Jesse Eugene Dearinger v. United States

had all seen in court and later HAMLIN, Before HUFSTEDLER and story newspaper. photos GOODWIN, Judges. Circuit August on indicted Judge. HAMLIN, convicted tried Circuit He was 1963. (d), 2113(a) violating 18 U.S.C. § Petitioner, Eugene Dearinger, Jesse years imprisonment. to 16 and sentenced appeals dismissing, from an order with- hearing, application for relief ap- reversed conviction This under 28 U.S.C. We summarize § refusing to allow peal for error in testimony. witnesses. call certain alibi (9th Cir. On November F.2d par- three men ticipated in 1965).3 a in Pierce proceed- following 1. Weinreieh was convicted of shows the bank record rob- 3. The bery separate Dearinger’s. ings a trial trial: “ Dearinger’s pleaded guilty . . . counsel to the bank rob- bery show should stated, record think the T was first tried. following years on conviction in the United retried June, retrial. in Tacoma District Court guilty again jury returned a 1965. The continuance Denial I. Dear- court then sentenced verdict. The Dearinger’s Following the reversal inger years imprisonment, in- an to 25 petitioner conviction, contends that first the sentence nine over crease of expended to find effort considerable imposed the first trial. and one who certain alibi witnesses Wall again challenging appealed, gun which used in the rob- owned a charge giving Allen bery. subpoenaed, did not but Wall contending arrest, legality of his trial, Dearinger, just prior appear.5 to requirement had that an excessive bail refused, continu- requested, a but was by preventing prejudiced him missing wit- these ance to for search adequately preparing re his case. We nesses.6 jected and affirmed. contentions contin- that denial He contends States, F.2d 378 v. United prejudicial error. uance was denied, (9th 1967), 389 U. 346 Cir. cert. However, “ordinarily a convic 19 L.Ed.2d 183 88 S.Ct. S. solely (1967). be reversed be tion [will not] mate could not find a cause an accused trial, years after his second Over five Walton, v. witness.” United States rial present petition on filed his (9th 1969). 411 288 Cir. F.2d judge, September The district is that an error was When it claimed issuing cause, show an order to denying find continuance to made having filed re- and after there been witnesses, question is the crucial such thereto, petition turn denied the without fair the defendant was denied a whether hearing.4 writing He also in denied a testified, because, had the witness ap- petition for reconsideration. This con not have been the defendant would peal followed. victed. Id. appeal, On raises three (1) grant broad It error for or denial of a continu contentions: judge deny court’s the trial him continu- is of the trial dis ance a matter thereby States, F. ance and force him to trial Leino cretion. United v. 1964); (10th v. without the benefit of Cir. Unit his alibi witness- Smith 2d es; publication States, (10th Cir.), cert. 413 F.2d 975 ed newspaper prior denied, 24 L. to the 90 S.Ct. (1969). court so unneces- identifications was Ed.2d 231 Cf. (9th sarily suggestive irrep- conducive to F.2d 309 Cir. 1965). court arable mistaken To that a trial identification as to be a establish process denying law; con denial due abused its discretion showing increasing there there be some as basis tinuance must original called, sentence from he would was to be what who Dearinger’s Jr.) presided the defendant has re- second quested various and several witnesses to trial. by Dearinger be called on his behalf. I advised have All contentions made against it, your my petition It Honor. is con- based evidence this opinion presented previ- sidered in the two none the wit- had been requested appeals that he therefrom. has will add and the ous trials anything to his or benefit him in case and, was issued follow- 5. A bench warrant any way whatsoever. I want that made contempt. trial, ing cited for Wall was ” record, your a matter of Honor.’ based 6. “The motion for continuance was permit The District Court refused supporting affidavit, stating ‘De- on his the witnesses to be called without produce other fendant believes he could attorney. consent of the present- are witnesses whose whereabouts ruling ly be dis- and who if located would This was made the same unknown ’” judge (Honorable George Boldt, defense . trict H. beneficial to, process due and that such testimo- accused of law under the testified ny rele- been material Fifth would have Amendment. supra. Smith, supra; Leino, vant. petitioner case, In this contends newspaper publication photo of his An record examination graph conjunction story on the with a us fails reveal robbery identifying him as an arrested showing. Indeed, attempted any such subsequent suspect caused during when the trial conducted under circumstances so showing, requested appel court such a prejudicial as to taint later in court lant’s counsel admitted that he was him appraisal of this identifications.8 Our to what witnesses self these unsure of the “to contention calls a review testify would to. tality under which of the circumstances” Furthermore, it there was seems made. identifications were Stovall these some doubt to the ultimate availabili- Denno, ty Wall, one, of these witnesses. (1967). 