00-3172 U.S. v. Harris

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“Harris argues that the line-up was unduly suggestive because he was the only person to appear in both the photo array and line-up. But there is nothing impermissible about placing the same suspect in two different identification procedures. See Gullick v. Perrin, 669 F.2d 1, 5 (1st Cir. 1981). Moreover, the photo array was reasonable- -police showed Wallace four pictures of four men, all having similar physical characteristics. And Wallace’s line-up identification occurred nearly six months after she was first shown the photo array; after such a substantial passage of time, it is unlikely that she was influenced by the earlier photograph, let alone that it led to misidentification.”

“Harris also argues that the district court erred by precluding him from eliciting testimony at trial that two witnesses were unable to identify him at the line-up as the robber… The court correctly concluded that this line of questioning called for inadmissible hearsay, i.e., an out-of-court statement offered in evidence to prove the truth of the matter asserted… Harris contends that he wanted merely to introduce evidence that only one of the three witnesses had selected him as the robber. This line of questioning, however, represented a back- door attempt to submit second-hand (and unchallengeable) evidence suggesting that Harris may not have been the person they saw who robbed the bank. The court correctly prohibited the inquiry – Harris could have called both witnesses to testify but chose not to, giving the government no opportunity to cross-examine them as to why they could not identify Harris. And because no exception to the hearsay rule applies, the district court’s refusal to allow such testimony was not an abuse of discretion.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Rovner, J.