U.S. v. Gray

• Citation: 958 F.2d 9
• Decision Date: 07 January 1992
• Docket Number: No. 91-1151,91-1151
• Parties: UNITED STATES of America, Appellee, v. Kent E. GRAY, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 9

958 F.2d 9

UNITED STATES of America, Appellee, v. Kent E. GRAY, Defendant, Appellant.

No. 91-1151.

United States Court of Appeals, First Circuit.

Heard Jan. 7, 1992.

Decided March 4, 1992.

Jeffrey M. Smith, by appointment of the Court, with whom Peters, Smith & Moscardelli, was on brief for defendant, appellant.

Stephen A. Higginson, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief for appellee.

Before TORRUELLA, Circuit Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.

TORRUELLA, Circuit Judge.

Following a two-day jury trial, appellant Kent E. Gray was convicted of five counts of bank robbery and one count of attempted bank robbery in violation of 18 U.S.C. § 2113(a). Gray appeals, claiming four alternative grounds for reversal. Finding no merit in Gray's claims of error, we affirm.

I

In a period of approximately two months, between May 7, 1990 and July 13, 1990, six federally insured banks in downtown Boston were robbed. On July 26, 1990, appellant Gray was arrested and indicted for these robberies.

At trial, the government's evidence consisted primarily of the testimony of six bank tellers. Bank teller Jessica Munroe testified that she was robbed on May 7, 1990, while working at the Boston Five Cents Saving Bank, 10 School Street, Boston. The robber approached her window and handed her a note demanding the money in the teller drawer or, if she refused, she would be shot. She complied with the robber's demand, giving him approximately $1,340. Ms. Munroe recognized the surveillance photograph of her robber, which was admitted into evidence and published to the jury. Ms. Munroe further testified that on August 2, 1990, she selected a photograph of appellant Gray from a set of seven photographs of similar appearing black males. She made an in-court identification of Gray as the robber.

Bank teller Maria Silva testified that on May 11, 1990, Gray robbed her while she worked at the First Mutual Bank of Boston, 77 Franklin Street. The robber approached her and showed her a note that read "Give me all your money and you won't get shot." She gave the robber $1,753. She recognized the surveillance photograph of her robber, which was admitted into evidence and published to the jury. Ms. Silva then testified that on August 2, 1990, she selected a photograph of Gray from a set of seven photographs of similar appearing black males. She also made an in-court identification of Gray as the robber.

Bank teller Allison Noble testified that on June 11, 1990, appellant Gray robbed her while she was working at the Boston Five Cents Savings Bank, 77 Milk Street, Boston. She was passed a note that read "Pass me all the money and you won't get shot." The robber took $102.00 and fled. She recognized the surveillance photograph of her robber, which was admitted into evidence and published to the jury. She also testified that on August 2, 1990, she selected a photograph of appellant Gray from a set of seven photographs of similar appearing black males. However, upon selecting Gray from this photo line-up, Ms. Noble stated that she thought the individual in the photograph was the person who robbed her, but she could not be absolutely certain. Ms. Noble identified appellant Gray in court.

Krista Capprini testified that on June 11, 1990, she was robbed while working as a bank teller at the First Federal Savings Bank, 19 School Street, Boston. The robber took $900.00, after telling her that he would shoot her if she attempted to activate the alarm. She recognized the surveillance photograph of her robber, which was admitted into evidence and published to the jury. She then testified that on August 1, 1990, she selected a photograph of Gray from a set of seven photographs of similar appearing black males. She also identified him in court.

Ingrid Stewart testified that Gray robbed her while she was working at the Bank of Boston, 20 Custom House, Boston. The robber showed her a note that read "$100 $20 and you won't get shot." A subsequent audit revealed that the robber had stolen $2,160. Ms. Stewart recognized the surveillance photograph of her robber, which was admitted into evidence and published to the jury. She then testified that on August 1, 1990, she selected a photograph of appellant Gray from a set of seven photographs of similar appearing black males. She also identified him in court.

