Robert E. Barnes v. United States

365 F.2d 509

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 27, 1966
• Docket: 19313_1
• Status: Published

Opinions

PER CURIAM:

The appeal is from a conviction of housebreaking, grand larceny and assault. Defendant did not testify; and the case did not present an occasion for introducing evidence of defendant’s criminal record. Nevertheless the prosecution, over defense objection, was permitted to introduce in evidence a “rogues gallery” or “mug shot” photograph of defendant, conveying to the jury the information that defendant had a police record. This prejudice was not dissipated by some taping placed over some words or figures at the bottom of the photograph. Because the admission of this evidence was prejudicial error we reverse and remand the case for a new trial.

It is so ordered.

A fuller statement of the reasons for reversal will be filed at a later date.

PRETTYMAN, Senior Circuit Judge, dissents, and will file a dissenting opinion at a later date.

Opinions Filed May 27, 1966

LEVENTHAL, Circuit Judge:

This is an appeal from a conviction for housebreaking, grand larceny, and simple assault. The defense was alibi. Appellant did not testify.

Before the trial began, the judge asked about identification of the appellant from a line-up. The prosecutor replied, “I have no line-up.” When the judge then asked about a witness’ identification referred to in the arrest warrant, the prosecutor replied, “I am not going into that.” The judge then expressed his view that a police picture of a defendant could be introduced into evidence, if the witness were coached in advance to avoid a statement that it was a police picture. This ensued:

The Prosecutor : That has been my view.

The Court : And I would like somebody to give me a chance to try it out, so that the Court of Appeals can rule.

The Prosecutor: I would like to try it.

Defense Counsel: You are going to get it in this case.

The Court : If he does it.

And in due course the prosecution, pursuant to its indication before the trial began, introduced police photographs of the appellant and propelled prejudicial error into the trial.

Defense cross-examination of the Government witness who saw the crime and identified appellant in court focused on the identification. Thus, the witness was called upon to explain remarks in the court house the previous day that were open to the construction of reflecting some uncertainty: “I think that is the man.” Defense counsel brought out that she had initially identified the appellant from photographs shown her by the police immediately after the crime. On redirect, the prosecutor showed the photographs to the witness, who confirmed her identification. The photographs were then introduced into evidence and shown to the jury, over defense objection.

The first photograph of appellant, Government Exhibit 2, is a full-length snapshot of an ordinary nature, and presents no problem. Government Exhibit 3, however, is a typical “mug shot” from a police department “rogues’ gallery.” It consists of two close-up shots of appellant’s face side by side, one full face and one a profile photograph. This exhibit was introduced into evidence and shown to the jury with a wide strip of adhesive tape covering the prison numbers on the bottom half of the photographs. Pieces of paper were placed over the back of both exhibits to cover written material. When Exhibit 2 was shown to the jury, the judge specifically told them that the paper covered up material irrelevant to the case. At the close of his instructions, the trial judge explained to the jury his reluctance to allow them to take the exhibits with them into the jury room because of the danger that one of them might inadvertently remove the covering and see the written material. We think the introduction of the mug shot was substantial and prejudicial error that requires reversal.

It is well-settled law that the criminal record of a defendant may not be introduced into evidence at trial unless the defendant takes the stand or otherwise places his character in issue.¹ A photograph which on its face reveals the existence of such a criminal record is likewise inadmissible when the defendant’s character has not been placed in issue.²

Some courts have held that such pictures may be introduced into evidence where the nature of the photograph is effectively kept from the jury’s knowledge. Thus, in a recent Texas decision,³ the court upheld the admission of a police picture of the defendant where “all identification marks were removed, and, as far as the jury were able to determine, it might have been taken in a penny arcade.” No such reasoning can justify Government Exhibit 3 in this case. The double-shot picture, with front and profile shots alongside each other, is so familiar, from “wanted” posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic. The rudimentary tape cover placed over the prison numbers on the photograph, and over the notations on the reverse side, neither disguised the nature of the picture nor avoided the prejudice. If anything, by emphasizing that something was being hidden, the steps taken here to disguise the nature of the picture may well have heightened the importance of the picture and the prejudice in the minds of the jury.

The Supreme Court of Indiana has pointed out the likely and unnecessary prejudice. Discussing a similar prosecution exhibit, the court noted that the photographs had little or no probative value in themselves, since the witness had identified the defendant in court, and stated:

Pictures of criminals showing a front and profile view, with a number displayed on the breast, are common and familiar. If the evidence had been offered for the good-faith purpose of showing that the witness could identify a photograph of the defendant, these pictures might have been cut apart and that portion where the number is displayed cut away. But it is obvious that thus presented they would have no more relevancy or probative force than a kodak picture taken in the court room or in the defendant’s home. It may well be doubted whether the jurors remained in ignorance of the fact that the photographs and card [on which the photographs were pasted] had to do with some criminal record of the defendant. It was not proper to prove that the defendant had a criminal record, and what may not be done directly may not be done by indirection or subterfuge.⁴

Here the makeshift taping was placed over the exhibit after it had been shown to the witness in the presence of the jury, after defense counsel, again in the presence of the jury, had objected to the introduction of the pictures,⁵ and after the prosecutor had asked the court if he could show the picture to the jury. (Reply: “Not yet. Come to the bench.”) With this background it is disingenuous for the Government to argue that its Exhibit 3 probably appeared to the jury as merely a couple of ordinary photographs.

