*1 agreement explored possibility on charge.”
the lesser proper, would also be again time,
at that to instruct guilt jury’s duty to determine
innocence of the accused as to of- necessarily
fense included in the crime
charged.4
Affirmed.
UNITED STATES America NEVERSON,
Gregory Appellant. H.
No. 23732. Appeals, Court District Columbia Circuit.
Argued Dec. 1970. April
Decided
1972.
(appointed
Warren
S.
Mr. Charles
court),
appellant.
supra
Blackmar,
17.11.
§
note
&
1 Devitt
appropriate
is set out
instruction
An
*2
Zylber,
paper bag
Broughton
Earnest,
vid
a
asked him
M.
Asst. U.
and
began
money.
Zylber
Atty.,
A.
to fill
Messrs. Thomas
with
As
with whom
S.
filling
bag
Atty.
$2,000.00 con-
Flannery,
at the time the
with
S.
U.
Terry
register,
filed,
Ed-
Herbert
and
tained
cash
John A.
brief was
Attys., Wheeler,
employee,
Williams,
S.
a store
returned
A.
Asst. U.
win
brief,
appellee.
a
from stock room
counter.
behind the
were on the
display area,
the main
As
entered
Judge,
FAHY,
Circuit
Senior
Before
robbery
progress.
realized
a
that
ROBINSON,
Cir-
McGOWAN
watching the as-
He stood
the counter
Judges.
cuit
being
paper bag
sailant while
act,
Zylber completed
filled. Once
this
Judge:
McGOWAN,Circuit
bag
robber,
who
handed the
jury
Appellant
a
of
was convicted
store,
slowly
then
backed
out of
(22
robbery
of
D.C.
two counts
armed
keeping
shotgun
purloined
2901),
of
two
assault
Code
counts
§
pistol
fixed on the three men at
(22
dangerous weapon
D.C.
with a
robbery
longer
counter. The
lasted
carry-
502),
and one count
Code §
than
and one-half
two
to three minutes.
(22
dangerous
weapon
a
D.C.Code §
3204).
appeal,
raises
On this
three
gone,
Shortly after
the robber had
issues,
one of
substantial
which Lieutenant
of Metro-
Edward White
process
is a
due
chal-
Fifth Amendment
politan
Department responded to
Police
lenge
against
evidence
a
radio run and arrived at the scene
ap-
For
hereinafter
the reasons
him.1
Zyl-
time,
that
crime. At
he showed
pearing, we affirm.
photographs
possible
ber and
suspects,
make
but neither was able to
Zylber professed ina-
an identification.
features,
bility
remember the
robber’s
approximately
April
on
At
8:30 P.M.
that
Wheeler informed the officer
liquor
a
robber entered
store
the robber was between 5'5"
5'$",
southeast
section
the District
complexion,
Negrо
awas
of dark brown
Columbia,
uncovered
sawed-off
goatee,
had a
black
short
and wore
shotgun
coat,
from underneath his
ap-
waist-length
Washington, who
coat.
placed
weapon
the barrel
parently
photographs at
did not view
Washington,
pri-
stomach of Fred
D.
gave
time,
a similar
that
description,
Officer White
guard
standing
who
vate
except
described
that he
Washington
store’s entrance.
was or-
wearing
assailant as
5'7" and
around, and,
obeyed
dered to turn
as he
waist-length
either brown
coat that was
request,
the assailant unbuttoned
day Washington was
or black.
next
The
Washington's
removing
holster,
a .38
He viewed
called
station.
calibre Colt revolver. The assailant
photographs, with-
between 200 and 800
Washington
reg-
then marched
to a cash
point, appellant’s
this
At
out result.
ister located
rear of the
store.
photograph
been
Upon reaching
point,
robber
eyewitnesses.
proprietor
photographs
store,
handed
Da-
shown
Appellant’s
points
giving
other
a standard
two
court of
relate
jury
Although
charge
retired
before the
the conduct
the trial.
