U.S. v. Johnson, 78-5206

• Decision Date: 19 June 1980
• Docket Number: No. 78-5206,78-5206
• Citation: 623 F.2d 339
• Parties: 6 Fed. R. Evid. Serv. 298 UNITED STATES of America, Appellee, v. Larry JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 339

623 F.2d 339

6 Fed. R. Evid. Serv. 298

UNITED STATES of America, Appellee, v. Larry JOHNSON, Appellant.

No. 78-5206.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1979.

Decided June 19, 1980.

Stanford E. Lacy, Asst. Federal Public Defender, Columbia, S. C., for appellant.

Eric Wm. Ruschky, Asst. U. S. Atty. (Thomas E. Lydon, Jr., U. S. Atty., Mary G. Slocum, Asst. U. S. Atty., Columbia, S. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, FIELD, Senior Circuit Judge, and MURNAGHAN, Circuit Judge.

HAYNSWORTH, Chief Judge:

After a jury trial, defendant was convicted of armed bank robbery and assault of bank employees with a dangerous weapon. 18 U.S.C. §§ 2113(a), (d), 2. He appealed, complaining of the admission into evidence of a photographic spread shown to witnesses of the crime, and of a pistol found in the defendant's possession at the time of his arrest two weeks after the robbery. We affirm.

I.

Shortly after noon on February 21, 1978, two black men, each armed with a handgun, robbed a branch bank in Columbia, South Carolina. Witnesses within the bank furnished descriptions of the clothing worn by the two men, including the fact that the one in the grey suit was wearing a large false mustache. A bank employee also told of the placement in the packets of bills of a cannister of dye designed to explode upon removal from the bank and to release the dye.

Later that same afternoon, the getaway car was found near an apartment complex. A witness there had seen two men dressed as the witnesses in the bank described the attire of the robbers. The witness saw one of the men enter a particular apartment, in which the defendant's cousin resided. Her cousin and his friend had been there. Her description of their dress was in agreement with the descriptions obtained from the witnesses in the bank. She consented to a search of her apartment, during which a large false mustache was discovered in a trash can, while a .22 caliber long rifle bullet was found just outside the rear door of her apartment. On that afternoon she had noticed a red stain on the defendant's grey suit.

The cousin told the police that she had driven the defendant and his friend to the home in which the defendant's girlfriend resided. In her testimony, the girlfriend confirmed the description of the clothing of the two men. She testified to the presence of a red stain on defendant's grey suit and to having seen the defendant's cousin attempting to wash red stain from currency.

Two weeks later, the defendant was arrested in New Jersey. At the time, he was in possession of a .22 caliber handgun loaded with long rifle ammunition like the bullet found near the rear entrance to his cousin's apartment.

On the afternoon of the defendant's arrest and the next day, witnesses in the bank were shown a photographic spread consisting of mug shots of six black males, one of whom was the defendant. The photographs of the defendant had been taken following an unrelated arrest a few weeks before his arrest on charges growing out of the robbery of the Columbia bank. Four of the witnesses in the bank picked out the photographs of the defendant as resembling the man in the grey suit with sunglasses and the false mustache. Neither of the four could be more certain in identification.

At the trial there was in-court identification by the four witnesses of the defendant as resembling the robber with the false mustache wearing the grey suit. Neither could be more positive. One of them volunteered to having made a similar identification from the photographic spread. Others testified to the same effect upon inquiry by counsel for the government.

At the end of the government's case, the photographic spread was introduced into evidence, the lower front portion of each photograph had been masked to conceal police identification numbers. The back portion of the defendant's photographs had also been masked. The back portion of the other photographs in the spread contained information about the person's name, aliases which had been used, and the date and place of the making of the photograph.

The .22 caliber handgun in the defendant's possession at the time of arrest was also introduced into evidence.

During the jury's deliberations, it made an inquiry of the court as to the date upon which the photographs of the defendant were taken. The judge declined to answer the inquiry, since disclosure of the date of the photographs would strongly suggest an arrest in New Jersey several weeks before the defendant's arrest on the charges being tried. The jury had been told that such photographs of the defendant had been made on the day of his arrest for the Columbia bank robbery. The judge's declination to respond to the inquiry thus left the jurors free to think or to speculate that these mug shots of the defendant were made in connection with these charges and did not necessarily suggest earlier criminal conduct.

II.

Defendant contends that introduction of the photographs allowed the jury to infer that he had committed previous crimes. He asserts that, because he did not testify and thus did not place his character in issue, the evidence was inadmissible. Of course, Rule 404(b), Federal Rules of Evidence, prohibits the admission of evidence of past criminality for the purpose of establishing a criminal propensity. Such evidence is admissible, however, for other purposes, including proof of identity. Since the photographs were used for that purpose here, the issue presented is whether the court abused its discretion because the prejudicial impact of the evidence outweighed its probative value. United States v. Fosher, 568 F.2d 207, 212-13 (1st Cir. 1978).

There was little difference in the quality of the identification of the defendant by the witnesses at trial as resembling the robber in the grey suit from their statements after viewing the photographic spread. Since the jurors had heard repeated references to the use of the photographic spread, however, they may have entertained substantial doubts about the fairness of the spread and may have been concerned that any unfairness in the spread may have affected the in-court testimony. Introduction of the photographic spread served the salutary purpose of enabling the jurors to judge for themselves the basis upon which the witnesses had made the very general and tentative identification. The introduction of the spread was neither entirely gratuitous nor was it for no legitimate purpose. Withholding of the spread...