United States v. Wilkerson ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5321
RONALD SHERRILL WILKERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
Malcolm J. Howard, District Judge;
Franklin T. Dupree, Jr., Senior District Judge.
(CR-94-58-H)
Argued: March 4, 1996
Decided: May 24, 1996
Before LUTTIG, Circuit Judge, CHAPMAN, Senior Circuit Judge,
and CLARKE, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
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Affirmed by published opinion. Senior Judge Clarke wrote the opin-
ion, in which Judge Luttig and Senior Judge Chapman joined.
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COUNSEL
ARGUED: Ronnie Monroe Mitchell, HARRIS, MITCHELL &
HANCOX, Fayetteville, North Carolina, for Appellant. David J. Cor-
tes, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: Janice McKenzie Cole, United States Attor-
ney, Raleigh, North Carolina, for Appellee.
OPINION
CLARKE, Senior District Judge:
Ronald Sherrill Wilkerson was convicted by jury of two counts of
bank robbery, in violation of 18 U.S.C. §§ 2113 (a) and (d), and two
counts of using a firearm during the commission of a crime of vio-
lence, in violation of 18 U.S.C. § 924(c). In this appeal, he challenges
(1) the in-court eyewitness identifications which he claims were
tainted by prior suggestive photographic lineups and (2) the trial
judge's exclusion of exculpatory hearsay statements. Because the
admission of the eyewitnesses' in-court identifications was not plainly
erroneous and because the trial judge did not abuse his discretion in
excluding the hearsay statements, we affirm.
I
When the sufficiency of evidence to support a conviction is chal-
lenged, the relevant facts are viewed in the light most favorable to the
government. Accordingly, the facts are as follows.
On March 7, 1994, Wilkerson entered the Centura Bank in Fayette-
ville, North Carolina, wearing a mask and carrying a satchel in one
hand and an automatic pistol in the other. He told one customer to
"get down on the floor, this is a robbery." He then approached the
head teller, Julie Webb, pointed the gun at her, and handed the satchel
over with instructions to fill it with large bills. She told him that she
did not have the keys to her teller station, whereupon Wilkerson told
her to get them. While Webb went to retrieve the keys, Wilkerson
gave the satchel to another teller, Cynthia Barker, saying "fill it up."
Barker complied with Wilkerson's request, placing approximately
$750 in the bag. Upon her return, Webb deposited another $1500 in
the satchel. Wilkerson then walked out the front door and headed
towards his waiting car. Barker followed him to the door in order to
lock the bank. As she reached the door, she saw Wilkerson take off
his mask. He turned and looked at her, thus giving her the opportunity
to see both the front and side of his face.
Two customers in the drive-through teller lane saw the robbery and
also saw Wilkerson without his mask on. One of these eyewitnesses,
2
Steven Daniels, pulled in front of the getaway car and saw Wilker-
son's face, making eye contact with Wilkerson a number of times.
The other eyewitness, Carl Pollick, also saw Wilkerson remove his
mask. Both Pollick and Daniels chased Wilkerson's car. They
described it as a gray or silver Camaro-like sports car with grates on
the back window. Daniels only chased Wilkerson for a short time, but
Pollick continued the chase, attempting to get a license plate number.
The license plate had been flipped over, however. After Pollick lost
sight of the car, he remained in the neighborhood, searching for it.
Within three to five minutes, he spotted a car which he believed to
be the getaway car. This time, the license plate was visible, and, when
Wilkerson stopped at a gas station, Pollick wrote down the plate num-
ber.
Based upon the license number, the police were able to identify
Wilkerson as the owner of the car, but were unable to apprehend
Wilkerson. The police did, however, show Daniels and Barker a pho-
tographic lineup containing Wilkerson's photo on March 21, 1994.
Although neither of them positively identified Wilkerson, Barker
stated that he looked familiar to her and Daniels picked Wilkerson's
photo as the person who looked like the bank robber. There is no evi-
dence in the record concerning the other pictures in the lineup.
