Aldisert, Gibbons and Max Rosenn, Circuit Judges.
MAX ROSENN, Circuit Judge.
This is an appeal by William E. Rabb from a conviction in the District Court for the District of New Jersey for robbing a Federally insured bank, and putting lives in jeopardy during that robbery, in violation of 18 U.S.C. § 2113(a). Only one significant issue is raised in this appeal: Whether the district court was correct in denying the jury's request to have a portion of the transcript read to them.
Rabb was tried together with a co-defendant, one James Phillips. A third defendant, also charged with the same offenses, was severed from the case because his attorney was not ready to proceed. As to Rabb and Phillips, the evidence presented at trial varied. Phillips was connected with the crime by hard physical evidence: a fingerprint, found on the car used in the commission of the robbery. Rabb, however, was convicted solely on the basis of identification evidence -- the testimony of three witnesses, Edward Martini, a bank teller, Richard Weber, another bank employee, and Harry G. Stoothoff, Jr., who was driving past the bank at the time of the robbery. Weber and Martini both made their identifications although the person they claimed to be Rabb was wearing a white handkerchief around his face. Stoothoff saw a man he identified as Rabb in the getaway car without a mask.
After the jury had deliberated about two hours, they returned and requested a reading of the testimony of Weber and Stoothoff. The court refused the request, but read its summary of the testimony of the two witnesses, and added that if the jury had a different recollection of the testimony they should use it to guide them. Objections were taken both to variations in the judge's summary from the testimony actually given and to the failure to read the full testimony of these two witnesses.
Some confusion exists in the testimony as to whether or not Rabb's attorney objected specifically to the refusal of the trial judge to grant the request by the jury to have part of the transcript read. There is no doubt, however, that the attorney for Phillips did make such an objection. Our reading of the transcript convinces us that both attorneys were acting in unison at the time, and that the judge in fact understood that the objection made by Phillips' attorney applied to both defendants.
The testimony which the jury desired to have read involved about forty pages. Rabb was convicted and sentenced to twenty years.
Normally, a request by the jury to have a portion of the transcript read back to them lies within the broad discretion of the trial judge. United States v. Chicarelli, 445 F.2d 1111 (3d Cir. 1971). The rationale behind a refusal on the part of trial judges to allow a reading of a portion of the testimony is twofold: first, because these requests may slow the trial; and second, because a reading of only one portion of the testimony may cause the jury to give that portion undue emphasis.
In the instant case, neither of these reasons could have provided a basis for the court's refusal. The eye witness testimony of the three witnesses identifying appellant was the only evidence linking him to the crime. The testimony of all three witnesses tended to interrelate since they all described features and clothing allegedly those of appellant. Thus, the testimony which the jury asked to have read to them was absolutely crucial to their determination of appellant's guilt or innocence.
This was not a case where, from a mass of dimly remembered data, the jury desired to cull and spotlight a small bit of fact. The entirety of the evidence presented against appellant, while presenting problems in terms of evaluation, was short: the testimony of only three witnesses. Reading the transcript of the testimony of two of these witnesses would not necessarily emphasize it or preclude consideration by the jury of the other testimony. In these circumstances, it must be assumed that the jury asked for a reading of this testimony because it was in doubt or in disagreement upon its proper evaluation.
United States v. Jackson, 257 F.2d 41 (3d Cir. 1958), is directly on point. The issue presented in Jackson was entrapment. The jury asked the court whether or not an informer involved with the defendant was a Government employee. The court told the jury that it was unable to remember whether or not the informer was a Government employee and directed them to return to the jury room for further deliberations without having read any of the testimony to the jury. Attorney for the defendant requested that the pertinent portion of the testimony be read to the jury. But before any action was taken the jury returned a guilty verdict.
This court noted that "The point of the jury's question was highly relevant." It held that "in this particular situation we think the defendant was entitled to have the jury informed as a matter of right." id., at 43.
The request by the jury for a reading of the testimony in the case sub judice is, in fact, even more compelling than in Jackson. In both cases, the evidence on which the jury wanted guidance was crucial to its verdict. In the case sub judice, however, the evidence was identification evidence. The dangers inherent in such testimony have many times been commented upon. Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); United States v. Wade, 388 ...