United States v. Robinson

• Citation: 406 F.2d 64
• Decision Date: 10 January 1969
• Docket Number: No. 16417.,16417.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Burnell ROBINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

406 F.2d 64 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Burnell ROBINSON, Defendant-Appellant.

No. 16417.

United States Court of Appeals Seventh Circuit.

January 10, 1969.

Burnell Robinson, Ronald Alwin, Chicago, Ill., for appellant.

Thomas A. Foran, U. S. Atty., Michael P. Siavelis, Asst. U. S. Atty., John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel, for appellee.

Before CASTLE, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.

CASTLE, Chief Judge.

This appeal is from defendant's conviction, upon a jury verdict of guilty, of armed robbery from a postal station, in violation of 18 U.S.C. § 2114. Defendant's main contention on appeal is that various references during the course of the trial to identification of defendant by use of "mug shots" violated defendant's constitutional rights and require reversal of the judgment of conviction.

The first mention of "mug shots" came during the prosecutor's opening statement when he told the jury that the Government expected to prove that, following the robbery, the owners of the postal station went to the Joliet, Illinois Police Station where they "looked at what the Police Department calls mug shots and picked out defendant's picture as the man who robbed him there." At this point, after denying a motion for mistrial, made by defense counsel at a side-bar conference, the trial court instructed the jury as follows:

"* * * Mr. Fohrman is properly concerned that you not misinterpret Mr. Jalovec\'s reference to `mug shots.\' You understand that whether it is the local police, or the FBI, or what have you, they have a whole lot of pictures of a lot of people. Because they have somebody\'s picture does not mean that this man has ever committed a crime before or since. They have pictures of people of all kinds and descriptions and mug shots do not mean that this is evidence of a man having previously committed a crime or that he is even suspected of committing a crime. They are pictures which the law enforcement agencies have for purposes of identification. They have them of all kinds of people, including me as a matter of fact, because anybody who has worked for the federal government has his fingerprints on file with the FBI and his picture is on file, for example.

"So you understand there is no connotation of guilt at all by virtue of the fact that some pictures were in the possession of the police or Mr. Jalovec says they were. * * * "

Later in the trial, during the Government's case in chief, both prosecution witnesses testified that they had looked at a "mug file," "picture file," "photographs of suspects," or "photographs" at the police station and also at a "line-up."

The defendant, who did not testify at trial, claims that the references to "mug shots" created an impression in the minds of the jurors that he had a prior criminal record. Consequently, defendant argues, since his character was not in issue, the presumption of innocence and defendant's right not to testify were destroyed, in violation of the Fifth Amendment. Defendant alleges that "the common juror is likely to attribute a connotation of criminality either arrest or conviction to the subject shown in a `mug shot'," and relies mainly on United States v. Reed, 376 F.2d 226 (7th Cir. 1967), to substantiate his claim of unconstitutionality.

In Reed, the defendant was convicted of bank robbery and placing the life of a bank employee in jeopardy by using a dangerous weapon. During the direct examination of a Government witness, a state trooper, the following dialogue occurred:

A. "I received two mug shots from one of our detectives at the prison and he requested that I show them to the * * * bank 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, this same witness again stated the source of the photographs to be the state prison. Another Government witness, the County Sheriff, identified a Government exhibit as a "mug shot" of the defendant, and on cross-examination stated that he showed pictures of the defendant to the bank employee, along with "other" photographs from the Indiana State Prison. Another Government witness also mentioned the source of these pictures. In reversing Reed's conviction, this Court stated:

"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. * * * 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)." 376 F.2d at 228.

We also held that this prejudicial error was aggravated by further testimony of Reed's criminal record by other witnesses.

We do not think our holding in Reed compels reversal in the instant case. Initially, the prejudicial testimony in Reed was much more harmful than in the case at bar in that the "mug shots" were repeatedly referred to as having been taken in prison. Along with other harmful testimony during Reed's trial, this left the jury with no doubt of the existence of Reed's prior criminal record.¹ In the instant case, on the other hand, there was no mention of prior criminal activities. The "mug shots" in the case at bar were identified as being at the police station, not at a penal institution, and the trial court's comprehensive instruction to the jury, made immediately after the first defense objection, dissipated any innuendo which could have been drawn from the use of the term "mug shots" standing alone. We are not prepared, on the facts of the record before us, to extend the rule of Reed to cover a situation involving a mere reference to "mug shots" unaccompanied by anything suggesting past criminal activities, and where the trial judge gave a comprehensive instruction to the jury cautioning them not to draw any inference of criminality from the term "mug shots."

We also hold that any reliance by defendant on United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967), is misplaced. In that case, while recognizing the probable implication that photographs in the hands of the police "are not selected at random from the public and that some unfavorable history is present," we held that reference to identification by photographs of the defendant at the office of the Bureau of Narcotics did not constitute prejudicial error since the jury is presumed to heed the instructions given by the court that the defendant is presumed innocent.²

In Dichiarinte, we distinguished Reed by stating, "* * * there the offensive testimony was that a photograph of defendant had been taken in prison, thus directly asserting a prior conviction of crime." 385 F.2d at 337. Thus as with United States v. Schwartz, 398 F.2d 464, 470 (7th Cir. 1968), Dichiarinte is factually quite distinguishable from Reed, and its holding actually supports the Government's position.

Defendant's next contention is that the trial court's instruction compounded the alleged error of the prosecutor's reference to "mug shots." Since we hold that the prosecutor's reference did not constitute error, there...