Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 C 3222; ABRAHAM L. MAROVITZ, Judge.
Clark, Associate Justice (Retired)*fn* , Swygert and Cummings, Circuit Judges.
The question presented by this appeal concerns the distinction between prejudicial error and a denial of due process of law. We have a situation in which a mug book, prepared by the Berwyn, Illinois, police department, was introduced into evidence over objection in a state criminal trial. The jury was allowed to examine the book including a mug-shot of the petitioner taken five years previously by the Chicago police department. The petitioner claims in a habeas proceeding that the introduction of this evidence was prejudicial error of such magnitude that his right to a fair trial guaranteed by the Due Process Clause was violated. The district judge agreed and granted a conditional writ of habeas corpus ordering the State to retry the petitioner within ninety days or release him from custody. The State of Illinois has appealed from this decision. We reverse.
Before analyzing the legal problems, we state the facts. Robert Bleimehl, the petitioner, was arrested for the crime of strong-arm robbery. Prior to the arrest the victim, Frank Gazarek, was accosted on March 9, 1969 in Cicero, Illinois, by two men, one of whom placed his arm around Gazarek's neck, arresting his motion. Gazarek was then confronted by the other man who remained facing him while the assailant gripping Gazarek removed his walet. During this time, Bleimehl's neighbor, Leo DiPompeo, was returning home and witnessed the scuffle as he emerged from his car. Upon seeing DiPompeo, the two men ran down the street to a parked auto, got in, and drove up the street. Since the avenue was marked "One Way," the auto was forced to pass by Gazarek and DiPompeo. As it did, Gazarek was able to note two figures inside the auto and identified the driver as the man who had confronted him. DiPompeo noted the license number, ran to his house, and called the police.
The only positive identification of the assailants was that of the man who confronted Gazarek. DiPompeo not only did not get a good look at the men during their scuffle with Gazarek, but was too preoccupied with reading the license plate numbers to notice the features of the occupants in the escape vehicle. Gazarek was able to see only the face of the man who confronted him and did not catch a glimpse of the person who actually performed the strong-arm.
Following receipt of the complaint, the Berwyn police department ran a check of the vehicle's license number with the Illinois Secretary of State and obtained registration documents identifying the owner of the car as Robert Bleimehl. After a search of their files produced no photographs of Bleimehl, contact was made with the Chicago police department where a photo was located. The photo was obtained and Berwyn police detective Dennis Kovarik placed this photo in a current police mug book and took it to the home of Gazarek. Gazarek was told to look through the book. He quickly selected Bleimehl's picture as the man who had confronted him in the robbery, and also as the driver of the escape vehicle. On the basis of this identification Bleimehl was arrested.
At trial the State's initial witness was Gazarek. After describing the robbery itself, Gazarek identified Bleimehl in court as one of his attackers. After this in-court identification, counsel for the prosecution handed him the "mug book" and asked him to identify the volume as the one which had been presented to him at his home. Defense counsel objected, but the witness was permitted to answer the question. After an identification of the book, a conference was held in the judge's chambers during which defense counsel strenuously objected that admission of the mug book would imply Bleimehl was a criminal. No objection was raised as to the photograph itself. Rather, counsel's objection went to the prejudical nature of the volume taken as a whole. The objection was overruled, the trial judge concluding that the jury was entitled to see the manner in which the identification took place.
The book was admitted into evidence. Gazarek was asked to page through the volume and, in full view of the jury, selected Bleimehl's photograph from it. After it was removed from the book, Gazarek further identified his initials on the reverse of the picture. Gazarek was then asked to identify the man whose picture he had pulled; he indicated the petitioner.
The petitioner's defense was generally an attempt to cast doubt upon Gazarek's ability to identify his assailant. When the jury retired for its deliberations the mug book and the photo of Bleimehl were taken with them. No limiting instructions were given regarding permissible inferences to be drawn from the exhibits, nor were such instructions requested. No specific statements informing the jury of past criminal activity were made in court by either counsel or witnesses. The jury convicted the petitioner of robbery and he was sentenced to serve a term of three to seven years in the State penitentiary where he is presently confined. The petitioner appealed his conviction. One of his grounds was the claimed improper admission into evidence of the "mug book." The Illinois Appellate Court affirmed the conviction. The Illinois Supreme Court denied a petition for leave to appeal to that court. Subsequently, the habeas petition was filed in the federal district court.
Initially, it must be recognized that mug-shots are generally indicative of past criminal conduct, and will likely raise the inference of past criminal behavior in the minds of a jury. As was noted in Barnes v. United States, 124 U.S. App. D.C. 318, 365 F.2d 509, 510-11 (1966): "The double-shot picture, with front and profile shots alongside each other, is so familiar, from 'wanted' posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic." Admission of mug-shots, therefore, generally runs headlong into rules of evidence prohibiting the introduction of remarks or testimony regarding the petitioner's bad character or past criminal record. As a general rule, a defendant has a right to have no comment made regarding his character until he raises the issue of his own good character himself. Additionally, he has the right to have evidence of past criminal activity kept from the jury. Evidence of past criminal activity is, therefore, generally inadmissible in a court of law, and its admission will normally constitute prejudicial error supporting the granting of a new trial.
This rule is not ironclad, however, and is subject to exceptions. Evidence tending to show past criminal activity may in certain instances be used to establish motive, intent, identity, guilty knowledge, or credibility where such evidence is directly related to the guilt of the accused. People v. Booker, 34 Ill. 2d 16, 213 N.E.2d 542 (1966); People v. Brown, 64 Ill. App. 2d 203, 212 N.E.2d 275 (1965); McCormick on Evidence, § 190, p. 447 (2d ed. 1972).
The conflicting interests created by these rules and their exceptions create difficult problems for the trial courts. There do not appear to be any hard and fast guideposts since the context and manner in which such evidence is offered varies greatly. Consequently, rulings as to admissibility tend to become discretionary judgments and often pose difficult questions upon reconsideration. Opposing each other are the prosecution's need to introduce such evidence in order to prove its case, and ...