Allen
Although
gave
the standard instruction with
necessitates
reversal.
deliberate
argued,
respect
have,
di-
case
to the Government’s
burden in
since this
we
proving
changes
identification,
text of
which instruction
rected certain
Thomas,
expressly
approved
us, appel
charge,
has been
(1971),
error in
Virginia co-defendants. had White Washington and Wheeler.2 photograph one of thе recovered revolv- ; photograph er and one revolvers of two May 28, 1968, Lieutenant White On very which were similar to the one taken Manassas, drove to and Mr. Wheeler Washington. from might Virginia, in order that Wheeler May 8, 1968, appellant On view a in which partic- Washington Virginia him codefendants would visited show these two ipate. hearing, that, photographs. pretrial appears prior to line- At the admissibility up, appellant he held to had seen determine Wheeler being trial across the street from identifications made at taken crime, Washington county jail tes- house. This witnesses to the the happened to the court first and Wheeler tified Lieutenant White because White eight jail approximately happened or nine in showed to arrive front appellant photographs just make taken to a from which he could preliminary hearing no identificatiоn. Then Officer White held in connection robbery charges pocket against reached into his and showed with the armed Washington Virginia.3 Following prelim- or additional him in three four issue, going licemen, no has raised either in and two other men county here, upon jail the trial court to the court house. or founded Washington-Wheeler testimony not tell Lieu- as to the did Wheeler added - appel- recognition manner which White exhibited of his tenant White photographs. long lant, no time White So there is evi- that at the same lineup might showing photographs explained dence cessively to him that suc- sequence appellant groups delayed in a two because was scheduled hearing effect, preliminary suggestive purpose appear either a problem record, morning. we see no on this even if that, while be assumed that testified White’s recollection Liеutenant White faulty. observing group men he recalled county jail walking from the court seeing appel- that, house, 3. Wheeler he did not remember testified as he and Lieu- park group. tenant did not recall White were car lant in that telling appellant Manassas, appellant, po- he saw two ever inary might suggested hearing, appellant (White) was returned while he jail lineup. for the The room free the latter would be position was held lacked to move to different physical usual fa- accoutrements which did offer such advice type cilitate of identification. while Lieu- Wheeler was the room. on- small and with crowded tenant White also asserted that Wheeler participants prior lookers. The five had talked to com- a row were stationed front of mencement of the vending machines. Appellant’s father suggest The record does nоt that there had come mother any significant discrepancy day Manassas that order to attend stature, partici- age, preliminary hearing. or dress of the He further testi- White, pants. walking It is certain that Officer fied had been point prior some to an identification son from the house appellant, invited to shift *4 he when noticed Wheeler Lieutenant positions lineup, general the did. approaching in which he in White area Wheeler, lineup, Following preliminary when he confronted the their car. appellant, hearing, again accompa- tall. identified who is he and his wife 6'2%" appellant jail and nied back to the into concerning lineup Further details lineup the room where conduct- was are not well established. Each witness that, He said his son ed. entered suppression hearing at was who room, he overheard Lieutenant White present gavе confrontation ex- that appellant’s mention name Wheeler. testimony as sur- tended to the events ap- The father claimed he then that rounding it, but there were differences proached “if he Wheeler and asked him in their recollections. Gregory Neverson,” which 'to [knew] that, upon entering the Wheeler stated negative. responded Ap- in the Wheeler jail, a he he was taken to where room pellant’s he and father also claimed that sipped waiting the line- coffee while hallway side-by-side in Wheeler stood a up said that was to be held. He he con- outside the room in which the nearby due course to wait in a asked eventually held, was frontation lineup preparations room while for the arranging observed Lieutenant White requested to were made. He was then lineup participants. Appellant’s five original room, he reentеr where also that he father testified believed