U.S. v. Stormer
| Decision Date | 29 July 1991 |
| Docket Number | No. 90-3711,90-3711 |
| Citation | 938 F.2d 759 |
| Parties | 33 Fed. R. Evid. Serv. 625 UNITED STATES of America, Plaintiff-Appellee, v. Brett STORMER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Andrew B. Baker, Jr., Asst. U.S. Atty., Office of the U.S. Atty., Dyer, Ind. and Terry Boesch, Law Student, for plaintiff-appellee.
Joseph S. Irak, Merrillville, Ind., for defendant-appellant.
Before CUMMINGS, POSNER and COFFEY, Circuit Judges.
Defendant-Appellant, Brett Stormer, was convicted following a jury trial on one count of bank robbery in violation of 18 U.S.C. Secs. 2113(a) & (d) and one count of carrying a firearm during a crime of violence in violation of 18 U.S.C. Sec. 924(c)(1). Stormer was sentenced to fifty-one months imprisonment on Count I and sixty months on Count II to be served consecutively, to be followed by five years of supervised release during which time he was ordered to pay restitution in the amount of $8,580.95. Stormer filed this appeal challenging the admission of testimony from four police officers identifying Stormer as the robber in the bank surveillance photographs.
On May 15, 1990, a branch of the First Federal Savings and Loan Association located at 3710 S. Franklin Street in Michigan City, Indiana insured with the F.D.I.C. was robbed of $9,580.95 in currency and bait money.
The Michigan City Police Department (MCPD) responded to a telephone call reporting the robbery and to an alarm triggered by a teller, who also activated two surveillance cameras located in the bank. The robber was described as a white male approximately twenty-six years old, between 5' 10" and 5' 11" tall with a muscular build, light brown hair, and thin mustache. He was described as wearing blue jeans, a black jacket, white tennis shoes, a baseball cap, and light colored hosiery over his face. The robber was carrying a semi-automatic weapon, which he pointed at the two tellers whom he ordered to put the contents of their cash drawers in the blue duffel bag that he was carrying.
Shortly after the robbery, the film from the surveillance cameras was removed and sent to a laboratory to be developed. Stormer was identified as the robber in the photographs. A warrant was issued for his arrest and he was apprehended in Tampa, Florida on May 21, 1990. A search of Stormer's room incident to his arrest revealed a black jacket, a shirt, and a blue duffel bag similar to the ones depicted in the surveillance photographs.
Stormer entered a plea of not guilty to the charges and his trial commenced September 4, 1990. On the first day of trial, Stormer made an oral motion in limine, seeking to prevent the four police officers scheduled to testify for the government from giving opinion testimony as to the identity of the robber in the surveillance photographs. Stormer alleged that the probative value of the testimony was outweighed by its prejudicial effect in that Stormer would be precluded from engaging in extensive cross-examination of the police officers due to the circumstances surrounding his resignation from the police force. Stormer, formerly an officer with the MCPD, resigned in 1988 after being given the choice of resigning or facing a full investigation into allegations that he had been committing burglaries while on midnight patrol. Stormer maintains that he was not able to effectively cross-examine the police officer witnesses to expose their bias because to do so would have had the disastrous effect of revealing the allegations of improprieties leveled against him while he was a police officer.
The court withheld final ruling on the motion and permitted Stormer to question the police officers out of the presence of the jury to afford Stormer the opportunity to establish bias. After the voir dire of the officers was completed, Stormer renewed his motion in limine and the trial court denied the motion. At trial, the judge gave a preliminary instruction and a limiting instruction to the jury regarding the weight to be given the opinion testimony of the police officers. The trial court also ordered that the government could not disclose to the jury the occupation of the two police officers who were not involved in the investigation. In addition, the court directed that no reference be made to the allegations of improprieties associated with Stormer during his tenure with the police department or the circumstances surrounding his resignation.
At trial, the defendant Stormer was identified as the person depicted in the surveillance photographs by the two tellers who were the victims of the robbery. Stormer was also identified as the person depicted in the photographs by seven other witnesses, three friends and the four police officer identifications at issue in this appeal. The jury found Stormer guilty on each count of the indictment. Stormer was sentence to fifty-one months on Count I to run consecutively to the sixty-month sentence on Count II. He was also ordered to serve five years of supervised release following his imprisonment and further ordered to pay $8,580.95 in restitution during the period of supervised release. This appeal followed.
Stormer raises one issue on appeal. He challenges the district court's denial of his motion in limine seeking to prohibit the police officers from giving opinion testimony as to the identity of the robber in the bank surveillance photographs. Stormer's challenge to the lay opinion testimony of the police officers is two-fold. Initially, he maintains that the district judge abused his discretion in admitting the testimony pursuant to Rule 701 of the Federal Rules of Evidence. Secondly, Stormer argues that even if the police officer's testimony was admissible under Rule 701, it should have been excluded under Rule 403 of the Federal Rules of Evidence because the probative value of the testimony was outweighed by its prejudicial effect.
Rule 701 of the Federal Rules of Evidence provides:
"If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which 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."
In United States v. Towns, 913 F.2d 434 (7th Cir.1990), this court noted that the "decision [of] whether to admit testimony under Rule 701 is 'committed to the sound discretion of the district court and a ruling will not be reversed absent a finding that the trial court abused its discretion.' " Id. at 445 (quoting Kelsay v. Consolidated Rail Corp., 749 F.2d 437, 448 (7th Cir.1984)). The Towns court also stated that as a general rule "a lay witness may testify regarding the identity of a person depicted in a surveillance photograph 'if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.' " Id. (quoting United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir.1984)).
Stormer argues that the lay opinion testimony is inadmissible because he did not significantly alter his appearance between the time of the crime and the time of trial and because he did not wear any substantial feature-altering clothing or a disguise. In both Towns and United States v. Jackson, 688 F.2d 1121 (7th Cir.1982), this court addressed and rejected a similar argument. In Jackson, the district court permitted a witness who had met the defendant on only one prior occasion to identify the defendant as the person depicted in the surveillance photograph. The court noted that despite the absence of independent evidence that the defendant had changed his appearance, the testimony of the lay witness identifying the defendant as the robber was admissible because it was "helpful to a clear understanding of ... the determination of a fact in issue." Jackson, 688 F.2d at 1126 (emphasis in original), cited with approval in Towns, 913 F.2d at 445. Similarly, in Towns this court found no abuse of discretion in the admission of opinion testimony of the defendant's girlfriend that he was the robber in the bank surveillance photograph. The defendant in Towns had a mustache at the time of the robbery which he shaved off prior to trial. In addition, he wore a stocking cap, sunglasses, and a sweatshirt that had the potential to make him appear heavier than he was. The Towns court concluded that in light of that evidence the case presented a "more compelling use of lay witness identification testimony" than did Jackson. 913 F.2d at 445.
In Jackson, this court stated that a lack of evidence of a change in appearance is not necessarily fatal to the admission of lay opinion identification testimony. Id. at 1125. Accord United States v. Allen, 787 F.2d 933, 936 (4th Cir.1986) (). However, this case does not approximate a Jackson or Allen situation where there is no evidence of alteration of the robber's appearance. Contrary to Stormer's assertions, there is evidence in the record that he took measures to change his appearance during the robbery with the apparent motive of avoiding identification. Stormer wore a baseball cap which had the potential for obstructing a witness' view of his face and he had hosiery pulled over his face. There can seemingly be no other explanation for a robber pulling hosiery over his face than his desire to alter his appearance so as to avoid...
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