1967, L.Ed.2d 1199 See Sim 18 apparently had absconded to testi- avoid 377, States, 390 U.S. mons v. fying. circumstances, In such where 967, 1247 384, L.Ed.2d 88 S.Ct. 19 unavailable, request witnesses are (1968). presents for a continuance a far differ- robbery middle of occurred ent situation than where can witnesses well-lighted modern the afternoon a delay. Dearinger be obtained with little Although had made the robbers bank. 309, v. United 344 312 F.2d 5n. disguise, attempts cursory it some 1965). (9th Cir. these the witnesses was obvious to denying find no error We the re- merely painted-on side- imitation were quest for continuance. The robbers burns moustaches. newspaper publica- II. least five Effect of inside the for at were bank tion identified minutes. Three witnesses proximity Dearinger. They in close were that, concedes inasmuch as identified lineup to the robbers. The one court identification an so close to one of wit- cases,7 tedated the he Gilbert Wade trial, that, he testified at the first can claim no benefit from those hold cyl- in the ings. “could see the bullets” that he lineups We also note oc gun held. which inder June, 1963, curred in but that Dearin Thus, it the witnesses ger seems clear that August, was not indicted until ample opportunity to a clear obtain Thus, had right the Wade-mandated impression physical characteris- pretrial to counsel at the would features of robbers. tics and facial applied not any Kirby case. Illinois, 406 92 32 S.Ct. U.S. eye to the three witnesses In addition (1972). L.Ed.2d 411 fourth witness there was a being in the Dearinger, But both in his 2255 just vicinity the rob- of the bank petition appeal, advances the ar bery. gument, recognized in Wade and other cases, Moreover, photos that under certain it seems that circumstances pretrial published paper did confrontation so un duly suggestive impression irrep provide and conducive to a clear of the rob- eye witnesses, deny arable mistaken as to One bank bers. objection Wade, argument. 7. United this No effective 388 U.S. trial, (1967); testimony S.Ct. 18 L.Ed.2d 1149 Gil was made at second California, appeal bert v. on this nor was the issue raised (1967). However, trial. as we L.Ed.2d 1178 from his second taint that no resulted conclude appears question publication, reach There also we do not to be some question. as to whether can advance this this this, Aside from there inde both trials Colegate, testified at Mrs. confusing, pendent testimony photos from one Richard these lineup Pierson in which was con- he stated that Dearin not until the that it was ger participation of her admitted his became certain ducted that she witness, to him.9 a Mr. This was sufficient Another identification. explicitly Johnson, first stat- sustain the submission the case eye newspaper photos jury, even not in- without the witness testi ed did that the mony. lineup identification. fluence his later witness, trial, During a third Propriety III. sentence increased recollection Matilla, was asked what Mr. upon in court iden- for his relied petitioner’s con- now turn last We Dearinger. replied, tification tention that it error to increase time came into “[f]rom years from 16 sentence left, I him and wasn’t until he I watched his second conviction. going forget his face.” Pearce, In North Carolina v. identification witnesses were 711, 726, 23 L.Ed. S.Ct. 2072, thoroughly the two cross-examined at Supreme 2d stated: Court time of occurred at the trials as what “ judge impos- whenever es a more severe sentence picture A attended. defendant after a new the rea- introduced in evidence. No facts doing sons for his must affirma- so developed the that that indicated appear. tively must Those reasons be way lineup procedure any unfair. objective based information con- lineup no At the reference was made cerning identifiable conduct on the Although by to the men the name. part occurring of the defendant by newspaper article identified the men original sentencing the time of the designated name, they were not so proceeding. And the factual data lineup. Moreover, no there was indica- upon which the increased sentence is given tion of the men in the part based must be made photos appeared were those whose record, legit- so that the constitutional paper. Thus, there was no sub- imacy of the increased sentence infer stantial basis for the witnesses to fully appeal.” be reviewed on the men in the were those contains no record us show- suspects men identified the news- ing part of “identifiable conduct on the paper. occurring defendant After consideration of all circum- original sentencing proceed- time of the extensively developed stances which were ing” justify which would the increased by direct and cross-examination in the sentence. trials, two we hold that the record dis- closes no basis to indicate that the The Pearce case decided newspaper publication any imper- held Five it be 1969. circuits missible effect the later Following holding of retroactive.10 in court identifications. these cases of Desist v. rationale unsavory Copinger, (4th Pierson was a somewhat char- v. 441 F.2d James 23 drug 1971) ; States, acter who had a record of use. Barnes v. 136 Cir. U.S.App.D.C. 171, United However, (D.C.Cir. he had no interest in the out- 419 F.2d 753 1969) ; Gross, come of the thus there nowas reason 416 F.2d United States v. falsely Dearinger. (8th 1969) ; for him to incriminate United States v. 1205 King, Cir. jury have, apparently did, 1969) (6th ; could 415 F.2d Cir. 737 Wood, (5th believe him. United v. 413 F.2d States 437 1969). Cir.

