United States v. Gray

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1189



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                            SEAN GRAY,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE



         [Hon. Steven J. McAuliffe, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

          Coffin and Campbell, Senior Circuit Judges.


Bjorn Lange, Assistant Federal Defender, for appellant.

     Mark E. Howard, Assistant U.S. Attorney, with whom Paul M.

Gagnon, United States Attorney, was on brief for appellee.


December 23, 1999


COFFIN, Senior Circuit Judge.  Appellant Sean Gray was

convicted by a jury on one count of bank robbery and sentenced to

71 months in prison.  His sole claim on appeal is that the district

court committed prejudicial error when it instructed the jury that

its view of the robber's escape route was not evidence in the case. 

Although we acknowledge that a jury view may at times be treated as

evidence, we find no reversible error and therefore affirm

appellant's conviction.

                      I. Factual Background

     The Community Bank and Trust in Exeter, New Hampshire, was

robbed shortly after 1 p.m. on June 23, 1998.  Bank employees

described the lone robber as a male with a goatee and "Fu Manchu"

mustache who was wearing mirrored sunglasses and a blue hooded

sweatshirt.  He approached the center teller window, pulled a bag

from under the sweatshirt, and said, "This is no joke; give me your

money."  Two bank employees described the robber as having a

significant limp.  He "left in a hurry" and was seen running across

the street, along railroad tracks, and then up a hill toward a

bridge that passes over the tracks near Park Street (the "Park

Street bridge"), where he apparently was picked up by a woman in a

white car with Florida license plates.  A teacher who lives near

the Park Street bridge saw a man emerge from the footpath near the

railroad tracks and described him as having a very distinct gait

irregularity, or limp. The man was clutching a bag at the time.

Police found a blue hooded sweatshirt on the footpath leading up to

Park Street and a pair of shattered mirrored sunglasses on the

street where the white vehicle had been parked.

     Gray was arrested a week later and charged with bank robbery. 

The district court granted Gray's unopposed motion seeking to allow

the jury to view the bank and the robber's escape route, but

refused his requested instruction that the jury consider the view

as evidence.  Instead, the court advised the jurors that their view

of the bank and surrounding area was not evidence, explaining that

it was "intended simply to provide you with points of reference or

a context in which to consider the evidence in this case."

     Defense counsel objected to the instruction, though

recognizing that it was consistent with First Circuit case law.  In

Clemente v. Carnicon-Puerto Rico Management Assocs., 52 F.3d 383

(lst Cir. 1995), we stated that "the rule in this circuit is that

a view does not itself constitute or generate evidence," id. at

386, reflecting the widely adopted position that a view is

permitted in the discretion of the trial judge "only to assist the

trier of fact in understanding and evaluating the evidence"

introduced in court, see 2 John W. Strong et al., McCormick on

Evidence  216, at 29 (5th ed. 1999).  

     On appeal, Gray argues that the language in Clemente was

dictum, and therefore not binding, and that, in any event, it is

illogical as well as incorrect by contemporary standards to exclude

a view from consideration as evidence.  He argues that he is

entitled to a new trial because the view was integral to his

defense and the court's instruction unfairly prejudiced him.  He

had attempted at trial to prove that he could not have been the

robber because a work-related leg injury left him physically

incapable of fleeing quickly along the uneven, hilly escape route

that the robber had followed.  He maintains that the court's

instruction precluded him from relying on the jury's own

experiences with the difficult terrain to support his doctor's

testimony that he could not have covered the route as quickly as

the robber. 

     Our review of the relevant law and commentary now leads us to

conclude that it is unrealistic to exclude a view from the status

of evidence in every circumstance.  We do not go further in this

opinion than to remove this blanket prohibition. But even if the

court's instruction on the view was error, it must be deemed

harmless because, as we shall explain, it foreclosed very little

benefit from the view that a permissive instruction would have

allowed, and because the testimonial evidence points so

overwhelmingly to the appellant's guilt.

                    II. The Nature of the View

     Although our unconditional statement in Clemente that a jury

view "does not itself constitute or generate evidence" may

represent the  majority position, see 52 F.3d at 386 & n.3, the

momentum appears to be headed in the opposite direction.  Indeed,

most of the usual commentators on matters of evidence either

question the rationale for excluding views from evidentiary status,

observe that that position has lost favor, or both.   See McCormick

on Evidence  216, at 29 (the "preferable" position is that a view

is "evidence like any other"); 22 Charles Alan Wright & Kenneth W.

Graham Jr., Federal Practice and Procedure  5176, at 141 (1978)

("The notion that a view is not 'evidence' has been discredited by

the writers, and explicitly rejected by one modern code.")