Wilkerson was still at large on May 13, 1994. On that day, the
Branch Manager of the State Bank of Fayetteville, John McFayden,
saw Wilkerson drive up to the bank wearing a gorilla mask. Wilker-
son walked into the bank carrying a Coleman cooler, a pistol visible
in his front pocket. He demanded money in large bills; two tellers,
Tammy Laughner and Cynthia Landry, handed over money from their
cash drawers. Some of the money Landry gave Wilkerson was bait
money whose serial numbers had been recorded. Upon returning to
his car, Wilkerson removed his mask and looked back at McFayden
and Laughner. On May 17, 1994, four days later, both McFayden and
Laughner looked at the photographic lineup and stated that Wilker-
son's photo closely resembled the robber.
On May 24, 1994, two FBI agents spotted Wilkerson, and after a
slow-speed pursuit, began questioning him about his whereabouts on
the dates of the two robberies. Wilkerson provided an alibi for the
time of each robbery; however, these were later discredited. The
3
agents requested and received Wilkerson's permission to search the
car. Under the driver's seat, they found a black plastic case containing
20 five dollar bills. The agents randomly selected some of these bills
and found that the serial numbers matched the bait money numbers
provided by the State Bank of Fayetteville.1 Wilkerson was not
arrested at this time.
On June 2, 1994, Wilkerson and his aunt went to the Centura Bank
to make a deposit. Barker became upset when she saw Wilkerson,
believing him to be the bank robber, and called the police. Wilkerson,
however, was not arrested until August 26, 1994, following a call to
the FBI from McFayden, who had spotted and identified Wilkerson
in the lobby of a Holiday Inn.
At trial, Barker and Daniels identified Wilkerson in court as the
individual who robbed the Centura Bank on March 7, 1994. McFay-
den and Laughner also made in-court identifications. Other evidence
presented at trial included Wilkerson's possession of the bait money,
Pollick's statement about the license plate number, the discrediting of
Wilkerson's alibis, and Wilkerson's girlfriend's testimony concerning
a cooler of money he had shown her the evening of the second rob-
bery. In addition, FBI agent Parker testified regarding the search of
Wilkerson's car and the discovery of the cash under the car seat. On
cross-examination, the trial judge refused to allow Parker to be ques-
tioned about the statements Wilkerson had made after the search of
his car implicating his cousin.
II
Wilkerson first contends that the trial court erred by allowing the
eyewitnesses to identify Wilkerson at trial as the robber of the Cen-
tura Bank and the State Bank of Fayetteville. He claims that this vio-
lated his due process rights because the in-court identifications were
tainted by the prior suggestive photographic lineups.
A motion to suppress evidence should be raised prior to trial. Fed
R. Crim. P. 12(b)(3). Wilkerson failed to do so. Furthermore,
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1 Later, a comprehensive comparison revealed that 18 of the 20 bills
matched the bait money inventory list.
4
although Wilkerson's attorney did object to the introduction of the
prior photographic lineup identifications at trial, he did not do so on
the basis of the suggestiveness of the lineup. Instead, he objected to
the eyewitnesses testifying about the photographic lineups at trial
because they had not positively identified Wilkerson at the time of the
lineups.2 Because Wilkerson's objection to the admission of the pho-
tographic lineup evidence on appeal is not the same as his objection
at trial, the standard of review is one of plain error. Fed. R. Crim. P.
52(b); see also United States v. Adam, 70 F.3d 776, 780 (4th Cir.
1995) (plain error standard applies where appellant did not object to
statements made at trial); United States v. Brewer, 1 F.3d 1430, 1434
(4th Cir. 1993) (plain error standard used "where counsel fails to ade-
quately present and preserve an objection on the record"). We find no
error in the admission of the in-court identifications.
