Petition for Writ of Certiorari — Wilkerson v. United States

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Supreme Court, U.S.

FILED

97° 498 JUN 2 6 19%

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

UNITED STATES OF AMERICA,

Respondent,

V.

RONALD SHERRILL WILKERSON.

Appellant.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Ronnie M. Mitchell

Counsel of Record

HARRIS, MITCHELL & HANCOX

P.O. Box 2917

308 Person Street

Fayetteville, NC 28302

(910) 678-8900 RECEIVED

Counsel for Petitioner NOV 29 1996

OFFICE OF THE CLERK

SUPREME COURT, U.S.

ISSUES PRESENTED

WHETHER THE DISTRICT COURT ERRED AND

DENIED THE DEFENDANT'S RIGHTS TO

CONFRONTATION, DUE PROCESS AND

FUNDAMENTAL FAIRNESS BY PRECLUDING

THE DEFENDANT FROM ELICITING ON

CROSS-EXAMINATION AND PRESENTING

BEFORE THE JURY EXCULPATORY PORTIONS

OF HIS STATEMENT WHERE THE

GOVERNMENT'S WITNESS TESTIFIED WITH

REGARD TO INCULPATORY PORTIONS OF

THE SAME STATEMENT?

WHETHER THE DISTRICT COURT ERRED AND

ABUSED ITS DISCRETION RESULTING IN A

DENIAL OF THE DEFENDANT'S

CONSTITUTIONAL RIGHTS TO DUE PROCESS

AND TO THE EFFECTIVE ASSISTANCE OF

COUNSELBY ALLOWING THEINTRODUCTION

OF IN-COURT IDENTIFICATION BY WITNESSES

WHOSE PERCEPTIONS WERE TAINTED BY

A PRIOR SUGGESTIVE LINE-UP?

TABLE GP AUTHORItees . 2.2 PPI... li

eee ane 22.5, SO EAIMORT OD l

Ee. et ee en SRT l

CONSTITUTIONAL PROVISIONS INVOLVED ..... 3

STATEMENT OF THECASE .................... 4

REASONS FOR GRANTING THE WRIT .......... 15

I.

II.

.

TABLE OF CONTENTS

THE DISTRICT COURT ERRED AND DENIED THE

DEFENDANT "SRIGHTS TOCONFRONTATION, DUEPROCESS

AND FUNDAMENTAL FAIRNESS BY PRECLUDING THE

DEFENDANT FROM ELICITING ON CROSS-EXAMINATION

AND PRESENTING BEFORE THE JURY EXCULPATORY

PORTIONS OF HIS STATEMENT WHERE THE GOVERNMENT’ S

WITNESS TESTIFIED WITH REGARD TO INCULPATORY

PORTIONS OF THE SAME STATEMENT........... 16

THEDISTRICTCOURTERREDANDABUSEDITSDISCRETION

RESULTING IN A DENIAL OF THE DEFENDANT'S

CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO THE

EFFECTIVE ASSISTANCE OF COUNSEL BY ALLOWING THE

INTRODUCTION OF IN-COURT IDENTIFICATION BY

WITNESSES WHOSE PERCEPTIONS WERE TAINTED BY A

PRIOR SUGGESTIVE LINE-UP ................ 35

ren re ye 47

TABLE OF AUTHORITIES

FEDERAL CASES

Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed.

pS I SEL Ae es 14

Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d

DE eet ee CAR cowsninn) 3: ou: 17, 18

Delaware v. Fensterer, 474 U.S. 15, 106 S. Ct. 292, 88 L. Ed.

I Sn ee ee 18

Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89

ee eee 18

Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed.

SESS 20

Holifield v. Davis, 662 F.2d 710 (11th Cir. )) _—aa 24

Hoover v. Maryland, 714 F.2d 301 (4th Cir. 1983) . 19,20

Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243. 53 L. Ed.

og gS Sr Mae oe <a er rr 19, 20

ee eh Pe OL be 8S ore yostras be 22

Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L.

mee we ees, el pabl caecc ck 20, 21

iil

Simon v. United States, 123 F.2d 80 (4th Cir. 1941), cert denied,

314 US. 694, 62 S. Ct. 412, 86 L. Ed. 555 (1941) .... 19

Smith v. Paderick, 519 F.2d 70 (4th Cir.), cert. denied, 423 U.S.

SGN co paclane conan ee age 23

Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d

LISHEIAETY: saan oseoresiones evareE 20, 21

Trombetta v. California, 467 U.S. 479, 104 S. Ct. 2528, 81

L Bd. 26 413 (99OD .... «0 ee reer tee 14

United States v. Alvarado, 882 F.2d 645 (2nd Cir. 1989}, 17

United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed.

Bd CID CADTID ko acres oereenns REE RET SOS DOE 21

United States v. Boylan, 898 F.2d 230 (Ist Cir. 1990) .. 11

United States v. Burreson, 643 F.2d 1344 (9th Cir. 1981) 11

United States v. Castro, 813 F.2d 571 (2nd Cir. 1987) .. 13

United States v. Costner, 684 F.2d 370 (6th Cir. 1982) . 11

United States v. Crews, 445 U.S. 463, 100 S. Ct. 1244, 63 L.

ia SA SEUCAUOM.... as eeripge + tage fe 20

United States v. Dorta, 783 F.2d 1179 (4th Cir.), cert denied,

ATT US. GOS (19EE) . ccc trtre 20

United States v. Haddad, 10 F.3d 1252 (7th Cir. 1993) . 12

iv

United States v. Jamar, 561 F.2d 1103 (4th Cir. 1977) . 15

United States v. Jordan, 466 F.2d 99 (4th Cir. 1972), cert.

denied, 409 U.S. 1129, 93 S. Ct. 947, 35 L. Ed. 2d 262 (1972)

19

SO So oS SS eS Sete Oe 6 eo 6 eho hoe 6 6 ohn oo eles

United States v. Kaminski, 692 F.2d 505 (8th Cir. 1982) 15

United States v. LeFevour, 798 F.2d 977 (7th Cir. 1986) 11

United States v. Li, 55 F.3d 325 (7th Cir. 1995), ...... 12

United States v. McCorkle, 511 F.2d 482 (7th Cir.), cert. denied,

423 U.S. 826, 96 S. Ct. 43, 46 L. Ed. 2d 43 (3975)... 15

United States v. Mills, 704 F.2d 1553 (11th Cir. 1983) . 24

United States v. Mills, 853 F.3d 672 (4th Cir. i) i

United States v. Prior, 27 F. Cas. (no. 16092) 624 (C.C.D.C.

ieaee 40835 5. Gave Cott Ria Reith ate 15

United States v. Ricks, 882 F.2d 885 (4th Cir. cD

United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986) 11

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.

ae PAGS Ie isk bi. cs Of beeen Am 19, 20, 25

United States v. Walker, 652 F.2d 708 (7th Cir. 1981) 15, 16

United States v. Washington, 952 F.2d 1402 (D.C. Cir. 1991)

17

v

United States v. Wenzel, 311 F.2d 164 (4th Cir. 1962) .. 14

United States v. Wilcox, 507 F.2d 364, 369 (4th Cir. 1974),

cert. denied, 420 U.S. 979 (1978) ...-- +--+ srrtr 23

United States v. Wilkerson, 84 F.3d 692 (4th Cir. 1996) 1, 11

Watkins v. Sowders, 449 U.S. 341, 66 L. Ed. 2d 549, 101 S.

CX GEAEADON) 11250 5 ak RET cern 2 eee 24, 25

STATE CASES

People v. Baker, 23 N Y.2d 307, 296 N.Y.S.2d 745 (1968}5

FEDERAL STATUTES

wt RO BOOM, |. oxo nao t et Pl TE l

were Cre | 4) Moe Oe ot arcs 3

18 U.S.C. §§ 2113 (a) and rr rrr Tae YS 2

y Ate Pe Um. 1) PMT Ro ae hea l

yA ty oe >) ES ee ae l

tte CoM |) MP Os hake, a

Red R Evid. Ride l02 .....--: csr 10

Fed. R. Evid. Rule 106 ....---- seer rrr 10, 13

Fed. R. Evid. Rule 611(a) ...----s sess 12

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth Circuit

is published in United States v. Wilkerson, 84 F.3d 692 (4th

Cir. 1996).

