United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 94-1759
UNITED STATES,
Appellee,
v.
GARY WAYNE JACKMAN,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Miriam Conrad, Federal Public Defender, for appellant.
Robert E. Richardson, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
February 9, 1995
STAHL, Circuit Judge. In this appeal of his
STAHL, Circuit Judge.
conviction for bank robbery, defendant-appellant Gary W.
Jackman alleges an abuse of discretion in certain of the
district court's evidentiary rulings. Finding no abuse of
discretion, we affirm.
I.
I.
BACKGROUND
BACKGROUND
On December 24, 1992, a man wearing a Florida
Marlins baseball cap and a bulky winter jacket walked into
the Boston Five Cents Savings Bank in Revere, Massachusetts,
handed teller Deanna Megna a note demanding money, stating he
had a gun, and walked out after being given $1,740 from the
teller's drawer. Megna described the man immediately after
the robbery as "skinny" and "blond." About a month later,
Megna easily picked Jackman as the Revere robber out of a
six-man lineup in Glastonbury, Connecticut, where Jackman was
being held in connection with a bank robbery in Avon,
Connecticut. Photographs of the Revere robber, taken by the
bank's surveillance camera, were shown by investigators to
Jackman's ex-wife, Deborah Jackman, and to two acquaintances
of Jackman, Harry Stetson and David Hurlock. Although the
photographs showed only part of the robber's face beneath a
baseball cap and were somewhat grainy, Deborah Jackman,
Stetson and Hurlock all told investigators that the man in
the photographs was Jackman. Prior to identifying Jackman as
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the man in the Revere robbery photos, Deborah Jackman,
Stetson and Hurlock all viewed a much clearer photograph of
the Connecticut robber taken during the course of that
robbery and identified the robber as Jackman. Both the
Connecticut robber and the Revere robber appear to be wearing
a Florida Marlins baseball cap and a heavy winter coat.
At trial, Megna testified about the robbery and her
identification of Jackman at the lineup, but she was unable
to make an in-court identification of Jackman.1 James
Genco, the Assistant United States Attorney who prosecuted
Jackman in Connecticut and who oversaw the Glastonbury lineup
(which was viewed by witnesses to both the Revere and
Connecticut bank robberies), testified about the composition
of the lineup and Megna's identification of Jackman as the
Revere robber. The district court warned the government to
advise Genco not to make any references to the fact that he
was a federal prosecutor from Connecticut and not
Massachusetts, or that Jackman had been tried and convicted
of another bank robbery. 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
testified at Jackman's trial that the temperature at Logan
Airport around the time of the Revere robbery was thirty
degrees Fahrenheit, with an equivalent windchill temperature
of minus four degrees.
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colloquy took place as the prosecutor questioned Genco on
direct examination about the Glastonbury lineup:
Q. Could you tell -- give the jury a
general description of those six
individuals [in the lineup]?
A. They were all basically selected
because they fit the description of the
robber. They were white males --
Ms. Conrad: Objection.
A. -- 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, Jackman's attorney, objected again, was
overruled, and subsequently moved for a mistrial. On the
videotape of the lineup shown to the jury, the six men
appeared to have brown or darker hair; Megna had already
testified that immediately after the robbery she had
described the robber as having blond hair. Thus, Conrad
argued, the jury could easily have inferred either that Megna
or someone else had provided authorities with another
description of the Revere robber as having darker hair, or,
more sinister, that Genco arranged the lineup based on a
description provided in another robbery altogether, and that
Jackman was a suspect in that robbery as well. The court
denied Jackman's motion for a mistrial, but it instructed the
jury "to disregard any of the testimony of this witness with
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respect to the description of the individual and how this
witness went about choosing the other members of the lineup.
That evidence has been stricken and you're not to consider
it."
Deborah Jackman, Stetson and Hurlock also testified
at trial, offering their opinions as to the identity of the
man in the Revere robbery photographs as is sometimes
permitted under Fed. R. Evid. 701, which allows non-expert
opinion testimony under certain conditions.
