U.S. v. Lewis

Decision Date21 November 1977
Docket NumberNo. 222,D,222
Citation565 F.2d 1248
Parties2 Fed. R. Evid. Serv. 815 UNITED STATES of America, Appellee, v. Frank Tillman LEWIS, Appellant. ocket 77-1224.
CourtU.S. Court of Appeals — Second Circuit

Richard S. Berne, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., Alvin A. Schall and Cheryl M. Schwartz, Asst. U. S. Attys., Brooklyn, N. Y., on the brief), for appellee.

Henry J. Boitel, New York City, for appellant.

Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.

FEINBERG, Circuit Judge:

After a jury trial in the United States District Court for the Eastern District of New York before Thomas C. Platt, J., appellant Frank Tillman Lewis was convicted of armed bank robbery and conspiracy to commit that crime, 18 U.S.C. §§ 2113(a) and (d), and 371. For these offenses, Lewis received consecutive sentences of 25 years and five years, respectively. Shortly thereafter, the judge found Lewis in contempt for refusing to answer certain questions at the separate trial of his co-defendant Robinson Quinones, 1 and sentenced Lewis to six months imprisonment. 2 Lewis appeals from both judgments of conviction.

I. The Facts

There is no claim that the evidence on the bank robbery conviction was insufficient, and the jury could have found the following: On the morning of January 3, 1977, appellant and an accomplice robbed the Barclay's Bank at 2215 Church Avenue in Brooklyn. The robbers operated in style. They were driven to the vicinity of the bank in a chauffeured white Cadillac limousine, and went in pretending to be customers. In short order, both men drew guns and threatened those inside the bank. Appellant threw a woman customer to the ground and fired two shots from his gun. His accomplice disarmed a bank guard and collected about $11,800 from the cash drawers and the employees. The two men then went around the corner to the waiting limousine.

Twelve days later, the FBI arrested appellant at a New York hotel. After the agents identified themselves, appellant came to the door of his hotel room, shielding himself with a woman. The agents arrested appellant and gave him his Miranda warnings. Thereafter, the agents discovered in the room both the gun that was taken from the bank guard and a gun that had fired a bullet in the bank.

At trial, the case against appellant was overwhelming. The guns were, of course, strong evidence of guilt. In addition, a bank customer (Norma Sharpe) had identified appellant from photographs after the robbery, and she so testified. The driver of the limousine service testified that he drove appellant to and from the vicinity of the bank on January 3. Also, the jury was told of appellant's admission, when arrested, that he was guilty. In short, the jury's verdict was amply justified.

II. The Bank Robbery Conviction

The photographic identification

In his thorough brief and argument, appellant's counsel maintains that the district judge committed a number of errors of law. The most substantial arguments on appeal stem from Norma Sharpe's pre-trial identification of appellant from a display of photographs. 3 At trial, Mrs. Sharpe was unable to identify appellant in the courtroom and mistakenly picked out a Deputy United States Marshal instead. 4 When Mrs. Sharpe was then shown the photographic display, she testified that she had previously identified one of the bank robbers from the group of pictures, and she then picked out the photograph she had earlier selected. This picture, which was of appellant, was then admitted into evidence. After Mrs. Sharpe's testimony, FBI Agent Leo Farrell testified as to the way in which he had prepared the photographic spread. He also confirmed that Mrs. Sharpe had selected appellant's picture shortly after the bank robbery.

Appellant offers a number of objections to this evidence. Citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), he first argues that the display was so impermissibly suggestive as to warrant exclusion. The argument is without merit. Ten photographs were originally shown to Mrs. Sharpe. All were of black males, facing front, wearing eyeglasses. The claim that there was no significant resemblance between them and defendant is simply frivolous. Also, while it is true that a yardstick measuring device appears only in defendant's photograph, the device is inconspicuous and insignificant. In short, the spread was neither suggestive nor unfair. Cf. United States v. Bubar, 567 F.2d 192, 198 (2d Cir. June 30, 1977); United States v. Boston, 508 F.2d 1171, 1176-78 (2d Cir. 1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975).