The judgment of the District Court for the Eastern

District of North Carolina is not reported and is reprinted in the

Appendix.

JURISDICTIONAL STATEMENT

This petition for writ of certiorari arises from an opinion

rendered by the United States Court of Appeals for the Fourth

Circuit, said opinion having been issued on appeal from United

States District Court. The Appellant was convicted in the District

Court of two counts of bank robbery, in violation of 18 U.S.C.

§§ 2113 (a) and (d), and two counts of using a firearm during

the commission of a crime of violence, in violation of 18 U.S.C.

§ 924(c). The U.S. District Court for the Eastern District of

North Carolina had federal question jurisdiction pursuant to 28

U.S.C. § 1331 because the four count indictment, filed on August

23, 1994, alleged violations of federal law and, therefore, arose

under the laws of the United States. The District Court rendered

judgment on April 10, 1995.

The Appellant filed Notice of Appeal on April 20, 1995.

The United States Court of Appeals for the Fourth Circuit heard

this case on March 4, 1996 pursuant to its jurisdiction over

appeals from final decisions of the district courts of the United

States, said jurisdiction having been granted under 28 U.S.C.

2

§ 1291. The case was decided on May 24, 1996 and the Court

of Appeals entered judgment on May 24, 1996.

The Appellant now submits a timely petition for writ

of certiorari. The United States Supreme Court enjoys

jurisdiction to review the judgment of the Fourth Circuit Court

of Appeals pursuant to the authority granted under 28 U.S.C.

§ 1254(1). The Supreme Court should grant discretionary review

because (1) this case presents important questions of federal

law which have not been, but should be, settled by this Court

and (2) this case presents questions of federal law upon which

the U.S. Court of Appeals for various Circuits have rendered

conflicting interpretations.

CONSTITUTIONAL PROVISIONS AND FEDERAL

RULES INVOLVED

Rule 106 of the Federal Rules of Evidence provides:

"When a writing or recorded statement or part thereof is

introduced by a party, an adverse party may require the

introduction at that time of any other part or any other writing

or recorded statement which ought in fairness to be considered

contemporaneously with it."

Rule 611(a) of the Federal Rules of Evidence provides

in pertinent part: "The court shall exercise reasonable control

over the mode and order of interrogating witnesses and presenting

evidence so as to (1) make the interrogation and presentation

effective for the ascertainment of the truth. . ."

United States Constitution, Amendment V, provides

in pertinent part: No person "shall be compelled in any criminal

3

case to be a witness against himself. nor be deprived of life,

liberty, or property, without due process of law .. .”

United States Constitution, Amendment VI, provides

in pertinent part: “In all criminal prosecutions the accused shall

enjoy the right . . . to be confronted with the witnesses against

him..."

STATEMENT OF THE CASE

On August 23, 1994, a Grand Jury for the Eastern District

of North Carolina returned a four count bill of indictment alleging

in Count one that on March 7, 1994 the Defendant, Ronald

Sherrill Wilkerson robbed the Hope Mills Branch of Centura

Bank in Fayetteville, North Carolina. Additionally, the indictment

alleged that on May 13, 1994, the defendant used a firearm to

take from bank employees $2,820 in U:S. currency in the

possession of State Bank of Fayetteville in violation of 18 USC

§ 2113 (a) and (d). The indictment also charges that the

defendant used and carried a firearm during and in relation to

a crime of violence; that is, bank robbery, in violation of 18 USC

§ 924(c)(1).

The United States District Court for the Eastern District

of North Carolina had federal question jurisdiction pursuant to

28 U.S.C. § 1331 because the indictment alleged violations of

federal law which aros under the laws of the United States.

On November 14, 1994 the Defendant entered a plea of not

guilty to all charges before the Honorable Malcolm J. Howard,

United States District Judge.

The jury trial of the Defendant began on January 30,

1995 in Raleigh, North Carolina before the Honorable FT

4

Dupree, Senior United States District Judge. At trial, Julie

Christine Webb, an employee at Centura Bank in Hope Mills,

North Carolina testified on March 7, 1995 that she saw a man

in the doorway of the bank wearing a mask and carrying a bag

anda gun. Ms. Webb testified that she could not identify the

individual who conducted the robbery.

The only identification testimony that Ms. Webb could

give was that the individual had blue eyes, was wearing a dark

colored mask and carrying a dark colored automatic gun, and

that he was not very tall. This person told customers "to get

down on the floor, that this is a robbery." The robber walked

to Ms. Webb's window and demanded money. Ms. Webb told

him that she did not have her keys. While Ms. Webb retrieved

her keys, the individual gave the bag to Cynthia Barker and said

"you, fill it up." Ms. Barker took the bag and began to put money

in it. After Ms. Webb returned, Ms. Barker handed the bag to

her. Ms. Webb then put money from her drawer into the bag.

The individual told her that he only wanted large bills. She put

some money in it and he said, “is that it"? Ms. Barker answered

affirmatively, and the individual turned and started to leave.

The individual exited toward the right of the building, in the

direction of the automatic teller machine. Ms. Barker followed

and locked both doors. Ms. Barker saw the individual take off

the mask before he got in the car. Ms. Barker described the

robber as having dirty blonde hair.

Steven Daniels, who was in a vehicle blocking the getaway

car, told Agent Parker that the robber had reddish hair which

was neck length. (App. p. 125, lines 3-8). The automobile was

parked at the end of the building beside the automatic teller

machine. Ms. Barker identified that car as a 1984 to 1986 gray

or silver Camaro with a two-inch red and two-inch orange stnipe

a NR Eee Se ee

5

along the side of the vehicle. (App. p. 74, lines 1-3). In sharp

contrast, Mr. Daniels identified the car as a grayish-silver Z-28

car. (App. p. 121, lines 15-16). None of the witnesses obtained

a license plate number. During a photographic lineup, Ms. Barker

told agent Parker that one of the men “looks familiar to me."

(App. p. 74, lines 9-11). Mr. Daniels stated to Agent Parker

that the individual that he identified in the photographic lineup

had "the same style of beard and moustache as the individual

who robbed [the bank]." (App. p. 138, lines 19-24).

On Thursday, June 2, 1994, the Defendant, Ronald

Wilkerson, and his aunt, Vickie Brown, entered the bank to

deposit two tax checks. Ms. Barker looked out in the parking

lot and saw a charcoal gray Camaro.

Ms. Barker told Karen Miller, the bank's branch manager,

that if she "had to describe [the bank robber], he was standing

in [Ms. Webb's] window." (App. p. 108, lines 19-22). Ms.

Barker and Ms. Miller walked back behind the building and Ms.

Miller called the police. When Ms. Barker talked to Agent Parker

on the 6th of June, 1994, she stated that Ronald Wilkerson had

similar physical features as the bank robber. (App. p. 76, line

18; p. 78 line 7). However, the Camaro was not the same color

as the one driven by the bank robber. (App. p. 68, lines 20-24).

Barker told Agent Parker that the stripes on the getaway vehicle

appeared to be higher than the stripes on the vehicle shown in

the photographs. (App. p. 80, line 23; p. 81, line 3).

Karen Miller, the branch manager of the bank observed

a white male standing in front of the teller counter at station

number one. (App. p. 105, lines 11-14). She stated that she

only saw him for approximately five seconds. (App. p. 107,

lines 13-14). Even though the white male was wearing a full

6

head mask, she saw white skin between the long-sleeve shirt

and gloves he was wearing. (App. p. 105, lines 15-19). She

recalled the individual as being five foot four to five foot five,

medium build. (App. p. 107, lines 18-20). The individual

appeared to have both hands holding a bag over the teller counter

between station number one and station number two. (App.

p. 105, lines 20-24). Ms. Miller told Agent Parker in her

statement that she did not observe a weapon on him. (App. p.

