United States v. Marshall Jackson ( 1982 )

ESCHBACH, Circuit Judge.

The defendant Marshall Jackson was convicted after trial to a jury of bank robbery and assault by use of a dangerous weapon in violation of 18 U.S.C. §§ 2, 2113(a) and (d). On appeal Jackson contends that the district court committed reversible error by permitting a lay witness, Louise Heneghan, to testify that the defendant was one of the robbers pictured in the bank surveillance photographs of the robbery. We affirm.

On April 30, 1980 three men, one of whom was carrying a gun, robbed the Broadway Bank at 5960 North Broadway in Chicago, Illinois of $28,240.75. During the course of the robbery one of the bank tellers activated the bank’s surveillance camera which photographed the remainder of the robbery.

The defendant was arrested on January 5, 1981 and charged with participating in the robbery of the Broadway Bank. He entered pleas of not guilty as to both the bank robbery charge and the charge of assault with a dangerous weapon, contending that the government had erred in its identification of him as one of the robbers. The man photographed by the bank surveillance cameras as the robber who actually collected the money from the bank tellers, who the government contended was the defendant, had a full beard and mustache and was quite heavy-set. Jackson appeared with long sideburns and a Fu Manchu style mustache in the photograph of him taken on the day of his arrest, January 5, 1981. At the pre-trial line-up held in February 1981 Jackson had shorter hair and long sideburns but no facial hair. Both the arrest and line-up photographs depict the defendant as somewhat heavy-set.

At trial the government presented three witnesses who testified, to varying degrees of certainty, as to the identification of Jackson as the robber who collected the cash from the tellers: Alice Koch, one of the tellers, Vicki Liberman, another bank employee, and Louise Heneghan. Ms. Koch, who was one of the tellers from whom a portion of the cash was taken during the robbery, testified that she had positively identified the defendant in the February line-up. She stated that the defendant differed in appearance from the bank robber to the extent that the bank robber had a beard and mustache. Ms. Liberman, who witnessed a portion of the robbery, could not make a positive identification from the line-up, but testified that the eyes of the defendant “resembled” those of the robber who was at the teller window. She also stated, however, that the defendant differed from the robber in that the former had no facial hair, had shorter hair and appeared smaller than the robber.

The third witness to testify as to the identification of the defendant was Louise Heneghan, who was not an eyewitness to the robbery. She testified that she had met the defendant, whom she knew as “Tiny”, only one time, on December 29, 1979 at a Christmas party. In December 1980 the FBI had shown Ms. Heneghan a photograph of the individual who took the cash from the tellers and at that time she identified the man in the photograph as the man she knew by the name of Tiny. She also identified the defendant as Tiny in the courtroom.¹

In addition to the testimony of witnesses Koch, Liberman and Heneghan, the district court admitted as exhibits a number of bank surveillance photographs of the actual robbery, a photo of the defendant on the day of his arrest and pictures of the February line-up in which the defendant participated.

The sole issue raised on appeal is whether the district court committed prejudicial error in admitting the testimony of Louise Heneghan.

Rule 701 of the Federal Rules of Evidence authorizes the admission of opinion evidence by a lay witness where the witness’ opinion is “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” 28 U.S.C. § 701. The decision of whether or not to admit certain testimony under Rule 701 is committed to the sound discretion of the district court, and we may not reverse absent a finding that the lower court abused its discretion. Bohannon v. Pegelow, 652 F.2d 729, 732 (7th Cir. 1981); United States v. Skeet, 665 F.2d 983 (9th Cir. 1982); United States v. Borrelli, 621 F.2d 1092 (10th Cir.), cert. denied, 442 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 222 (1980); United States v. Butcher, 557 F.2d 666 (9th Cir. 1977).

Opinion testimony by a lay witness may be admitted under Rule 701 whenever the witness cannot adequately communicate to the jury the facts upon which his or her opinion is based. United States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982). The theory behind Rule 701 “is that wherever inference and conclusions can be drawn by the jury as well as by the witness, the witness is superfluous; ... a lay opinion is received because and whenever his facts cannot be so told as to make the jury as able as he to draw the inference.” 7 Wigmore on Evidence (Chadbourn rev. 1978) § 1917.8 at 10 (emphasis in original). Thus, in order to conclude that such testimony is admissible, the court must find that the witness’ testimony is based upon his or her personal observation and recollection of concrete facts, United States v. Skeet, supra at 985, and that those facts cannot be described in sufficient detail to adequately convey to the jury the substance of the testimony. The Advisory Committee Notes to Rule 701 indicate that direct and cross-examination of the lay witness testifying as to his or her opinion is relied upon to verify the accuracy of the testimony.²

The defendant urges that Ms. Heneghan was not sufficiently familiar with him to meet the first part of the test for admissibility under Rule 701 and that the government failed to introduce other evidence showing that there was any need for such testimony and thereby failed to meet the second part of Rule 701’s test. He also contends that his right to a jury trial was abrogated because Ms. Heneghan was permitted to testify as to the ultimate issue before the jury: whether the defendant was one of the bank robbers.

