United States v. Johnson

106 F. App'x 461
Court of Appeals for the Sixth Circuit·Decided September 2, 2004·No. No. 03-5698·Published·Cited by 1 cases

Opinion

ROGERS, Circuit Judge.

Police apprehended Leevern Johnson, the defendant/appellant, in February 2002 while he fled the scene of a bank robbery. Johnson was indicted for this robbery as well as for a robbery committed in December 2001. Johnson pled guilty to the February 2002 robbery. At his trial for the December 2001 robbery, witnesses identified a black revolver seized from Johnson in February 2002 as the gun used in the December 2001 robbery, and defense counsel impeached this testimony with a surveillance photograph, taken during the December 2001 robbery, that showed Johnson holding a gun with a silver appearance. In response, the Government introduced a photograph in which the gun seized from Johnson in February 2002 looked silver, in order to demonstrate that the appearance of the gun varied depending on the lighting.

A jury convicted Johnson of the December 2001 robbery. On appeal, Johnson argues that (1) the district court abused its discretion in admitting the surveillance photograph because it was taken under conditions different from those at the scene of the December 2001 robbery and those in the courtroom and, hence, its prejudicial effect outweighed its probative value, and (2) the Government did not present sufficient evidence to sustain his convictions. For the following reasons, we affirm the judgment of the district court.

[463]*463BACKGROUND

On December 6, 2001, an armed man robbed the American Savings Credit Union (the “Credit Union”) in Jackson, Tennessee. On February 28, 2002, Johnson robbed the First Bank in Jackson, Tennessee. Johnson was apprehended while fleeing from the First Bank. Johnson later confessed to the First Bank robbery.

A grand jury returned a four-count indictment charging Johnson with (1) armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d) for the First Bank robbery, (2) brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) for the First Bank robbery, (3) armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d) for the Credit Union robbery, and (4) brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) for the Credit Union robbery. Johnson pled guilty to Counts 1 and 2.

The Government notified Johnson that it intended to introduce evidence of his involvement in the First Bank robbery at his trial on Counts 3 and 4, which involved the Credit Union robbery. The Government asserted that the First Bank robbery was a “signature crime” and that evidence of this crime was admissible under Federal Rule of Evidence 404(b) to establish Johnson’s identity as the perpetrator of the Credit Union robbery. At trial, the district court denied the Government’s motion to present evidence concerning the First Bank robbery. The court concluded that, although the First Bank robbery was similar enough to the Credit Union robbery to constitute a “signature crime,” the prejudicial effect of evidence concerning the First Bank robbery outweighed its probative value.

At trial, three Credit Union employees who witnessed the robbery identified Johnson as the robber. Additionally, the employees identified a black revolver, which was recovered from Johnson when he was apprehended while fleeing the scene of the First Bank robbery, as the gun used in the Credit Union robbery.

On cross-examination, defense counsel impeached the employees’ testimony concerning the gun. Deborah Puckett conceded that, when initially interviewed by the police, she described the gun used by Johnson during the Credit Union robbery as “silver,” and that the gun she identified as Johnson’s on direct was not silver. Both Julie Birl and Katrina Baker allowed that, while the gun they identified as Johnson’s on direct was black, a photograph taken during the robbery showed Johnson holding a gun that appeared silver.

To rehabilitate the employees, the Government proffered another photograph, taken of the interior of Johnson’s getaway car following his capture, which showed the gun used by Johnson during the First Bank robbery. According to Johnson, the photograph also depicted money on the front seat of the car and a deployed airbag. In the photograph, the gun looked silver, and the Government claimed that the photograph demonstrated that the appearance of the gun varies depending on the lighting conditions. Johnson objected to the introduction of the photograph, arguing that (1) it was not relevant because the lighting conditions at the time of the photograph differed from those in the Credit Union at the time of the robbery and from those inside the courtroom, and (2) he could not respond to the Government’s argument concerning the photograph without broaching the First Bank robbery. The district court overruled Johnson’s objection, concluding that “[s]ince the color of this weapon has become a very important issue, the picture does tend to be some evidence that the gun appears silver under certain circumstances.” The court instructed the [464]*464Government to avoid any discussion of the First Bank robbery when introducing the photograph.

The Government introduced the photograph through the testimony of Cathy Ferguson, a police officer. Ferguson testified as follows:

Q: Ms. Ferguson, I was asking you a question in regards to when this gun was recovered on February 28th from the defendant. Was a photograph taken of this gun?
A: Yes.
Q: Let me pass to you this and ask you if you recognize it.
A: Yes, I do.
Q: Is that this gun?
A: Yes, it is.
MR. KITCHEN: Your Honor, could I have that marked as exhibit number 22?
THE COURT: Yes, sir, that’s admitted. MR. KITCHEN: I’m sorry Your Honor, I—
Q: It looks silver there, doesn’t it?
A: Yes, sir.
MR. CAMP: Objection, leading.
THE COURT: Yes, sir, leading. Sustained.
BY MR. KITCHEN:
Q: What color does it look like? Does it look like it does right here under these lighting conditions?
A: No, it does not.

On cross-examination, Ferguson conceded that the photograph was not taken “at the same time and the same location and the same lighting or under the same conditions at the time that the bank was robbed at the credit union.”

At the close of the Government’s casein-chief, Johnson moved for a judgment of acquittal. The district court denied Johnson’s motion, and a jury found Johnson guilty. Johnson timely appealed.

ANALYSIS

1. Admission of the Photograph

The district court did not abuse its discretion in admitting the photograph.

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United States v. Johnson, 106 F. App'x 461 (6th Cir. 2004).

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