106, lines 4-24). Mr. Daniels, as well, did not see a gun. (App.

p. 133, lines 18-20).

Mr. Pollick, a patron at Centura Bank located on Hope

Mills road in Fayetteville, North Carolina, observed what

appeared to be a robbery in progress. During the time that he

saw the man come out of the bank and then take his mask off,

he was able to observe only such features as were sufficient to

lead him to conclude that the individual was a white male, of

medium build, and that he had a light-colored beard that maybe

was “red in color.” Mr. Pollick did not have time to see the

individual because he was taking his mask off and stepping into

the vehicle simultaneously. Because of the angle at which he

drove around the bank, he was not allowed a "great deal of time"

to look at the individual. (App. p. 149, line 5; p. 151, line 14).

Mr. Pollick could not see the robber’s hands nor could

he see if there was a gun. Mr. Pollick described the vehicle as

a sports-like car that was gray in color. (App. Pp. 161, line 18;

p. 162, line 5). Mr. Pollick could not identify the vehicle.

John McFadyen, the branch manager of State Bank on

Village Drive, saw a silver Z-28 vehicle pull into the parking

lot of State Bank on May 13, 1994. The person driving the

vehicle had on a gorilla type mask, was carrying a cooler in his

7

hand, and he had a gun in his right front pocket. (App. p. 188,

line 7; p. 189, line 21). The robber wanted all big bills to be

put into the cooler. On a later date, Mr. McFadyen saw a silver

Z-28 at the Holiday Inn Bordeaux in Fayetteville that looked

like the one the robber had been driving the day of the robbery.

Mr. McFadyen testified that he was not sure if the car

was a Trans-Am like vehicle or a Z-28. (App. p. 222, lines 19-

23). At trial, testimony of Mr. McFadyen indicated that only

one picture in the entire line-up looked like Mr Wilkerson. (App.

p. 224, line 7). But while Mr McFadyen stated that the person

depicted in the photo looked similar to the robber, he did not

positively and definitely say that the person depicted was the

robber. Ironically, even though the photographic line-up was

just a few days after the robbery, weeks after the robbery Mr.

McFayden was "certain" that he knew Ronald Wilkerson was

the robber. (App. p. 224, line 7: p. 226, line 8). Cynthia Landry,

a bank teller at State Bank, saw a gray Camaro with louvers

on it leaving the bank parking lot after the robbery. Ms. Landry

did not see the person who robbed the bank because the person

was wearing a gorilla mask. At trial, Ms. Landry could not

specifically identify the car used in the robbery and she reiterated

that she never saw the robber without his mask. (App. p. 243,

line 9; p. 244, line 1).

At trial, the government offered portions of the

Defendant's statement and testimony concerning all of the

circumstances involving the stop and questioning of the defendant

including the inculpatory evidence that he allegedly possessed

8

fruits of the crime. On cross-examination, counsel for the

Defendant attempted to elicit from the testifying government

agent any explanation that the Defendant may have offered said

agent as to where the inculpatory evidence came from. (App.

pp. 335-337). The trial court refused to allow such cross-

examination and prevented the Defendant from presenting his

complete statement with respect to this crucial aspect of the

case.

At the conclusion of the Government's evidence, the

Defendant's trial counsel informed the Court that the Defendant

would not present evidence. On February 2, 1995 the Defendant

was found guilty on all four counts alleged in the indictment.

The Honorable Malcolm J. Howard, United States District

Judge sentenced the Defendant on April 10,1995, to sixty-three

months on counts one and three of the indictment to run

concurrently; to sixty months on count two of the indictment

to be served consecutively to counts one and three; to two

hundred and forty months on count four of the indictment to

be served consecutively to counts one, two, and three.

Additionally, Judge Howard sentenced the defendant to three

years supervised release on each count to run concurrently with

one another with special conditions being that the defendant

pay $2,018 to Centura Bank and $2,720 to State Bank of

Fayetteville to be paid in installments at the direction of the

probation office; to support dependents while incarcerated; and

to pay $200.00 special assessment. Thereafter, the Defendant

timely filed Notice of Appeal.

The United States Court of Appeals for the 4th Circuit

affirmed the lower court's judgment on May 24, 1996. The

Appellant now submits a timely petition for writ of certiorari.

9

REASONS FOR GRANTING THE WRIT

The Fourth Circuit Sdecision in this case that a statement

re Defendant in response to police imerrogation is hear say

and, therefore, not admissible even when sought to be introduced

The admission Of in-court identification without

determining the reliability of the identification and whether

rule, specific and clear guidelines for the trial courts are

necessary to determine the Propriety of the introduction Of in-

court identification as evidence.

I. THE DISTRICT COURT ERRED AND DENIED THE

DEFENDANT'S RIGHTS TO CONFRONTAT ION,

DUE PROCESS AND FUNDAMENTAL FAIRNESS

BY PRECLUDING THE DEFENDANT FROM

ELICITING ON CROSS-EXAMINATION AND

PRESENTINGBEFORE THEJURYEXCULPATORY

PORTIONS OF HIS STATEMENT WHERE THE

GOVERNMENT'S WITNESS TESTIFIED WITH

10

REGARD TO INCULPAT ORY PORTIONS OF THE

SAME STATEMENT.

one of the bank robberies. However, the trial court refused to

permit the Defendant to elicit evidence from Agent Parker

regarding the Defendant's statements, made at the time such

money was discovered, as to where the Defendant obtained the

money. The tral court committed reversible error by excluding

.

‘nformation substantially exculpatory of the declarant.

The trial court's decision (1) violates the Defendant's

rights under the Federal Rules of Evidence; and (2) violates

the Defendant's Sixth Amendment right of confrontation, his

Fifth Amendment right of due process, and his Fifth Amendment

fundamental fairness right to present his complete defense in

a full and fair tribunal.

a :

exculpatanevsence snk idence nr the Federal Rules of Evidence

1]

evidence to be oral testimony, then it should be admitted through

the combined operation of Fed.R.Evid. Rules 61 1(a) and 106.

Fundamental concepts of fairness require the admission of

evidence.

1. The evidence elicited by the Defendant at trial

was written, not verbal evidence, which should

therefore have been admitted under Fed R.Evid

Rule 106.

Rule 106 of the Federal Rules of Evidence states that

when a writing or recorded statement or part

thereof is introduced by a party, an adverse party

may require the introduction at the time of any

other part or any other writing or recorded

Statement which ought in fairness to be

considered contemporaneously with it.

Fed.R.Evid. Rule 106.

At trial, Agent Parker testified as to the circumstances and events

Surrounding the alleged discovery of bait money in the

Defendant's car. As is customary, such testimony was not given

entirely from the personal recollection of the agent. Rather,

the agent either had or should have had written or recorded notes

of any conversations he had with the Defendant, including the

explanation that the Defendant provided for the alleged presence

of bait money in the Defendant's car. Because the agent used

such written or recorded notes, then Rule 106 allows the

Defendant to elicit other evidence similarly recorded, including

testimony as to the Defendant's explanation of where he may

have obtained the bait money.

12

Even ifthe agent had recorded the inculpatory statements

of the Defendant but did not record the exculpatory statements,

then the Defendant should still be permitted to elicit such

exculpatory statements. Any other rule would encourage law

enforcement officers to selectively record evidence. Arule which

favors such conduct would clearly be contrary to the purpose

and intent of the Federal Rules of Evidence and the Fifth

Amendment, namely the ascertainment of truth. See Fed.R Evid.

Rule 102.

In this case below, the Court of Appeals observed that,

even if Rule 106 applied to this testimony, the Rule “would not

render admissible the evidence which is otherwise inadmissible

under the hearsay rules." United States v. Wilkerson, 84 F.3d

692,696 (4th Cir. 1996). In reaching this conclusion, however,

the Court of Appeals has erroneously interpreted the rule. Such

interpretation must be reversed.

