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STAHL,
STAHL,
conviction
Jackman
for
Circuit Judge.
Circuit Judge.
______________
bank
alleges an
district court's
robbery,
abuse of
In this
appeal
defendant-appellant
discretion in
evidentiary rulings.
discretion, we affirm.
I.
I.
__
BACKGROUND
of
Gary W.
certain of
Finding no
his
the
abuse of
BACKGROUND
__________
On
December
Marlins baseball
24, 1992,
cap and a
man
wearing a
Florida
walked into
teller's drawer.
the
Megna described
the man
"blond."
Jackman as
immediately after
About
a month later,
out of
held
in
connection
Connecticut. Photographs
bank's surveillance
with
bank robbery
camera, were
David Hurlock.
baseball
were
Stetson and
somewhat
taken by the
to
and
Avon,
shown by investigators
photographs showed
cap
in
Although the
face beneath a
grainy, Deborah
Jackman,
man in
-22
the
man
in
the
Revere robbery
Connecticut
robbery
and
photos,
Deborah
robber
taken
identified the
during the
robber
Jackman,
photograph of
course
of
as Jackman.
that
Both the
make
an
Genco, the
in-court
identification of
unable
Jackman.1
Attorney who
James
prosecuted
was
Connecticut
viewed
by
witnesses to
Revere
robber.
federal
Massachusetts, or
of
another
Revere
identification of Jackman
the
and
of the
was
both
prosecutor
Connecticut
bank
robbery.
as the
and
he
not
Nevertheless,
the
following
____________________
1. The jury
also heard
testimony that none
of the
fingerprints found on the note handed to Megna matched those
of Jackman. Megna testified that she did not notice whether
the robber was wearing gloves, and a fingerprint expert
testified that extremely cold hands might not leave any
fingerprints on a note.
A National Weather Service employee
colloquy
took place
as the
prosecutor questioned
Genco on
-- with mustaches.
The court:
Overruled.
A.
They were all white males with
mustaches and
approximately the same
color of hair that we had described to
us.
Conrad,
overruled,
Jackman's
attorney,
objected again,
and subsequently
moved for
a mistrial.
videotape
of the
appeared
to have
lineup
brown or
shown to
darker
the
jury, the
hair; Megna
was
On the
six
men
had already
testified
that
described the
immediately
robber as
after
having
the
robbery
blond hair.
she
Thus,
had
Conrad
argued, the jury could easily have inferred either that Megna
or
someone
description
else
had
authorities
more sinister,
that
description provided
Jackman
provided
with
another
Genco arranged
the lineup
based on
was a suspect
in that robbery
as well.
The court
respect to the
witness
description of
the individual
and how
this
That evidence
to consider
it."
Deborah Jackman, Stetson and Hurlock also testified
at trial, offering their
man
in
the
Revere
robbery
photographs
as
is
of the
sometimes
permitted under
Fed. R.
allows non-expert
(the
Jackman
testified
and was
married to him
couple separated
separated, she
in
that
1988).
she
had
known
from 1976
until
After
the
couple
their children.
a dirty-blond
mustache for
many years,
Jackman had
that
he wore
baseball caps, and that the coat worn by the Revere robber in
the photographs was similar to one worn by Jackman before the
couple
separated.
man in
the surveillance
photographs as her
ex-husband, and
testified that he
Hurlock
-55
coaching
in
1990, Jackman
late
jacket
not
unlike
photographs
to
basketball.
came to
that
discuss
his
pictured
store wearing
in
the
the possibility
Revere
of
robbery
coaching youth
a bulky
him.
Hurlock
photographs as Jackman.
Stetson testified
that he had
1985 when Jackman and his former wife moved next door to him.
In
1989, after
Stetson
the Jackmans
for about
separated, Jackman
lived with
Stetson continued
to see
the
pictured
jury
that
he
recognized
the
man
had no doubt
in
the
was
Jackman.
The
jury also
John Jackman,
the
and
jury convicted
robbery, 18 U.S.C.
on
appeal.
He
2113(a).
contends
Jackman of
one count
Jackman raises
that
the
of bank
several issues
testimony
of
Deborah
-66
Jackman,
Stetson
and
Hurlock
should
because
it
not
helpful
to
was
have
the
been
jury,
it
excluded
was
not
value.
of
the
robber
not
Genco alluded to a
provided
by
anyone
who
turn.
II.
II.