immediately lineup iden- viewed at the Wheeler to have been intoxicated appellant li- tified as the robber of the time. quor he store. also Wheeler stated that lineup, prior had talked to no one Davenport, law- P. a Manassas James and that he had never noticed yer was across the street whose office activity suggestive part of- on jail, received testified he indicating conducting it, thereby ficials asking a official a from local call that he had invitation not heard White’s rep- lineup in order to to attend the appellant position to choose own appellant.4 he When entered resent lineup. in the jail, it was noted room participants crowded, in the and that Lieutenant also White testified already assembled were another when Wheeler was in room thаt, vend- being arranged, which contained side of the room was might lineup, patible This Amendment. with the Sixth or that upheld practice. delayed preliminary See has due U.S.App.D.C. 262, Queen, hearing. 140 v. (1970) ; United States F.2d 66 435 Kirby, F.2d Supreme Court said Wade 4. The (1970). representation defendant lineup by com- substitute counsel was Wheeler, who was never dence the Government. machines. eyewitness, Washington in-eourt identifi- him as the both made identified to propri- that, Moreover, appellant The present. cations of as well. stated etor, Zylber, began question Lieutenant recounted the events as he conducting robbery, identification. made no the wisdom of but conditions, lineup under these Another called the Govern- witness Finally, appellant. Wheeler identified Josey, the owner of ment was Samuel Davenport testified agency. detective appellant indicated to White had pistоl issued to serial number of the employee, positions in- was free shift Washington, matched Davenport appellant did, appel- pistol time recovered police officer uncertain whether Virginia. In lant’s order arrest On called amination, name. cross-ex- revealing prejudicing appellant avoid that, Davenport conceded the fact that he been arrested he believed Wheeler while Virginia, the follow- similar offense ing stipulation room, initially entered jury: was read eyewitness possible re- that the May 6, 1968, the de- On or about nearby moved Gregory fendant, anoth- Neverson and addressed Lieutenant White in a man arrested field er position re-On about his Virginia. County, Prince William Davenport direct, that he re- stated vicinity of their arrest approximately five turned to his office searched and two revolvers *5 eight after received minutes hе had was a .38 of the revolvers found. One phone requesting his assistance. call revolver, serial blue calibre Colt steel No. 607853. suppression Appellant testified at the hearing put that and Wheeler The defense three witnesses Albritton, present during preliminary had both his who the stand. Charles hearing, appellant in been Vir- which was conducted in the convicted with prior pistol in ginia robbery, to the also house He testified that ap- question belonged claimed that White and ob- to him and not to Wheeler being bought pellant, a served him he lineup, hand- it in led and that he had crap game only days prior his into and a cuffed that Wheeler few Virginia. Appellant took at all times when the in next arrest arranged by presented he was tion, In addi- an alibi White. stand and that evening appellant spent question in that Lieutenant entire stated had suggest- drinking company a White called him namе when at a in the bar ing might change positions. he Mitchell took that James Mitchell. friend testimony. support this the stand to judge, The trial at the conclusion of suppression hearing, appel- denied II suppress photo- lant’s motion to both graphic Appellant that color identifications contends eye making any findings specific photographs without ei- shown each orally impermissibly ther trial, At memorandum.5 witnesses were “so photographic suggestive give very to a sub- identifications rise eyewitnesses, irreparable mis- both Wheeler’s stantial likelihood identification, were evi- Simmons v. United introduced into identification.” expeditious compound unhelpful 5. As if to hand be “in the interest of ling matter, judicial ruling of the neither did the trial for administration” judge suggestion take heed of an inde our as to whether there is Clem made States, pendant ons v. United 133 for an in-court identifi source 27, judge 34, 1230, (еn cation, (1968) F.2d 408 1237 if the trial finds even banc), denied, 964, challenged cert. 394 U.S. 89 S.Ct. evidence 1318, (1969), 22 L.Ed.2d that 567 valid.
1229
967,
384,
complained
appellant,
States,
377,
88
are
we
S.Ct.
U.S.
