Bank teller's questioning held unnecessarily suggestive, should not have been admitted, though did not affect robbery defendant's substantial rights

US v. Greene:  Deshawn Greene received convictions for armed bank robbery and brandishing a firearm during and in relation to a crime of violence, and he appealed his convictions on two grounds: 1) whether the district court erred in admitting a bank teller’s testimony; and 2) whether the district court erred in failing to provide a Holley-Telfaire instruction to the jury.  Regarding both issues, the Fourth Circuit conducted plain error review, as defense counsel did not object at trial to the identification testimony from the bank teller, or the lack of Holley-Telfaire instruction.  The Fourth Circuit, though it was a close case on the first issue, ultimately affirmed the convictions.

First, the bank teller’s questioning consisted of the prosecutor drawing the teller’s attention directly to Greene at trial, and instructing to the her to tell the jury what similarities existed between Greene and the bank robber.  The district court permitted this identification testimony.  In contrast, the Fourth Circuit found this questioning unnecessarily suggestive, exactly the sort of questioning it had previously warned against, where the phrasing of the question suggests the desired response.

The Fourth Circuit next considered whether the teller’s testimony was reliable, and after analyzing the five factors for reliability, found that it was not: the teller’s attention at the time of the offense was greatly diminished due to her fear and having a gun pointed at her head, she did not state that the defendant was the bank robber, and seventeen months had passed between the robbery and trial, and she was not asked once during that time to view a line-up, photo array, or assist a police artist in sketching the suspect.  Since the questioning was overly suggestive, and the teller’s testimony was unreliable, the Fourth Circuit found it was plain error by the district court to admit this testimony.

The admission of the bank teller’s testimony, however, did not affect Greene’s substantial rights, according to the Fourth Circuit, as Greene’s accomplice testified directly to Greene’s involvement in the robbery.  Lear, a known crack addict, had been subjected to “piercing” cross examination, and the jury was apparently aware of any credibility issues he may have presented.  The Fourth Circuit declined to grant Greene relief on the basis of plain error.

Second, Greene argued that the district court erred in failing to issue a Holley-Telfaire instruction to the jury.  This instruction advises the jury on how to appraise a witness’s identification testimony, and the defense did not request this instruction at trial.  The Fourth Circuit held that this instruction was not required as there was independent evidence (i.e., Lear’s testimony) that Greene participated in the robbery.