EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, April 20, 2009

Attention Wal-Mart Robbers: Third Circuit Finds Rule 701 Does Not Apply To Co-Defendants Identification Testimony In Wal-Mart Robbery Appeal

It is well established that an acquaintance of a defendant may or may not be allowed to identify the defendant in an incriminating photo or video pursuant to Federal Rule of Evidence 701. That Rule allows for the admission of lay witness opinion testimony if, inter alia, that testimony would be "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Of course, in such cases, an argument can be made that the jury is just as capable as the acquaintance of determining whether the defendant is the man in the photo or video, which would make the acquaintance's testimony not helpful and not admissible under Rule 701. But when there is a sufficient basis for concluding that the acquaintance is more likely than the jury to correctly identify the defendant from the photo or video, such testimony is admissible. See, e.g., United States v. Dixon, 413 F.3d 540, 544-46 (6th Cir. 2005). But what happens when the acquaintance was a participant in the event that was photographed or videotaped? According to the recent opinion of the Third Circuit in United States v. Shabazz, 2009 WL 1011971 (3rd Cir. 2009), it is Federal Rule of Evidence 602 that applies, and the testimony is admissible.

In ShabazzBilial Shabazz was convicted of conspiracy to commit Hobbs Act robbery, Hobbs Act robbery, and using a firearm during or in relation to a crime of violence based upon his participation in the robbery of a Wal-Mart in Philadelphia in December 2006. The other participants in the robbery were:

-Steven Pattton, an assistant manager at the Wal-Mart that they robbed;

-Bruce Johnson, an assistant manager at a Wal-Mart in Cherry Hill, New Jersey and Shabazz's brother-in-law; and

-Christopher Young, whom Shabazz recruited.  

According to evidence adduced at trial, the four men decided to rob Patton's Wal-Mart  

because they knew that, during the holiday-shopping season, the store would have large amounts of cash in its safe....[T]hey decided that Patton would let Shabazz and his accomplice into the store around 2:00 a.m., when most of the overnight employees would be out on their lunch break, and that Patton would be taken to the safe room and tied up to make it look like he was a victim of the robbery.

At approximately 2:15 a.m. on December 3, Patton let two men into the store, whom he later identified as Shabazz and Young. As Patton led them to the safe room, they encountered Richard Tate, a store employee, who had come to the front register to ask Patton to cash him out. The two robbers then led Patton and Tate to the safe room at gunpoint. Once there, Patton was ordered to open the safe, while Tate was ordered to lie on the floor face down and then was bound with duct tape. After the safe was opened, Patton was also ordered to the floor and his hands were duct-taped. The two robbers left the store with approximately $351,563 in cash.

Patton then freed both himself and Tate and called the police. Initially, Patton presented himself as a victim of the robbery. After viewing the surveillance video, which showed him opening the store's door to allow the two men in, Patton admitted his involvement in the crime. He directed the police to Johnson, who in turn implicated Shabazz 
and Young.

Thereafter, at Shabazz's trial,

the Government introduced footage of the robbery from the store's surveillance cameras, which Patton narrated over Shabazz's objection. The footage showed the man Patton identified as Shabazz walking toward the store from the parking lot, entering the store, grabbing Tate by the store register and putting a gun to his neck, shoving Tate to the ground in the safe room and putting a gun to his head, taking money from the safe and putting it in a trash bag and his clothing, and leaving the safe room with the money. In addition, Patton identified...Shabazz as the man holding a gun in a still picture taken from the robbery. 

After Shabazz was convicted, he appealed, claiming, inter alia, that Patton's lay opinion testimony was improperly received under Federal Rule of Evidence 701 because the jury was just as capable as Patton of determining whether the Shabazz was the man in the photo/video. The problem for Shabazz, however, was at the Wal-Mart when Shabazz when his image was captured, meaning the he was a fact witness, not an opinion witness. Accordingly, because Patton had personal knowledge of the event at issue, he was allowed to render the fact testimony that he rendered under Federal Rule of Evidence 602



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