United States v. Marshall Jackson

688 F.2d 1121, 1982 U.S. App. LEXIS 25631, 11 Fed. R. Serv. 651
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 15, 1982
Docket81-1750
StatusPublished
Cited by63 cases

This text of 688 F.2d 1121 (United States v. Marshall Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Marshall Jackson, 688 F.2d 1121, 1982 U.S. App. LEXIS 25631, 11 Fed. R. Serv. 651 (7th Cir. 1982).

Opinions

ESCHBACH, Circuit Judge.

The defendant Marshall Jackson was convicted after trial to a jury of bank robbery and assault by use of a dangerous weapon in violation of 18 U.S.C. §§ 2, 2113(a) and (d). On appeal Jackson contends that the district court committed reversible error by permitting a lay witness, Louise Heneghan, to testify that the defendant was one of the robbers pictured in the bank surveillance photographs of the robbery. We affirm.

On April 30, 1980 three men, one of whom was carrying a gun, robbed the Broadway Bank at 5960 North Broadway in Chicago, Illinois of $28,240.75. During the course of the robbery one of the bank tellers activated the bank’s surveillance camera which photographed the remainder of the robbery.

The defendant was arrested on January 5, 1981 and charged with participating in the robbery of the Broadway Bank. He entered pleas of not guilty as to both the bank robbery charge and the charge of assault with a dangerous weapon, contending that the government had erred in its identification of him as one of the robbers. The man photographed by the bank surveillance cameras as the robber who actually collected the money from the bank tellers, who the government contended was the defendant, had a full beard and mustache and was quite heavy-set. Jackson appeared with long sideburns and a Fu Manchu style mustache in the photograph of him taken on the day of his arrest, January 5, 1981. At the pre-trial line-up held in February 1981 Jackson had shorter hair and long sideburns [1123]*1123but no facial hair. Both the arrest and line-up photographs depict the defendant as somewhat heavy-set.

At trial the government presented three witnesses who testified, to varying degrees of certainty, as to the identification of Jackson as the robber who collected the cash from the tellers: Alice Koch, one of the tellers, Vicki Liberman, another bank employee, and Louise Heneghan. Ms. Koch, who was one of the tellers from whom a portion of the cash was taken during the robbery, testified that she had positively identified the defendant in the February line-up. She stated that the defendant differed in appearance from the bank robber to the extent that the bank robber had a beard and mustache. Ms. Liberman, who witnessed a portion of the robbery, could not make a positive identification from the line-up, but testified that the eyes of the defendant “resembled” those of the robber who was at the teller window. She also stated, however, that the defendant differed from the robber in that the former had no facial hair, had shorter hair and appeared smaller than the robber.

The third witness to testify as to the identification of the defendant was Louise Heneghan, who was not an eyewitness to the robbery. She testified that she had met the defendant, whom she knew as “Tiny”, only one time, on December 29, 1979 at a Christmas party. In December 1980 the FBI had shown Ms. Heneghan a photograph of the individual who took the cash from the tellers and at that time she identified the man in the photograph as the man she knew by the name of Tiny. She also identified the defendant as Tiny in the courtroom.1

In addition to the testimony of witnesses Koch, Liberman and Heneghan, the district court admitted as exhibits a number of bank surveillance photographs of the actual robbery, a photo of the defendant on the day of his arrest and pictures of the February line-up in which the defendant participated.

The sole issue raised on appeal is whether the district court committed prejudicial error in admitting the testimony of Louise Heneghan.

Rule 701 of the Federal Rules of Evidence authorizes the admission of opinion evidence by a lay witness where the witness’ opinion is “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” 28 U.S.C. § 701. The decision of whether or not to admit certain testimony under Rule 701 is committed to the sound discretion of the district court, and we may not reverse absent a finding that the lower court abused its discretion. Bohannon v. Pegelow, 652 F.2d 729, 732 (7th Cir. 1981); United States v. Skeet, 665 F.2d 983 (9th Cir. 1982); United States v. Borrelli, 621 [1124]*1124F.2d 1092 (10th Cir.), cert. denied, 442 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 222 (1980); United States v. Butcher, 557 F.2d 666 (9th Cir. 1977).

Opinion testimony by a lay witness may be admitted under Rule 701 whenever the witness cannot adequately communicate to the jury the facts upon which his or her opinion is based. United States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982). The theory behind Rule 701 “is that wherever inference and conclusions can be drawn by the jury as well as by the witness, the witness is superfluous; ... a lay opinion is received because and whenever his facts cannot be so told as to make the jury as able as he to draw the inference.” 7 Wigmore on Evidence (Chadbourn rev. 1978) § 1917.8 at 10 (emphasis in original). Thus, in order to conclude that such testimony is admissible, the court must find that the witness’ testimony is based upon his or her personal observation and recollection of concrete facts, United States v. Skeet, supra at 985, and that those facts cannot be described in sufficient detail to adequately convey to the jury the substance of the testimony. The Advisory Committee Notes to Rule 701 indicate that direct and cross-examination of the lay witness testifying as to his or her opinion is relied upon to verify the accuracy of the testimony.2

The defendant urges that Ms. Heneghan was not sufficiently familiar with him to meet the first part of the test for admissibility under Rule 701 and that the government failed to introduce other evidence showing that there was any need for such testimony and thereby failed to meet the second part of Rule 701’s test. He also contends that his right to a jury trial was abrogated because Ms. Heneghan was permitted to testify as to the ultimate issue before the jury: whether the defendant was one of the bank robbers.

The defendant’s initial attack on the admission of Ms. Heneghan’s testimony is founded upon his belief that the witness’ opinion was not “rationally based” upon her perceptions. He urges us to distinguish the instant case from others involving very similar factual settings where opinion testimony, as to the identity of the defendant as the person who committed the bank robbery, by lay witnesses was admitted, United States v. Saniti, 604 F.2d 603 (9th Cir.), cert. denied, 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 384 (1979); United States v. Young Buffalo,

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Bluebook (online)
688 F.2d 1121, 1982 U.S. App. LEXIS 25631, 11 Fed. R. Serv. 651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marshall-jackson-ca7-1982.