(1968).
sup
Simmons, following
ap-
delayed. testimony inesсapably im as to this We think that White’s Wheeler, except plicit in denial of the motion matter that of the court’s confirms suppress acceptance by not it of did extend to was the that White’s recollection testimony saying anything about Wheeler and White to his to Wheeler delay. any event, there is noth- was not in the room dur In that Wheeler lineup; ing suggest ing arranging confrontation of the any- appellant was between the conclusion that Wheeler did not hear Wheeler thing appellant in connection chance. address other than a matter of testimony supported changed position. is am This even with the There defense, ple support for a res father for the record such and, questions; and Wheeler who said he White olution of factual saw these approaching holding resolved, in their as he was walk- so is no basis for car there appellant from the Wheeler’s identification evidence viewing. lineup It is obvious tainted house. testimony ap- judge did not credit the is, course, it- true that the pellant Wheeler and himself that both appears self under not been held hearing. preliminary White were pre- conditions, ideal such as those as sumably line- would have obtained if the re Under the circumstances up police headquarters had been held record, vealed in this view the we do not Washington. was in But wanting in street confrontation as due custody Virginia police testimony process, and as to identi Virginia crime, Lieutenant White validly admitted fication was into evi investigating was in Manassas on an Long States, dence. App.D.C. U.S. mission. see if an mission was to That 315-316, 424 F.2d eyewitness to the crime—Wheeler-—(cid:127) (1969). 803-804 identify appellant; it was could upon by ap- second relied The matter thought lineup was, that a as this court pellant characterized some also is said, and fairest has so often the best testimony. conflict suggests means to this record end. arranging that, while White testified us made sin- that Lieutenant White lineup, invite he did lineup he cere effort to hold the best any position preferred, but move to including circumstances, could under the done while not provision substitute counsel. was in testi- the room. Wheeler himself attorney reputable counsel was a That fied that he was taken into the testimony arranged his fulfilled in Manassas and until the had been which, in view recognized ap- viewing, functions his and that he presence Supreme Court, pellant instantly upon seeing as as- Davenport, counsel, conceived of counsel at suring, namely, the substitute first reconstruc- the accurate said that Wheeler was the room (Davenport) arrived, at trial of the circumstances tion later modi- but testimony suggests lineup. Davenport’s testimony possi- embrace the fied bility opportuni- as much did not have that Wheeler had sent to been repre- ty make nearby lineup arrange- have liked to as he would room while the shifting including the circumstances made, sentations ments were testimony shows that Appellant’s position appellant. fa- *8 invited in room when White he was the ther in said that Wheeler was not the any position he chose during arrangement to take itself the arrangement part line- standing him as with the but was up, presumably appellant’s selection hallway. Appellant contra- out in the Davenport’s approval. Daven- saying testimony by met with dicts this lineup port’s reservations about in the room Wheeler testimony, de- seem, to throughout arrangement line- crowd- mainly from the small up rived White. 1232 Ash, U.S.App.D.C.-, 149 ed v. room, States and not to the ed character of the (1972), well-estab- lineup 461 92 F.2d itself.
constitution general principles lished law. any pur in all this do not find We pose part White to on the of Lieutenant THE VIRGINIA PRE-LINEUP lineup appellant, rig against nor do IDENTIFICATION find this record circum that on we robbery in after Some weeks two failed to meet stances of the city, Vir- arrested process Al requirements of due law. ginia Cir- a crime committed there. for exception though appellant not has taken court’s referred to cumstances appeal effectiveness of on this to opinion naturally Virginia quite led the by Davenport, assistance rendered him au- with the authorities to communicate nothing in the we note we see Washington man thorities compels characterizat record Neverson, might Virginia, held ion.9 robbery. Washington sought one for judgment conviction is af- The Accordingly, White, firmed. arranged Washington, Mr. Herbert is so ordered. It Washington Wheelеr, to a witness A. robbery, accompany Manassas FAHY, Judge (dissent- Senior Circuit being where Mr. held. Neverson ing) : sup- hearing At the motion My disagreements