(citations omitted); 2 Joseph McLaughlin, ed., Weinstein's Federal

Evidence  403.07[4] (2d ed. 1999) ("[T]he modern position is that

the view does provide independent evidence."); 4 John Henry

Wigmore, Wigmore on Evidence  1168, at 391, 388 (1972) (referring

to the "unsound theory" that a view "does not involve the

consideration of evidence by the jury" and noting that "it has in

most jurisdictions been repudiated").  Cf. John M. Maguire,  Cases

and Materials on Evidence 141 (1973) (noting that courts are

divided on the question but not taking a position).

     Given the invitation to look more closely than was necessary

in Clemente, we have found no reason to disagree with the experts. 

Perhaps the most compelling and pragmatic observation is that the

distinction between non-evidence that aids a jury's understanding

and traditional, independent evidence is "lost on a jury," see 2

Weinstein's Federal Evidence  403.07[4].  We agree that it is

unlikely that jurors, confronted with testimonial evidence at odds

with what they have seen, "will apply the metaphysical distinction

suggested and ignore the evidence of their own senses," McCormick

on Evidence  216, at 29.  The Tenth Circuit has expressed a

similar thought:

          We acknowledge that jurisdictions vary as to whether a

     view is treated as evidence or simply as an aid to help

     the trier of fact understand the evidence.  However, we

     believe such a distinction is only semantic, because any

     kind of presentation to the jury or the judge to help the

     fact finder determine what the truth is and assimilate

     and understand the evidence is itself evidence.  The

     United States Supreme Court has stated that the

     "inevitable effect [of a view] is that of evidence no

     matter what label the judge may choose to give it." 

     Snyder v. Massachusetts, 291 U.S. 97, 121 (1934),

     overruled on other grounds . . . .



Lillie v. United States, 953 F.2d 1188, 1190 (10th Cir. 1992)

(footnote omitted); see also Wigmore on Evidence  1168, at 385-86

("The suggestion that, in a view or any other mode of inspection by

the jury, they are merely `enabled better to comprehend the

testimony,' and do not consult an additional source of knowledge,

is simply not correct in fact . . . ."); Carpenter v. Carpenter, 78

N.H. 440, 447, 101 A. 628, 631 (1917) (quoted in Maguire, at 141

n.3) ("If the object is black when seen by the jury it would be

absurd to expect them to find that it was white, in the absence of

evidence indicating that they had been imposed upon.").

     Moreover, the rationale for the distinction increasingly lacks

force as technology advances.  The position that a view should not

be considered evidence appears to derive from a concern that the

"facts" gathered by the jury from an on-the-scene observation

cannot be made part of the record for purposes of appeal.  See,

e.g., In re Application, 102 F.R.D. 521, 524 (E.D.N.Y. 1984)

(Weinstein, C.J.); McCormick on Evidence  216, at 29; 4 Wigmore on

Evidence  1168, at 381-82, 385; Thomas P. Hardman, "The

Evidentiary Effect of a View: Stare Decisis or Stare Dictis?"  53

W. Va. L. Rev. 103, 113 (1951) [hereinafter "Evidentiary Effect of

a View"].  A record of a view can be made, however, through the use

of video or other photographic equipment, as well as through

transcription of any remarks made.  See In re Application, 102

F.R.D. at 524; H.D. Wendorf, "Some Views on Jury Views," 15 Baylor

L. Rev. 379, 384 (1963) [hereinafter "Jury Views"] ("Even conceding

the objection directed to a lack of record . . . , it can be

adequately answered by providing a summary of the view proceedings

in the record.").  Although such a record may not capture every

nuance of the experience, that difficulty is equally applicable to

other kinds of evidence:

          A witness' countenance, tone of voice, mode and manner of

     expression, and general demeanor on the stand, oftentimes

     influence the jury as much in estimating the weight they

     give and attach to his testimony as the words he utters,

     and yet they cannot be sent up with the record.



Hart v. State, 15 Tex. App. 202, 228 (1883) (cited in "Jury Views,"

15 Baylor L. Rev. at 384); see also 4 Wigmore on Evidence  1168,

at 384-85 (quoting same case); "The Evidentiary Effect of a View," 

53 W. Va. Law Rev. at 113 (same).

     Precautions, of course, must be taken to minimize problems,

because jury supervision is more difficult outside the courtroom. 

See "Jury Views," 15 Baylor L. Rev. at 384-85.  Certain of the

safeguards we outlined in Clemente respond to these concerns,

including the recommendation that the judge be present and that

limits be placed on the interaction between counsel, the subject of

the view, and the jurors.   See 52 F.3d at 386; see also "Jury

Views," 15 Baylor L. Rev. at 394, 396 ("[P]roper judicial

administration demands the presence and supervision of the judge at

the view . . . and definitive instructions to refrain from

conversation and independent exploration should be given the jury

prior to a view.").  Of obvious importance is the court's

responsibility to ensure that what transpires at the view is fully

and accurately recorded, most likely by a court reporter.  See

Clemente, 52 F.3d at 386.

