United States v. Anthony Shaffer

656 F. App'x 699
Court of Appeals for the Fifth Circuit·Decided August 4, 2016·No. 15-20010·Unpublished

Opinions

PER CURIAM:*

Defendant-Appellant Anthony Shaffer appeals his' criminal conviction on the ground that his Fifth Amendment right to due process was violated when the trial court admitted in-court witness identifications that were influenced by impermissi-bly suggestive pretrial procedures. The Government concedes that the admission of the in-court identifications was constitutional error but argues that the conviction should be affirmed because the error was harmless. Because we are not convinced that the error was harmless beyond a reasonable doubt, we reverse.

I. FACTUAL BACKGROUND

On December 11,2013, surveillance cameras recorded a man, armed with a gun, rob the Wal-Mart branch of Woodforest National Bank in Pearland, Texas. The relevant footage shows a man approach the bank teller’s desk and receive a withdrawal slip from the teller. The man briefly writes on the slip and then pulls a gun from his waistband. According to the teller, he then demanded the “loose hundreds.” After she gave him the money in her teller drawer, the man walked to the adjacent teller and robbed her at gunpoint.

The Wal-Mart’s external cameras captured the car used by the robber. Based on [701] the license plate of this vehicle, the Pear-land Police Department focused their investigation on Trevian Robinson. Police searched Robinson’s home where they found a sweater, sweatpants, and a gun that appeared similar to those in the surveillance video. Robinson conceded that the clothes and gun belonged to him but told the police that he had been with his cousin, Anthony Shaffer, the afternoon of the robbery and that Shaffer had asked for a ride to the Wal-Mart where the robbery took place. After looking at still photographs from the surveillance footage, Robinson said that the man who robbed the bank looked like Shaffer.

At the scene of the crime, police recovered the withdrawal slip upon which the robber wrote a demand note. From this slip, police were able to recover latent fingertip prints. Shaffer was fingerprinted and two law enforcement officers testified at trial that a fingerprint on the withdrawal slip matched Shaffer’s fingertip print.

The day after the robbery, the two bank tellers who had been present when the robbery occurred, A.L. and C.M., were shown a photographic array that included Shaffer’s driver’s license photograph. Neither identified Shaffer. At trial, however, both A.L. and C.M. positively identified Shaffer as the robber. On cross-examination, both A.L. and C.M. testified that prior to trial, the prosecutors had shown them still photographs from the surveillance video, told them Shaffer’s name, and said that he had been charged with the crime. C.M. also testified that prior to the trial, she had been brought to the courtroom while Shaffer was present and asked if she recognized anyone. After each admission, Shaffer’s attorney objected on the ground that the in-court identification should be barred because it was influenced by impermissibly suggestive pretrial identification procedures and moved for a mistrial. The court overruled the objections and denied the motions for a mistrial.

Robinson testified at trial that Shaffer had asked for a ride to the Pearland Wal-Mart on the day the robbery occurred but that Shaffer did not say why he wanted to go. Robinson stated that he drove Shaffer to the Wal-Mart and stayed in the car while Shaffer went inside. Prosecutors showed Robinson the surveillance video, and Robinson identified the clothes the robber was wearing as belonging to him, as well as admitted his gun had been used in the robbery. He also said that the man in the video was Shaffer. Shaffer’s counsel argued in his closing that Robinson was the bank robber.

In its closing arguments, while the Government acknowledged that Robinson may have played a role in the crime, suggesting he may have been the getaway driver, it asserted that the evidence convincingly established that Shaffer was the one who robbed- the bank. The Government repeatedly emphasized the fact that both of the bank tellers had positively identified Shaffer as the robber. Specifically, the Government told the jury that: “[W]hat really convicts him and should convince you is that both [A.L.] and [C.M.] both positively identified him for you here in this courtroom.”

At the conclusion of the trial, the jury' found Shaffer guilty on both counts charged in the superseding indictment: bank robbery in violation of 18 U.S.C. § 2113(a) and (b) and brandishing a firearm in the commission of a crime in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Shaffer was sentenced to a total of 162 months .imprisonment and ordered to pay restitution.-

II. STANDARD OF REVIEW

Because the Government concedes that the admission of A.L. and C.ÍVL’s in-court [702] identifications was constitutional error, see, e.g., United States v. Cueto, 611 F.2d 1056, 1064-65 (5th Cir. 1980), we need only address whether this error was harmless beyond a reasonable doubt, see United States v. Wright, 777 F.3d 769, 777 (5th Cir.), cert. denied, — U.S. —, 135 S.Ct. 2821, 192 L.Ed.2d 860 (2015). A constitutional error is harmless if “there was [no] reasonable possibility that the evidence complained of might have contributed to the conviction.” United States v. Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008) (alteration in original) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). “The government bears the burden of establishing the error is harmless beyond a reasonable doubt.” United States v. Jackson, 636 F.3d 687, 697 (5th Cir. 2011) (quoting Alvarado-Valdez, 521 F.3d at 341).

“In determining whether an error is harmless we look to the totality of circumstances including all of the evidence adduced.” United States v. Watkins, 741 F.2d 692, 695 (5th Cir. 1984). “A court must then decide whether, absent the so-determined unconstitutional effect, the evidence remains not only sufficient to support the verdict but so overwhelming as to establish the guilt of the accused beyond a reasonable doubt.” Id. (quoting Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir. 1980) (en banc)). “[T]his is an exacting standard that must be uncompromisingly applied.” Harryman, 616 F.2d at 876.

III. DISCUSSION

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