While a split in authority exists among United States

Circuit Courts of Appeals as to whether Rule 106 provides an

independent basis for admissibility. The First Circuit has noted

that “whether Rule 106 furnishes an independent ground for

admissibility is an open question in this circuit. Courts elsewhere

are divided." United States v. Boylan, 898 F.2d 230, 257 (ist

Cir. 1990). While the 6th and 9th Circuits have ruled that

otherwise inadmissible evidence may not be admitted under Rule

106, see United States v. Costner, 684 F.2d 370 (6th Cir. 1982)

and United States v. Burreson, 643 F.2d 1344 (9th Cir. 1981),

the D.C. Circuit has held that otherwise inadmissible evidence

may be admitted under Rule 106. In United States v. Sutton,

the Court stated that

13

Rule 106 can adequately fulfill its function only

by permitting the admission of some otherwise

inadmissible evidence when the court finds in

fairness that the proffered evidence should be

considered contemporaneously. A contrary

construction raises the specter of distorted and

misleading trials, and creates difficulties for both

litigants and the trial court. United States v.

Sutton, 801 F.2d 1346, 1368-1369 (D.C. Cir.

1986).

The 7th Circuit has similarly interpreted Rule 106 as being capable

of rendering otherwise inadmissible evidence admissible. See

United States v. LeFevour, 798 F.2d 977 (7th Cir. 1986).

The interpretation of the 7th Circuit and the D.C. Circuit

is strongly supported by the legislative history surrounding Rule

106. According to that history, the Justice Department

specifically requested that the Senate Judiciary Committee limit

Rule 106 evidence to otherwise admissible evidence. However,

Congress refused to satisfy the Justice Department's request.

See James P. Gillespie, "Federal Rule of Evidence 106: A

Proposal to Return to the Common Law Doctrine of

Completeness," NOTRE DAMELAWREVEW, vol. 62, no. 3, 382-

395, 391 (Summer 1987). Congress Clearly intended that

otherwise inadmissible evidence be admitted under Rule 106.

4 Even if the evidence elicited by the Defendant

were deemed to be oral and not written or

recorded evidence, it still should have been

admitted through the combined operation of

Fed.R.Evid. Rules 106 and 61]

14

Rule 611(a) of the Federal Rules of Evidence provides

that the court “shall exercise reasonable control over the mode

and order of interrogating witnesses and presenting evidence

so as to (1) make the interrogation and presentation effective

for the ascertainment of the truth. . . " Fed.R Evid. Rule 611(a).

Admittedly, Rule 106 directly applies only to written

or recorded statements, and not oral statements. However, at

least two Circuit Courts of Appeals have ruled that Rule 611(a)

has the effect of permitting the trial court to apply Rule 106 to

oral statements as well.

In United States v. Li, the Seventh Circuit acknowledged

that Rule 106 applies only to written or recorded statements.

The Court that Fed.R.Evid. 61 1(a) grants district courts the same

authority regarding oral statements which Fed.R.Evid. 106 grants

regarding written and recorded statements. . . . Therefore, the

rule of completeness applied to the oral statement." United States

v. Li, 55 F.3d 325, 329 (7th Cir. 1995), citing United States

, Haddad, \0 F.3d 1252, 1258 (7th Cir. 1993).

Similarly, the Second Circuit has employed Rule 611(a)

as a gateway for the introduction of oral statements under the

rule of completeness codified in Fed.R Evid. Rule 106. In United

States v. Castro, the Court of Appeals admitted that

Rule 106 governs only writings. . . . However,

courts historically have required a party offering

testimony as to an utterance to present fairly the

"substance or effect" and context of the

statement. In other words, while verbal precision

may be unnecessary, the testimony "should at

least represent the tenor of the utterance as a

15

whole, and not mere fragments Of It.

REvid. 611(4)

Omitted] Moreover, Fed.R.Evid.

r take

empowers and obligates the distn

account of these considerations. United States

y, Castro, $13 F.2d §71, 576 (2nd Cir. 1987).

more general

Second Circuit observed, is but a

Rule 611(a), the

106. Id.

version of Rule

d Seventh Circuits

ThisCourt should followthe Second an

(a) to extend the rule of completeness

imary concerns.

created by taking matters out of

context an

delayed until 1d. 106 advisory

committee's note. Given these two prim concerns, there is

n Rule 611(a) should not be interpreted

the Defendant to elicit

d Rule 106 and permit

ral statements of

so as to exten

the prior exculpatory ©

testimony regarding

the Defendant.

B. she ial court's exclusion of subsialis *

rial court did not

'e rights under the Federal Rules of

il because

e Defendant's "8

the Defendant

Defendant's right of

court's decision violated the

due process rights, and hisn

violate th

Evidence,

the trial

confrontation, his

16

fairness and to a full presentation of his complete defense. These

constitutional rights are substantially greater in importance than

the procedural rules effecting the manner of presentation of

evidence in Rules 106 and 611 of the Rules of Evidence. See

Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146,

90 L.Ed.2d 636, 645 (1986), quoting Trombetta v. California,

467 US. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413, 419

(1984). Hence, notwithstanding any interpretation this Court

may give to the Federal Rules of Evidence, the Defendant should

have been permitted to elicit this substantially exculpatory

evidence.

l. The trial court's decision violated the

Defendant's Fifth Amendment right to due

process and his Fifth Amendment fundamental

fairness right to present his complete defense

in a full and fair tribunal.

In United States v. Wenzel, 311 F.2d 164 (4th Cir. 1962),

the 4th Circuit observed that where a defendant's declaration

is admissible, the whole of what the accused said

upon the subject upon the time of making

confession is admissible and should be taken

together, and if the prosecution fails to prove

the whole statement, the accused is entitled to

put into evidence, all that was said to and by him

at the time which bears upon the subject of

controversy, including any exculpatory or self

serving declarations contained therewith. Jd.

at 168.

17

This rule of completeness, requiring introduction of an entire

Statement, is designed “to permit the contemporaneous

introduction of recorded statesients that place in context other

writings admitted into evidence, which, viewed alone, may be

misleading .. ." United States v. Jamar, 561 F.2d 1103, 1108

(4th Cir. 1977). When a defendant's statement has been admitted,

such statement must be admitted completely. Cf United States

v. Jamar, 561 F.2d at 1108-109. See also United States v. Prior,

27F.Cas(no. 16092)624,625(C.C.D.C. 1937)(whole confession

required). See, generally, People v. Baker, 23 N.Y 2d 307, 318,

296 N.Y.S.2d 745, 751 (1968).

In United States v. Walker, the Court of Appeals held

that the rule of completeness, compelling the admission of an

entire writing at the time the Opposing party offers the partial

evidence of it, requires, as a matter of fairness, the introduction

of the entire matter. United States v Walker, 652 F.2d 708,

710 (7th Cir. 1981). In Walker, where the government read

approximately fourteen of twenty-eight pages of the defendant's

testimony at the first trial into evidence at the second trial, the

Court of Appeals ruled that the trial judge erred in refusing to

admit the remainder of the defendant's testimony. The court

reasoned that the rule of completeness is essentially a rule of

fairness and that the rule is circumscribed by only two

qualifications. "The portions sought to be admitted (1) must

be relevant to the issues and (2) only those parts which qualify

or explain the subject matter of the portion offered by the

Opponent need be admitted." Jd, citing United States v,

McCorkle, 511 F.2d 482, 486-487 (7th Cir.), cert. denied, 423

U.S. 826, 96 S.Ct. 43, 46 L.Ed.2d 43 (1975). With these

qualifications in mind, the rule of completeness is violated where

admission of a statement in redacted form either (1) distorts its

meaning or (2) excludes information substantially exculpatory

18

of the declarant. United States v. Alvarado, 882 F.2d 645, 651

(2nd Cir. 1989), United States v. Kaminski, 692 F.2d §05, 522

(8th Cir. 1982).

