U.S. v. Trejo

• Citation: 501 F.2d 138
• Decision Date: 10 June 1974
• Docket Number: No. 73-2262,73-2262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Albert TREJO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 138

501 F.2d 138

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Albert TREJO, Defendant-Appellant.

No. 73-2262.

United States Court of Appeals, Ninth Circuit.

June 10, 1974.

Martha Goldin (argued), of Goldin & Saltzman, Los Angeles, Cal., for defendant-appellant.

Norman D. James, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Before ELY and KILKENNY, Circuit Judges, and ENRIGHT, ^* District judge.

ENRIGHT, District Judge:

Appellant was indicted and tried in district court for violation of 18 U.S.C. 2113(a), (d), robbery of a national bank with a dangerous weapon. Trial before a jury resulted in a guilty verdict of the lesser included offense of robbery without the use of a dangerous weapon. Appellant now attacks this conviction and seeks reversal, claiming five instances of prejudicial error in his trial below.

The government's case in chief consisted of seven eye-witnesses, all of whom identified the appellant as the bank robber, and photographic evidence provided by surveillance cameras located in the bank. Four enlarged photographs from these cameras were shown to the jury, along with a number of police photographs of the appellant. A photographic expert then testified for the government that in his 'expert opinion,' the individual in the surveillance camera photographs could be the defendant.

The defendant testified in his own defense that he was at a friend's house in another city at the time of the robbery, and denied any participation in the robbery. During cross-examination, the prosecution attempted to impeach the defendant by questions concerning a hand gun and a briefcase as depicted in certain photographs. After a negative response, the government introduced evidence that a gun and briefcase had been earlier seized from defendant's home in what was conceded to be an illegal search and seizure. The defendant explained that the gun and briefcase were not similar to the items depicted in the photographs, and an innocent reason existed for their presence, i.e., that he had taken the gun from a person at a 'fund-raiser' picnic. ¹

I

The appellant contends that the court erred when it failed, sua sponte, to instruct the jury to consider eye-witness testimony with caution. Defense counsel did not request such an instruction, nor was an objection raised to the instructions as were given. Under these circumstances, absent clear error affecting the substantial rights of the defendant, the instructions cannot now be attacked on appeal, and no such showing has been made here. United States v. Lipsey, 438 F.2d 974, cert. denied 404 U.S. 824, 92 S.Ct. 50, 30 L.Ed.2d 52 (9th Cir. 1971); United States v. Alvarez, 469 F.2d 1065 (9th Cir. 1972); Fed.Rules Crim.Proc. 30. Moreover, even if requested, the trial court would have acted properly in refusing to give such an instruction. See Cullen v. United States, 408 F.2d 1178 (8th Cir. 1969). Considering the instructions as given in their entirety, as we must, Medved v. United States, 411 F.2d 617 (9th Cir. 1969), there was no error in the instructions as given.

II

Two witnesses observed the bank robber enter the passenger side of a Volkswagen and make his escape. This escape vehicle was later ascertained to be registered to one Rudy Cabral, Jr., who was present during appellant's trial. Upon cross-examination of one of the witnesses who saw the escape, defense counsel attempted to ascertain if the witness could identify Mr. Cabral as the driver of the getaway car. The trial court, considering that this was examination into collateral matters, and after balancing the rights of appellant against those of Mr. Cabral, ruled against permitting such inquiry. It has been the consistent position of this court that the trial judge has broad discretion in the admission of testimony relating to collateral matters. Enciso v. United States, 370 F.2d 749 (9th Cir. 1967). The ultimate issue at the trial was the identity of the appellant as the bank robber, to which the identity of the driver of the escape vehicle was clearly collateral. The court did not abuse its discretion in disallowing such cross-examination.

III

In the investigation that followed the robbery, seven eyewitnesses were shown surveillance photographs taken at the bank to determine if the photographs actually depicted the bank robber.

