U.S. v. Rembert, 88-3040

• Decision Date: 23 December 1988
• Docket Number: No. 88-3040,88-3040
• Citation: 863 F.2d 1023
• Parties: , 27 Fed. R. Evid. Serv. 459 UNITED STATES of America v. Reginald T. REMBERT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1023

863 F.2d 1023

274 U.S.App.D.C. 334, 27 Fed. R. Evid. Serv. 459

UNITED STATES of America v. Reginald T. REMBERT, Appellant.

No. 88-3040.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 7, 1988.

Decided Dec. 23, 1988.

Appeal from the United States District Court for the District of Columbia (Criminal Action No. 87-00406-01).

Richard S. Stern (appointed by this Court) for appellant.

W. Mark Nebeker, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, and Helen M. Bollwerk, Asst. U.S. Attys., were on the brief, for appellee.

Before WALD, Chief Judge, STARR and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Reginald T. Rembert ("Rembert" or "appellant") appeals from his conviction under all counts of a six-count indictment, charging two counts each of kidnapping, 18 U.S.C. Sec. 1201(a)(1) (1982); interstate transportation of a stolen vehicle, 18 U.S.C. Secs. 2312 & 2 (1982); and armed robbery, D.C.Code Secs. 22-2901, -3202 (1981). His sole assignment of error relates to the admission into evidence of photographs taken by a bank surveillance camera. Rembert contends that there was not a sufficient evidentiary foundation for the admission of the photos. We disagree and affirm.

I. BACKGROUND

Rembert's convictions arise from crime sprees occurring on July 7 and 26, 1987. On July 7, according to the testimony of victim witness Mary Simon, she drove to a Signet Bank in Falls Church, Virginia, at approximately 10:30 p.m. As she attempted to use her bank card in the automatic teller machine ("ATM"), a man armed with a knife reached into the open window of her car, grabbed her by the neck, and threatened to kill her if she did not give him her ATM code number. At trial she positively identified appellant as being this man. A second man, referred to in the record as "Washington," joined them at her car. ¹ She gave the two men her ATM number. They used the number and her bank card to extract $150 from her account. The two men forced Simon to accompany them in her car, driven by appellant, to a park in Washington, D.C. They made multiple stops and robbed Simon of her jewelry before leaving her in her vehicle, still in Washington.

A second victim witness, Andrea McGee, testified that on Sunday, July 26, 1987, in the midafternoon, she drove her automobile to an ATM machine in Washington, D.C. After she discovered the machine was out of order, she accidentally drove her car into the wall of the bank, where it became stuck. Two men, one of whom she later identified at a line-up and in court as appellant, and a third man not further involved in the incident, assisted in freeing her vehicle. The men identified as appellant and his companion then told her that they had missed their bus while helping her, and asked her to drive them to a bus stop. However, once in the car and under way, one of them threatened her with a butcher's knife and told her to drive to Virginia. The other man, identified as appellant, rifled through her purse. Once in Virginia, the assailants ordered her to stop at a bank, where appellant's companion took her bank card and demanded her code number in order to obtain money. With some difficulty, he extracted $10 from the machine. Appellant's companion then took over the driving, and the two forced her to accompany them to another bank. At that bank they spotted a male customer, later identified as John Lynn, attempting to use the ATM machine. Appellant jumped from the car with the knife and began stabbing Lynn. Appellant's companion demanded and obtained Lynn's wallet, keys, and card code. After unsuccessfully attempting to steal Lynn's car, the assailants fled the scene in McGee's car, appellant driving, and forced her to accompany them to a Seat Pleasant, Maryland, branch of Sovran Bank, where they unsuccessfully attempted to use Lynn's ATM card. ² After taking her purse, they finally returned McGee to Washington, D.C., where they abandoned her and her vehicle near the point of her abduction.

In addition to positive eyewitness identifications of Rembert by the two women victims and Lynn, the prosecution offered at trial evidence that each had identified Rembert in line-ups and that Simon had identified appellant in a series of photographs taken by a closed-circuit surveillance video camera at the Seat Pleasant bank where the two assailants took McGee. These photographs were received into evidence.