The Supreme Court has outlined a two-step analysis for determin-
ing whether identification testimony is admissible. First, the defen-
dant must establish that the photographic lineup procedure was
impermissibly suggestive. Manson v. Braithwaite , 432 U.S. 98, 110
(1977); Neil v. Biggers, 409 U.S. 188, 198-99 (1972); Simmons v.
United States, 390 U.S. 377, 384 (1968). Second, even if the proce-
dure was suggestive, the in-court identification is valid if it was reli-
able. Braithwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199; Willis
v. Garrison, 624 F.2d 491, 493 (4th Cir. 1980). The factors the court
may consider in measuring reliability include: (1) the witness' oppor-
tunity to view the perpetrator at the time of the crime; (2) the witness'
degree of attention at the time of the offense; (3) the accuracy of the
witness' prior description of the perpetrator; (4) the witness' level of
certainty when identifying the defendant as the perpetrator at the time
of the confrontation; and (5) the length of time between the crime and
the confrontation. Biggers, 409 U.S. at 199-200. These factors are
weighed against the "corrupting effect of the suggestive identification
itself." Braithwaite, 432 U.S. at 114. Courts may also consider other
evidence of the defendant's guilt when assessing the reliability of the
in-court identification. See, e.g., United States v Lau, 828 F.2d 871,
875 (1st Cir. 1987) (court relies on fact that one defendant had license
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2 The trial judge instructed counsel that inconsistent statements went to
the probative value of the testimony and should be discredited by counsel
through cross-examination.
5
to fly the plane in question, another was nearby the site where the
transaction occurred, and the witness used the defendants' correct
names when first describing them to the authorities, to support the
reliability of the witness' identification of the defendants), cert.
denied, 486 U.S. 1005 (1988); United States v. DiTommaso, 817 F.2d
201, 214 n.17 (2d Cir. 1987) (even if the identification was unreliable,
error was harmless where evidence as a whole was overwhelming);
United States v. Bell, 812 F.2d 188, 193 (5th Cir. 1987) (identification
may be reliable in the context of all the circumstances and evidence).
In this case, Wilkerson has failed to establish that the photographic
lineup was impermissibly suggestive. The lineup was not made a part
of the appellate record, the district court has not ruled on the issue,
and the only evidence of suggestibility is Wilkerson's bare assertion
that the other photos did not look like the perpetrator as described by
the witnesses.3 Consequently, Wilkerson fails the first part of the
analysis.
Furthermore, assuming arguendo that the photographic array was
impermissibly suggestive, Wilkerson's argument would still fail
because the in-court identifications were reliable. All the witnesses
saw Wilkerson's face in broad daylight while their full attention was
focused on him. The witnesses' prior descriptions were fairly accu-
rate. The witnesses who identified Wilkerson at trial were positive of
their in-court identification. In addition, it is unlikely that the photos
had a corrupting effect on the in-court identifications. None of the
witnesses positively identified Wilkerson from the photographic
lineup, perhaps due to the poor quality of the photos as described by
both parties. There was no evidence that the photos were shown
repeatedly to the witnesses or that the police emphasized Wilkerson's
photo. See Simmons, 390 U.S. at 383 (danger of misidentification is
heightened if defendant's picture is emphasized or recurs in lineup).
Under these circumstances, we cannot say that "there is a substantial
likelihood of irreparable misidentification." Id. at 384. Finally, the
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3 During oral argument, Wilkerson's attorney claimed that the photos
were of poor quality and that only one of the photos, the one of Wilker-
son, resembled the perpetrator as described by the witnesses. The gov-
ernment agreed that the photos were of poor quality, but stated that the
individuals in the photos were similar in appearance.
6
fact that two of the witnesses, Barker and McFayden, upon observing
Wilkerson in public, were so certain that he was the bank robber that
they called the authorities, also lends substantial support to the reli-
ability of the identifications. Accordingly, because Wilkerson has
failed to show both that the photographic lineup was impermissibly
suggestive and that the witnesses' testimony was unreliable, Wilker-
son's due process rights were not violated by the in-court identifica-
tions.
