United States v. Philip Smallwood
473 F.2d 98
D.C. Cir.
1972
Check Treatment

*1 of America STATES UNITED SMALLWOOD, Appellant.

Philip

No. 71-1283. Appeals, Columbia Circuit. District 8,1972. Argued March Nov. Decided Washington, Cobb, D. C.

Mr. David court), appellant. (appointed Brookhart, Asst. U. S. E. Charles A. Atty., Messrs. Thomas with whom Atty. Flannery, the time U. S. Terry, filed, U. Asst. A. John brief was Toomey, Atty., Asst. E. and Daniel S. Atty.' brief at the time the U. S. brief, appellee. filed, were on Titus, Jr., Atty., U. also Mr. Harold S. H. appellee. appearance entered Judge, BAZELON, Chief Before Judges. ROBB, Circuit ROBINSON and Judge: ROBB, Circuit jury

Appellant was convictéd (22 D.C.Code. armed §§ dangerous 3202) and assault with 502). weapon (22 He was D.C.Code § to concurrent indeterminate sentenced Act terms under the Youth Corrections (18 5010(b)). appeal On this U.S.C. § he rights that his constitutional contends identi- were violated when was government in a line- fied up, witness and later in We affirm court. judgment. May approximately

At 1:20 P.M. on men, with a two one armed up Hymie’s shotgun, Res- sawed-off held Carry-Out Arkansas taurant and Washington. Avenue, N.W., The man shotgun door remained at other man the restaurant while the proprie- entered the store and told the tress, Hyman, put Mary Mrs. bag. register money in a cash from complied, placing approximately She bag, took. in a the man $86.00 short, this man was She noticed that dark, clean- and that head was *2 Hymie’s then left the hood shaven. robbers store Restaurant. Officer escaped. and passenger Davis sat on the side of the P.M., front seat. At about 1:20 noticed Smallwood, just around the cor- Davis Wheeler, crossing Officer Clarence a Streets, guard Upshur at 13th and with- standing ner from restaurant, next Restaurant, Hymie’s in a block of knew a to maroon temporary Corvair with having by sight, seen him “in Smallwood tags DX-2920. The officers’ attention neighborhood” twenty twenty-five or they was trying attracted because “were Shortly 8:00 o’clock on times. before special notes, especially to take of tem- morning Smallwood porary tags” they “knew that a lot driving post passed a Officer Wheeler’s using tags. temp cars are stolen and bearing temporary li- red 1965 Corvair tag .” Officer Davis noted the tags cense The car numbered DX-2920. number and noticed that Smallwood was “had loud mufflers” * * * “acting standing nervous be- limit,” “going speed a little over looking side the automobile around ifas which led Officer to make a Wheeler waiting to be for someone.” The offi- tag note of the He noticed number. also approximately cers cruised four blocks passengers there were two beyond car, turned back to then ob- car, one of whom had a clean-shaven again, serve the scene found head. gone. Smallwood and the car were Mo- May 11, At about 1:20 P.M. Offi- ments later Officer Davis heard the ra- post cer Wheeler left traffic dio robbery, lookout for the with the de- Hymie’s headed for lunch. On scription of the car and Smallwood. He way standing he noticed next Smallwood immediately realized the car and just parked to his car which was around the man described were the and the car the corner from the restaurant. Small- just man he had seen. He later testified “appeared wood nervous like he the best of recollection the de- waiting for someone.” the offi- As scription “Negro male, he heard was cer entered the two men ran restaurant foot five inches, nine to five foot inches out, being one of them the individual complected, hair, dark close cut head clean-shaven who that wearing green pullover a shirt. morning passenger in had been a ft Hyman Mrs. told When Corvair. May On iden- Officer Davis robbed, the officer that he she had been pur- tified held Smallwood turned, men around followed the two suant to court order. Adams United get corner and saw into Small- them F.2d wood’s car. At the officer this time (1968). Appellant’s appointed court thirty within feet of car. Small- counsel was unable to because got wood off behind the wheel and drove illness, but substitute counsel speed. a fast rate of Officer Wheeler peared for Smallwood. Officer Davis reported went bery, giving a call box rob- also identified the at trial. tag number and de- scription of the ear. A few lat- minutes At disclaimed Smallwood description er also furnished knowledge robbery. He testified Smallwood. knew Officer Wheeler May morning May On 11 Officer Davis and around 9:30 on the plain partner working past Wheeler, he had di- clothes as driven who was recting being officers, Upshur tactical gather their duties traffic at 13th and intelligence make observa- Streets. He that his car was a conceded “things ordinary.” muffler, maroon bearing tions Corvair with a loud out tags assignment they temporary DX- license No. to this Pursuant green neighbor- wearing cruising police car 2920 and that he was tags

