Biggs, James Rosen*fn* and Hunter, Circuit Judges.
On September 12, 1969, three men robbed the Wynnefield Avenue Branch of the Girard Trust Bank at gunpoint. The appellant Hines was indicted on four counts charging him with participating in this armed robbery in violation of Title 18, United States Code §§ 2113(a), (b), and (d). A first trial ended in a mistrial when the jury failed to reach a verdict, but on retrial, Hines was found guilty by a jury. This appeal followed.
Hines has raised three issues: (1) whether reversible error was committed by references to a photograph of Hines used by the FBI in pre-trial photographic identifications; (2) whether the trial court erred in instructing the jury concerning the government's failure to call a witness who had testified for the government in Hines' first trial; and (3) whether defense counsel's decision not to file a pre-trial motion to suppress identification testimony and his failure to call a witness who had testified for the government in the first trial denied Hines the effective assistance of counsel as guaranteed by the Sixth Amendment. Consideration of these issues requires the affirmance of Hines' conviction.
I. References to Photographs of Appellant used in Pre-trial Identification.
The government's case consisted of the testimony of four bank employees who described the robbery, identified Hines in court as one of the robbers, and told of a pre-trial photographic identification in which each selected Hines' picture from a photo-spread as being that of one of the robbers. An FBI agent was called who described his activities in investigating the case, including the showing of a photo-spread to the witnesses approximately ten days after the robbery. The pre-trial photographic identification was also brought out during the government's opening arguments to the jury. From this Hines argues that the references to his photograph exhibited by the FBI had the effect of injecting his prior criminal record into the trial, as the jury "must have" concluded that the picture of him was a "mug-shot." It is therefore claimed that such references denied Hines due process of law under the Fifth Amendment, or at least constituted prejudicial error as a matter of federal evidentiary law. We will treat the constitutional claim and the evidentiary claim together for we hold that no error was committed, much less one of constitutional magnitude.
It is well established that evidence of other offenses and prior trouble with the law is inadmissible in a criminal prosecution as part of the government's case against the defendant. In Michelson v. United States, 335 U.S. 469, 475-476, 69 S. Ct. 213, 218, 93 L. Ed. 168 (1948), the Supreme Court stated the basis of this rule as follows:
"Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, 38 S. Ct. 209, 62 L. Ed. 469, but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice." (notes omitted).*fn1
It is on this general rule and the recent Pennsylvania Supreme Court decision, Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972), that Hines places his chief reliance. In Allen, the Court held under circumstances substantially the same as those here*fn2 that as a principle of Pennsylvania's law of evidence, a reference to a defendant's photograph in police possession constitutes reversible error where "a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity." Since "the constant mention of photographs during direct examination permitted the jury to infer that the appellant had a prior criminal record," the "prejudice thus created" required reversal. Allen at 181-183, 292 A.2d at 375-376.
It cannot be denied that in the case at bar the jury may conceivably have inferred the existence of Hines' criminal record from the numerous references to his photograph.*fn3 Indeed we concede the possibility of some prejudice. But even so, we cannot accept this Allen doctrine, for contrary to the principles enunciated in the cited case, admissibility of evidence does not turn on prejudice alone.*fn4 This fact is crucial in understanding the differences between the approaches followed by the Pennsylvania Supreme Court and this court. As we said in United States v. Stirone, 262 F.2d 571, 576-577 (3 Cir. 1959), reversed on other grounds, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960): "The general rule, as stated by most courts, is that evidence of other offenses is inadmissible in a criminal prosecution for a particular crime. The rule is qualified by a number of exceptions stated in terms of the capacity of the evidence to prove some specific fact or issue such as intent, plan, scheme or design. But since the range of relevancy, other than for the purpose of showing criminal propensity, is almost infinite, we think the rule may be phrased a little less mechanically. Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime.
"Of course the trial judge may, in the exercise of his sound discretion, exclude evidence which is logically relevant to an issue other than propensity, if he finds that the probative value of such evidence is substantially outweighed by the risk that its admission will create a substantial danger of undue prejudice." (Citations and notes omitted, emphasis added).*fn5
Thus, as we have said, in deciding the admissibility of evidence indicating Hines' criminal record, the potential for prejudice to him is not the sole factor to be considered. Taking into account all the attendant circumstances, we must balance the degree of prejudice with the probative value of the evidence. Hines' reliance on Allen is misplaced, since in Allen the Court expressly refused to utilize a balancing technique,*fn6 and instead, having found prejudice existed, reversed for the evidence of Allen's criminal record did not fall into any of the exceptions to the general rule of the inadmissibility of prior criminal records (such as common scheme or design).*fn7 The difficulty with the approach used in Allen is that the utilization of a list of exceptions to the rule prohibiting proof of other crimes "tends to produce a mechanical jurisprudence, with evidence admitted if it can be fit within a recognized exception"*fn8 or excluded if it cannot be regardless of its prejudicial nature or probative value.
Turning to the facts of the case at bar, we hold that no error has been committed, much less one of constitutional dimensions. References to the pre-trial photographic identifications were made to buttress the in-court identifications. "This has been a proper and strategically sound tactic for years." United States v. Clemons, 144 U.S.App.D.C. 235, 445 F.2d 711, 713 (1971), cert. denied, 404 U.S. 956, 92 S. Ct. 322, 30 L. Ed. 2d 273 (1971). The value of such evidence was recognized in Gilbert v. California, 388 U.S. 263, 272 n. 3, 87 S. Ct. 1951, 1956, 18 L. Ed. 2d 1178 (1967), where the Court cited People v. Gould, 54 Cal.2d 621, 626, 7 Cal.Rptr. 273, 354 P.2d 865, 867 (1960) as follows: ". . . the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind." Evidence of pre-trial identifications is even more important where, as here, the trial takes place seventeen months after the crime was committed, since such a time lapse would invariably strengthen the possibility of a mistaken identification in the minds of the jurors. Indeed, in United States v. Hallman, 142 U.S.App.D.C. 93, 439 F.2d 603, 604 (1971), the court stated that evidence of a pre-trial identification was "more meaningful to the jury than the more ritualized in-court identification." Given the great need to ...