United States v. Anthony Shaffer
United States v. Anthony Shaffer
Opinion of the Court
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
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
“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
While the Government acknowledges that the admission of A.L. and C.M.’s in-court identifications was unconstitutional, we are compelled to note the significant role this evidence had at trial. The central dispute was the identity of the robber. A.L. and C.M. were the only two eyewitnesses to the crime that testified, and they both stated that Shaffer was the robber. “[EJyewitness identification evidence has a powerful impact on juries.” Watkins v. Sowders, 449 U.S. 341, 352, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981) (Brennan, J., dissenting); see also United States v. Rogers, 126 F.3d 655, 660 (5th Cir. 1997) (noting that “in-court identifications can be powerfully persuasive”). Notably, the Government focused on'this evidence in its closing argument, stating that “what really convicts him and should convince you is that both [A.L.] and [C.M.] both positively identified [Shaffer] for you here in this courtroom.” As the Government emphasized, while A.L.’s testimony “by itself would be enough to convict [Shaffer,] ... [w]e went further than that” as C.M. “also identified him.” Because the Government repeatedly stated that the in-court identifications were conclusive proof that Shaffer was the robber, “[t]here is no way to determine whether the jury would have convicted [the defendant] purely on the basis of [the tainted] testimony or of any of the other evidence.” Jackson, 636 F.3d at 697 (alterations in original) (quoting Alvarado-Valdez, 521 F.3d at 343). Accordingly, “[w]e cannot see how the government can conclusively show that the tainted evidence did not contribute to the conviction, because the government’s closing argument relied on that very evidence.” Alvarado-Valdez, 521 F.3d at 342-43.
Nevertheless, the Government now contends that even when A.L. and C.M.’s in-court identifications are removed from consideration, the evidence presented at trial was so overwhelming as to establish Shaffer’s guilt beyond a reasonable doubt. In support, the Government principally focuses on the following evidence: (1) Robinson’s testimony; (2) the surveillance video; and (3) the fingerprint found on the withdrawal slip.
There is reason, however, to question portions of this testimony—especially the identity of the robber. As Shaffer’s counsel argued at trial, the robber arrived in Robinson’s ear, was wearing Robinson’s clothes, and was carrying Robinson’s gun. While Robinson told both the police and the jury that it was Shaffer and not him in the surveillance video, he plainly had an' incentive to do so. Taking Robinson’s testimony on its face would force us to accept the credibility of a paramount witness that we were unable to observe and whom the Government conceded may have participated in the crime. Given the outstanding questions about Robinson’s credibility, we cannot say that his testimony is overwhelming evidence that Shaffer was the robber. See Cueto, 611 F.2d at 1065 (noting credibility issues of witness in conducting harmless error review).
We also cannot accept the Government’s contention that the surveillance video provides overwhelming evidence that Shaffer is guilty. The video, although it includes the robber’s face, is of a grainy quality. The person in the video is also wearing a cap that casts a shadow over his face and obscures his facial features. Thus, we cannot determine with any certainty the surveillance video’s probative force.
Lastly, the Government’s fingerprint evidence does not persuade us that the tkint-ed in-court identifications were harmless beyond a reasonable doubt. Specifically, the Government points to the fact that the surveillance video shows the robber touching the demand note and that two fingerprint analysts testified at trial that a single fingertip print found on the demand note matched a single fingertip print from Shaffer. Yet the fingertip print—unlike the robber’s gun, clothes, or getaway car—is. the only physical evidence that does not also implicate Robinson. While fingerprint evidence by itself may be sufficient to support a jury’s guilty verdict, see Gibson v. Collins, 947 F.2d 780, 785 (5th Cir. 1991), where there is constitutional error, a guilty verdict may be affirmed only where “there was [no] reasonable possibility that the evidence complained of might have contributed to the conviction.” Alvarado-Valdez, 521 F.3d at 341 (alteration in original) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. 824). Because of the heavy emphasis that the Government placed on the tainted in-court identifications and our doubts surrounding the strength of the Government’s other evidence, the single fingertip-print match does not persuade us beyond a reasonable doubt that the introduction of the tainted identification testimony was harmless error.
IV. CONCLUSION
For the foregoing reasons, we reverse Shaffer’s conviction and remand to the district court.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4,
Dissenting Opinion
dissenting:
I respectfully dissent. The prosecutor’s constitutional error in tainting the in-court identifications made by the two bank tellers was harmless beyond a reasonable doubt.
Shaffer’s theory at trial was that Robinson, not Shaffer, robbed the bank.
As the majority opinion recounts, detectives were able to recover a latent fingertip print from the bank deposit slip used as the demand note.
