UNITED STATES of America, Appellee, v. Ted Lewis JOHNSON, Jr., Appellant

United States Court of Appeals for the Fourth Circuit1974-03-27No. No. 73-1740

495 F.2d 377

Summary · law.co

Holding. The conviction was affirmed. The trial judge's refusal to give a Telfaire identification instruction was not reversible error given the particularly convincing eyewitness identification evidence, and the disclosure of prior convictions in the presentence report was proper under applicable rules and precedent.

Ted Lewis Johnson, Jr. was convicted of bank robbery and appealed on multiple grounds. The primary issue concerned whether the trial judge erred by refusing to give a jury instruction on eyewitness identification reliability, commonly known as the Telfaire instruction. Although the appellate court had recently adopted this instruction prospectively in a companion case, the court found that its refusal here was not reversible error because the identification evidence was particularly strong and reliable. The witness observed the defendant at close range through a plate-glass window, developed immediate suspicions about his involvement, followed him after the robbery, and later identified him through both photographs and a lineup. Additionally, fingerprint evidence from the getaway vehicle and the defendant's suspicious behavior corroborated the identification.

The second issue raised concerned the trial judge's disclosure of the defendant's prior convictions from the presentence report. The court found this disclosure complied with existing rules and prior precedent, making it not reversible error. However, the court took the opportunity to encourage district judges to adopt a voluntary policy of more complete disclosure of presentence report contents, with limited exceptions for truly sensitive information.

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Key issues

Whether refusal to give Telfaire jury instruction on eyewitness identification was reversible error
Sufficiency and reliability of eyewitness identification evidence in bank robbery prosecution
Propriety of disclosing defendant's prior convictions from presentence report

Procedural posture

The defendant appealed his bank robbery conviction to the circuit court on various grounds, including claims regarding jury instructions and disclosure of presentence report contents.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

CRAVEN, Circuit Judge:

In this appeal from a conviction of bank robbery, we think only two of the four issues briefed merit discussion.

Appellant Johnson assigns error in the failure and refusal of the trial judge to give the so-called- Telfaire instruction on the question of identification. United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972). In a case argued on appeal the same day as this one, United States v. Holley (4th Cir. 1974), we have adopted the Telfaire rule but have adopted it prospectively. We, therefore, hold that at the time Johnson sought a Telfaire instruction the refusal to give it was not reversible error. Moreover, the instruction that was given by the district judge was fair and specifically informed the jury that “the most important issue is the element of identity.” United States v. Levi, 405 F.2d 380 (4th Cir. 1968). Even so, we would be inclined to reverse as in Holley were it not for circumstances greatly reducing the possibility of misidentification.

Johnson was identified by a customer in a barber shop, McCree, who saw the robbers as they walked past the shop, which was adjacent to the bank. Mc-Cree testified that as Johnson walked past the plate-glass window of the barber shop he stopped and looked directly into the shop. The look on Johnson’s face was so unusual that McCree immediately and correctly concluded that the bank was about to be robbed. As the robbers left the bank, McCree observed them from inside the barber shop and then followed them down the sidewalk until he was threatened with a weapon by the man he later identified as Johnson. Within less than a month McCree identified a photograph of the defendant from a group of photographs exhibited to him by FBI agents. Later he picked Johnson from a lineup. This identification testimony is more convincing than that in Holley, and in addition, there is some degree of corroborating circumstantial evidence. The alleged getaway car had on it four latent fingerprints of Johnson. Moreover, Johnson’s behavior in the use of fictitious names and flight to avoid prosecution was incriminating.

II.

The district judge disclosed the prior convictions of the defendant appearing in the presentence report. In doing so he complied with our decision in Baker v. United States, 388 F.2d 931 (4th Cir. 1968), and with the express language of Fed.R.Crim.P. 32(c)(2) that the trial judge may disclose “all or part . . . . ” His failure to disclose more

In United States v. Bryant, 143 U.S.App.D.C. 53, 442 F.2d 775, cert. denied, 402 U.S. 932, 91 S.Ct. 1534, 28 L.Ed.2d 866 (1971), the Court of Appeals for the District of Columbia took half a step in

is not reversible error. But we reiterate, as we said in United States v. Knupp, 448 F.2d 412 (4th Cir. 1971) (en banc), that disclosure when requested should be favored in order that the appearance of justice will be fostered and respect for the administration of the law increased. the direction of disclosure. Adhering to the language of Fed.R.Crim.P. 32(c)(2), that court affirmed the discretion of the district judge but required that the exercise of discretion must appear on the face of the record. We do not go so far, but once again, we urge the district judges in this circuit to adopt, voluntarily, a policy of routinely releasing the contents of presentence reports in their entirety, subject to exception only for confidential matter that can reasonably be expected to adversely affect the defendant, or harm others, or substantially impede the administration of justice.

Affirmed.