US v. Smithers

• Decision Date: 06 August 1999
• Docket Number: No. 98-1722,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,98-1722
• Citation: 212 F.3d 306
• Parties: (6th Cir. 2000) UNITED STATES OF AMERICA,, v. JAMES SMITHERS, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 306

212 F.3d 306 (6th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JAMES SMITHERS, DEFENDANT-APPELLANT.

No. 98-1722

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 6, 1999

Decided and Filed: May 8, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 97-80248--Avern Cohn, District Judge. [Copyrighted Material Omitted] Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Andrew N. Wise, Federal Public Defenders Office, Detroit, Michigan, for Appellant.

Before: Batchelder and Cole, Circuit Judges; Marbley, District Judge.^*

MARBLEY, D. J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 318-32), delivered a separate dissenting opinion.

OPINION

Algenon L. Marbley, District Judge.

Appellant James Smithers was convicted of bank robbery in violation of 18 U.S.C. § 2113(a). Smithers now appeals various aspects of his trial, including the district court's exclusion of the testimony of an eyewitness identification expert, the limitation of Smithers's wife's testimony, and the district court's response to questions posed by the jury after it began deliberating. For the following reasons, we REVERSE the conviction below and REMAND this case for a new trial pursuant to the law set forth herein.

I.

On the morning of November 12, 1996, a man walked into the Monroe Bank and Trust in Terence, Michigan, and presented bank teller Teresa Marino a note. The note read, "I have a gun. Give me your large bills." Ms. Marino complied with the demand by turning over the money from her teller drawer. The robber asked for more money, and Ms. Marino unlocked her other drawer and gave him three packs of large bills totaling $3,400. When the robber repeated his demand for more money, Ms. Marino told him that was all she had, and he ran from the bank. The entire incident lasted about two minutes.

Two other witnesses observed the robbery. The first, Debra White, was also working as a teller at the bank on November 12, 1996. She was sitting at a desk behind Ms. Marino when she noticed an unfamiliar customer standing at Ms. Marino's teller station. Ms. White looked away for a moment and when she looked back, the man grabbed the money and walked quickly out of the bank. Ms. White asked Ms. Marino if she had been robbed. Learning that she had, Ms. White yelled that they had been robbed and went to lock the bank doors. While doing so, she observed the robber getting into the passenger side of a car parked in the parking lot.

Timothy Wilson, the second witness, was a bank customer who walked into the bank at the same time as the robber. The robber held the door open for him as they both entered the building. Mr. Wilson saw the robber go straight to the teller and then leave the bank quickly.

Investigators from the Monroe County Sheriff's Department spoke to the witnesses that day. Ms. Marino, who was approximately three feet from the robber, described him as a white male in his late twenties wearing a Nike jacket, baseball cap and sunglasses, over 6' 2" tall, 180-185 pounds, with long bushy dark hair, a moustache and a thin beard. Ms. White described the robber as taller than average, with squinty eyes and wearing a bulky striped jacket. Ms. White described the car as a two-toned brown and black, late 1970's Monte Carlo, with a cream colored landau roof and an Ohio license plate. Mr. Wilson recalled the robber as a very tall man, with a moustache and partial beard, wearing a baseball cap, dark sunglasses and a winter jacket.

The next day, officers of the Toledo Police Department noticed a vehicle fitting the description of the car used in the robbery at an apartment complex in Toledo. Monroe County Detective Thomas Redmond drove Ms. White to the vehicle, a 1976 Oldsmobile Cutlass, which she identified as the car used in the robbery. The car was registered to James Smithers.

Officers then went to Smithers's home, where his wife, Josette Smithers, informed them that he was at his parents' house. The officers searched Smithers's apartment but found no incriminating evidence. They located Smithers at his parents' home, and he accompanied the police to his apartment. Smithers told the officers that he bought the vehicle from his brother-in-law, Steve Dallas, who still retained a set of keys to the car. Smithers also stated that on the morning of November 12, 1996, he had noticed his rear license plate was missing, so he had moved his front plate to the rear. He also claimed to have noticed gas missing from the car on other mornings; later, Smithers said that there was a hole in the gas tank. Smithers consented to a search of the car, which produced no incriminating evidence. Smithers voluntarily went to the sheriff's department where he provided handwriting samples and was photographed and fingerprinted. When photographing him, Detective Redmond noted Smithers's height as 6' 6 1/2".