1037 (Cf. v. Williams not retroactive. States, 89 is S.Ct. 394 U.S. United 651- (1969), 401 U.S. wherein United 248 22 L.Ed.2d 388.) L.Ed.2d 28 rele- S.Ct. Supreme enunciated Court limiting retroactiv- determining There is basis retroactiv- vant criteria proce- ity. pretrial If justice ity, hold that the interests we suggestive impermissibly dure “so require held Pearce in this case very like- substantial as to rise retroactive. misidentification,” irreparable lihood of judgment of the district necessarily follows that the use it except respects in all court affirmed is “substantially impairs [the its evidence district that the case is remanded truth-finding function criminal trial’s] light resentencing court for questions about serious and so raises supra. Pearce, North Carolina v. past guilty accuracy of verdicts (Williams su- Judge (con- United trials.” v. HUFSTEDLER, Circuit 1152.) pra, S.Ct. at at dissenting). U.S. curring and circumstances, rule has “the new In such majority opinion I ex- concur given complete effect.” retroactive been cept portions relate to Dear- those (Id.) inger’s in-court identifi- claim that the testimony imper- cation was tainted pre whether The determination suggestive procedures. pretrial missibly proce photographic identification judged is mark dures met the Simmons question dispose of whether I first “totality of circumstances.” is foreclosed because issue States, supra, (Simmons v. trial or did not raise it upon his second 967; Stovall U.S. at S.Ct. appeal.1 His failure his second cf. 301-302, Denno, supra, raise the issue cannot be deemed a waiv- 1967.) I do not think Because er the outlines the constitu- because opinion fully majority reveals emerge did not until Sim- tional claim totality in this of circumstances mons United States case, I the record detail. review 1247, a 377, 88 S.Ct. 19 L.Ed.2d year down almost a case that came robbers, identity of two of the The appeal his second concluded. bank, Shannon, the and entered who Simmons held that “convictions based get- Weinreich, drove the Chevrolet who eyewitness on lowing identification trial fol- at away car, All three was established. pho- pretrial identification robbing participated the in men who ground tograph on aside will set dis- were bank on November photographic only if identification the eyeglasses, mustaches, guised with false sugges- procedure impermissibly was so sug- makeup mouth, padding the in very tive as to rise to a substantial gesting heavy brows and sideburns. irreparable likelihood of misidentifiea- wore men who the bank The two entered (390 384, 88 at tion.” 971.) U.S. at S.Ct. gloves. topcoats, hats, Shannon the is When Simmons standard guard lobby in stood the as pretrial met, use of tainted the such (sometimes Dearin- identified as man ger) procedure is a denial tellers’ of the went the back (Foster process due v. Califor- law. cages $13,662 gunpoint took cash and at nia S.Ct. men from the The two drawers. also Stovall L.Ed.2d See minutes. not more than five in the bank 293, 302, Denno entering the bank A customer who was 1967.) immediately holdup progress, the saw sheriff, Durham, precluded deputy is from first found Mr. raising bank, reported the the Simmons issue on collateral next door to the point robbery. rob- on saw the two attack unless the decision Mr. Durham majority opinion. n. 8 of the See parking included lot. of the and that headed toward the stances bers following they passages: his com- halt the failed to When “ mand, opened to- fire. Shannon ran ‘This matter has received continu- jumped Mr. in. ward Chevrolet the investigation robbery,’ the ous since through rear shot fired a Durham Elgin Olrogg, senior resident said stopped. Shan- The Chevrolet window. agent Tacoma, for the FBI fled, got Mr. with of the car and non charge. charge was filed the The escaped pursuit. Shannon Durham Attorney drawn Assistant U. S. during Mr. Durham the chase. While Billinghurst. Charles W. engaged and the Chev- with Shannon hearing “At a before S. Commis- U. rolet, around second robber ran Cooper yesterday, sioner Robert E. woods. and into the corner $15,000 bond of was set Shannon. disap- and the Chevrolet Weinreich be set at a Bond for will peared by time Mr. Durham aban- hearing today. bag pursuit of The doned his Shannon. “All three men extensive containing proceeds of the ”1a Olrogg records, said. during dropped by one of robbers participated con- flight, was recovered from a and it June June 18 or ducted 17 and June day robbery. field although lawyer present, 1963 No 14, 1963, On June was ar- Dearinger The four wit- asked one. charged rested and with the bank rob- identified