We now consider whether the prejudice of the prosecution’s photographs is to be dismissed as having been “invited” by defense counsel. Defense counsel had raised at least a question — he hoped a reasonable doubt — about the witness’ “live” identification of defendant as of the time of the trial, strictly speaking, the previous day. But of course the jury was aware that there was presumably previous identification by the witness, sufficient to bring this particular defendant into the court room. The further questioning by defense counsel established weaknesses of the previous identification. First, it was an identification by photograph, and not of the human being. And, significantly, the witness had been shown photographs of only one person — so that the identification of appellant reflected a non-selective process, i. e. a one-man photographic line-up. As Judge Sobeloff has recently emphasized, the dangers of mistake inherent in human identification are always heightened “when the identifier is presented with no alternative choice; there is then a strong predisposition to overcome doubts and to fasten guilt upon the lone suspect.”⁶ The trial judge well understood the importance of this line of questioning, and when the witness did not answer the question as put by defense counsel the judge sharpened the inquiry to ask whether the witness had been shown photographs of only one man.

This approach could not be put forward by defense counsel without some risk to the accused, for the testimony that the police had on hand photographs of the accused might conceivably have led a juror, at least a sophisticated juror, to hypothesize that the accused had a police record. But defense counsel was not required to pay the price of having defendant’s criminal record dramatically and almost unmistakably placed before the jury through the jury’s inspection of the mug-shot photograph with its supposed tape “concealment” of the underlying record.

For present purposes we may assume, without deciding, that the prosecution was entitled to buttress its witness identification testimony on redirect. That was adequately accomplished here by the introduction of Exhibit 2, the full-length picture, the only one covered in any detail during cross-examination by defense counsel. We have no need to consider here whether, if the prosecutor has a need and legitimate reason for presentation of the other photographs, he may do so by making suitable arrangements, by separation and copying, avoiding the incriminatory prejudice.

Introduction of the mug-shot pictures cannot be excused on the theory that if they had not been introduced defense counsel would have been able to make an argument to the jury that the witness' identification of appellant was so dubious that the Government was unwilling even to show the pictures to the jury. If that had been the prosecutor’s concern, it would have been fully allayed by stipulation, or at most by acting outside the hearing of the jury when first bringing up the photographs.⁷ This would have protected the Government, since any objection to the photographs would have precluded defense counsel from in any way arguing to the jury that the Government was unwilling to produce them. That this did not define the purpose of the prosecutor here appears clearly enough from his insistence on getting the mug-shot photographs into the hands of the jury. Immediately after accepting the two exhibits in evidence the judge rejected the prosecutor’s request to show them to the jury. He called for a bench conference and said that the backs of the photographs should be covered up. Defense counsel pointed out that material on the face of Exhibit 3 was even more objectionable. The prosecution offered to cover that up. Defense counsel objected that the covering up would make the jury even more suspicious and curious as to what was being concealed. The court was troubled and said: “I think I will withdraw the ruling admitting No. 3 in evidence and let you argue to the jury that the Court refused to receive [it] in evidence.” The prosecutor said, “I can get something heavy” — to block out the accompanying material. By his persistence the prosecutor persuaded the trial judge to overcome his doubts.

The probability that Government Exhibit 3 impressed upon the jury the fact of appellant’s prior criminal record is too substantial for us to ignore. We find prejudicial error requiring a new trial.⁸

Reversed and remanded.

1 . See generally Wigmore, Evidence §§ 192-194 (3d ed. 1940); Leigh v. United States, 113 U.S.App.D.C. 390, 308 F.2d 345 (1962). Even where the defendant has taken the stand, evidence of prior crimes is not automatically admissible. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, 768-769 (1965).

2 . Scott, Photographic Evidence § 658, at p. 558 (1942); Roberts v. Commonwealth, 350 S.W.2d 626, 628 (Ky.1961).

3 . Huerta v. State, 390 S.W.2d 770, 772 (Tex.Crim.App.1965).

4 . Vaughn v. State, 215 Ind. 142, 19 N.E.2d 239, 241 (1939).

5 . The case illustrates the recurrent problem of jurors being aware of evidence sought to be introduced before defense counsel has a chance to object or the court a chance to rule. The proper procedure would be for the prosecutor to show defense counsel and the court the pictures outside the presence of the jury. Compare Johnson v. United States, 121 U.S.App.D.C. 19, 347 F.2d 803, 806 (1965).

6 . Palmer v. Peyton, 4th Cir., 359 F.2d 199 (en banc), April 6, 1966.

7 . In this case, as already noted, it was in the hearing of the jury that the prosecutor presented the photographs to the witness, asked her to identify them, and offered them in evidence. At that point the court called for a bench conference, but the jury’s awareness was by then beyond recall.

8 . See Leigh v. United States, supra note 1.