"If in fact the tattoos were on Bay's hands at the time of the robberies, it should be easy for him to lay that foundation by the testimony of the members of his family or of acquaintances"
How later courts described this case
- "If in fact the tattoos were on Bay's hands at the time of the robberies, it should be easy for him to lay that foundation by the testimony of the members of his family or of acquaintances"
- subsequent case history omitted
Written by the judges who cited it.
The opinion
SNEED, Circuit Judge,
concurring in part and dissenting in part:
I concur in the opinion of the majority except with respect to the reversals of Counts II and IV. Any error pertinent to those counts was harmless. As the majority points out, no eyewitness was asked anything about or addressed the issue of the defendant’s hands. It was raised by Bay’s counsel only at the close of the prosecution’s case, and then only as to Ms. Savin, after having cross-examined all eyewitnesses. Under these circumstances, I do not think that allowing Bay to exhibit his hands to the jury would have refuted the eyewitness identification of the bank tellers who testified at the trial, except perhaps with respect to Ms. Savin. In any event, a cold transcript cannot reveal the extent to which any disfigurement of Bay’s hands might have been visible to the tellers who gave eyewitness identification.
The majority finds the stain of one clear error wider than would I.
The petition for a rehearing is denied. Judge Sneed would grant the petition for a rehearing.