foregoing press Mr. identification opinion are it no error in the finds on cross-examination admission in trial evidence at as follows: identification of Neverson outside the you Q Wheeler, went jail Virginia,1 immediately ensu- you Virginia, see did ing lineup inside, identification line-up ? defendant before the findings by court, absence of the trial Yes, A I did. respecting both these identifications. Q you see him ? did When I The outside identification vio- conclude taking They A him from process, lated due and should have been jail courthouse. Wade, excluded under 218, Q day 1926, 388 U.S. 87 18 the same as the L.Ed.2d S.Ct. Was (1967). line-up 1149 The I ? conclude U.S. mons v. United both Wade and Gilbert v. Amendment ment (1967), and our en banc decision in Cle- findings 408 F.2d (due process) violated S.Ct. (right think constituted States, both (1968). and the Sixth counsel), California, Fifth L.Ed.2d 1178 Thе error un- Amend- absence under 388 to ing A (cid:127)>:- A Same Q A Yes. Q you across the Did Lt. Just before Yes. [*] you day. saw courtyard [*] say [*] mention he was defendant ? [*] ? anything supposed [*] walk- der the be down there 10:00 o’clock court’s en banc decision Unit- testimony fully lineup repro- within The on this record veas judge province dissenting opinion replete make. duced in the is of the trial conflicts; with direct and the dissent Neverson 1. When this occurred encounter appears unwilling infer the trial being across area taken ruling upon sup- court’s the motion to vicinity and the courthouse. press necessarily upon its rests resolution going from the former Whether he was prose- of those conflicts in favor immaterial. versa is latter vice think, said, cution. We as we have testimony clear about denial of the must be motion taken taken to clear he that. *9 reflecting custody. resolution, such a and that the defendant taking the same time that they line-up, him were but gentlemen thesе led over something. or trial hearing ? Q pointed the defend- out And he day. Yes, it same A was the ant? Q indicate Did sort Lt. White No, A did not. leading they was, were there he get Q impression that you Did hearing? him to the they were defendant it was the No, A he did not. taking trial? to the were policemen line-up that them to the courthouse for coming ing I ever went the man “They”? more men somebody here, man before. we saw cause it * THE WITNESS: ->:(cid:127) [*] THE COURT: THE THE WITNESS: Yes. THE THE THE WITNESS: THE THE A Just THE got place lot. And seen you going across when says into, I COURT: COURT: WITNESS: # [*] -x- at that WITNESS: COURT: COURT: looks man, where else ? Is that were saw that man and this like day? courthouse, into the parking lot, -x- * [*] they guess him before like I they we say, This Including Did How And defendant, were they * him.2 you -x- [*] Yes, or one before. I may were Yes, jail. saw I ?not gentleman you was with say, you I many ma’am. going man * * [*] guess. you having something. ma’am. We were ? recognize you say, Sgt. So when seen late, say you or two before taking got people aсross -x- [*] -X- park- one? two say be- is, outside is cross character of ensued, only precluded because contrary The court’s reliance circumstances said while he was outside of before At On Re-direct: up, On Cross: This identification was? [*] A Q * (cid:127)X A Q A Yes. Q Q Q I A Virginia and on re-direct did you saw You When While Yes, When Did Yes, I of its to United States v. recognized him, yes. [*] [*] * trial, you described courtyard I just line-up? you recognize him at all recognized discussed you you walking impermissibly did. see the line-up [*] * [*] encounter view this recognized man earlier. validity of the went said upon the itself almost pre-lineup incident as follows : walking [*] [*] -x- or whatever room ? there defendant you more out to the my opinion him. inadmissible. line-up, you seems immediately [*] [*] * ? went Wade, him there suggestive across unplanned fully, [*] (cid:127)* -» at down line- all it it is where (cid:127) X X X X U.S. S.Ct. X X Q “Suggestion Sgt. said, inten- can be created When White mentioned unintentionally many you tionally sub- looked like the ways,” and, course, late, unsubtle because lead- tle ways. hearing, him over this at leading point testimony policemen, in answer two I note that hearing suppress questions. on the motion to men, three said there were other than *10 1234 lineup technique designed seen, to Mr. Wheeler testi- is As we arising its aware insure trustworthiness from that he was of fied this encounter Ordinarily arrangements. taking it must Never- own the authorities array persons an of from To consist of from to the courthouse. son might identify per- line-up,” which a witness repeat, “just Lieu- before petrator The desired of an offense. Mr. Wheeler mentioned White tenant suspect supposed (White) be trustworthiness is lost when that “he custody here, police identified, is as 10 o’clock for down there taking independently just prior or him to a trial but referring lineup. permissible, obviously as the
