidence by the jury" and noting that "it has in most jurisdictions been repudiated"). Cf. John M. Maguire, Cases and Materials on Evidence 141 (1973) (noting that courts are divided on the question but not taking a position).

Given the invitation to look more closely than was necessary in Clemente, we have found no reason to disagree with the experts. Perhaps the most compelling and pragmatic observation is that the distinction between non-evidence that aids a jury's understanding and traditional, independent evidence is "lost on a jury," see 2 Weinstein's Federal Evidence § 403.07[4]. We agree that it is unlikely that jurors, confronted with testimonial evidence at odds with what they have seen, "will apply the metaphysical distinction suggested and ignore the evidence of their own senses," McCormick on Evidence § 216, at 29. The Tenth Circuit has expressed a similar thought:

We acknowledge that jurisdictions vary as to whether a view is treated as evidence or simply as an aid to help the trier of fact understand the evidence. However, we believe such a distinction is only semantic, because any kind of presentation to the jury or the judge to help the fact finder determine what the truth is and assimilate and understand the evidence is itself evidence. The United States Supreme Court has stated that the "inevitable effect [of a view] is that of evidence no matter what label the judge may choose to give it." Snyder v. Massachusetts, 291 U.S. 97, 121 (1934), overruled on other grounds . . . .

Lillie v. United States, 953 F.2d 1188, 1190 (10th Cir. 1992) (footnote omitted); see also Wigmore on Evidence § 1168, at 385-86 ("The suggestion that, in a view or any other mode of inspection by the jury, they are merely `enabled better to comprehend the testimony,' and do not consult an additional source of knowledge, is simply not correct in fact . . . ."); Carpenter v. Carpenter, 78 N.H. 440, 447, 101 A. 628, 631 (1917) (quoted in Maguire, at 141 n.3) ("If the object is black when seen by the jury it would be absurd to expect them to find that it was white, in the absence of evidence indicating that they had been imposed upon.").

Moreover, the rationale for the distinction increasingly lacks force as technology advances. The position that a view should not be considered evidence appears to derive from a concern that the "facts" gathered by the jury from an on-the-scene observation cannot be made part of the record for purposes of appeal. See, e.g., In re Application, 102 F.R.D. 521, 524 (E.D.N.Y. 1984) (Weinstein, C.J.); McCormick on Evidence § 216, at 29; 4 Wigmore on Evidence § 1168, at 381-82, 385; Thomas P. Hardman, "The Evidentiary Effect of a View: Stare Decisis or Stare Dictis?" 53 W. Va. L. Rev. 103, 113 (1951) [hereinafter "Evidentiary Effect of a View"]. A record of a view can be made, however, through the use of video or other photographic equipment, as well as through transcription of any remarks made. See In re Application, 102 F.R.D. at 524; H.D. Wendorf, "Some Views on Jury Views," 15 Baylor L. Rev. 379, 384 (1963) [hereinafter "Jury Views"] ("Even conceding the objection directed to a lack of record . . . , it can be adequately answered by providing a summary of the view proceedings in the record."). Although such a record may not capture every nuance of the experience, that difficulty is equally applicable to other kinds of evidence:

A witness' countenance, tone of voice, mode and manner of expression, and general demeanor on the stand, oftentimes influence the jury as much in estimating the weight they give and attach to his testimony as the words he utters, and yet they cannot be sent up with the record.

Hart v. State, 15 Tex. App. 202, 228 (1883) (cited in "Jury Views," 15 Baylor L. Rev. at 384); see also 4 Wigmore on Evidence § 1168, at 384-85 (quoting same case); "The Evidentiary Effect of a View," 53 W. Va. Law Rev. at 113 (same).¹

Precautions, of course, must be taken to minimize problems, because jury supervision is more difficult outside the courtroom. See "Jury Views," 15 Baylor L. Rev. at 384-85. Certain of the safeguards ...