___
DISCUSSION
DISCUSSION
__________
A. Admissibility of Lay Opinion Testimony
__________________________________________
We
review
district court's
admission
of
lay
manifest abuse
Cir. 1989).
1.
Helpfulness
___________
Rule 701
testimony only if
the
allows for
the admission of
perception of
the witness
and (b)
lay opinion
rationally based on
helpful to
a clear
of
his ex-wife,
Hurlock
and
Stetson under
the
-77
second prong
good a
of Rule 701,
position
as these
jury was
witnesses to
compare
in as
the
defendant from
first
impression
surveillance
for this
circuits, however,
testimony identifying
photographs is
Circuit.
have ruled in a
in the
number
of
of
other
variety of circumstances
an issue
We
____________________
2.
-88
testimony is admissible,
at least when
the
with the
defendant that
when the
photographs
the jury
are
not
cannot also
either
possess, and
so unmistakably
clear
or
so
identification.
See
___
United States v.
_____________
Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984) ("A witness's
__________
opinion
of a
the
defendant
person depicted
in a
the photograph
to correctly
than
is
the
officer
photograph
between
identifying
because defendant's
defendant
appearance
in
surveillance
had not
changed
defendant
before
in
person).3
Familiarity
with
the
____________________
helpful" where photographs depict only parts of robbers'
faces), vacated on other grounds, 479 U.S. 1077 (1987);
_______ __ _____ _______
United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir.)
_____________
________
(stepfather's identification of defendant from photograph
helpful because stepfather had knowledge of defendant's
appearance both before and at time of robbery and defendant
had grown moustache and changed hairstyle since time of
robbery), cert. denied, 449 U.S. 956 (1980).
_____ ______
3. The Seventh Circuit has deemed "helpful" testimony by a
witness who had seen the defendant on a single social
occasion and nearly a year prior to identifying him in a bank
surveillance photograph, even without evidence of a change in
the defendant's appearance, on the theory that, when shown
the photograph, the witness could "compare the person in the
-99
defendant's appearance
would
be
relevant;
at the
so,
too, would
photograph at
issue,
was committed
familiarity
or general
with
the
person in
familiarity with
the
a variety of contexts.
these
standards,
the testimony
blurred,
only
Revere robber
part
of the
court's
Hurlock and
an abuse of discretion.
of the
they show
district
of Deborah Jackman,
surveillance photographs
and
the
All the
are somewhat
robber's
face,
____________________
bank surveillance photograph with every person she had ever
met, whereas the jury could only compare the person in the
surveillance photographs to the defendant." United States v.
_____________
Jackson, 688 F.2d 1121, 1125 (7th Cir. 1982).
The case at
_______
hand does not present us with facts as extreme as those in
Jackson, and we express no opinion on how we would rule in a
_______
similar case.
-1010
primarily the
although
trial,
left side
it is virtually certain
low over
only able
robber
Furthermore,
that he did
his forehead.4
to compare the
with Jackman
as
Thus,
because the
grainy photographs
he appeared
cap pulled
at
jury was
of the
trial and
Revere
in
the
seen
him
circumstances.
on
multiple occasions
Each had
wearing a
robber.
coat
While it is
under
variety
of
numerous times
that resembled
the
coat worn
by
the
had seen the defendant for at least several months before the
Revere
robbery, and
thus could
robbery, this
potential weakness in
they were
their testimony
examination and
argument.
The
____________________
4. The jurors were able to view Jackman wearing a baseball
cap on the videotaped lineup and during a short courtroom
demonstration that the prosecution requested.
These brief
views in unnatural settings did not make the three witnesses'
testimony unhelpful.
-1111
fact
remains
that
all
three
witnesses
had
far
more
opportunity
of
and
angles
conditions.
Unlike
defendant's
testimony
distances
was helpful
to
posture.
the jury
assertions which
choosing up sides."
under
carriage and
"meaningless
and
Fed.
amount
different
lighting
were familiar
with the
In sum,
the witnesses'
and did
not constitute
to
little more
than
committee's
note.
2.
Availability of Cross-Examination
_________________________________
Jackman next
contends that
because
he could
not
fully
cross-examine Deborah
Jackman,
Hurlock and
Stetson,
Connecticut
robbery
was
unduly
the Connecticut
in the Revere
testimony related
that
off-
construed
prejudicial and
on their
photographs.
the defendant
_________
could not
elicit
robbery on cross-
examination.
with witnesses
who
knowledge
past
possess
history,
knowledge
of
that
the
defendant's
cannot
be
introduced
criminal
by
the
-1212
prosecution.
source
Although such
no evidentiary
highly damaging to
tactical decision.
decision
cross-examination by the
knowledge could be
Thus, Jackman's
ordinarily exclude
not to cross-examine
to
cross-examine law
tactical
choice by
faced at trial").