The defendant’s initial attack on the admission of Ms. Heneghan’s testimony is founded upon his belief that the witness’ opinion was not “rationally based” upon her perceptions. He urges us to distinguish the instant case from others involving very similar factual settings where opinion testimony, as to the identity of the defendant as the person who committed the bank robbery, by lay witnesses was admitted, United States v. Saniti, 604 F.2d 603 (9th Cir.), cert. denied, 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 384 (1979); United States v. Young Buffalo, 591 F.2d 506 (9th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2178, 60 L.Ed.2d 1055 (1979); United States v. Borrelli, 621 F.2d 1092 (10th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 222 (1980); United States v. Ingram, 600 F.2d 260 (10th Cir. 1979), on the grounds that the witnesses in those cases were much more familiar with the respective defendants than is Ms. Heneghan with this defendant. It is true that in most instances where opinion testimony on the issue of identification is admitted the witness was intimately familiar with the defendant’s physical appearance. In United States v. Saniti, supra at 605, the witnesses were the defendant’s roommates and identified the clothing of the robber, as depicted in the bank surveillance photograph, as belonging to the defendant. The witness in United States v. Borrelli, supra, was the defendant’s stepfather with whom the defendant had resided until just a few days before the robbery. In United States v. Ingram, supra at 262, the witnesses were acquaintances of the defendant in whose home he was staying at the time of the robbery. And in United States v. Young Buffalo, supra, the defendant’s wife and parole officer were permitted to testify as to the resemblance of the defendant to the robber photographed by the bank surveillance cameras.

At the opposite end of the spectrum from those cases in which the lay witnesses were closely aware of the defendants’ appearance at the time of the crime stands United States v. Butcher, 557 F.2d 666 (9th Cir. 1977), in which the court affirmed the lower court’s action in permitting two law enforcement officials who were acquainted with the defendant as well as the defendant’s parole officer to testify that in their opinions the defendant was the person pictured in the bank surveillance photograph of the bank robbery. The court noted that the witnesses’ opinions were based upon various contacts with the defendant occurring over a period of time; each witness, however, had spent only two to three hours with the defendant in total. In addition, contact between the defendant and the witnesses had ceased four months before the robbery. Id. at 667. Even in view of this limited exposure to the defendant, the court had no trouble concluding that the witnesses’ opinions were “rationally based on prior contacts and conversations with the defendant.” Id. at 669.

While we recognize that there is a difference between identification testimony which is based upon a witness’ one social encounter with the defendant and identification testimony which is based upon a witness’ close and on-going relationship with the defendant, we do not believe that the difference, in this ease, is determinative of the issue of admissibility of the evidence. The amount of time that the witness had to observe the defendant goes to the weight to be accorded to the testimony by the jury rather than to its admissibility. United States v. Lawson, 653 F.2d 299, 303 n.15 (7th Cir. 1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982). The defendant’s counsel was given ample opportunity to bring out Ms. Heneghan’s limited exposure to the defendant on cross-examination; after that, it was up to the jury to decide whether to believe Ms. Heneghan and, if believed, how much weight to place upon her opinion.³ We agree with the district court that Ms. Heneghan’s knowledge of the defendant was sufficient to come within the bounds of Rule 701(a).

The defendant’s second contention is that the testimony of Ms. Heneghan was not useful to the jury. He argues that because the government failed to present any evidence that the defendant’s appearance changed between April 30, 1980, the date of the robbery, and the time of the trial, the jury was in as good a position as anyone to assess whether the defendant was the same individual pictured in the surveillance photographs. We do not think that the absence of independent evidence as to a change in the defendant’s appearance is fatal under the circumstances of this case. Ms. Heneghan testified that she was shown a photograph of the bank robber and that she identified the man in the photograph as Tiny. She also identified, in court, the defendant as Tiny. This testimony was useful to the jury even without evidence of a change in the defendant’s appearance because it is based upon Ms. Heneghan’s opportunity to compare the person in the 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.

