United States v. Reed, 15748.
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Writing for the Court | KNOCH, KILEY and FAIRCHILD, Circuit |
| Citation | 376 F.2d 226 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Orrin Scott REED, Defendant-Appellant. |
| Docket Number | No. 15748.,15748. |
| Decision Date | 09 February 1967 |
376 F.2d 226 (1967)
UNITED STATES of America, Plaintiff-Appellee,
v.
Orrin Scott REED, Defendant-Appellant.
No. 15748.
United States Court of Appeals Seventh Circuit.
February 9, 1967.
Leonard V. Campanale, Mishawaka, Ind., for appellant.
Alfred W. Moellering, U. S. Atty., Joseph F. Eichhorn, Asst. U. S. Atty., Kenneth P. Fedder, Asst. U. S. Atty., South Bend, Ind., for plaintiff-appellee.
Before KNOCH, KILEY and FAIRCHILD, Circuit Judges.
KILEY, Circuit Judge.
Reed was convicted, together with alleged accomplice Billy Ray Silvers, of bank robbery and placing the life of a bank employee in jeopardy by using a dangerous weapon. 18 U.S.C. § 2113(d). The jury returned separate verdicts of guilty as charged as to each defendant. Judgments were entered on the verdicts of guilty, and each defendant was sentenced to fifteen years imprisonment. Both appealed,1 but we have before us here only Reed's appeal. We reverse and remand for a new trial.
Two men robbed the Citizens Bank of Michigan City, Indiana, Rolling Prairie Branch, on December 15, 1965. Informations against Silvers and Reed were filed on January 3 and January 21, 1966, respectively. The cases were consolidated for trial under Fed.R. Crim.P. 13, and proceeded to trial after denial of Reed's request for a separate trial.
Reed's principal contention is that he was prejudiced by references to his criminal record because his credibility was not subject to attack.
An Indiana state trooper, called as a government witness, testified that during the investigation he went to the home of the bank employee whose life was put in jeopardy during the robbery. The following testimony ensued:
Q. What was the purpose of your being in the * * * residence on the 17th of December?
A. I received two mug shots from one of our detectives at the prison and he requested that I show them to the * * * employee and his family.
Q. You say mug shots, what is that?
A. They are photographs of former inmates of the state prison.
During cross-examination several minutes later, the trooper again stated the source of the photographs to be the state prison. One of these "mug shots" pictured Reed's codefendant, Silvers.
Shortly after this testimony, another government witness, the Sheriff of LaPorte County, identified government exhibit 10 as "a mug shot of Orrin Scott Reed." On cross-examination, the sheriff testified that he showed pictures of Reed and Silvers to the bank employee and his family along with eight or ten "other" photographs from the Indiana State Prison.
The bank employee's wife, testifying for the government, was asked on cross-examination if there was a reason why the state trooper brought two pictures to her the day after she had reviewed three or four hundred photographs. She responded that "they had some pictures from the prison they hadn't shown us."
We hold that the testimony with respect to the "mug shot" of Reed taken in prison vitiated his right to be presumed innocent until proven guilty and was prejudicial error.2 Repeated objections to this testimony were sustained, but the testimony remained. This testimony made the difference between the trial of a man presumptively innocent of any criminal wrongdoing and the trial of a known convict. His right not to take the stand in his own defense was substantially destroyed. His past record could not have been directly shown by the prosecution as part of its case to prove bad character since Reed's character was not in issue. The testimony did this indirectly.
The characterization of the photographs as "mug shots" taken in prison had the same effect as the penitentiary notations on photographs and the descriptive testimony concerning them held to be prejudicial in United States v. Harman, 349 F.2d 316 (4th Cir. 1965). In remanding for a new trial, the court in Harman said it doubted that anything the judge might have said could have removed the prejudice created by the pictures and noted that he had not mentioned them in his instructions. Id. at 320. In the case before us the district court made no specific mention of the photographs in its instruction upon identification. It did instruct...
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Ralls v. Manson, Civ. No. H-205.
...record, and so has deprived the defendant of his right to a fair trial." 490 F.2d at 490. Relying primarily upon United States v. Reed, 376 F.2d 226 (7th Cir. 1967), United States v. Harman, 349 F.2d 316 (4th Cir. 1965), and Barnes v. United States, 124 U.S. App.D.C. 318, 365 F.2d 509 (1966......
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State v. Redding, No. 53228
...suggest a reasonable approach. Our own federal courts reach the same conclusion on very similar reasoning. United States v. Reed, 7 Cir., 376 F.2d 226 (1967), is a case where the photos were not admitted in evidence but were referred to as 'mug shots' during testimony concerning extra-judic......
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State v. Steele, No. 18077
...is not an issue. Other courts have discussed the offering of photographs of the defendant into evidence. See, e.g., United States v. Reed, 376 F.2d 226, 228 n. 2 (7th Cir.1967), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968). In Reed, the court W]e point out that there is g......
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United States v. Clark, Crim. A. No. 22960.
...on direct examination photographs which police have presented prior to the trial to the government witnesses. See, United States v. Reed, 376 F.2d 226, 228 f.n. 2 (C.A. 7, 1967). Finally, the trial court must decide whether the prejudice to the defendant possibly produced by the introductio......
-
Ralls v. Manson, Civ. No. H-205.
...record, and so has deprived the defendant of his right to a fair trial." 490 F.2d at 490. Relying primarily upon United States v. Reed, 376 F.2d 226 (7th Cir. 1967), United States v. Harman, 349 F.2d 316 (4th Cir. 1965), and Barnes v. United States, 124 U.S. App.D.C. 318, 365 F.2d 509 (1966......
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State v. Redding, No. 53228
...suggest a reasonable approach. Our own federal courts reach the same conclusion on very similar reasoning. United States v. Reed, 7 Cir., 376 F.2d 226 (1967), is a case where the photos were not admitted in evidence but were referred to as 'mug shots' during testimony concerning extra-judic......
-
State v. Steele, No. 18077
...is not an issue. Other courts have discussed the offering of photographs of the defendant into evidence. See, e.g., United States v. Reed, 376 F.2d 226, 228 n. 2 (7th Cir.1967), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968). In Reed, the court W]e point out that there is g......
-
United States v. Clark, Crim. A. No. 22960.
...on direct examination photographs which police have presented prior to the trial to the government witnesses. See, United States v. Reed, 376 F.2d 226, 228 f.n. 2 (C.A. 7, 1967). Finally, the trial court must decide whether the prejudice to the defendant possibly produced by the introductio......