something,” to Nev- If is holds, Although it now seem de- not clear whether court would it is erson. stroy actually lineup technique of mentioned as a means Lieutenant inescapable obtaining name, admissible evidence consistent- it seems Neverson’s Neverson, ly process with due of law. No authori- as the reference courtyard ty support being a is advanced to the admission across led at trial an Lieutenant White of such identification. distance from short Wheeler, was Lieutenant White’s Apart above, from I shall as identity man confirmation of the try explain, the substantive recognized and he then Wheeler testified suspect lineup to counsel a identi- picked a little later out granted fication Wade holds was not States, Long v. United The situation in requires. Amendment Prelim- Sixth 311, U.S.App.D.C. 799 424 F.2d 137 inarily, is made the recent reference court, altogeth- (1969), cited en bane decision this court in United er The fortuitous elevator- different. Ash, at-, U.S.App.D.C. 149 States v. lobby ac- identification there 461 F.2d at where United States commentary upon companied by police Allen, 133 408 F.2d identity Long. Here (1969), approvingly, 1287 is cited suspect White indicated that suggests again authority on its something.” a taken “to trial or abiding an that out of “an concern for Moreover, judge made find- the trial no ensuring interest a combination I think this identification. intelligent fairness and effective finding suggestive- impermissible enforcement,” technique law ness could Be that as not be made. safeguarding means of the fairness may was made. The admission of none procedures, should identification counsel clearly identification trial seems descrip- given lineup any prior process un- to have of law violated due given suspect tion of decisions, der Wade and our aside lineup Spriggs v. also See witness. sup- necessity findings offered to Wilson, U.S.App.D.C. 177, 419 F.2d 136 pоrt contrary position. (1969). sets out other 759 Allen also
steps which, taken, if would contribute lineup: trustworthiness THE LINEUP IDENTIFICATION First, presence lineup upon 1. The heels we note followed courtyard of counsel at a serves not identification of Never- challenge to immediately pre- to allow informed son an Wheeler. The ceding alone, my opin- made to identification evidence trial, ion, precluded admissibility likeli “to minimize the unduly suggestive imper- hood identification. One of the missibly suggestive procedures It would confrontation.” seem enumer- might suspect best be able Wade counsel ated in is when “the pointed during lineup.” to serve his interest out before client’s given justice This, in ad he is interest of if U.S. at at 1935. S.Ct. seen, effectively names of as we have vance what attend; occurred' witnesses who here. *11 rectly, Deputy crimes identified himself place as a
time, nature and Marshal, said, descriptions I involved; believe D.C. like to witnesses And told me that he would me there, any, suspect, which if present, police. be and, Neverson was since given Counsel to the correctly, if I recall I am not might a role in set have allowed be proposing ting sure that he used name. up attorney’s tute counsel witnesses clearly negates ture descriptions lineup (1) yond at lenges If such a might or circumstances “Substitute” changes Manassas lineup. remarkable. attend, (2) the crimes objections bewell could to the testimony, to avoid the name of the procedure were (Footnote successfully the substantive given counsel physical given that, raised involved, Not unknown to suggestive suspect time, place now absent to the in advance What omitted) was called staging at the time 408 F.2d witness who (3) was substi- followed, occurred plain police, the raised features. right nor quoted, counsel error chal any na- be is it words, into this. And Mr. Neverson was shifted should move from where he afraid I ing was indicated that Mr. Neverson then there was some around, was held. standing over here line And when a attorney line-up I -X- In [The witness was was conscious of line-up. up, any witness who but, in room was then then, [*] center. case, be and it was couldn’t ended present [*] any Marshal told them said there put up case, *X* quote shuffling. required near this on this end and when a described] as during [*] [Neverson] I was center of identify- recall, that an [*] all exact I am door. over be tion to street from the courthouse