United States v. Smithers

212 F.3d 306 (6th Cir. 2000)

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Nature of the Case

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Facts

A man walked into the Monroe Bank and Trust and presented bank teller Teresa Marino a note. The note read, 'I have a gun. Give me your large bills.' She complied with the demand by turning over the money from her teller drawer. The robber asked for more money, and she unlocked her other drawer and gave him three packs of large bills totaling $3,400. When the robber repeated his demand for more money, she told him that was all she had, and he ran from the bank. The entire incident lasted about two minutes. Two other witnesses observed the robbery. Debra White was sitting at a desk behind Ms. Marino and saw the man grab the money and walk quickly out of the bank. She also observed the robber getting into the passenger side of a car parked in the parking lot. Timothy Wilson, a bank customer, who walked into the bank at the same time as the robber. The robber held the door open for him as they both entered the building. Mr. Wilson saw the robber go straight to the teller and then leave the bank quickly. Investigators spoke to the witnesses that day. Marino, who was approximately three feet from the robber, described him as a white male in his late twenties wearing a Nike jacket, baseball cap, and sunglasses, over 6' 2' tall, 180-185 pounds, with long bushy dark hair, a mustache, and a thin beard. White described the robber as taller than average, with squinty eyes and wearing a bulky striped jacket. White described the car as a two-toned brown and black, late 1970's Monte Carlo, with a cream-colored landau roof and an Ohio license plate. Wilson recalled the robber as a very tall man, with a mustache and partial beard, wearing a baseball cap, dark sunglasses, and a winter jacket. The Police noticed a vehicle fitting the description of the car used in the robbery and drove White to the vehicle, a 1976 Oldsmobile Cutlass, which she identified as the car used in the robbery. The car was registered to D. The officers searched D's apartment but found no incriminating evidence. They located D, and he accompanied the police to his apartment. D had bought the vehicle from his brother-in-law, Steve Dallas, who still retained a set of keys to the car. D also stated that on the morning of November 12, 1996, he had noticed his rear license plate was missing, so he had moved his front plate to the rear. D also claimed to have noticed gas missing from the car on other mornings. A search of the car produced no incriminating evidence. D voluntarily went to the sheriff's department where he provided handwriting samples and was photographed and fingerprinted. When photographing him, Detective Redmond noted Smithers's height as 6' 6 1/2 '. A photo spread of six photographs was prepared. Marino and Wilson could not identify the robber from the photo spread. White picked out D. Immediately after her identification; White told Marino that she had been able to identify the robber from the photo spread. Handwriting exemplars were inconclusive. Fingerprint analysis produced one identifiable print. P claims the print was inconclusive; D claims the analysis showed that the print did not belong to him. A height analysis of the robber depicted in the bank videotape was performed. The FBI analyst concluded that the robber measured approximately 6' 5'. But the agent could neither positively identify nor eliminate D as the bank robber. D was indicted. D filed a ten-page motion in limine to determine the admissibility of certain expert testimony regarding eyewitness testimony. The court denied the motion, noting that everything an expert would have to say about eyewitness identification was within the jury's 'common knowledge.' All three witnesses identified D as the robber in court. Marino and White testified that they did not notice that the robber had any distinguishing features. D renewed motion for the testimony of Dr. Fulero, who would 'educate the jury about the general factors that may affect eyewitness accuracy.' Most important the proffer stated that 'had D been the robber, the eyewitnesses would have observed and been able to recall the large scar on D's neck.' The court excluded the expert testimony. It held that Dr. Fulero's testimony was 'not a scientifically valid opinion.' D was found guilty and appealed.