Lorna Outerbridge, a bank teller at the Bank of New England, testified that she was given a note by appellant Gray which read "Give me your money. No dye." While opening her drawer to give money to the robber, Ms. Outerbridge activated the bank alarm. Another teller reacted by inquiring why the surveillance cameras were moving. Appellant Gray then turned and fled. Ms. Outerbridge recognized the surveillance photograph of her robber, which was admitted into evidence and published to the jury. She further testified that on July 31, 1990, she selected a photograph of appellant Gray from a set of seven photographs of similar appearing black males. She identified Gray in court.

II

Gray appeals his conviction asserting that (1) the district court's instructions on eyewitness identification were erroneous and inadequate; (2) that the district court committed error in permitting his in-court identification; (3) that the district court committed error when it denied his motion to sever; and (4) that he was deprived of the effective assistance of counsel.

A. The District Court's Instructions

Appellant's first assignment of error is that the district court's instructions on eyewitness identification were erroneous and inadequate. The district court charged the jury with the following instruction about the nature of eyewitness identification:

[I]dentification is, of course, a very delicate type of evidence. There are, I don't know, a couple of billion people in the world, and a finite number of arrangements of noses, eyes, and mouths, and so forth. We know that there are going to obviously be a lot of people who look like a lot of people. And you have to make a judgment about how reliable the evidence of identification is with that in mind and also giving consideration to the appearance of the witnesses.

You should have in mind the forthrightness or lack of it, the witness's facial expression, and vocal presentation that goes with the testimony ... You should consider the opportunity that the witness had to make the observation. In this case, they all said they were within touching distance of the robber, which is about as good an opportunity as you are going to get, I suppose, but you may consider also the emotional state in which the tellers were, and you [may] consider their emotional state to interfere (sic) with their memory, or did it heighten them. You are to give some consideration to your knowledge of human nature and how people behave, whether the circumstances of the situation were such to make the identification less reliable, or did it engrave the image on the memory of the teller. These are all decisions for you to make.

Tr. Vol. II at 170.

Appellant's trial counsel did not object to the instructions given to the jury nor did he tender any instructions. Appellant concedes that in the absence of a contemporaneous objection, our standard of review is for plain error, that is, error that undermines "the fundamental fairness of the trial." United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985); see also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) ("[I]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.").

Appellant contends that the district court committed error in not giving the "model charge in United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972)" because the evidence on the critical issue of identification "consisted essentially of uncorroborated identification testimony by [the bank tellers]." ¹ We find no merit in appellant's argument.

First, the eyewitness testimony by the bank tellers was not uncorroborated, as appellant mistakenly claims. The government introduced surveillance photographs of the robber taken during the robberies of each bank, and these photographs were published to the jury and admitted into evidence without objection. Furthermore, the bank tellers testified that they had each selected a picture of appellant as the person who handed them a note demanding money from a photospread prepared by the Federal Bureau of Investigations ("FBI").

Second, appellant misconstrues Telfaire; it simply does not mandate that the jury be charged with an instruction containing specific language. Telfaire holds that if an eyewitness identification instruction is requested, the district court should give it; otherwise, its refusal to do so may constitute plain error. More significantly, the district court's instructions complied with the general cautionary charge suggested in Telfaire. The trial judge initially emphasized that identification testimony is "a very delicate type of evidence" and then he proceeded to specifically delineate potential factors which make identification testimony less reliable than other evidence. ²

Appellant also argues that the district court's final substantive instruction effectively shifted the burden of proof. The court instructed Your sole interest is to find the truth from the evidence in the case, and when I say truth, I don't mean absolute or cosmic truth, but such truth as is established in your minds to be beyond a reasonable doubt.

Tr. Vol. II at 172. Appellant asserts that this instruction either shifted the burden of persuasion or the burden of proof away from the government by imposing upon the appellant a burden to show or present evidence to establish his innocence beyond a reasonable doubt. Appellant argues that at no time did the trial court instruct the jury that the...