nesses who at bery. were also Weinreich identified him one of the robbers as custody. mugshots On June lineup. All four witnesses had published all three men were newspaper pictures story seen the leading page County’s front of Pierce lineups. attended the newspaper under The banner headlines. identified as the man caption under was: cages by the tellers’ who went behind “BANK ROBBERY SUSPECTS —These Mattila, three witnesses young charged three men have been Colegate, eyewit- Johnson, and who were up University the robbers who held robbery. fourth iden- Place branch of National Bank of witness, Langlow, not see did tification Washington They last November 21. robbery. a man whom saw $13,662 left the bank with but discarded a few blocks making escape.” their loot in minutes some 10 accompanied by a lead government story recapitulated circum- eyewitnesses three other called fact, Dearinger charges against 1a. In records, had no criminal them. inal juvenile pro police record. He had had some filed a coun- chief of Tacoma ceedings against him, none of the details that he admitted teraffidavit record, “morning procedure of which are in the other than the line- was used that prisoners fact ups” that did not a conduct amount to of new conducted felony. He law enforcement officers. benefit of police said that records showed complete lineups 2. A record of the is not lineup Dearinger appeared oh in a June available. We cannot with determine lineup.” morning 17, 1963, “presumably a certainty which of the wit- was, said, iden- record of the he There lineup. nesses attended which There is tity line- the officer who conducted of photographs in the record of one police police up. also said chief men, including of six and Dear- lineup was con- that a showed records inger. seeking relief, Dearinger In p. m. June at 1:50 ducted on challenging filed an affidavit the fairness employees. No several bank attended lineup. Among things, of the other he evidentiary hearing resolve held to said that ob- members were liged names, addresses, to state crim- affidavits. conflicts anyone participants. else one of the as robbery. of them able None lineup, At the said he was sure Johnson one the robbers identify as them, shortly that Shannon was one of but he to them photographs shown lineups, not or could about be- robbery, at the sure or after the good get cause he did not a look at the at trial. cages. man who the tellers’ went behind robber, first saw the Mr. Mattila Dearinger, when as whom he identified Colegate, teller, at trial Miss said a gun de- pointed a the robber good very at the that she had look man a He was “real scared.” manded the cash. pos- cages, who went behind the and she opportunity observe the He had an itively as that man. two minutes. more than robber not pick However, unable to she had been immediately questioned When he was any pictures out the robbers de- about the robber’s after the photographs displayed to her series him; scription, eluded the details robbery. days After she two example, robber did not he said that the newspaper photographs and the saw the glasses. Later, law enforcement wear story, lineups.3 At the she went garments him cast-off officers showed lineup, as she identified Shannon glasses they been indicated had money from the tills man who took the during robbery and worn Mattila (the particularly care- one she had been eye- his then recalled that assailant wore study) the con- ful glasses. days Two lobby of the bank. federate photo- a series of Mattila was shown Langlow dur- never the bank graphs. four of them which selected He ing robbery. He testified he he similar to the said were robber who driving bank the his near the car gun held him. The a day approached As he of four different men. He did great bank, deal he noticed “a pick Dearinger’s picture. Mattila deputy came hubbub.” “The sheriff’s saw the ac- gun in a around corner with his count and discussed them with fellow Langlow parked Mr. his car and hand.” witness Johnson before attended or minutes. talked a friend for 10 lineups. Mr. Mattila He then about two and a half drove positively identified his as- driving about 20 blocks from the By sailant. the June per point hour, he saw at which a miles give description able to a detailed shirt, pants pink man “in stained and a although robber, he could not a knees, come of the road and to the side similarly description men detailed looking furtively.” both father directions other than and Shannon in farther, drove about feet made a lineup. U-turn, parked car, watched clerk, Johnson, making half-dog Mr. a bank identified man trot” as he “a dis- buildings, peri- at trial. On the