Deborah Jackman testified that she had known
Jackman since 1972 and was married to him from 1976 until
1990 (the couple separated in 1988). After the couple
separated, she continued to see Jackman every other weekend
when Jackman, exercising his visitation rights, would pick up
and return their children. She testified that Jackman had
worn a dirty-blond mustache for many years, 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. She told the jury that she recognized the
man in the surveillance photographs as her ex-husband, and
answered in the negative when asked if there was any doubt in
her mind that it was he.
Hurlock testified that he had known Jackman since
1986, when Jackman lived in Unionville, Connecticut. Hurlock
told the jury that Jackman was an occasional customer at his
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convenience store, that both he and Jackman were involved in
coaching youth baseball teams from 1987 until 1990, and that
in late 1990, Jackman came to his store wearing a bulky
jacket not unlike that pictured in the Revere robbery
photographs to discuss the possibility of coaching youth
basketball. He also testified that Jackman wore a baseball
cap the vast majority of the times he had seen him. Hurlock
told the jury that he recognized the man in the surveillance
photographs as Jackman.
Stetson testified that he had known Jackman since
1985 when Jackman and his former wife moved next door to him.
In 1989, after the Jackmans separated, Jackman lived with
Stetson for about six months and Stetson continued to see
Jackman occasionally until November 1991. Stetson, too, told
the jury that he recognized the man pictured in the
surveillance photographs and had no doubt that the man was
Jackman.
The jury also heard testimony from John Jackman,
the defendant's brother. He testified that, in his opinion,
the man in the surveillance photographs was not his brother,
and he pointed out to the jury what he thought were features
distinguishing his brother from the man in the picture.
The jury convicted Jackman of one count of bank
robbery, 18 U.S.C. 2113(a). Jackman raises several issues
on appeal. He contends that the testimony of Deborah
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Jackman, Stetson and Hurlock should have been excluded
because it was not helpful to the jury, it was not
susceptible to cross-examination, and it presented dangers of
unfair prejudice that substantially outweighed its probative
value. Jackman also argues that the district court committed
reversible error by allowing Genco to testify at all, as well
as by refusing to grant a mistrial after Genco alluded to a
description of the robber not provided by anyone who
testified in the case. We address each of these arguments in
turn.
II.
II.
DISCUSSION
DISCUSSION
A. Admissibility of Lay Opinion Testimony
We review a district court's admission of lay
opinion testimony under Fed. R. Evid. 701 for manifest abuse
of discretion. Keller v. United States, 38 F.3d 16, 31 (1st
Cir. 1994); United States v. Paiva, 892 F.2d 148, 156 (1st
Cir. 1989).
1. Helpfulness
Rule 701 allows for the admission of lay opinion
testimony only if the testimony is "(a) rationally based on
the perception of the witness and (b) helpful to a clear
understanding of the witness's testimony or the determination
of a fact in issue." Jackman challenges the admission of the
testimony of his ex-wife, Hurlock and Stetson under the
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second prong of Rule 701, arguing that the jury was in as
good a position as these three witnesses to compare the
surveillance photographs to Jackman, and that therefore their
testimony was not helpful.
The admissibility of opinion testimony identifying
a defendant from surveillance photographs is an issue of
first impression for this Circuit. A number of other
circuits, however, have ruled in a variety of circumstances
that such testimony may indeed be helpful to the jury and is
therefore admissible in the trial court's discretion.2 We
2. See, e.g., United States v. Maddox, 944 F.2d 1223, 1230-
31 (6th Cir.) (testimony by police officer identifying
defendant in photograph seized in raid of drug house helpful
despite absence of prior contacts or other circumstances
giving witness advantage in evaluating photograph; jury is
free to assess credibility of such testimony), cert. denied,
112 S. Ct. 400, 610 (1991), 112 S. Ct. 948, 1219, 1978, 2317
(1992), amended sub nom. United States v. Arnold, 12 F.3d 599
(6th Cir. 1993), cert. denied, 114 S. Ct. 1328 (1994); United
States v. Stormer, 938 F.2d 759, 762 (7th Cir. 1991) (four
police officers' testimony identifying former police officer
as robber in surveillance photographs helpful where officers
had worked with defendant for several years, photographs were
of poor quality and robber wore baseball cap and hosiery
pulled over face); United States v. Wright, 904 F.2d 403,
404-5 (8th Cir. 1990) (identification of defendant in bank
surveillance photograph by law enforcement officers and bail
bondsman who had known defendant for periods ranging from two
to thirteen years admissible where photograph showed
partially obscured face of robber and defendant had grown
slight beard since time of robbery); United States v.