ticed law tion. This is counsel. He suppress Mr. Manassas Davenport what defense directly said: the counsel. identifica- across jail, and prac- mo- change of names. I do -K BY WARREN: not recall MR. -X- position. But [*] that there was he was -X- singled n » out to [*] use then, ately went into the jailer’s the lock proached jail? you see ? cy, to find out what I Neverson. ceived this over to the 1968] A Q A I so I other call was What There seemed trotted across the when When room which completed me up. сall, And I went happened I jail you and, I received jail room, And my then, was wanted got there, if office [on I on, right gentleman ap- over to remember regard Mr. a call telephone call, go and immedi- some street over outside of what for. you May 28, is, urgen- come cor- did re- procedure, I had talked that I to me as all this took Gregory later identified present in the A I talked to [*] Q And I A Q back witness, gentleman Did Now it Yes, had house full -x- was also at the Neverson, either before or you sir. He was to him place? [*] office. talk to who identified your as the him after that. conscious of individual before at all Deputy Marshal. at this time when [*] recollection standing witness, people wait- after during that, [*] Neverson, who the fact himself ? yes. -x- near And
Marshal as to all? I remember ducted and also [*] A Q With Negative. [*] regard manner in now in such a questioning [*] why it was [*] which it was «(cid:127) line-up at big Deputy [*] rush con- cance And, fact that On cross-examination started A [*] except Yes. find -X- moving. soon nothing I was following: [*] I conscious of the [*] of added waiting arrived, [*] the United for me. signifi- things -X- *12 happened Q done. you But this all within a How far were one very quickly identifying after I came time from the matter — witness that brought the room. Washington? down from any explanation given Probably along- standing There wasn’t right A me, before it was done. side of him. ing take, Q How as long best did the whole as you can remem- proceed- [*] Q So [*] your testimony today [*] [*] -X- 'X* your ber? remembering reliance on this for over year’s period time, isn’t ?it my A I think I was back in office minutes, maybe eight. five recall, A Of Yes. must I You as only course, pointed it out, only takes me about 30 sec- it I was the ever onds walk across the street. attended. It does stand out. Q * * * * -x- any questions * Were there asked you composition as A When I was first conscious of line-up you agreed standing disagreed [Neverson], or if him or he was way group subsequent- it was done? the end ly put were into a line. Negative. only explanation A The given Q you that was was that it Did watch was neces- rest of sary attorney present. time, put for an until in the The was, comment that I madе line? going “You are have you A I not am sure I know what say here?” I believe I did At that. by watching. mean point it was in the middle it. Q you watching shuffling Were them ar- people And range thing line sort of around. you Nev- first saw Mr. you THE cus- COURT: Where do so erson and on? tomarily your line-ups over have there ? A I for. That is was there what THE We do not have WITNESS: Q watching You the iden- weren’t my years And six room. you tifying then, witness ? attorney a Prosecutor and defense A were within a matter We that, I about another 10 or 12 after I or four feet each three other. attending line-up. don’t recall paying that much attention wasn’t THE You COURT: don’t customar- him, no. ily them? your Q or side was back No, THE ma’am. WITNESS: identifying rear, not? The was he
BY MR. WARREN: witness ? Q your you observation, From do A I have no idea. you stepped feel that once in the door he was Q where idea have no You you of that then could see or arranging line? they were while everything hear went оn testimony. my A That was small room? Q you knew, subsequent all he could have to be tify For able at the trial to tes- to that been back radio room while effect. He hastened being arranged, request he? line was couldn’t across the street at simple explan- Manassas with the possible. A That is There was a deputy marshal, quoted ation man, standing alongside you, as I told Davenport, required “It was Deputy Marshal first went when attorney in and he later turned out to be the requires was held.” Wade effective man who identified Mr. Neverson. assistance of counsel because the Court happened minute What to him the recognized that this would be the best between, inso I don’t know. against insuring impermissible means of suggestiveness Davenport’s In addition Mr. version process. of due violative lineup, of the conduct of was the tes- the Wheeler, requirement purposes of counsel for