In the case at bar, evidence regarding money allegedly

found in a vehicle driven by the Defendant need not have been

admitted. However, once such evidence has been admitted, the

trial court must contemporaneously admit such other evidence —

including statements by the Defendant -- which would render

such evidence complete. The alleged discovery of bait money

in the Defendant's vehicle is highly inculpatory evidence. Hence,

any evidence tending to explain how the Defendant acquired

such money is substantially exculpatory. Furthermore, such

evidence clearly explains or qualifies the prior testimony regarding

the alleged discovery of the money and the surrounding

circumstances. Such evidence is also clearly relevant to the

inculpatory evidence. Consequently, the Defendant's due process

rights and his fundamental fairness right to present a complete

defense was violated.

This conclusion is particularly compelling in light of the

fact that this was a criminal case in which the Defendant elected

to exercise his Fifth Amendment right not to testify. In Walker,

where the Seventh Circuit reversed in favor of the Defendant,

the Court observed that

[i]n criminal cases where the defendant elects

not to testify, as in the present case, more is at

stake than the order of proof. Ifthe Government

is not required to submit all relevant portions

of prior testimony which further explain selected

parts which the Government has offered, the

excluded portions may never be admitted. Thus

19

. there may be no “repair work" which could

remedy the unfairness of a selective presentation

later in the trial of such a case. While certainly

not as egregious, the situation at hand does bear

similarity to "[florcing the defendant to take the

stand in order to introduce the omitted

exculpatory portions of [a] confession [which]

is a denial of his right against self-incrimination."

United States v. Walker, 652 F.2d 708, 713

(1981).

The trial court's refusal to admit substantially exculpatory

evidence resulted in substantial unfairness to the Defendant.

Such decisions force a criminal defendant to choose between

abandoning his Fifth Amendment right not to testify and his

fundamental fairness right to present a complete defense, his

due process rights, and his right of confrontation.

2. The trial court's decision violated the

Defendant's Sixth Amendment right of

confrontation.

By refusing to permit the Defendant to elicit exculpatory

evidence, the trial court violated the Defendant's Sixth

Amendment right of confrontation. Admittedly, such right of

confrontation does not extend so far as to permit a defendant

to admit, through cross-examination, all of a prior statement,

irrespective of how such statement relates to the evidence

presented by the testis. Indeed, only those portions of a statement

which explain or pertain to or were given in connection with

the statement which the government offers are required to be

admitted. Compare United States v. Ricks, 882 F.2d 885 (4th

Cir. 1989)(entire cross-examination of police officer in prior

20

examination

portions which the defendant sought to introduce were necessarily

admissible) with United States v. Washington, 952 F.2d 1402

sought to elicit evidence which directly pertains to, is connected

with, and is explanatory of the testimony offered by Agent Parker.

The rights to cross-examination and confrontation entitle

a defendant at least to show that a statement is a mere fragment,

unrepresentative of the tenor of an utterance as a whole. United

States v. Alvarado, 882 F.2d at 645. Clearly, Wilkerson, as a

criminal defendant, has a right under the Sixth Amendment's

Confrontation Clause to adequately cross-examine the witnesses

against him. See Davis v. Alaska, 415 USS. 308, 316-17, 94

S.Ct. 1105, 1110, 39 L.Ed.2d 347, 354 (1974). This night

encompasses the ability "to expose to the jury the facts from

which jurors, as the sole triers of fact and credibility, could

appropriately draw inferences relating to the reliability of the

witness.” Jd. at 318. That right similarly includes the ability

to test the fairness of the witness in determining whether his

testimony omitted crucial exculpatory evidence and whether

the witness’ bias caused such an omission while simultaneously

eliciting favorable evidence for the jury to consider in making

‘ts determination of guilt or innocence.

The Defendant should have been permitted to show that

Agent Parker's testimony was unrepresentative of the whole

21

and a mere fragment. Since the Defendant elected to exercise

his Fifth Amendment right not to testify on his behalf, the trial

court's decision effectively eliminated the Defendant's right of

confrontation.

The restrictions which the district court imposed on

Wilkerson's cross-examination of the FBI agent do not fall within

this latitude to impose reasonable limits. Instead, these

restrictions affected the fundamental right to elicit testimony

relating to the heart of the issues at trial, Wilkerson's innocence

and his efforts to show the witness' bias and opinion to the

contrary. Cf, Hoover v. Maryland, 714 F.2d 301, 305, 306

(4th Cir. 1983)(reversible error to unduly restrict cross

examination). Such error demands a reversal of the conviction

and a new trial at which the Defendant is afforded a fair

opportunity for confrontation. See generally, United States

v. Jordan, 466 F.2d 99, 104-105 (4th Cir. 1972), cert. denied,

409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1972); Simon

v. United States, 123 F.2d 80, 85 (4th Cir. 1941), cert. denied.

314 U.S. 694, 62 S.Ct. 412, 86 L-Ed. 555 (1941).

IT. THE DISTRICT COURT ERRED AND ABUSED ITS

DISCRETION BY ALLOWING THE

INTRODUCTION OF IN-COURT IDENTIFICATION

22

BY WITNESSES WHOSE PERCEPTIONS WERE

TAINTED BY A PRIOR SUGGESTIVE LINE-UP.

A.

Mistaken eyewitness identifications may have been

responsible for more miscarriages of justice than any other factor.

Perhaps, eyewitnessidentifications haveresultedin more wrongful

convictions than all other factors combined. United States v.

Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L-Ed. 2d. 1149 (1967)

quoting P. Wall, EYEWITNESS IDENTIFICATION IN CRIMINAL

CASES (1964). Concerned about the conviction of innocent

people on the basis of erroneous eyewitness identifications, the

courts have struggled to balance the rights of defendants

threatened by the specter of incorrect ey’ itness identifications

with the need to prosecute cases based on disputed eyewitness

identifications.

Accordingly, the due process clause protects a suspect

against identification procedures which are unnecessarily

suggestiveand conducivetoanirreparably mistaken identification.

Manson v. Brathwaite, 432 US. 98, 97 S.Ct. 2243, 53 L.Ed.2d

140 (1977). Where, as here, the evidence elicited by the

defendant shows that the identification procedure was

impermissibly suggestive, the court must then analyze whether

the procedure gave rise to irreparable misidentification or tainted

the in court identification under the totality of the circumstances.

Manson, 432 U.S. at 114-17, 97 S.Ct. at 2253-2254, 53 L.Ed.2d

SS ee

23

at 154-156; United States v. Dorta, 783 F.2d 1179 (4th Cir.),

cert. denied, 477 U.S. 905 (1986). The due process inquiry

is the same with respect to a photo identification and an in-court

lineup: the identification must be set aside if it was so

impermissibly suggestive as to give rise to a very substantia!

likelihood of irreparable misidentification. Simmons v. United

States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

See also, United States v. Crews, 445 U.S. 463, 471-473, 100

S.Ct. 1244, 1250-1251, 63 L.Ed.2d 537, 545-547 (1980) (An

in-court identification is proper even though an improper earlier

pretrial identification occurred so long as the former does not

taint the latter. ).

This Court first addressed these issues in a trio of 1967

cases, United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926,

18 L. Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263,

87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Stovall v. Denno,

388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Taken together, these three decisions establish that constitutional

protections are apposite to identification procedures and when

identification processes have been conducted under suggestive

circumstances, in-court identification is not permissible unless

the prosecution can show by clear and convincing evidence that

the in-court identification derives from an "independent source

or origin" rather than from the tainted earlier identification.

United States v.Wade, 388 U.S. at 241, 87 S.Ct. at 1939, 18

L.Ed.2d at 1165.

Prior to United States v. Wade, 388 U.S. 218, 87 S.Ct.