Langford, 802 F.2d 1176, 1179 (9th Cir. 1986) (testimony of
defendant's cousin and parole officer identifying defendant
in bank surveillance photographs helpful because parole
officer had met with defendant about 50 times and cousin had
known defendant most of his life); United States v. Allen,
787 F.2d 933, 936 (4th Cir. 1986) (identification of
defendants in bank surveillance photographs by police officer
and parole officer familiar with defendants "especially
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agree that such testimony is admissible, at least when the
witness possesses sufficiently relevant familiarity with the
defendant that the jury cannot also possess, and when the
photographs are not either so unmistakably clear or so
hopelessly obscure that the witness is no better-suited than
the jury to make the identification. See United States v.
Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984) ("A witness's
opinion concerning the identity of a person depicted in a
surveillance photograph is admissible if there is some basis
for concluding that the witness is more likely to correctly
identify the defendant from the photograph than is the
jury."); cf. United States v. LaPierre, 998 F.2d 1460, 1465
(9th Cir. 1993) (excluding opinion testimony by investigating
police officer identifying defendant in surveillance
photograph because defendant's appearance had not changed
between time of robbery and trial and officer had never seen
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
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defendant's appearance at the time the crime was committed
would be relevant; so, too, would familiarity with the
defendant in clothing similar to that worn by the person in
the photograph at issue, or general familiarity with the
defendant's appearance acquired over a period of time and in
a variety of contexts. As the Fourth Circuit has stated:
[T]estimony by those who knew defendants
over a period of time and in a variety of
circumstances offers to the jury a
perspective it could not acquire in its
limited exposure to defendants. Human
features develop in the mind's eye over
time. These witnesses had interacted
with defendants in a way the jury could
not, and in natural settings that gave
them a greater appreciation of
defendants' normal appearance. Thus,
their testimony provided the jury with
the opinion of those whose exposure was
not limited to three days in a sterile
courtroom setting.
United States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986),
vacated on the grounds, 479 U.S. 1077 (1987).
Under these standards, the district court's
admission of the testimony of Deborah Jackman, Hurlock and
Stetson did not constitute an abuse of discretion. All the
surveillance photographs of the Revere robber are somewhat
blurred, and they show only part of the 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.
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primarily the left side from eye-level down. Furthermore,
although the record does not indicate how Jackman dressed at
trial, it is virtually certain that he did not appear each
day wearing a bulky winter jacket and a baseball cap pulled
down low over his forehead.4 Thus, because the jury was
only able to compare the grainy photographs of the Revere
robber with Jackman as he appeared at trial and in the
videotaped lineup, the identification by the three witnesses
conceivably was of help to the jury.
Deborah Jackman, Hurlock and Stetson testified that
they had known the defendant for extended periods of time and
had seen him on multiple occasions under a variety of
circumstances. Each had seen the defendant numerous times
wearing a baseball cap. Deborah Jackman and Hurlock had seen
him wearing a coat that resembled the coat worn by the
robber. While it is true that neither Hurlock nor Stetson
had seen the defendant for at least several months before the
Revere robbery, and thus could not testify that they were
familiar with the defendant's appearance at the precise time
of the robbery, this potential weakness in their testimony
did not render it inadmissible and was highlighted on cross-
examination and in defense counsel's closing 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.
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fact remains that all three witnesses had far more
opportunity than the jury to perceive Jackman from a variety
of angles and distances and under different lighting
conditions. Unlike the jury, they were familiar with the
defendant's carriage and posture. In sum, the witnesses'
testimony was helpful to the jury and did not constitute
"meaningless assertions which amount to little more than
choosing up sides." Fed. R. Evid. 701 advisory committee's
note.