appeared date of the behind some however, robbery, give any (There he could not od “half minute.” was evi- positive description of the He dence that one of robbers wore robbers. thought them, identify said pink shirt.) he could a month after the About regard robbery, “but Langlow photo- not in ... was shown 12 physical He, lot graphs. of definite picture features.” He as that of selected a too, photo- was shown pink the series of man he the had seen the shirt. graphs days robbery, two after the photograph and The officer him the told that identify Dearinger he Dearinger. lineup, Lang- unable to or was of At the pictures Shannon, photographs Dearinger, She testified that the were of paper her, confused and “one wasn’t the and Weinreich. fact, newspaper In defendant.” the cumstances, entirely apart he from the an- as the man low press publicity. the tecedent had read He too had seen. lineup. publicity the he attended eyewitnesses’ identification fol- The strikingly pattern: At linked Dearin- lowed a similar only evidence that The robbery, robbery, testi- of the or near the date the wit- ger other than the to witnesses, gave de- confused and uncertain mony was the nesses four of these addict, scriptions morphine of the robbers. None was testimony young of a pho- pick Pierson, he had seen able to out who said seeing tographic displays. After day rob- of the on the newspaper photographs, the witnesses bery told had and that identify they dropped money could and that were convinced that he had robbers, picked they Shannon people He also said had shot him. lineups. wearing pink Cole- out of the impeached, gate’s seriously identification at Pierson was shirt. unhesitating, only by addic- but mistook Shannon his narcotic she not admitted Dearinger. felony record, about but Johnson was sure his tion and Dearinger. By Shannon, to re- not demonstrated failure but about trial, of the of all when he had seen the time member positive relationship robbery. of identifi- He testi- were witnesses give fied, example, vivid details he had heard able to cation and were Dearinger’s of on the time robbery on the radio as of about the bank features morning years robbery over earlier. of November two Dearinger. day same talked of the factors that contributed Of all p. m. on that occurred 3:00 irreparable likelihood of to a substantial day.4 misidentification, crucial none was as lineups, of publication, multiple before the There are factors that were story carrying photographs None the implications and the conducive misidentification. guilt. pho- identifying witnesses more than “[W]here tograph that of two identified as minutes within which to observe has been Dearinger. corpo- they guilty subsequent man who party, later said was may person made of that Observations during the robbers were real identification high and, period upon excitement, the witness’s recollection based party, employees, guilty but case under of the features of the photograph. of the his recollection of fear. The wore stress robbers honest matter how [No disguises. eyewitnesses un- great difficulty is, witness descriptions able detailed shutting from mind the fea- questioned robbers when he had tures of the individual seen day or near the Half of photograph.] inabili- the ty The witness’s those witnesses never identified Dearin- surprising, to do so is not at since all ger as one of the None of the robbers. corporeal always identification is eyewitnesses to the crime was able to (and closer) in time closer often much identify Dearinger photographic than shown to them before the ac- crime, the witness it is to the usually and since published. count was them- far studies longer carefully period suspect selves cir- more were conducted under and for By parole. 4. Shannon testified at the first im- the time of the second plicating Dearinger. again prison nar- At on a time Shan- awaiting pleaded guilty non had and was He not called cotics conviction. sentencing. Dearinger’s conviction, testify After at the second trial. testify. im- de- Shannon was sentenced to 10 was called Weinreich prisonment eligibility any participation immediate with nied study able he was time than of of perpetrator of features America, UNITED STATES of Eye-Witness (P. Wall, Identifi- crime.” Appellee, (1965).) in Criminal Cases cation eyewitnesses of none fact Appellant. MILLER, Ollie Juanita recognized the crime No. 72-1192. newspa- photographs until saw Appeals, United States Court potent the ba- per evidence that story is Circuit. Fourth lineup identifications was their sis of photographs memory Argued Sept. 1972. memory observations and not Decided Oct. of the crime.5 time