Detective Redmond prepared a photo spread of six photographs, including a photo of Smithers. On November 14, 1996, Detective Redmond showed the photo spread to Ms. Marino, Mr. Wilson and Ms. White. Ms. Marino and Mr. Wilson could not identify the robber from the photo spread. Ms. White picked out Mr. Smithers. Immediately after her identification, Ms. White told Ms. Marino that she had been able to identify the robber from the photo spread.

Smithers's handwriting exemplars were submitted to the FBI laboratory for analysis. The results were inconclusive. The demand note was submitted to the Michigan State Police Laboratory for fingerprint analysis. The analysis produced one identifiable print. The government claims the print was inconclusive; Smithers claims the analysis showed that the print did not belong to him.

Peter Smith, an FBI examiner who specializes in analyzing exhibits in photographic form, performed a height analysis of the robber depicted in the bank videotape. Mr. Smith concluded that the robber measured approximately 6' 5". Mr. Smith also conducted a comparative analysis of the robber in the bank photos with a photograph of Smithers. He could neither positively identify nor eliminate Smithers as the bank robber.

On June 16, 1997, a grand jury returned an indictment charging Smithers with one count of bank robbery in violation of 18 U.S.C. § 2113(a).

On December 18, 1997, Smithers filed a ten-page motion in limine to determine the admissibility of certain expert testimony regarding eyewitness testimony. The district court commenced Smithers's jury trial on January 14, 1998. After the jury was empaneled, the district court heard argument on Smithers's motion in limine, and denied the motion, noting that everything an expert would have to say about eyewitness identification was within the jury's "common knowledge" The court stated that it would give an instruction on eyewitness testimony. Smithers's attorney requested permission to make a written proffer, which the court allowed.

The government presented its case, including eyewitness testimony from Ms. Marino, Ms. White and Mr. Wilson. Despite their prior inability to identify Smithers from a photo spread, Ms. Marino and Mr. Wilson identified Smithers as the robber in court. Ms. Marino and Ms. White testified that they did not notice that the robber had any distinguishing features. The government rested on January 16, 1998.

Smithers filed his renewed motion in limine and offer of proof, regarding expert testimony, on eyewitness identification on January 20, 1998. This proffer described the anticipated testimony of Dr. Solomon Fulero, a proposed expert on eyewitness identification. It noted that Dr. Fulero would "educate the jury about the general factors that may affect eyewitness accuracy," including the specific the issues of: (1) "detail salience" (the fact that eyewitnesses tend to focus on unusual characteristics of people they observe); (2) the relationship between the time that has passed since observing the event and the accuracy of recalling it; (3) the effect of post-identification events on memory; (4) the fact that when one person both prepares and administers a photo spread, the likelihood of misidentification increases; (5) the "conformity effect" (the fact that witnesses' memories are altered by talking about the event with each other after it occurs); and (6) the relationship between a witness's confidence in her recollection and its accuracy. Regarding the issue of detail salience, the proffer stated that "[h]ad Mr. Smithers been the robber, the eyewitnesses would have observed and been able to recall the large scar on Mr. Smithers' [sic] neck."

After hearing oral argument on the Defendant's renewed motion, the district court ruled that it would exclude the expert testimony:

[p]rimarily because it's late in the day. It should have been done much earlier. On the other hand, I think you've got a very good, if there's a conviction, I think you've made an excellent record that I've abused my discretion in failing to allow it, and I think there's a certain - I prefer to see it that way.

The court also opined that Dr. Fulero's testimony was "not a scientifically valid opinion," "a jury can fully understand that its [sic] got an obligation to be somewhat skeptical of eyewitness testimony," and "admission of Dr. Fulero's testimony is in this case is almost tantamount to the Court declaring the defendant not guilty as a matter of law. . . . [A]bsent the eyewitness testimony I don't think there's enough here to go to the jury." Finally, the district court remarked, "I'm also interested in seeing what a jury will do absent that expert testimony. It makes it a more interesting case. I recognize it's the defendant's fate that's at stake, but you can always argue for a new trial if he's convicted."

After this ruling, Smithers presented a few witnesses, including his wife, who attempted to establish an alibi defense. Ms....