2. Availability of Cross-Examination
Jackman next contends that because he could not
fully cross-examine Deborah Jackman, Hurlock and Stetson,
their testimony should have been excluded under Fed. R. Evid.
701 and Fed. R. Evid. 403. Specifically, Jackman argues that
because the district court had already ruled that evidence of
the Connecticut robbery was unduly prejudicial and off-
limits, he could not inquire about the effect the witnesses'
viewing of the Connecticut robbery photograph had on their
subsequent identification of him in the Revere photographs.
The court's ruling, however, could not possibly be
construed as meaning that the defendant could not elicit
testimony related to the Connecticut bank robbery on cross-
examination. Defendants are often confronted with witnesses
who possess knowledge of the defendant's past criminal
history, knowledge that cannot be introduced by the
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prosecution. Although such knowledge could potentially be a
source of bias infecting the witness's testimony, we know of
no evidentiary doctrine that would ordinarily exclude such
testimony simply because cross-examination by the defendant
about that knowledge could be highly damaging to his case.
Thus, Jackman's failure to cross-examine these witnesses on
this issue was not ordained by the court, but was instead a
tactical decision. See Wright, 904 F.2d at 406 (defendant's
decision not to cross-examine law enforcement officers for
bias was tactical decision); Allen, 787 F.2d at 937 (failure
to cross-examine law enforcement officers on bias was "a
tactical choice by defendants similar to those frequently
faced at trial"). But see United States v. Calhoun, 544 F.2d
291, 296-97 (6th Cir. 1976) (defendant's failure to cross-
examine probation officer on possible bias was not waiver of
right to cross-examine because "the choice given is not real,
and amounts to a choice between the rock and the whirpool"
(internal quotation omitted)).
Jackman urges us to adopt the reasoning of the
Sixth Circuit in Calhoun, in which the court ruled
inadmissible identification testimony by a defendant's
probation officer because of the unfairly prejudicial
evidence the jury would have heard had the defendant cross-
examined the witness on his possible biases. Id. at 296. It
is true that we have stated that the admission of lay opinion
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evidence is favored "provided it is well founded on personal
knowledge and susceptible to cross-examination." United
States v. Paiva, 892 F.2d 148, 157 (1st Cir. 1989).
Furthermore, the advisory committee's note to Rule 701 makes
clear that the rule's justification relies in part on "the
natural characteristics of the adversary system" and the fact
that "cross-examination and argument will point up the
weakness" of broadly asserted opinion testimony. Thus, there
may be cases in which these safeguards are absent to such an
extent that to admit the opinion testimony would constitute
an abuse of discretion. To the extent that Calhoun may be
read as imposing a ban on identification testimony by non-
percipient witnesses who may possess biases that cannot be
fully explored on cross-examination without exposing a
defendant's prior criminal history, we decline to follow that
case. We believe that a better reading of Calhoun limits its
application to those cases in which a non-percipient
identification witness's only encounters with the defendant
involved his criminal past, and thus the defendant's possible
avenues of "safe" cross-examination are so limited that the
testimony might not carry the adversarial safeguards assumed
by the drafters of Rule 701.5 This is not such a case.
5. In reading Calhoun in this way, we simply mean to state
that we believe it was this logic, and not a per se
exclusion, that informed the Sixth Circuit's decision. We
leave for another day whether if presented with facts similar
to those in Calhoun, we would rule as the Sixth Circuit did.
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All three of the opinion witnesses had extensive
contacts with Jackman prior to, and wholly separate from,
their having viewed the Connecticut robbery photograph.
Thus, Jackman's possible avenues of "safe" cross-examination
were manifold, and his counsel quite effectively traveled
down several of them, exposing Deborah Jackman's potential
biases against her ex-spouse, Hurlock's comparatively
infrequent contacts with the defendant, and Stetson's
reliance on medication for depression and anxiety, which he
failed to take the morning he first identified Jackman in the
Revere robbery photographs. The single area of cross-
examination that Jackman could not explore without the
potential of opening up his prior criminal history was the
possible bias caused by the witnesses' prior viewing of the
Connecticut robbery photograph. This "limitation" on
Jackman's cross-examination was of the defendant's own
choosing and was insufficient to make the opinion testimony
inadmissible under Rule 701 or Rule 403.
