United States v. Ray Williams

BAZELON, Chief Judge:

Appellant was tried by a jury and convicted of armed bank robbery.1 He was sentenced to five to twenty-five years imprisonment. Since we are unable to conclude that evidence erroneously admitted against him was harmless, we reverse.

I.

At about noon on November 19,1974, two men entered the Public National Bank in northwest Washington. They approached a teller’s cage in which two tellers, Thomas Higdon and Dennis Wisner, were counting money. Suddenly, Higdon saw an orange and yellow plastic bag flying into the cage. Brandishing a gun, one of the men ordered the tellers to “fill up the bag quick” and directed the other people in the bank to lie down on the floor. Rivolanne Sachs, an assistant bank manager, had been talking to a customer, Sheldon Meyers. She walked to her desk and pressed a button activating surveillance cameras before complying with their direction. Higdon and Wisner placed almost $5800 in the plastic bag. Some of that money was wrapped in pink bands marked with the words “Public Nat. Bank,” the date, and the number 30. The robbers took the bag and backed towards the door. They had been in the bank about five minutes.

On November 21, FBI agents investigating the robbery showed an array of photographs to Ms. Sachs. She selected a photograph of the appellant as “the one that looked like the robber.”

On November 22, while investigating an unrelated crime, two government agents *861were admitted to an apartment in Silver Spring, Maryland. That apartment was shared by Roland Wolford and one of appellant’s eleven siblings, Gloria Williams. The agents arrested Wolford on an unrelated charge. In a subsequent search of the apartment, the officers discovered, in a dresser drawer, a gun and two packets bound with pink wrappers, on which were inscribed the words “Public Nat. Bank,” November 19, and the number 30. The packets contained $995 in five dollar bills. Wolford was charged with, and pleaded guilty to, the robbery of the Public National Bank.

Police arrested Williams on December 3, 1974. When arrested, Williams identified himself to police as “Richard Johnson.” His head was shaved, and his face was clean shaven. Each of the bank robbers had had bushy hair and a moustache.

Wisner, Higdon, Sachs, and Meyers attended line-ups in which Williams was present. Wisner made no identification; Meyers identified another man rather than Williams as one of the robbers; Higdon and Sachs identified Williams. Higdon and Sachs also identified Williams in court. Although in court Higdon identified Williams’ waist-length vinyl jacket as that worn by the robber, he had earlier described the robber’s jacket to FBI agents as a “London Fog-type,” “corduroyish” coat. Meyers, who did not identify Williams, identified Williams’ jacket as the robber’s. The government also introduced approximately 200 frames of bank surveillance photographs. Over strenuous defense objections, the $995 found in the apartment shared by Wolford and Gloria Williams was admitted into evidence. The government later presented testimony that the money had been found in Williams’ sister’s apartment. The jury was never told that the other inhabitant of that apartment had pleaded guilty to the robbery for which Williams was charged.

The defense presented three alibi witnesses who testified that at the time of the robbery, they had been with Williams at the home of his niece, Sharon McLean. They testified that they remembered that particular day because it was the birthday of Ms. McLean’s son, Nathaniel, and a small party had occurred. Their recollection was corroborated by the introduction into evidence of Nathaniel’s birth certificate. Williams did not take the stand.

Before the jury retired to consider its verdict, the judge informed the jurors that if they did not return with a verdict by 5:30 p. m. that evening, the court would recess for the weekend and reconvene the following Monday. After the jury had deliberated for nearly two hours, it requested to view the defendant. Over the objections of defense counsel, Williams was ordered to approach the jury box and face the jurors. After viewing Williams, the jurors retired and returned twenty-one minutes later, at 5:16 p. m. on a Friday evening, with a verdict of guilty of armed bank robbery.2

On this appeal, Williams contends first, that the court erred in admitting the $995 as evidence and in allowing testimony that the money was found in his sister’s apartment; and second, that it erred in ordering him to approach and face the jury when he had not taken the stand at trial.

II.

Admission of the contested pieces of evidence required a determination that they were relevant to a material proposition and a further determination that their probative value outweighed their potential prejudice.3 A trial judge’s determination will be reversed only for an abuse of discretion. Hardy v. United States, 118 U.S.App.D.C. 253, 335 F.2d 288, 289 (1964).

Evidence that the money had been discovered outside the bank was relevant in proving that a robbery had indeed taken place. However, since this fact was uncon-troverted, the money would have been immaterial if admitted on this issue alone.