The record also contains other evidence linking appellant to the incidents, including the recovery from Simon's car of a latent fingerprint identifiable with the known print of appellant, and a composite sketch made by police artists with the assistance of Simon shortly after her abduction.

II. ANALYSIS

As noted above, appellant's sole assignment of error concerns the admission of the photographic evidence from the video recorder at the Sovran Bank in Seat Pleasant, Maryland. The sole authenticating witness for the photos was Katie Wohlfarth, a supervisor in the loss control division of the bank, who testified that she was in charge of investigating questioned activities through the ATM machines. She testified that the machine-maintained records at the Seat Pleasant branch showed an unusual pattern of use associated with John Lynn's ATM card on July 26, 1987, at approximately 8:00 p.m. The machine's records indicated that the card had been entered ten times on that occasion and was retained by the machine on the tenth attempt. She further testified that video cameras are maintained at each of the three ATM machines at the Seat Pleasant location. A video recorder taped the view from each camera in sequence, rotating to the next camera, taking a photograph every three seconds. This videotaping process imprints the date and time at which the pictures were made on the resultant photographs. She then identified a strip of pictures which was admitted into evidence over Rembert's objection. She further testified that she had viewed the original videotape and the resultant photographs and that the photographs were fair and accurate depictions of what was on the videotape. The imprinted date and times on the photographs ranged from 8:04:22 p.m. until 8:13:30 p.m. on July 26, 1987. On cross examination, she testified that she had no personal knowledge of the events that transpired at the Seat Pleasant location on that date, and could not say from her own knowledge whether the photographs fairly and accurately depicted the scene and events at that time and place or not.

Appellant argues that photographs are admitted under two theories of authentication, and that the foundation offered by the prosecution in the present case meets neither theory. He first presents the classic model of illustrative or "pictorial testimony" use of photographs as evidence. Under this theory, a sponsoring witness (whether or not he is the photographer) who has personal knowledge of the scene depicted testifies that the photograph fairly and accurately portrays that scene. See, e.g., Simms v. Dixon, 291 A.2d 184 (D.C.1972); E. Cleary, McCormick on Evidence (3d ed.1984) at 671. Obviously this model was not followed in Rembert's trial.

Appellant next argues that the only other basis for the introduction of photographic evidence is the "silent witness" model, under which the admissibility of a photograph is based on the reliability of the process by which it is made. This model is most often associated with the introduction of x-rays, where obviously no witness has viewed the scene portrayed. See McCormick on Evidence, supra, at 672. Appellant persuasively contends that the foundational evidence of the witness Wohlfarth does not meet that description. Her testimony did not really speak to the reliability of the process. She testified rather as a custodian of the records without supplying evidence as to the type of camera used, its general reliability, the quality of its product, the purpose of its employment, the process by which it is focused, or the general reliability of the entire system.

Appellant is undoubtedly correct that the evidence in this case does not meet either of those two models. He is further correct that those models are adopted in the Federal Rules of Evidence under the Authentication and Identification heading of Rule 901. Fed.R.Evid. 901(b)(1) (testimony that a matter is what it is claimed to be); 901(b)(9) (evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result). But this does not close our inquiry. Rule 901 expressly prefaces the two subsections set forth above by the language that they function "[b]y way of illustration only, and not by way of limitation," thereby leaving room for the general application of Rule 901(a). That general provision states that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

As we have already held in a case also dealing with photographic evidence, "[a]uthentication and identification are specialized aspects of relevancy that are necessary conditions precedent to admissibility." United States v. Blackwell, 694 F.2d 1325, 1330 (D.C.Cir.1982) (citations omitted). The Blackwell case involved a prosecution for unlawful possession of firearms. The photographs in question depicted the defendant holding a firearm, apparently the same as one of the guns seized at the time of his arrest. The prosecution had obtained the photographs as the result of a search of the same room in which the firearms were found. No witness could testify as to when the photographs were made, where they were made, by what process, or whether they fairly and accurately depicted any particular scene on any particular date. The detective who conducted the...