1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388

U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the matter

of an extra-judicial identification affected only the weight, not

the admissibility, of identification testimony at trial. In Simmons

nT

24

vy. United States, 390 US. 377, 384, 88 S.Ct. 967, 971, 19

L.Ed.2d 1247 (1968), the Supreme Court acknowledged the

constitutl implications of the unfairness and inherent dangers

of misidentification in a photographic line-up and in-court

identificati based upon such inherently dangerous

Although the Court upheld identification without a lineup and

through photographs observed prior to trial for the Purp of

witnesses establishing identity, the Court explained its holding

as requiring particular scrutiny to prevent constitutional

deprivations. The Court reasoned:

Despite the hazards of initial identification by

photograph, this procedure has been used widely

and effectively in criminal law enforcement, from

the standpoint both of apprehending offenders

and of sparing innocent suspects the ignominy

of arrest by allowing eyewitnesses to exonerate

them through scrutiny of photographs. The

danger that use of the technique may result in

convictions based on misidentification may be

substantially lessened by a course of cross-

examination at trial which exposes to the jury

the method's potential for error. We are

unwilling to prohibit its employment, either in

the exercise of our supervisory power OF, still

less, as a matter of constitutional requirement.

Instead, we hold that each case must be

considered on its own facts, and that convictions

based on eyewitness identification at trial

following pretrial identification by photograph

will be set aside on that ground only if the

photographic identification procedure was SO

impermissibly suggestive as to give rise to a very

25

substantial likelihood of irreparable

misidentification. This standard accords with

our resolution of a similar issue in Stovall v.

Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967,

18 L.Ed.2d 1199, and with decisions of other

courts on the question of identification by

photograph.

Id.

In United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568,

37 L.Ed 2d 619 (1973), six years after Wade, the court ruled

that there was no right to counsel at any photographic

identification procedure. The court reasoned, in part, that counsel

was not needed because a photographic line-up can be

reconstituted and analyzed at trial for suggestivity and bias.

The court also reasoned that since the accused is not present

at a photo line-up, assistance of counsel is less relevant since

the defendant cannot be misled or overpowered by the

government.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.

619 (1973), the Supreme Court again discussed the admissibility

of eyewitness identification obtained under suggestive

circumstances. The court instructed that the correct analysis

is whether under the totality of the circumstances the identification

was reliable, even though the confrontation procedure was

suggestive. The court listed five factors that should be taken

into account in evaluating the reliability of an identification: (1)

the witnesses’ opportunity to view the criminal at the time of

the crime; (2) the length of time between the crime and the

identification; (3) the level of certainty demonstrated by the

witness at the identification; (4) the accuracy of the witness’ prior

26

description of the criminal; and (5) the witness’ degree of attention

during the crime. Jd. at 199.

In the present case the factors demonstrating irreparable

misidentification were present. None of the witnesses were able

to give an adequate description of the robber, whom they had

only a brief and limited opportunity to view. Shortly after the

robbery none of the witnesses could identify the individual in

the photographic line up positively but could only state that one

of the individuals "looked familiar" or had the same style facial

hair or that one photograph looked similar to the robber. Yet,

only one photograph in the distinctly limited and suggestive array

was similar to the descriptions given at or near the time of the

robbery. Indeed, the array itself suggested only one "similarly

appearing individual,” the Defendant. Despite this suggestivity,

many witnesses were still uncertain of identification near the

time of the robbery. But because of this suggestivity, one of

these witnesses -- though uncertain of identification near the

time of the robbery -- later became "certain" that Ronald

Wilkerson was the robber. The witnesses who admitted that

they were nervous and had difficulty in viewing the robber during

the crime, remained uncertain' and hampered by their general

and inaccurate descriptions of the offender. As a result of the

danger of such misidentification, Wilkerson was mistaken for

the offender and, yet, the Court essentially ignored these inherent

dangers in the photographic identification.

| ‘Their uncertainty is apparent from the fact that no arrest

of the defendant was made even though they had "identified"

the robber.

27

In contrast to the decision below, the Fourth Circuit has

recognized the dangers inherent in the identification process,

noting in Smith v. Paderick, 519 F.2d 70, 75 (4th Cir.), cert.

denied, 423 U.S. 935 (1975), that:

Identification testimony is the most dangerous

evidence known to the law. That is true because

it is easier to deceive ourselves than others:

pressured to help solve a heinous crime, often

conscious of a duty to do so, and eager to be

of assistance, a potential witness may be readily

receptive to subtle, even circumstantial,

insinuation that the person viewed is the culprit.

Id. (Footnote omitted). See, e.g., United States v. Wilcox, 507

F.2d 364, 369 (4th Cir. 1974), cert. denied, 420 U.S. 979 (1978).

Both the composition of the array and use of the pictures

deprived the Defendant-appellant of his Fifth and Sixth

Amendment nights. The weak in court identifications

demonstrate the unfairness of the photographic depictions which

included only one photograph which had “any similarity" to the

person described as being the perpetrator of the robberies. The

array itself suggested the response and the identification which

the Government agents sought. As a result the defendant was

unduly prejudiced and his conviction resulted.

B ,

ee a imissible

28

The United States Supreme Court has previously held

that due process does not per se require a hearing outside the

presence of the jury whenever a defendant contends that a witness

identification of him was arrived at improperly. Watkins v.

Sowders, 449 U.S. 341, 66 L.Ed 2d 549, 101 S.Ct. 654 (1981).

However, the Watkins ruling still holds open the possibility that

such a hearing may be constitutionally required in some cases.

A judicial determination outside the presence

of the jury of the admissibility of identification

evidence may often be advisable. In some

circumstances, not presented here, such a

determination may be constitutionally necessary.

Id., See also United States v. Mills, 853 F.3d 672, 675 (4th Cir.

1996); United States v. Mills, 704 F.2d 1553, 1563 (1 Ith Cir.

1983).

This Court has yet to specify the circumstances under

which such a determination may be constitutionally necessary.

The Eleventh Circuit has held that such a determination may

be constitutionally necessary when the defendant has alleged

unusual, special, out of the ordinary, or particularly prejudicial

circumstances. Id. at 1564; see also Holifield v. Davis, 662

F.2d 710, 711 {11th Cir. 1981).

The Petitioner, here, urges the Court to establish clear

guidelines for determining the particular circumstances under

which an evidentiary hearing is constitutionally necessary. The

Appellant proposes that a judicial determination outside the

presence of the jury should be made whenever the defendant

has made a prima facie showing that the identification evidence

at issue was tainted by identification procedures which were

29

unnecessarily suggestive and conducive to an irreparably mistaken

identification. Since, in the case at bar, the photographic array

included only one individual who was even remotely similar in

appearance to the Defendant; and further, since witnesses who

earlier were unable to positively identify the Defendant did so

identify the Defendant at trial (contrary to the expectation that

one's memory fades with time); the Defendant would have

succeeded in making the requisite prima facie showing.

This Court has recognized that identification evidence

is highly unreliable. United States v. Wade, 388 U.S. at 228,

87 S.Ct. at 1933, 18 L. Ed. 2d at 1158. It has stated that a

hearing, out of the presence of the jury, is often advisable and

may under some circumstances be constitutionally necessary.

Watkins v. Sowders, 449 U.S. at 349, 101 S.Ct. at 659, 66 L.Ed.

2d at 556 (1981). This Court should not allow the lower courts

to continue dangling in the winds of ambiguity. This Court's

refusal to provide clear guidelines comes at the cost of both

judicial efficiency and the freedom of innocent defendants.

CONCLUSION

This case involves important legal issues which have been

addressed in conflicting ways by various United States Circuit

Courts. It further involves issues of constitutional magnitude

which the lower courts will undoubtedly often be confronted

in the future. There are, therefore, significant and important

reasons for granting review on writ of certiorari.

30

This court should grant discretionary review, reverse

the Defendant's conviction, and remand for a new trial.

This 12th day of November, 1996.

S, MITCHELL & HANCOX

Mill leh |

Rormie M. Mitchell

Coynsel for Appellant

P.O. Box 2917

Fayetteville, NC 28302

Telephone: (910) 678-8900

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

‘

Unitep STATES OF AMERICA.

Plaintiff-Appellee.

Vv.

RoNaALD SHERRILL WILKERSON.

Defendant-Appellant.

—

Appeal from the United States District Court

for the Eastern District of North Carolina. at Fayetteville.

Malcolm J. Howard. District Judge:

Franklin T. Dupree. Jr.. Senior District Judg:.