*862Evidence concerning the location of the recovered money presents a much more troubling question both as to relevance and as to probative value versus potential prejudice. When the government initially attempted to introduce into evidence the money found in the apartment shared by Wolford and Gloria Williams, defense counsel objected that the connection between Williams and items found in that apartment was too flimsy to have any relevance on the issue of appellant’s guilt. The government, however, contended that the nexus between Williams and the apartment was far from tenuous. It asserted an ability to demonstrate that appellant had the same rights of access as the inhabitants of the apartment.4 The court, however, admitted the money into evidence and received testimony that that money had been discovered in the apartment before a foundation based on Williams’ access, frequent or otherwise, was laid. Nor was his access subsequently established. No evidence was introduced that Williams had ever even visited the apartment, let alone lived in it. Nor was evidence introduced to show that Williams and Wolford were co-conspirators, joint-ventur-ers, or had any other relationship. Gloria Williams’ uncontroverted testimony was that she saw “very little” of her brother around the time of the robbery. This sibling relationship was the only nexus connecting Williams with the money found in the apartment; the government failed to distinguish Williams’ association with the stolen property from the similar connections that many others — including Williams’ ten other brothers and sisters, and all of Wolford’s friends and relatives — bore to it. Standing alone, Williams’ blood relationship with one co-occupant of an apartment was an exceedingly thin strand to support the threshold requirement of relevance.

Even assuming that the evidence was somehow relevant, its slight probative value was far outweighed by its great potential prejudice. This prejudice arose because the jury was not told that the other occupant of the apartment had admitted participating in the robbery and may well have been solely responsible for placing the money in the apartment without Williams’ participation or knowledge. Even if relevance had been more clearly established by showing that Williams had ready access to the apartment, information about Wolford’s guilty plea would have allowed the jury to attribute the money to another, perhaps more probable source than Williams. Without this information, there is great danger that the jury drew the inference that only Williams would have placed the money there, and then used this faulty conclusion to resolve doubts about the uncertain identification evidence (see Part III infra) against Williams. Under these circumstances, it was error to admit the evidence concerning where the stolen money had been found.

Defense counsel clearly articulated the objectionable characteristics of this evidence in two lengthy bench colloquies before the evidence was introduced. He did not, however, object to it at the time it was presented. F.R.Crim.P. 51 requires that “a party, at the time the ruling or order of the *863court is made or sought, [must make] known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor.” We ought not apply this rule in a ritualistic fashion. Where, as here, the problem has been brought to the attention of the court, and the court has indicated in no uncertain terms what its views are, to require a further objection would exalt form over substance. C. Wright, Federal Practice and Procedure: Criminal § 842 (1969).

III.

The remaining question is whether the error was harmless. F.R.Crim.P. 52(a). The applicable test for determining whether an evidentiary error is harmless or prejudicial is “whether we can say, ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’ The decisive factors are the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.” Gaither v. U. S., 134 U.S.App.D.C. 154, 413 F.2d 1061, 1079 (1969).

Looking first at only the testimonial evidence, this case is far from clearcut. Only two of the four eye-witnesses who attended line-ups in which Williams was present identified him as the robber. The government’s most confident identity witness described the robber’s coat to FBI agents as a corduroy, “London Fog-type jacket”; the coat introduced into evidence as Williams’ was a short, vinyl jacket. The other witness who identified Williams’ jacket as the robber’s picked another man in line-up. The defense presented three alibi witnesses, who testified that at the time of the robbery they had been with Williams at the home of his niece.

In addition to the testimonial evidence against Williams, the government introduced 176 frames of bank surveillance photographs taken during the robbery, 71 of which included Williams. Their impact must also be considered. At first blush, 71 photographs of a robbery in progress may seem to be the best possible evidence for identifying an unmasked robber. But the value of photographs as identity evidence depends on their clarity and resemblance to the person they purport to identify. Thus, it would be inappropriate to attribute strength to the government’s case from the mere presence of the photographs at trial.5

The prosecutor’s closing argument casts considerable doubt on any claim that the photographs here were decisive.6 His only comments on the accuracy of the photographs were, in effect, apologies for a lack of clarity. He followed every mention of the photographs with a suggestion that the jury consider the testimonial evidence, rather than the photographs as the primary evidence.7 He presented the discovery of *864the money in Gloria Williams’ apartment as the final element in the prosecution’s case and “proof of Williams’ guilt.”8 And he returned to it near the end of his rebuttal argument describing this evidence as the “connection” that made his other evidence “fall into place.”9

We have examined the photographs and compared them with a line-up photo and one other photo of the appellant, both of which were part of the record. The photographs are reasonably clear,10 and the resemblance between appellant and the person alleged to be him in the bank photos is not far-fetched. But the jury was evidently troubled by the issue of identity, and the error here went to that issue. The scenario of one or more jurors, unwilling to find the accused guilty on the basis of inconclusive identifications and photographs, being finally convinced of his guilt because the stolen money was found in his sister’s home with no apparent explanation is an all-too-plausible one.11 Thus, we are unable to say, without the gravest doubts, that the testimony described by the Government as the “connection” making its other evidence “fall into place” had no substantial influence on the result here.