timony witness, оf Mr. giving suggestive- of ness, advice to reduce White, appellant’s father, subsequently and for reconstruct- finally, appellant and, himself. conduct a trial so testified that the room *13 fairness, court can measure its is suspects being arranged where the lineups. to the end means of fair And lineup, for the he waited in an ad- process Gilbert makes clear that due jacent sipping room He coffee. further possibility does not tolerate un- spoke prior testified that he no one accompanies fairness that uncounseled lineup and that he noticed no lineups by Wade, outlawed unless the suggestive activity by the authorities. lack of counsel results in error deemed Lieutenant White also testified that beyond harmless a reasonable doubt. adjacent Wheeler waited in the Davenport’s testimony amply dem- any- spoke and that Wheeler neither lineup onstrates that the Manassas was prior lineup to the shuffling. nor witnessed effectively uncounseled, record any replete with inconsistencies as to Appellant’s father, hand, on the other lineup whether the was otherwise fair. testified that Lieutenant men- For all he was able to contribute to prior tioned name to Wheeler lineup through fairness of fault no — lineup that both he and Davenport simply his of passive own—Mr. lineup arrange- Wheeler watched the ignored witness what oc- ments. testified that both serve, curred. This I think fails to appeared pre- White and Wheeler through Amendment, Sixth un- liminary hearing, that both watched derlying process Fifth Amendment due place led in the handcuffed to purpose of Wade. lineup and that Wheeler witnessed the arrangement including process, entire THE ABSENCE OF FINDINGS hearing Lieutenant White call by findings name. The District made Court courtyard pre-linеup whatever as to the appear It does not from Mr. Daven- lineup identification. As to identifi- port’s testimony, otherwise, or cation, hearing at the conclusion of the had been even advised to be suppress on the motion to the identifica- anyone counsel for tions, the court ruled first that ear- was frank and honest and is no doubt an photographic lier identifications were lawyer, unacquainted able but he was suggestive. Turning lineup not lineups. During approximately identification said: then years experience county sixteen prosecutor attorney corroboratively and defense custom- I find that he was arily lineups had not been held in Prince identified in one of the County, Virginia. Therefore, complaining William undis- His witnesses. puted testimony suppress that he demonstrates motion to identification is opportunity helpful except had no denied. prе-lineup finding explicit dence at trial of both That is all. my lineup view identifications would made that an identification require reversal, disputed. least remand for or at not of course is findings, admission of ev- implicitness unless the the find- There ing. is no any be harmless also deemed to idence were exclusive It seems however, court, not error. The does finding pre-lineup identification suggestive, It finds no error impermissibly or find harmless error. was not the evidence either in the admission of lineup identification identifications, or impermissibly suggestive, of both the Manassas Never- or that findings. disagree. adequately represented absence coun- son was lineup sel, or that the pre-lineup identifica- not affected disputes tion, ar- evidence as to how the ranged held. court concludes Our finding that identifi- photographic cation corroborated identifications, admission followed GLOVER, of Lois In re ESTATE identification, ais of that the evidence Deceased. disputed issues of all factual resolution a conclusion that essential to Mary Glover, GLOVER and Alice consistently were held identifications Appellants, process with due law Not of counsel. the effective assistance Harry TAYLOR et al. *14 courtyard was the identification No. 71-1074. court, ei- even trial referred to itself, ther in its relation Appeals, Court lineup identification, but the above District Columbia Circuit. conclusion reached our court seems April 1972. recent me inconsistent with the Ash,
holding court of this en banc comparable situation, as a different but
follows: suggestive- Certainly the elements enough strong so that
ness were
cannot assumed undue there ex- suggestiveness, in the absence
plicit findings trial court. -, U.S.App.D.C. 461 F.2d
CONCLUSION States, Under v. Clemons United 408 F.2d
I would hold that at trial the admission requires exclusionary per new under trial se California, supra, un- rule of Gilbert
less the is able declare beyond
error was harmless a reasonable say if
doubt. Even we could per exclusionary Gilbert se rule does not
apply, in evi- the erroneous admission