U.S. v. Pierce

• Decision Date: 06 March 1998
• Docket Number: No. 97-8180,97-8180
• Citation: 136 F.3d 770
• Parties: 48 Fed. R. Evid. Serv. 1286, 11 Fla. L. Weekly Fed. C 1104 UNITED STATES of America, Plaintiff-Appellee, v. Carey Antonio PIERCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 770

136 F.3d 770

48 Fed. R. Evid. Serv. 1286, 11 Fla. L. Weekly

Fed. C 1104

UNITED STATES of America, Plaintiff-Appellee, v. Carey Antonio PIERCE, Defendant-Appellant.

No. 97-8180.

United States Court of Appeals, Eleventh Circuit.

March 6, 1998.

Leeza Rhee Cherniak, Strongwater & Cherniak, Atlanta, GA, for Defendant-Appellant.

Kent Alexander, U.S. Atty., Thomas Aloysius Devlin, Jr. and Joseph A. Plummer, Assts. U.S. Attys., Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BLACK and BARKETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.

BARKETT, Circuit Judge:

Carey Antonio Pierce appeals his conviction for bank robbery, robbery affecting interstate commerce, and use of a firearm during

and in relation to the latter robbery, in violation of 18 U.S.C. §§ 2113(a), 1951, and 924(c), respectively. On appeal, Pierce seeks reversal of his conviction, arguing that the district court erred: (1) in denying his pre-trial motion to sever the bank robbery count from the two remaining counts; (2) in allowing the government to introduce evidence of five prior bank robberies committed by Pierce pursuant to Federal Rule of Evidence 404(b); (3) in allowing the government to introduce lay opinion testimony from Pierce's employer as well as his probation officer, both of whom identified Pierce as the individual depicted in a still photograph taken from a bank surveillance videotape of the robbery; (4) in admitting evidence of an out-of-court identification of Pierce as the perpetrator of the § 1951 robbery based on an unduly suggestive identification procedure; and (5) in declining to dismiss the bank robbery count of the indictment because of the government's alleged misuse of the grand jury process to obtain discovery from Pierce's alibi witness. Finding no merit to any of these claims, we AFFIRM. Although we find claims (1), (2), (4), and (5) suitable for affirmance without discussion, the issue raised in claim (3)--the admissibility of lay opinion testimony identifying a defendant in surveillance photographs--is a question of first impression for this Circuit. Accordingly, we address that claim below.

BACKGROUND

Pierce was charged in a three-count indictment with the February 6, 1996 robbery of a Roswell, Georgia branch of the Tucker Federal Savings Bank (count one); the February 12, 1996 robbery, in the parking lot of another bank, of a restaurant employee en route to deposit the restaurant's receipts from the previous night (count two); and the use of a firearm in connection with the robbery charged in count two (count three). Following a jury trial, Pierce was convicted of all three counts and sentenced to 180 months imprisonment.

The February 6th bank robbery

At Pierce's trial, bank tellers Theresa Putnam and Patricia Batchelor and bank customer Susan Therrel testified concerning the circumstances of the bank robbery and described the robber's physical appearance. Specifically, the witnesses stated that after entering the bank, the robber had placed both hands on the teller counter, vaulted over the counter, demanded money, and ordered everyone to lie down on the floor. The witnesses described the robber as a black male, approximately six feet tall and weighing 170 to 180 pounds, wearing a baseball cap, sunglasses, a wind-breaker-type jacket, and dark pants, and carrying a blue and white gym or duffel bag as if he had a weapon inside. Neither Putnam nor Batchelor was able to identify Pierce in a photographic array that included Pierce's photograph; however, Batchelor subsequently identified Pierce at trial. In addition, Putnam, Batchelor, and Therrel testified that certain items seized from Pierce's residence resembled items worn or carried by the robber. Based on his review of a bank surveillance videotape depicting the robbery, FBI Special Agent Thomas Forgas, an expert examiner of questioned photographic evidence, testified that a pair of sneakers seized from Pierce's home were similar to the sneakers worn by the robber in the videotape. However, Forgas was unable to positively identify the robber as Pierce.