Appellant next argues that the identification testimony should have been excluded as hearsay, and is not permitted by the new Federal Rules of Evidence. Appellant directs our attention to Rule 801(d), which contains various definitions, and provides in relevant part that:

(d) Statements which are not hearsay. A statement is not hearsay if

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him ; . . . (Emphasis supplied).

Appellant argues that Agent Farrell's testimony should have been excluded because "identification of a person made after perceiving him" contemplates only corporeal, not photographic, identification; and because it was improper to allow Farrell to testify in the absence of an in-court identification by Mrs. Sharpe. Appellant also claims that Mrs. Sharpe's testimony about her prior identification after she erroneously identified someone else in court amounted to testimony about a prior inconsistent statement not made under oath, rendering it improper under subsection (A), which overrides subsection (C).

Subsection (C) of Rule 801(d)(1), the focal point of appellant's arguments, appeared in its present form in the Rules as promulgated by the Supreme Court in November 1972. However, the Senate deleted the subsection before the Rules were approved by Congress in December 1974. Not long thereafter, the subsection was resurrected in an amendment to Rule 801, effective October 31, 1975. 5 The Senate Report on the 1975 amendment attributed the initial opposition to the subsection to concern over convicting a defendant solely on "unsworn, out-of-court testimony." 6 The Report noted, however, that the Rule required the identifier to be available for cross-examination at the trial, and in support of the view that such evidence should be admissible, cited, among other recent decisions, the Supreme Court's discussion in Gilbert v. California, 388 U.S. 263, 272 n. 3, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the opinion of Judge Friendly in United States v. Miller, 381 F.2d 529, 538 (2d Cir. 1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2273, 20 L.Ed.2d 1387 (1968), and the en banc decision of the Court of Appeals for the District of Columbia, Clemons v. United States, 408 F.2d 1230 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). The controversy over, and the rationale of, subsection (C) are both admirably summarized in 4 Weinstein's Evidence, 801-3ff., P 801(d)(1)(C)(01). We agree with the observation there made that

Congress has recognized, as do most trial judges, that identification in the courtroom is a formality that offers little in the way of reliability and much in the way of suggestibility. The experienced trial judge gives much greater credence to the out-of-court identification.

Id. at 801-103. This court recently pointed out that "(t)he purpose of the rule was to permit the introduction of identifications made by a witness when memory was fresher and there had been less opportunity for influence to be exerted upon him." United States v. Marchand, 564 F.2d 983, 996 (2d Cir. 1977).

With these considerations in mind, we turn to appellant's specific contentions. The legislative history makes clear that Congress intended "nonsuggestive . . . photographic," as well as lineup, identifications to be covered by subsection (C). Senate Report, at 2. 7 This conclusion is confirmed by our recent holding in United States v. Marchand, supra, 564 F.2d at 996. We can see no sound principle for construing "identification of a person" to exclude identification by a photograph. True, there are dangers peculiar to photographic identification and these, like the dangers of a lineup or even those of an on-the-spot identification, must be taken into account in assessing reliability. But they do not justify a limiting construction of subsection (C).

Appellant's second argument on this point is that the failure of Mrs. Sharpe to identify appellant in court made inadmissible Agent Farrell's evidence that she had identified appellant a month or two earlier. Appellant may be confusing this situation with that posed by the failure or refusal of the identifying witness to recall in court the earlier identification, which is discussed in Judge Weinstein's treatise from which appellant's brief extensively quotes. In that situation, testimony like Agent Farrell's might well raise questions concerning the adequacy of cross-examination and the right to confront the original identifying witness. In this case, however, Mrs. Sharpe did recall her prior identification and so testified. Even before the new Rule, we approved of admitting evidence of prior identification, albeit corporeal, by the declarant's "own testimony and also by that of others corroborating his version of the details," see United States v....

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