(CR-34-58-H)

Argued: March 4. 1996

Decided: Mav 24. 1996

Before LUTTIG. Circuit Judge. CHAPMAN. Senior Circuit Judge.

and CLARKE. Senior United States District Judge

for the Eastern District of Virginia. sitting by designa::cn.

Affirmed by published opinion. Senior Judge Clarke wrote the opin-

ion. in which Judge Luttig and Senior Judge Chapman joined.

COUNSEL

ARGUED: Ronnie Monroe Mitchell. HARRIS, MITCHELL &

HANCOX, Fayetteville. North Carolina. for Appellant David J. Cor-

tes. Assistant United States Attomey. Raleigh. North Carolina. for

Appellee. ON BRIEF: Janice McKenzie Cole. United States Attor-

ney. Raleigh. North Carolina. for Appellee.

5) Linrrep STATES V. WILKERSON

OPINION

CLARKE. Senior District Judge:

Ronald Sherrill Wilkerson was convicted by jury of two counts of

bank robbery. in violation of 18 U.S.C. $$ 2113 (a) and (d), and two

counts of using a firearm during the commission of a crime of vio-

lence. in violation of 18 U.S.C. $ 92K). In this appeal. he challenges

(1) the in-court eyewitness identifications which he claims were

tainted by prior suggesuve photographic lineups and (2) the wial

judge's exclusion of exculpatory hearsay statemens. Because the

admission of the eyewitnesses’ in-court identifications was not plainly

erroneous and because the trial judge did not abuse his discretion in

excluding the hearsay statements, we atfirm.

i

When the sutficiency of evidence to support a convicuon is chal-

lence. the relevant facts are viewed In the light most favorable to the

we hk me te ee

government. Accordingly. the facts re as tollows.

On March 7. 1994. Wilkerson entered the Centra Bank in Fayette-

ville. North Carolina, wearing a mask and carrving a satchel in one

hand and an automatic pistol in the other. He told one customer to

“get down on the floor. this is a robbery." He then approached the

a¢ izller. Julie Webb. pointed the gun at her. and handed the satchel

=- with instructions to fill it with ‘arge bills. She told him that she

~: have the keys to her teller stauon. whereupon Wilkerson told

io get them. While Webb went to retrieve the keys, Wilkerson

gave the satchel to another teller, Cynthia Barker, saying "fill it up.”

Barker complied with Wilkerson’s request placing approximately

$750 in the bag. Upon her return. Webb deposited another $1500 in

the satchel. Wilkerson then walked out the front door and headed

towards his waiting car. Barker follc wed him to the door in order to

lock the bank. As she reached the door. she saw Wilkerson take off

his mask. He tured and looked at he:. thus giving her the opportunity

to see both the front and side of his face.

Two customers in the drive-througn teller lane saw the robbery and

aiso saw Wilkerson without his mask on. One of these eyewitnesses.

UNrTeD States v. WILKERSON 3

Steven Daniels, pulled in front.of the getaway car and saw Wilker-

son's face, making eye contact with Wilkerson a number of times.

The other eyewitmess, Carl Pollick. also saw Wilkerson remove his

mask. Both Pollick and Daniels chased Wilkerson's car. They

described it as a gray or silver Camaro-like sports car with grates on

the back window. Daniels only chased Wilkerson for a short time. but

Pollick continued the chase, attempting to get a license plate number.

The license plate had been flipped over, however. After Pollick lost

Sight of the car, he remained in the neighborhood, searching for it

Within three to five minutes, he spotted a car which he believed to

be the getaway car. This time. the license plate was visible, and. when

Wilkerson stopped at a gas station, Pollick wrote down the plate num-

ber.

Based upon the license number, the police were able to idenufy

Wilkerson as the owner of the car. but were unable to apprehend

Wilkerson. The police did. however, show Daniels and Barker a pho-

tographic lineup containing Wilkerson’s photo on March 21. 1994.

Although neither of them positively identified Wilkerson. Barker

stated that he looked familiar to her and Daniels picked Wilkerson’s

photo as the person who looked like the bank robber. There is no evi-

dence in the record concerning the other pictures in the lineup.

Wilkerson was still at large on May 13. 1994. On that day. the

Branch Manager of the State Bank of Fayetteville, John McFayden.

saw Wilkerson drive up to the bank wearing a gorilla mask. Wilker-

son walked into the bank Carrying a Coleman cooler. a pistol visible

in his front pocket. He demanded money in large bills: two tellers.

Tammy Laughner and Cynthia Landry, handed over money from their

cash drawers. Some of the money Landry gave Wilkerson was bait

money whose serial numbers had been recorded. Upon retuming to

his car, Wilkerson removed his mask and looked back at McFayden

and Laughner. On May 17, 1994, four days later, both McFavden and

Laughner looked at the photographic lineup and stated that Wilker-

son's photo closely resembled the robber.

On May 24, 1994. rwo FBI agents Spotted Wilkerson, and after a

Slow-speed pursuit, began quesuoning him about his whereabouts on

the dates of the two robberies. Wilkerson provided an alibi for the

ume of each robbery; however, these were later discredited. The

4 Unrrep STATES ¥. WILKERSON

agents requested and received Wilkerson’s permission to search the

car. Under the driver's seat, they found a black plastic case containing

90 five dollar bills. The agents randomly selected some of these bills

and found that the serial numbers matched the bait money numbers

provided by the State Bank of Fayetteville." Wilkerson was not

arrested at this ume.

On June 2, 1994, Wilkerson and his aunt went to the Centura Bank

to make a deposit. Barker became upset when she saw Wilkerson,

believing him to be the bank robber, and called the police. Wilkerson,

however, was not arrested until August 26, 1994, following a call to

the FBI from McFayden, who had spotted and identified Wilkerson

in the lobby of a Holiday Inn.

At trial. Barker and Daniels identified Wilkerson in court as the

individual who robbed the Centura Bank on March 7, 1994. McFay-

den and Laughner also made in-court identifications. Other evidence

presented at trial included Wilkerson’s possession of the bait money.

Pollick’s statement about the license plate number, the discrediting of

Wilkerson’s alidis, and Wilkerson's girlfriend's testimony conceming

a cooler of money he had shown her the evening of the second rob-

berv. In addiuon. FBI agent Parker testified regarding the search of

Wilkerson’s car and the discovery of the cash under the car seat. On

cross-examination, the tial judge rezused to allow Parker to be ques-

tioned about the statements Wilkerson had made after the search of

his car implicaung his cousin.

0

Wilkerson first contends that the trial court erred by allowing the

evewimesses tO identify Wilkerson at trial as the robber of the Cen-

tura Bank and the State Bank of Fayetteville. He claims that this vio-

lated his due process rights because the in-court identifications were

tainted by the prior suggesuve photographic lineups.

4 motion to suppress evidence should be raised prior to tial. Fed

R. Crim. P. 12(b)(3). Wilkerson failed to do so. Furthermore,

‘| ater. a comprehensive comparison revealed that 18 of the 20 bills

matched the bait money inventory list.

Unrrep States v. WILKERSON 5

although Wilkerson’s attorney did object to the introduction of the

prior photographic lineup identifications at trial, he did not do so on

the basis of the suggestiveness of the lineup. Instead, he objected to

the eyewitesses testifying about the photographic lineups at rial

because they had not positively identified Wilkerson at the time of the

lineups.* Because Wilkerson's objection to the admission of the pho-

tographic lineup evidence on appeal is not the same as his objection

at trial, the standard of review is one of plain error. Fed. R. Crim. P.

52(b); see also United States v. Adam. 70 F.3d 776. 780 (4th Cir.

1995) (plain error standard applies where appellant did not object to

Statements made at trial): United States v. Brewer, 1 F.3d 1430. 1434

(4th Cir. 1993) (plain error standard used "where counsel fails to ade-

quately present and preserve an objection on the record"). We find no

error in the admission of the in-court identifications.