The government also introduced evidence of five prior robberies of three different Tucker Federal Savings Bank branches committed by Pierce between December 1988 and February 1989, three of which occurred at the same Roswell branch involved in this case. FBI Special Agent Robert Melnick, who had participated in the investigation of the 1988-89 string of robberies, described Pierce's standard method of operation in committing these robberies:

[The robber] would announce the fact that a robbery was occurring. He would soon thereafter vault over the teller counter. He would tell the tellers to back away from the counter or to get down onto the floor.

He would then remove money, which he placed in a blue bag, which was similar to a gym type bag or a small duffel bag, which had white handles on it. He would also keep his hand, one of his hands inside that bag at times, at all times during the robbery and direct it and point it at the Melnick further testified that, following his arrest, Pierce told him that he chose to rob Tucker Federal Savings Banks "because they were easy to rob." In addition, several bank tellers who had witnessed one or more of the prior robberies testified concerning the circumstances of those offenses.

tellers, implying that he had some type of a weapon in the bag, although he never did show a weapon.

The government also called two witnesses familiar with Pierce's appearance, both of whom had previously identified Pierce as the individual depicted in a bank surveillance photograph of the robbery. Federal probation officer Beth Hammond testified that she had served as Pierce's supervisor during a period of supervised release imposed as part of his sentence for the prior bank robberies and that, in this capacity, she had met with Pierce ten times during the seven months prior to his arrest for the offenses charged in this case. Hammond further testified that when the FBI agents investigating this case showed her the bank surveillance photograph, she had stated that she was "ninety percent certain that [the robber] was Mr. Pierce." In addition, Freddie Hammonds, Pierce's workplace supervisor during the five- or six-month period prior to his arrest, testified that when shown a bank surveillance photograph by the FBI, he had identified Pierce as the robber. Finally, inmate Terry Burston testified that Pierce had discussed various aspects of both robberies with him.

The February 12th robbery of a restaurant employee

The government's primary witness with respect to the offenses charged in counts two and three of the indictment was Kenneth Knowles, the victim of the § 1951 robbery. At trial, Knowles testified that on February 12, 1996, he was robbed at gunpoint in the parking lot of the First Union Bank when he attempted to exit his vehicle in order to deposit funds on behalf of his employer. Knowles positively identified Pierce as his assailant and also stated that he had previously identified Pierce's photograph in a photographic array.

DISCUSSION

We address only Pierce's contention that the admission of lay opinion identification testimony from Beth Hammond and Freddie Hammonds was improper under Federal Rules of Evidence 701 and 403.

Rule 701

Rule 701 permits the admission of opinion testimony from a lay witness only where the witness's opinions are "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Fed.R.Evid. 701. "The ultimate decision as to the admissibility of lay opinion testimony is committed to the sound discretion of the district court and will not be overturned on appeal unless there is a clear abuse of discretion." United States v. Myers, 972 F.2d 1566, 1576-77 (11th Cir.1992).

The parties do not dispute that the lay opinion identification testimony at issue in this case was "rationally based on the perception of the witness[es]," as both Hammond and Hammonds identified Pierce based on their personal observations of his appearance during their prior contacts with him. Rather, the parties disagree as to whether the identification testimony was "helpful ... to the determination of a fact in issue."

Asserting that Pierce's appearance had not changed in any way between the bank robbery and trial, and that Pierce was in no way obscured from view in the surveillance photograph, Pierce argues that the lay opinion identification testimony was not helpful because the witnesses were no better equipped than the jury to compare Pierce's appearance at trial with the appearance of the individual depicted in the surveillance photograph. Pierce further contends that Beth Hammond's identification testimony was not helpful for the additional reason that Hammond herself conceded that she could not be one hundred percent certain that the individual in the photograph was Pierce. The government responds that the identification testimony was helpful to the jury because both of the witnesses had a sufficient level of familiarity with Pierce that they were more likely to identify him correctly than was the jury, particularly in light of the grainy quality of the surveillance photograph and the dark glasses and hat worn by the person in the photograph in an effort to disguise his identity. The government also maintains that Beth Hammond's ninety percent level of certainty that the robber depicted in the photographs was Pierce was sufficient to render her opinion helpful to the jury.

Although this court has not previously addressed whether lay opinion testimony identifying a defendant in surveillance photographs is admissible under Rule 701, several other circuits have held such testimony admissible in some circumstances. Because we find, as have most of those circuits, that lay opinion...