We also note that there was evidence of a change in the defendant’s appearance between the date of his arrest and the date of the line-up. It was apparent to the jury from the photograph taken on the date of defendant’s arrest compared to the photographs of the subsequent line-up that the defendant did, in fact, alter his appearance somewhat, by cutting his hair and shaving his mustache, during the brief period of just over one month. Moreover, the jury could compare the defendant’s appearance at trial to his appearance in the January and February photographs in order to discern whether or not the defendant had attempted to alter his appearance even further. While we agree with the defendant that Ms. Heneghan’s opinion would have been a necessary aid to the jury if there had been independent testimony that the defendant had altered his appearance between the time of the robbery and the date of the trial, we cannot conclude that the testimony of Ms. Heneghan was not “helpful to a clear understanding of . . . the determination of a fact in issue.” Rule 701(b) (emphasis added).⁴

Finally, we reject the defendant’s contention that the district court, by permitting Ms. Heneghan to testify as to the identification issue, allowed the function of the jury to be usurped. The jury was free to believe or disregard Ms. Heneghan’s testimony; the issue of whether the defendant was the same person as the bank robber was left to the jury for its ultimate determination.⁵

For the foregoing reasons, we conclude that the district court did not abuse its discretion by admitting the opinion testimony of Ms. Heneghan. Moreover, even if we would have found that the testimony was not properly admitted under Rule 701, such a finding would not necessarily require re-' versal in this case. The jury was presented with other evidence, such as the testimony of Ms. Koch and the photographs of the robbery, from which it could have reasonably concluded that the defendant had participated in the bank robbery.

The judgment appealed from is therefore affirmed.⁶

Affirmed.

1 . Ms. Heneghan testified as follows:

Direct Examination:

* * * * * #

Q Let me direct your attention now to December 16th of 1980, did FBI Agent William Keefe visit your office on that day?

A Yes, he did.

Q And did he show you a bank surveillance photo at that time?

A Yes, he did.

* * Hi * * H=

Q At the time that he showed you that photograph, did you recognize the individual in that photograph?

A Yes, I did.

Q And who was that individual?

A All I know him by was the name Tiny and he was a friend of our night manager.

Q Did you later learn that Tiny was Marshall Jackson?

A Yes.

Q How did you know Tiny?

A He attended a Christmas party at our store one night.

Q And when was that Christmas party?

A ... December the 29th, 1979.

Q The person you have identified, do you see him in the courtroom today?

The Court: The record will reflect that the witness has identified the defendant. sfc

Cross Examination:

Q Mrs. Heneghan, prior to having been shown that photograph marked Exhibit 11, how many times had you seen the individual named Tiny?

A I had only seen him once.

Transcript pp. 94-96.

2 . The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage. If he fails to do so, cross-examination and argument will point up the weakness.

Notes of Advisory Committee on Proposed Rules, Rule 701.

3 . In considering whether certain opinion evidence by a lay witness was admissible to show the mental state of the defendant, this court in United States v. Lawson, 653 F.2d 299, 303 (7th Cir. 1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982) stated: “The [federal] rules [of evidence] permit the introduction of substantially more evidence than was formerly admissible. They place great reliance on cross-examination, for much evidence is now admissible subject to cross-examination as a means of verification. It is then up to the fact finder to determine the weight to be attached to the evidence.” Compare United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976) (where the court excluded the identification testimony of the defendant’s parole officer because the scope of cross-examination was restricted by virtue of the defendant’s desire not to disclose to the jury the fact that the lay witness was the defendant’s parole officer).

4 . The Advisory Committee Notes to Rule 701 provide that “necessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration,” thereby rejecting the defendant’s contention that necessity is the applicable standard in the instant case.

5 . One commentator notes that “the witness, in expressing his opinion, is not attempting to ‘usurp’ the jury’s function; nor could if he desired. He is not attempting it, because his error (if it were one) consists merely in offering to the jury a piece of testimony which ought not to go there; and he could not usurp it if he would, because the jury may still reject his opinion and accept some other view, and no legal power, not even the judge’s order, can compel them to accept the witness’ opinion against their own.” 7 Wigmore on Evidence (Chadbourn rev. 1978) § 1920 at 19 (emphasis in original) (footnote omitted).

6 . The dissent suggests that we have created a substantive conflict with decisions of other circuits. In our view the decisions in United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976) and United States v. Robinson, 544 F.2d 110 (2d Cir. 1976), relied on in the dissent, announce no definitive principle in conflict with our decision here.

The Calhoun court opines that the testimony before it “teases the outer limits of Rule 701,” that “it is not at all clear” whether the testimony was helpful in determination of a fact in issue, and “questionjsj” whether the testimony amounted to merely choosing up sides. In short, the opinion expresses uncertainty on the issues before us. 544 F.2d at 295. We note our interpretation of the Calhoun holding is shared by the Ninth Circuit in United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977) and the Tenth Circuit in United States v. Ingram, 600 F.2d 260, 262 (10th Cir. 1979).

The Robinson court expressed an inclination to agree that it is not improper to exclude testimony of a lay opinion whether the individual in a bank photograph is the defendant. The court went on to say that this is an “abstract proposition” inapplicable to the facts before the court. 544 F.2d at 113 n.4.

We note also that although the trial judge did initially have a mistaken impression of the nature of the Heneghan testimony, as reflected in the quotations in the dissent, fn. 7, the prosecution corrected the impression before the judge made his final ruling.