Later, when the inquiry focused on the appellant, his photographs were placed with photographs of other individuals in a series of 'photo spreads.' These photo spreads were shown to six of the seven witnesses to determine if the appellant could be identified by the witnesses as the bank robber.

Appellant now raises the contention that this pretrial identification by the witnesses was conducted in such an improper manner as to compel the witnesses to identify the appellant at trial, thereby depriving him of due process of law. There were two photo spreads that were shown to the witnesses. One spread consisted of nine photographs, two of which were of the appellant. The second spread consisted of six photographs, one of which was of the appellant. Each witness who was shown one of these photo spreads selected one or more of the photographs of the defendant as the bank robber. Two of the witnesses were in the same room when they made the identification, and were told that they had chosen the 'correct' photograph after they chose the defendant's picture. These same two witnesses, along with another witness, were told that a suspect had been taken into custody before being shown the photo spread. Six of the witnesses viewed the photo spreads again a day prior to trial.

Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247

(1968), established that when the photographic identification procedures followed is attacked on appeal, the verdict must be set aside if that procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The record of the trial shows that the witnesses were in close proximity to the bank robber with ample time and opportunity to observe him. There is nothing in the record to suggest that the incourt identification was not made freely and based upon these observations. Moreover, a number of the witnesses were able to point out certain distinctive features of the appellant, such as the peculiar shape of his mouth and lips, to indicate that they had paid special attention to him due to his suspicious behavior. The record does not support the allegation that the photographs earlier shown the witnesses had any causal connection with the witnesses' ability to identify the appellant at the trial, United States v. Sartain, 422 F.2d 387 (9th Cir. 1970). Although far from exemplary, there is no showing that the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, supra.

Moreover, as no objection was made at trial, this contention is not properly before this court unless we can say, in the sound exercise of our discretion, 'plain error' exists. Davis v. United States, 425 F.2d 673 (9th Cir. 1970), Fed.Rules Crim.Proc. 52(b). The 'plain error' rule should be invoked only in exceptional cases where it appears to be necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. United States v. Sheley, 447 F.2d 455 (9th Cir. 1971). Such is not the case here. Trial counsel, when specifically given the opportunity to pursue such an objection, declined further inquiry. ²

IV

As part of its case, the government called as an expert witness Mr. Frederick E. Webb, an FBI photographic identification expert. He compared four photographs taken by the bank's surveillance camera at the time of the robbery with four police photographs of appellant and one photograph of appellant obtained from the California Driver's License Bureau. All the photographs had been enlarged so that the head size would be the same to facilitate comparison. Mr. Webb pointed out that in all the photographs, the shape of the face, nose, mouth, and hair were similar. He admitted that the surveillance photographs were not clear enough to allow a positive identification, but stated that the features of the appellant were not inconsistent with the general facial characteristics discernible in the surveillance photographs. He concluded that all the photographs could possibly be of the same individual.

Appellant contends that the admission of this testimony was prejudicial error, as it invaded the province of the jury. During the trial, defense counsel objected to the admission of this testimony as '. . . an ultimate fact to be determined by the jury whether or not the man in the picture taken during the robbery is the defendant . . ..' (R.T. 304). The trial court concluded that it was bound by this court's decision in United States v. Cairns, 434 F.2d 643 (9th Cir. 1970), holding '. . . With respect to the ultimate fact argument, we are ourselves bound by United States v. Cairns, a decision that appears to be directly and positively in point . . . Frankly, I don't think we have any discretion at this stage to overturn the Ninth Circuit.' (R.T. 305).

In Cairns, this court stated:

Appellant next contends that over his objection on the ground the testimony would invade the province of the jury, Government's witness, a special agent with the Federal Bureau of Investigation and photographic identification specialist, compared two photographs: a photograph taken by the bank's surveillance camera at the time of the robbery and a police photograph of appellant taken ten days prior to trial. To assist in his identification, he enlarged the head area of the surveillance photograph to the same size as the enlarged head area in the police photograph. The witness then pointed out the similarity in the two photographs in the nose...