United States v. Gamble , 290 F. App'x 592 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4290
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDDIE GAMBLE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00192-NCT)
Submitted: June 30, 2008 Decided: August 18, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel Hill,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Eddie Gamble was convicted on one
count of bank robbery, in violation of 18 U.S.C. § 2113(a) (2000).
The district court sentenced Gamble to 240 months’ imprisonment.
Gamble timely appealed.
Gamble first contends that the district court erred by
failing to suppress the branch manager’s in-court identification of
him, claiming that the witness was unduly influenced by a
photograph of Gamble and a video of Gamble’s capture. Courts
engage in a two-step analysis to determine the admissibility of the
identification testimony. First, the defendant must establish that
the identification was impermissibly suggestive, i.e., that “a
positive identification is likely to result from factors other than
the witness’s own recollection of the crime.” Satcher v. Pruett,
126 F.3d 561, 566 (4th Cir. 1997). If the court concludes that the
confrontation procedure was not impermissibly suggestive, the
inquiry ends. United States v. Bagley, 772 F.2d 482, 492 (9th Cir.
1985); cf. Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994)
(holding that court may proceed directly to reliability of
identification without determining whether defendant has met
threshold requirement of suggestiveness). If, however, the
defendant makes this showing, the court then must determine whether
the identification was nevertheless reliable under the totality of
the circumstances. Satcher, 126 F.3d at 566. The Supreme Court
has set out five factors to be considered in deciding the
reliability of identification testimony: “[1] the opportunity of
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the witness to view the criminal at the time of the crime, [2] the
witness’ degree of attention, [3] the accuracy of his prior
description of the criminal, [4] the level of certainty
demonstrated at the confrontation, and [5] the time between the
crime and the confrontation.” Manson v. Brathwaite, 432 U.S. 98,
114 (1977); United States v. Murray, 65 F.3d 1161, 1169 n.6 (4th
Cir. 1995).
In this case, the district court determined that there
was no impermissibly suggestive pretrial identification. The
branch manager testified that, during the robbery, he was able to
get a clear look at the robber’s face when he handed over the
money, noting the “distinct lines on his face.” He stated that he
was “trained to look at specifics.” As the district court noted,
this witness followed the robber as he fled the bank, observing the
suspect drop items and then reach down to pick them up, and head to
a white van with his face unobstructed. He watched the robber get
into the van and drive away. We find that the district court did
not abuse its discretion by concluding that the branch manager had
a sufficient opportunity to identify Gamble during the robbery and
that his later viewing of a photograph and video footage was not
impermissibly suggestive.
Even if the court had bypassed the analysis of the
suggestiveness of the photograph and video footage, Holdren, 16
F.3d at 61, under the totality of the circumstances, the branch
manager’s testimony was reliable. He not only was in close
proximity to the suspect and therefore had a good opportunity to
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view the suspect at the time of the robbery, but also utilized his
training to “look at specifics” and put forth significant effort to
observe the robber and his getaway vehicle. The detail and
accuracy of the branch manager’s description enabled the police to
readily identify Gamble’s white van by the red, white, and blue
“save our troops” decals on the back. Furthermore, the witness
testified that he prepared a written statement on the day of the
robbery in which he declared, “I feel very certain that I can
identify the robber.” Under the totality of the circumstances, we
conclude that the district court did not abuse its discretion by
concluding that the branch manager’s in-court identification of
Gamble was reliable.
Gamble also argues that a videotape of his capture was
unfairly prejudicial. This fifty-second footage, extracted from
news coverage, includes a clip of police vehicles closing in on the
site where Gamble’s van was stopped, an aerial view of police
officers and a dog finding Gamble hiding under heavy brush, and
ends with a close-up shot of Gamble being loaded into an ambulance.
Although Gamble’s identity is not readily discernible from the
aerial view, the canine handler who participated in Gamble’s
apprehension testified at trial and identified himself, his canine,
and Gamble in the portion of the clip showing officers and a dog
closing in on the suspect.
Under Fed. R. Evid. 403, relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
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the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. Review of a district
court’s determination of the admissibility of evidence is for abuse
of discretion. United States v. Brooks, 111 F.3d 365, 371 (4th
Cir. 1997). We find that the district court did not abuse its
discretion in admitting the photograph.
First, contrary to Gamble’s claim that the videotape had
no probative value, the evidence was relevant. Gamble claimed that
he had been kidnaped and did not drive the van during the high
speed police chase and that he was wheelchair-bound. Although
Gamble’s face is clearly visible only in the footage of his
placement in the ambulance, the canine officer involved in Gamble’s
arrest positively identified Gamble in the aerial footage.
Furthermore, the clip supports the Government’s evidence, presented
through police officers’ testimony, that Gamble led them on a high
speed chase after the robbery and hid in a wooded area where he was
flushed out by a police dog.
Gamble claims that the footage was unfairly prejudicial
and served only to sensationalize the Government’s evidence. We
have noted that “[p]rejudice, as used in Rule 403, refers to
evidence that has an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional
one.” United States v. Queen, 132 F.3d 991, 994 (4th Cir. 1997)
(internal quotation marks omitted). We conclude that the videotape
did not pose a legitimate risk of arousing the emotions of the
jurors to the point of creating a genuine danger that the case
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would be decided based upon their emotional reaction to it.
Although the jury exhibited an interest in the footage, this
interest, contrary to Gamble’s argument, does not indicate that the
video’s probative value was outweighed by any prejudicial effect.
The district court did not abuse its discretion in admitting the
videotape. Moreover, even assuming arguendo that the introduction
of the videotape constituted an abuse of discretion, any error was
harmless in light of the overwhelming evidence against Gamble.
Accordingly, we affirm Gamble’s conviction. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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