The video is also compelling evidence. The majority opinion overstates the case in describing its quality as “grainy.”
The majority concludes that the video has little probative value for purposes of our harmless error analysis based on the opinion’s assessment that the video was of “grainy quality” and that shadows from the robber’s hat “obscuref ] his facial features.”
The jury was shown this video during trial. The jury also had multiple opportunities to view Robinson and to compare him to the man in the video: Robinson testified at trial for the Government and also appeared in the court room during the testimony of both A.L. and C.M., another teller present during the robbery, during which both witnesses were asked whether Robinson was the man that robbed the bank. Both testified that he was not. Although these negative identifications are likely tainted by the same suggestive pretrial procedures that tainted the positive identifications of Shaffer, Robinson’s appearance in the court room during each of these witnesses’ testimony offered the jury extended opportunities to look at Robinson and compare him to the robber shown in the video. One of Robinson’s appearances in the courtroom occurred only four minutes after the jury viewed the video. The jury also requested an opportunity to view the video from “up close” during their deliberations, giving the members of the jury another opportunity to compare the robber’s identity to both Shaffer and Robinson. This second viewing appears to have featured prominently in the jury’s deliberations—it returned a guilty verdict only 20 minutes after viewing the video.
More confounding is the majority opinion’s conclusion that the fingerprint evidence does not overwhelmingly establish Shaffer’s guilt. With essentially no analysis, it holds that the fingerprint recovered from the demand note written by the robber “does not persuade” as to the harmlessness of the district court’s error.
Finally, although Shaffer is correct that the Government emphasized the identifications made by A.L. and C.M. several times during its opening and closing statements, it is important to note that Shaffer’s counsel forcefully cross-examined those witnesses about their previous failures to identify Shaffer and elicited testimony about the suggestiveness of the procedures that led to their identifications. Defense counsel also elicited testimony from Detective Jernigan, one of the Government’s primary witnesses, that eyewitness identifications are not always reliable. Armed with this testimony, Defense counsel argued to the jurors during his closing argument that they should doubt the positive identifications. In any event, the fingerprint evidence coupled with the surveillance video overwhelmingly establishes Shaffer’s guilt.
In Harrington v. California,
The same can be said of the evidence against Shaffer in the present case. The fingerprint and videotape evidence was not circumstantial. It was substantial physical evidence and convincing beyond a reasonable doubt.
The majority opinion is inconsistent with Harryman v. Estelle, in which our court, sitting en banc, applied the harmless error rule in a habeas proceeding.
In the present case, the evidence that the robber was Shaffer and not Robinson was physical evidence—a fingerprint and a lengthy video showing the robber’s face. The in-court identifications were harmless beyond a reasonable doubt.
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I would affirm Shaffer’s conviction. I therefore respectfully dissent.
. See, e.g., Harrington v. California, 395 U.S. 250, 253-54, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Harryman v. Estelle, 616 F.2d 870, 875-88 (5th Cir. 1980) (en banc).
. See United States v. Watkins, 741 F.2d 692, 695 (5th Cir. 1984).
. ’ Ante at 703.
. Cf. Wright v. Florida, 474 U.S. 1094, 1096, 106 S.Ct. 870, 88 L.Ed.2d 909 (1986) (Black-mun, J., dissenting from denial of certiorari) (explaining that because "Wright’s fingerprint could have been left during [an] alleged earlier break-in, this case comes down to Wright’s word against Westberry’s”).
. See United States v. Folks, 236 F.3d 384, 390 (7th Cir. 2001) (holding error harmless with fingerprints as primary evidence against defendant); United States v. Wade, 740 F.2d 625, 628 (8th Cir. 1984) (same).
. Ante at 703.
. Ante at 703.
. Ante at 703.
. Ante at 703.
. Ante at 702 (quoting United States v. Rogers, 126 F.3d 655, 660 (5th Cir. 1997)).
. Ante at 702.
. Ante at 703 (quoting United States v. Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008)).
. 386 U.S. 18, 19, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (holding, in a case in which under state law, the prosecutor was permitted to comment and did comment on the defendants’ failure to testify or to deny or explain incriminating evidence, “that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”).
. 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
. 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
. Harrington, 395 U.S. at 254, 89 S.Ct. 1726.
. Id.
. Id.
. 616 F.2d 870, 875-78 (5th Cir. 1980) (en banc).
. Id. at 873.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Harryman, 616 F.2d at 873.
. Id.
. Id. at 877.
. Id. at 875.
. Id. at 876 (quoting Fahy v. Connecticut, 375 U.S. 85, 87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)).
. Id.
. Id. at 877-78.
. Id.
. Id. at 878.
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