III
Wilkerson also alleges that the district court erred in prohibiting
him from eliciting, on cross-examination of Agent Parker, exculpa-
tory statements he had made explaining how he had acquired the bait
money. Wilkerson claims that the trial judge should have allowed in
this testimony under the rule of completeness. A trial judge's eviden-
tiary decisions are reviewed for abuse of discretion. United States v.
Hassan El, 5 F.3d 726, 731 (4th Cir. 1993), cert. denied, 114 S. Ct.
1374 (1994).
The common-law doctrine of completeness has been partially codi-
fied in Rule 106 of the Federal Rules of Evidence. 4 Beech Aircraft
Corp. v. Rainey, 488 U.S. 153, 171-72 (1988). The rule applies only
to writings or recorded statements, not to conversations. Fed. R. Evid.
106, advisory committee notes; United States v. Bigelow, 914 F.2d
966, 972 (7th Cir. 1990), cert. denied, 498 U.S. 1121 (1991). Thus,
Wilkerson's reliance on the rule is misplaced. Furthermore, when the
rule does apply, its purpose is to prevent a party from misleading the
jury by allowing into the record relevant portions of the excluded tes-
timony which clarify or explain the part already received. United
States v. Ricks, 882 F.2d 885, 893 (4th Cir. 1989), cert. denied, 493
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4 The rule provides that:
[w]hen a writing or recorded statement or part thereof is intro-
duced by a party, an adverse party may require the introduction
at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contempora-
neously with it.
Fed. R. Evid. 106.
7
U.S. 1047 (1990); Merrick v. Mercantile-Safe Deposit & Trust Co.,
855 F.2d 1095, 1103-04 (4th Cir. 1988); United States v. Jamar, 561
F.2d 1103, 1108 (4th Cir. 1977). In this case, during direct examina-
tion Agent Parker testified that the agents found a black case contain-
ing some of the bait money while searching Wilkerson's car. No other
testimony about any portions of a conversation between the agents
and Wilkerson regarding that particular cache of money was intro-
duced. Thus, the rule of completeness, if it applied to oral conversa-
tions, would not have applied here where there was no partially-
introduced conversation that needed clarification or explanation.
The evidentiary rules which properly govern the admissibility of
Wilkerson's exculpatory statements are contained within the hearsay
rule and the exceptions thereto. See Fed. R. Evid. 801, 802, 803, and
804. Hearsay is defined as "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted." Fed. R. Evid. 801(c).
Admissions by a party-opponent are not considered hearsay and
therefore can be admitted against that party. Fed. R. Evid. 801(d)(2).
Thus, during direct examination, the government could have intro-
duced inculpatory statements made by Wilkerson. The rules do not,
however, provide an exception for self-serving, exculpatory state-
ments made by a party which are being sought for admission by that
same party. See Fed. R. Evid. 803-804. Moreover, even if, as Wilker-
son claims, Rule 106 had applied to this testimony, it would not ren-
der admissible the evidence which is otherwise inadmissible under the
hearsay rules. See United States v. Woolbright , 831 F.2d 1390, 1395
(8th Cir. 1987) (neither Rule 106 or Rule 611 authorizes a court to
admit unrelated hearsay when that hearsay does not fall within one of
the exceptions to the hearsay rule). Consequently, because the excul-
patory statement in question here was pure hearsay and no exception
enumerated in the rules permit its introduction, the trial judge did not
abuse his discretion in prohibiting its admission.
IV
Wilkerson's counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). Counsel has requested this Court to
review the record for any basis for appeal that he may have over-
8
looked. In accordance with Anders, we have examined the record and
have found no basis for appeal.
V
Finding no error in either the admission of the in-court identifica-
tions or the trial court's exclusion of exculpatory hearsay statements,
Wilkerson's conviction is
AFFIRMED.
9