It is precisely in close cases such as this, that the danger of prejudice is greatest. Cross v. United States, 122 U.S.App.D.C. 283, 353 F.2d 454, 456 (1965); Jones v. United States, 119 U.S.App.D.C. 213, 338 F.2d 553, 554 (1964). That the case was close does not mean, as the dissent suggests, that there would be insufficient evidence to support a verdict of guilty absent the objectionable evidence; otherwise, there could never be retrials after findings of prejudicial error. Moreover, we do not hold that evidence of the money’s location is absolutely inadmissible. We hold simply that as presented in this case, the evidence was *865inadmissible because there was not a sufficient showing of relevance (i. e., appellant’s connection with his sister’s apartment) and because the jury was not also told that one occupant of the apartment had pleaded guilty to the bank robbery.

Reversed and remanded.

. 18 U.S.C. § 2113(a)(d).

. Id.

. See Fed.R.Evid. 403; McCormick on Evidence 433 (2d ed. 1972).

. [U.S. Attorney]: Now I think the significant nexus in this case is that each man, Roland Wolford and Ray Williams, had equal access to the interior of the sister’s house, Gloria Williams.

The Court: Not on the present record.

[U.S. Attorney]: Well, it will come out in due course.

The Court: ... I think your order of proof is to indicate — this is probably through Gloria Williams, that her brother was frequently there; Wolford lived there; and that this something that was taken . . . was taken from the apartment.

. But on the present record it got picked up 30 miles away at somebody else’s house ...

[Defense Counsel]: . The kind of foundation that the Court is asking [The U.S. Attorney] to lay is easily laid just that it was taken from Gloria Williams’ apartment, and she is his sister, and Wolford lived with her.

The Court: There is one further step. That Williams frequented the apartment.

(Tr. 114, 119.)

. See United States v. Gregg, 414 F.2d 943, 947 (7th Cir. 1969), in which defendant appealed from a conviction for bank robbery. For the purpose of evaluating harm resulting from possible error, the court assessed the strength of the government’s case “apart from the photographs taken of the robbery in progress.”

. The closing arguments, which were not part of the record originally before us, were most helpful in evaluating the strength and importance of the various pieces of evidence here. Transcripts of closing statements are not supplied when requests are made for “trial transcripts” on CJA 21, the form used to request materials for appeal. Counsel should be aware that unless CJA 21 is amended to include transcripts of closing statements in “trial transcripts,” closing statement transcripts will not be supplied unless specifically requested.

. [This] is an unusual case in that you almost have a movie of this whole robbery because there are over two hundred frames, that means individual pictures on these two reels of film. . . .

Pay very careful attention to them, ladies and gentlemen. But they are not the most crucial element in this case, because a photograph is a moment stopped in a moment of time, and it is frozen for infinity, and it is frozen for the length that that photograph exists, and all it is is just a stop in a moment of time and it is a view from a particular angle, and it is a view from a particular position. There are basically two requirements that you have to bring to this *864case. A viewing of the photographs, but that is not primary. .

Tr. Closing Argument, pp. 3-4.

Now, a camera will take a picture under lighting conditions and it will adjust to those lighting conditions, and it may not be the best photograph. It may not be the type of photograph that you might have of your child taken on a school day or when they are at school and they come home.
But a photograph renders a picture of the person. If it could be better, ladies and gentlemen, certainly it would be as best as possible. But it is rendered under conditions that are less than perfect.

Tr. Closing Argument, p. 5. Also see Tr. Closing Argument, p. 9.

. The government offers a third part and that is the money. .

Ladies and gentlemen, there really is not any dispute, it seems to me, that this money is the money that was taken from the bank.
And where was it found, ladies and gentlemen? It was found in Gloria Williams’ house. Gloria Williams, the sister of Ray Williams.
Ladies and gentlemen, I am going to offer this as proof of the guilt of Mr. Williams.

Tr. Closing Argument, p. 9.

. Consider the fact that on November 22 Gloria Williams was in that house and knew that an arrest was made and knew that money was taken out. . . . What is the relationship? It is a brother and sister relationship.

Now [defense counsel] would pooh-pooh this fact. But the money is money that can be traced back to time, place, circumstances. Noon time, November 19th, Public National Bank, 7800 Eastern Avenue. The connection is that it was in his sister’s house. It is not coincidence; it falls into place.

Tr. Rebuttal Argument, p. 27.

. The U.S. Attorney’s office that had custody of the bank photographs submitted to the jury, failed to preserve those photos for appeal. However, the negatives from which they had been developed were still extant, and other reproductions were printed from them. Counsel for both parties stipulated that these new prints accurately represented the photographs submitted to the jury. If counsel had not so stipulated, it would have been more difficult to evaluate, on appeal, the strength of those photos as evidence. While we managed here to avoid the potentially harmful consequences of the government’s failure to preserve evidence for appeal, we take this occasion to impress upon those charged with preserving evidence, the necessity for faithful performance of that duty.

. That the jury returned to view the defendant and then reached a guilty verdict does not necessarily mean, as the dissent suggests, that all 12 jurors made up their minds on the basis of a comparison between the defendant and the photos.