The Supreme Court has outlined a two-step analysis for determin-

ing whether identification testimony is admissible. First. the defen-

dant must establish that the photographic lineup procedure was

impermissibly suggestive. Manson v. Braithwaite, 432 U.S. 98, 110

(1977); Neil v. Biggers, 409 U.S. 188, 198-99 (1972); Simmons v-.

United States, 390 U.S. 377. 384 (1968). Second, even if the proce-

dure was suggestive. the in-court identification is valid if it was reli-

able. Braithwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199; Willis

v. Garrison, 624 F.2d 491, 493 (4th Cir. 1980). The factors the court

may consider in measuring reliability include: (1) the wimess’ oppor-

tunity to view the perpetrator at the time of the crime: (2) the witness’

degree of attention at the time of the offense; (3) the accuracy of the

witness’ prior description of the perpetrator. (4) the witmess’ level of

certainty when identifying the defendant as the perpetrator at the time

of the confrontation; and (5) the length of time between the crime and

the confrontation. Biggers, 409 U.S. at 199-200. These factors are

weighed against the "corrupting effect of the suggestive identification

itself." Braithwaite, 432 U.S. at 114. Courts may also consider other

evidence of the defendant's guilt when assessing the relicdility of the

in-cour idenufication. See. e.g.. United States v Lau. 828 F.2d 871.

75 (1st Cir. 1987) (court relies on fact that one defendant had license

*The tial judge instructed counsel] that inconsistent statements went to

the probative value of the testimony and should be discredited by counsel]

through cross-examinauon

6 Unrrep STATES V. WILKERSON

to fly the plane in question, another was nearby the site where the

transaction occurred, and the witness used the defendants’ correct

names when first describing them to the authorities, to support the

reliability of the witness’ identification of the defendants), cert.

denied, 486 U.S. 1005 (1988); United States v. DiTommaso, 817 F.2d

201, 214 n.17 (2d Cir. 1987) (even if the identification was unreliable,

error was harmless where evidence as a whole was overwhelming);

United States v. Bell, 812 F.2d 188, 193 (5th Cir. 1987) (identification

may be reliable in the context of all the circumstances and evidence).

In this case, Wilkerson has failed to establish that the photographic

lineup was impermissibly suggestive. The lineup was not made a part

of the appellate record, the district court has not ruled on the issue,

and the only evidence of suggestibility is Wilkerson’s bare assertion

that the other photos did not look like the perpetrator as described by

the witnesses. Consequently, Wilkerson fails the first part of the

analvsis.

Furthermore. assuming arguendo that the photographic array was

impermissibly suggestive, Wilkerson’s argument would still fail

because the in-court identifications were reliable. All the wimesses

saw Wilkerson’s face in broad daylight while their full attenuon was

focused on him. The witnesses’ prior descriptions were fairly accu-

sate. The witnesses who identified Wilkerson at trial were positive of

their in-court identification. In addiuon, it is unlikely that the photos

had a corrupting effect on the in-court identifications. None of the

witnesses positively identified Witkerson from the photographic

lineup. perhaps due to the poor quality of the photos as described by

both parties. There was no evidence that the photos were shown

repeatedly to the witnesses Or that the police emphasized Wilkerson’s

photo. See Simmons, 390 U.S. at 383 (danger of misidentification is

heightened if defendant’s picture is emphasized or recurs in lineup).

Under these circumstances, we cannot say that "there is a sudstantual

likelihood of irreparable misidentification." Jd. at 384. Finally, the

During oral argument, Wilkerson’s attorney claimed that the photos

were of poor quality and that only one of the photos. the one of Wilker-

son. resembled the perpetrator as described by the witnesses. The gov-

emment agreed that the photos were of poor quality, but stated that the

individuals in the photos were similar in appearance.

Unrtrep States v. WILKERSON 7

fact that two of the witmesses, Barker and McFayden, upon observing

Wilkerson in public, were so certain that he was the bank robber that

they called the authorities, also lends substantial support to the reli-

ability of the identifications. Accordingly, because Wilkerson has

failed to show both that the photographic lineup was impermissibly

Suggestive and that the wimesses’ testimony was unreliable, Wilker-

son’s due process rights were not violated by the in-court identifica-

uons.

il

Wilkerson also alleges that the. district court erred in prohibiting

him from eliciting, on cross-examination of Agent Parker, exculpa-

tory statements he had made explaining how he had acquired the bait

money. Wilkerson claims that the trial judge should have allowed in

this tesumony under the rule of completeness. A trial judge’s eviden-

lary decisions are reviewed for abuse of discretion. United States v.

Hassan El, 5 F.3d 726, 731 (4th Cir. 1993). cert. denied, 114 S. Cr

1374 (1994).

The common-law docmine of completeness has been partially codi-

fied in Rule 106 of the Federal Rules of Evidence.‘ Beech Aircraft

Corp. v. Rainey, 488 U.S. 153, 171-72 (1988). The rule applies only

to writings or recorded statements, not to conversations. Fed. R. Evid.

106. advisory committee notes; United States v. Bigelow, 914 F.2d

966, 972 (7th Cir. 1990), cert. denied, 498 U.S. 1121 (1991). Thus,

Wiulkerson's reliance on the rule is misplaced. Furthermore, when the

Tule Goes apply. its purpose is to prevent a party from misleading the

jury by allowing into the record relevant portions of the excluded tes-

umony which clarify or explaim the part already received. United

States v. Ricks, 882 F.2d 885, 893 (4th Cir. 1989), cert. denied, 493

“The rule provides that

[wJhen a writing or recorded statement or part thereof is intro-

duced by a party. an adverse party may require the introduction

at that ume of any other part or any other writing or recorded

statement which ought in fairness to be considered contempora-

neously with it.

Fed. R. Evid. 106.

i) Unttep STaTEes V. WILKERSON

U.S. 1047 (1990); Merrick v. Mercantile-Safe Deposit & Trust Co.,

855 F.2d 1095, 1103-04 (4th Cir. 1988); United States v. Jamar, 561

F.2d 1103, 1108 (4th Cir. 1977). In this case, during direct examina-

tion Agent Parker testified that the agents found a black case contain-

ing some of the bait money while searching Wilkerson’s car. No other

testimony about any portions of a conversation between the agents

and Wilkerson regarding that particular cache of money was intro-

duced. Thus, the rule of completeness, if it applied to oral conversa-

tions, would not have applied here where there was no partially-

introduced conversation that needed clarification or explanation.

The evidentiary rules which properly govern the admissibility of

Wilkerson’s exculpatory statements are contained within the hearsay

Tule and the exceptions thereto. See Fed. R. Evid. 801, 802, 803, and

804. Hearsay is defined as "a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence

to prove the truth of the matter asserted." Fed. R. Evid. 801(c).

Admissions by a party-opponent are not considered hearsay and

therefore can be admitted against that party. Fed. R. Evid. 801(d)(2).

Thus, during direct examination. the government could have inro-

duced inculpatory statements made by Wilkerson. The rules do not

however, provide an exception for self-serving, exculpatory state-

ments made by a party which are being sought for admission by that

same party. See Fed. R. Evid. 805-804. Moreover, even if, as Wilker-

son claims, Rule 106 had applied to this testimony, it would not ren-

der admissible the evidence which is otherwise inadmissible under the

hearsay rules. See United States v. Woolbright, 831 F.2d 1390. 1395

(Sth Cir. 1987) (neither Rule 106 or Rule 611 authorizes a court to

admit unrelated hearsay when that hearsay does not fall within one of

the exceptions to the hearsay rule). Consequently, because the excul-

patory statement in question here was pure hearsay and no excepuon

enumerated in the rules permit its introduction, the trial judge did not

abuse his discretion in prohibiting its admission.

Iv

Wilkerson’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967). Counsel has requested this Court to

review the record for any basis for appeal that he may have over-

ee ee

Unrtep States v. WILKERSON 9

looked. In accordance with Anders, we have examined the record and

have found no basis for appeal.

¥

Finding no error in either the admission of the in-court idenufica-

tions or the trial court’s exclusion of exculpatory hearsay statements,

Wilkerson’s convicuon iS

AFFIRMED.