3. The Need for an Evidentiary Hearing
For reasons similar to those expressed in Part
II.A.2, supra, we reject Jackman's argument that the district
court's failure to grant him an opportunity to question the
opinion witnesses outside the presence of the jury
constituted an abuse of discretion. While granting Jackman
that opportunity, at least in the form of voir dire if not a
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full evidentiary hearing, might have been "eminently
sensible," see Nassar v. Vinzant, 519 F.2d 798, 802 n.4 (1st
Cir.), cert. denied, 423 U.S. 898 (1975), and under some
circumstances perhaps necessary, see, e.g., United States v.
Stormer, 938 F.2d 759, 763 (7th Cir. 1991) (identification
testimony by police officers admissible where extensive
examination conducted outside presence of jury), again, this
is not such a case. The opinion witnesses had extensive
familiarity with Jackman wholly distinct from his criminal
history and were familiar with his appearance in a baseball
cap and a heavy winter jacket. The district judge had both
the Connecticut robbery photo and the Revere robbery photos
before him; his decision that under these circumstances, a
hearing was unnecessary to determine whether Deborah
Jackman's, Stetson's or Hurlock's subsequent identification
of Jackman as the Revere robber was impermissibly tainted,
was well within his discretion.6
4. Implicit Bad Character Evidence
6. Jackman also argues that he must have a new trial because
the district court failed to make specific findings that the
opinion witnesses' testimony met the requirements of Rule 701
and gave no indication that it had weighed the potential
prejudice presented by the testimony against its probative
value, as required by Rule 403. We reject these arguments as
meritless, as there is ample support in the record for the
district court's implicit conclusion that the testimony at
issue met the requirements of both these rules.
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We also reject Jackman's argument that the opinion
testimony should have been excluded under Rule 403 because it
constituted "implicit" bad character evidence. Because the
witnesses knew Jackman well and testified that they had "no
doubt" that the man in the Revere photograph was Jackman, so
this argument goes, the jury would conclude that these
witnesses must have had other reasons to believe that Jackman
was the kind of man who would commit a bank robbery. The
witnesses, however, never testified about or alluded to any
such reasons. Indeed, Stetson and Hurlock testified about
Jackman's involvement in Little League and other youth
sports. If their testimony did create any unfair prejudice
of this type, it is certainly not clear that it substantially
outweighed the testimony's probative value such that the
district court abused its discretion in admitting it.
B. Genco's Testimony
Jackman's final arguments are that the district
court abused its discretion, first in permitting the
Connecticut prosecutor Genco to testify about the lineup in
which Megna identified Jackman as the Revere robber, and then
in refusing to grant a mistrial when Genco alluded to a
description the government apparently obtained in
investigating the Connecticut robbery. Neither point merits
extensive discussion.
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Genco only identified himself as an Assistant
United States Attorney; no mention was made of the fact that
he lived and worked in Connecticut. His testimony was
offered to authenticate the videotape of the lineup, to
explain how it was arranged and to identify for the jury the
points on the videotape at which Megna entered and exited the
viewing room. This testimony, the government contends,
enabled it to argue in closing that Megna needed little time
in the viewing room before identifying Jackman. Jackman
offered to stipulate to the videotape's authenticity, but no
offer was made to stipulate to the other aspects of Genco's
testimony. While the testimony might have been of marginal
utility, it was not wholly cumulative or overly lengthy, and
its admission did not constitute an abuse of discretion.
As for Genco's "slip" concerning a description of
"the robber" that did not comport with the description
provided by Megna, a mistrial was not called for. The
reference was allusive enough and the curative instruction
sufficient such that we seriously doubt that the jury was
able to draw any inference damaging to Jackman based on
Genco's blunder. See United States v. Sepulveda, 15 F.3d
1161, 1184 (1st Cir. 1993) ("Declaring a mistrial is a last
resort, only to be implemented . . . if the trial judge
believes that the jury's exposure to the evidence is likely
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to prove beyond realistic hope of repair."), cert. denied,
114 S. Ct. 2714 (1994).
Affirmed.
Affirmed.
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