291, 296-97
enforcement
defendant
his case.
witnesses on
law enforcement
such
officers for
officers on
defendants similar
to
bias was
"a
those frequently
(6th Cir.
to cross-
waiver of
amounts to a choice
Circuit
inadmissible
probation
urges us
in
Calhoun,
_______
identification
officer
to
because
adopt the
in
which
testimony
of
the
reasoning of
the
by
court
the
ruled
defendant's
unfairly
prejudicial
Id. at 296.
___
It
-13-
13
and
v.
susceptible
Paiva,
_____
892
F.2d
to
cross-examination."
148,
157
(1st
United
______
Cir.
1989).
on "the
"cross-examination
and
argument
will
point
of discretion.
imposing a ban
percipient witnesses
fully
explored
on
To
the
Thus, there
absent to such an
on identification testimony
who may
up
cross-examination
without
may be
by non-
cannot be
exposing
application
to
those
cases
identification witness's
in
which
non-percipient
the defendant
____________________
5.
contacts
All three of
the opinion
with Jackman
prior to,
Thus,
down several
Connecticut
separate from,
having
manifold, and
the
and wholly
extensive
their
were
viewed
witnesses had
his counsel
of them,
quite
exposing Deborah
robbery
photograph.
effectively traveled
Jackman's potential
biases
against
her
ex-spouse,
with
the
Hurlock's
infrequent
contacts
reliance on
comparatively
defendant,
and
Stetson's
anxiety, which he
robbery
examination
photographs.
that
Jackman
The single
could
not
area
explore
the
the
up his prior
Jackman's
robbery
photograph.
cross-examination
choosing and
was
cross-
without
potential of opening
Connecticut
of
This
of
the
viewing of the
"limitation"
on
defendant's
own
For
reasons similar
to
those
expressed in
Part
witnesses
constituted an
outside
the
abuse of discretion.
presence
to question the
of
jury
-1515
the
if not a
full
evidentiary
sensible,"
Cir.),
hearing,
might
cert. denied,
_____ ______
Stormer, 938
_______
testimony
423 U.S.
898 (1975),
"eminently
F.2d 759,
by
not such
police
a case.
familiarity
The
admissible
the Connecticut
Jackman's, Stetson's or
of Jackman
The district
as the
to
determine
Hurlock's subsequent
____________________
his criminal
a baseball
circumstances, a
whether
Deborah
identification
impermissibly tainted,
had extensive
unnecessary
extensive
distinct from
his decision
was
where
before him;
some
1991) (identification
opinion witnesses
and under
hearing
been
circumstances
is
have
Because the
goes,
the
jury would
conclude
that
these
the kind of
witnesses, however,
such reasons.
Jackman's
sports.
robbery.
Indeed,
involvement
If
commit a bank
Little
League
The
alluded to any
testified about
and
other
youth
the testimony's
probative
value
such that
the
abused
its
arguments
discretion,
Connecticut prosecutor
are that
first
in
the
district
permitting
the
the lineup in
refusing
description
to grant
the
a mistrial
government
when
Genco alluded
apparently
obtained
Neither
to a
in
point merits
extensive discussion.
-1717
Genco
United
he
only
identified
himself
as
an
Assistant
lived
and worked
in
Connecticut.
His
testimony
was
offered
to
authenticate the
explain how it
videotape
of
the lineup,
to
room.
enabled
in
This testimony,
the viewing
room
the
government
before identifying
offered to stipulate to
Jackman.
Jackman
testimony.
While
contends,
of Genco's
been of marginal
and
robber"
provided
reference
that
did
by Megna,
able to
draw
not comport
See
___
not
we seriously
any inference
Genco's blunder.
with
mistrial was
was allusive
description
called for.
damaging
the jury
to Jackman
based
v. Sepulveda,
_________
resort,
implemented .
believes
only to
be
-1818
The
curative instruction
doubt that
United States
_____________
of
. .
if the
was
on
15 F.3d
a last
trial judge
to prove
beyond realistic
hope of repair."),
cert. denied,
_____ ______
-1919