     We emphasize that, by recognizing that the information

obtained through a view may constitute independent evidence at

trial, we do not diminish the trial court's inherent power to

decide whether to allow a view at all.  Determining if a view is

appropriate in a particular situation remains a matter committed to

the trial court's informed discretion.  See Clemente, 52 F.3d at

386.

     Moreover, the fact that we now regard a view to be within the

category of admissible evidence not only endows a trial court with

the same discretion to control its admission that the court has in

dealing with all evidentiary matters, but also may in the future

require special techniques and practices as experience indicates. 

This opinion does not purport to resolve all issues that may arise

stemming from the status of a view as evidence; it simply removes

the concept of a view from the highly ambiguous state of being

something to consider but not evidence.  Our holding thus increases

the range of admissible evidence but leaves intact the district

court's authority to refuse a view in particular cases, or to

exclude a view, or portions of it, from evidence when an on-the-

scene observation does not transpire as the court had anticipated.

                    III. The View in this Case

     Although the district court in this case excluded the view

from evidence without considering whether it satisfied the standard

requirements of admissibility, its decision does not require

reversal of appellant's conviction, because any error

unquestionably was harmless.  See United States v. Crochiere, 129

F.3d 233, 236 (lst Cir. 1997).  As we explain below, Gray was able

to rely on other evidence to attempt to show his inability to

traverse the difficult terrain of the robber's getaway path and,

though the view was not treated as evidence, the jurors' exposure

to the scene presumably influenced their evaluation of what they

saw and heard in the courtroom.  In addition, considerable evidence

pointed to  appellant as the bank robber.

     A. Other evidence of the terrain.  The government introduced

photographs of the railroad tracks and footpath area that had been

seen by the jury as part of the view.  Although the court's

instruction limited defendant's formal use of the jurors' direct

exposure to the scene, their first-hand experiences obviously

informed their examination of the photographs.  In reality, the

district court's directive that the jury could use the view as a

"context" for considering other evidence provided appellant with

nearly all he could have expected from using the view as direct

evidence.  The jurors essentially were encouraged to bring to mind

what they had seen when reviewing evidence, including the

photographs, relating to the difficulty of the terrain.  As we

acknowledged earlier in concluding that a view may constitute

evidence, the distinction between context and evidence is likely to

be lost on the jury in the ordinary case.  See supra at 5-7. This

case seems well within that norm. 

     Defendant's assertion that the jurors' observations at the

scene were not captured equivalently by the photographs and other

trial evidence, while perhaps true, thus misses the point.  Indeed,

defense counsel made multiple references to the view in guiding the

jury's recollection of the evidence, noting at one point that the

robber ran down the left side of the railroad right-of-way and

that, "[a]s you know from the view, that's the rougher side." At

another point, presumably seeking to discount the significance of

appellant's leg injury, counsel stated that the jury could find,

"based on your view of the path," that the robber might have been

seen limping because he twisted his ankle along the way.  The

degree by which treatment of the view as evidence rather than

context would have strengthened appellant's case is thus minimal,

particularly in light of the substantial evidence of his guilt, to

which we now turn.

     B. Robbery evidence.  

     The evidence that appellant committed the bank robbery

included the testimony of eight witnesses who identified him in a

bank surveillance photograph, including his mother-in-law and

brother-in-law, the latter of whom called police to report that the

robber was Gray after seeing a televised picture of the suspect. 

Three longtime friends also were among those who identified him in

the surveillance photograph, and a bank employee, Sue Palmer,

testified that the robber was the same man with whom she had spoken

in the bank on June 2, 1998.  Gray admitted in his testimony that

he was in the bank on that date.

     The circumstantial evidence included the blue hooded

sweatshirt found on the footpath near the railroad tracks, which

Gray's brother-in-law identified as resembling one belonging to

Gray.  As noted earlier, witnesses reported that the robber had

worn such a garment. An FBI hair and fiber expert testified that

hairs found on the sweatshirt were consistent with samples taken

from Gray.  The getaway vehicle was identified as white with

Florida license plates, and Gray drove a white Suzuki with Florida

plates.  Both Gray and the robber were described as having a

distinctive Fu Manchu style mustache.  Several witnesses said the

robber had a pronounced limp, and Gray's treating physician

acknowledged that Gray would exhibit a significant limp when

running.  The day after the robbery, Gray paid $310 cash for a room

at a Boston hotel, even though he had been receiving welfare

assistance to pay for a motel room in New Hampshire for the two

weeks before the robbery.  Finally, when Gray was arrested at a

Manchester, New Hampshire hotel a week after the robbery, a

newspaper clipping that named him as a suspect was found on the

night stand between the two beds in his room.

     In light of this considerable evidence linking appellant to

the crime, and the negligible effect of the court's instruction

that the view was not evidence, we conclude that any error in the

treatment of the view must be deemed harmless.

     The judgment of conviction is therefore affirmed.