the robbers at the law is irresistible that The inference agencies mug- released the enforcement newspaper. There was no

shots to the

legitimate purpose law enforcement releasing photographs

served persons pictured

publication. All of the charged with bank

had been custody. No had been- enforcement officers

conducted. Law proce-

knew that eyewitnesses with

dures conducted

had been unsuccessful. Had the officers personally handed these eyewitnesses and made state- quoted ments to them

paper procedure would have been gross violation Simmons v. United 377, 88 (Cf. 19 L.Ed.2d 1247. Foster v. Califor-

nia 89 S.Ct. 402.) 22 L.Ed.2d violation is prejudicial

less stark and no less when

the medium which the displayed

are to the witnesses is the

newspaper.

Error in the admission of the tainted eyewitness

in-court identification was beyond

not harmless a reasonable doubt. impact jury multiple eye- on the

witness identifications of can scarcely be overestimated. “A convic-

tion which rests a mistaken identifi- gross miscarriage cation justice.” is a (Stovall supra, Denno, 388 U.S. at 1970.) 87 S.Ct. at I would reverse and with remand in- grant prayed.

structions to relief danger signals, “Of all the defendant a witness who identifies surely ominous, previously the most failed the trial one most is found to clearly indicating supra identify Wall, op. cit. him.” P. mistake made, have been is that at 113. exists when

Case Details

Case Name: Jesse Eugene Dearinger v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 1, 1972

Citation: 468 F.2d 1032

Docket Number: 71-2806

Court Abbreviation: 9th Cir.