1. The listed Smallwood’s name. gone Hymie’s do not think his [substitute had He said shirt. anything add sel’s] ten o’clock at about Restaurant past that Mr. half here. We know until about remained possi- represented and far as as left and went when he twelve believe, arriving ble, house, one around brother’s spread the Court circum- o’clock, before his mother’s then went *3 lineup, leaving Hy- of so would be stances He said that before house. while, stipulate willing that Mr. Small- he his car for mie’s stood beside shooting crap. counsel at the watching wood have kids” did “some any way prejudicing the without in pretrial appellant motion The filed a motion. testimony suppress the identification Nevertheless, carefully exam- After extended of Officer Davis. an bearing appel- ined the record hearing judge overruled the the district assistance, of lant’s claim motion, holding that the of iden- matter appellant conclude that the jury. tification for the was one prejudiced. not challenges ruling pellant now grounds. First, says counsel at a several Substitute requirements testimony of United satisfies officer’s was “tainted” be- Wade, 218, 87 S.Ct. description States v. 388 U.S. cause he broadcast heard (1967). 1926, suspect. Second, argues See 18 L.Ed.2d 1149 of the Neverson, representing the United States v. U.S. counsel Smallwood 133, App.D.C. (1972); ineffective, mot 463 F.2d 1224 he did since Randolph, 143 know at the time that Officer Davis had United States 729, 314, 317, App.D.C. heard the broadcast because Kirby, provide (1970); 138 U. failed to S.App.D.C. think account of the We testimony properly counsel was (1970). Here substitute identification sheet,” “lineup admitted. evidence, he was “sat was in shows that description of the The broadcast appearance position and isfied with appellant that Officer Davis heard coin line-up.” of the A picture appellant cided with the us, demonstrates which is before in mind from that Officer Davis had his justified. The line his satisfaction up own few minutes be observation a Negro males, includ of ten consisted fore the Had the officer broadcast. ing wore Smallwood. description in own recorded green shirt, shirt, not a white seeing immediately after notebook gen array fitted inmen least six hardly appellant, be a valid there could description. There eral slightest description tainted claim that any attempt indication appellant identification of lineup. including persons rig lineup by description was That unreasonably descriptions were whose police does recorded in broadcast description of Small- different from change result, re for Officer Davis v. United Patton wood. As we said upon image lied of Smallwood States, 131 carried his mind. is no (1968), “[t]here F.2d authenticity challenge any kind ineffective assistance claim of is deci photograph, its effect time on counsel is raised for the first Queen, See United sive.” appeal. pretrial At the F.2d noting he had after to know what a loss are at We to the substitute been unable to talk re change have been could in lineup counsel, stipulated he raised known if he had quested counsel point.” said: “no Sixth Amendment He description communicate with the broadcast consequence would have been of lant. if he significant information to communi describing argues Counsel cate. indication, however, There is no appellant, Officer Wheeler noted that substitute had such infor face, appellant’s on the of sears mation, suggestion that he did descrip- counsel concludes that this speculation must be on sheer founded might cued Davis tion Officer and surmise.2 Davis, how- Officer his identification. scars, ever, no reference such made Davis, noteWe also that Officer rely upon them apparently did not observer, a trained testified that on the appellant. More- when he identified the over, day of he saw the photo- important, and more feet, from a distance of five or ten graph not show Small- does *4 descrip and made a mental note scars, although are vis- blemishes subsequently proved tion—a note that standing the men ible on the faces of accurate. He testified that “I see face either side of him. forget I stays and never it. [I]t me .” . There was surrounding therefore a The circumstances the substantial basis for exhaustively the conclusion that explored lineup in the the officer’s identification of the suppression hearing. appellant’s As the lant at trial derived from source inde- stated, they then pendent lineup.3 of the “spread Court.” before the Trial descrip- sel him had available to the full judgment The is affirmed. broadcast, tion which had been witnesses, all names of the identification BAZELON, Judge, concurring: Chief lineup photograph sheet and Appellant’s lineup. Every lineup court-appointed detail of the appeared suppression developed exami- at counsel’s cross ignorant judgment day totally fault of trial nation. We cannot surrounding subject counsel, presence that the circumstances substitute hearing:1 counsel, of that or consultation with substitute identification line up preliminary conducted after nothing. to would added Failure evening present and I wasn’t able to be distinguish facts case lineup. at I viewed a U.S.App. v. United 141 and I viewed the (1970) United D.C. list, appear I was to U.S.App. but unable Estes, Johnson & actually Phillip be counsel (1971) D.C. F.2d 1363 cited lineup. However, wood at I concurring opinion. am In each these following practice sure appellant their usual tending cases the filed affidavits they counsel, probably substitute most to show he was which Defender, I Public but suggestive was unable unfair, identified was appear at The list does appropriate substitute counsel made ob not reflect who was counsel the line- jections, but trial' un counsel was up. aware of these facts. Toomey my [prosecutor] Well, Mr. : Joseph Lynch. indication is 3. That Officer Davis was aware that Lynch: supposed there, Mr. I was to be suspect in the was to evening. but I was ill that lineup suggestive. did not make the I was not. Thurman, U.S.App. States v. United Toomey: you anyone, Mr. Did inform D.C. Lynch? Mr. response prosecutor’s inquiry 1. In Lynch: Well, spoke girl Mr. I to a present as to whether counsel was at the I I said wasn’t and who lineup, following colloquy place: actually said, took was and she “I don’t Lynch any [defense counsel]: I was way know” I said “Is there Court under order to be said, could find out?” and she “I don’t lineup but, I believe was the order of know.” Judge However, Burka. ill Tr. 19-20. requirement, hearing.2 suppress was isfies the constitutional The motion immediately. only began denied, if it “eliminate the hazards [s] and trial stage lineup, an which render a critical at the The identification admitted, suspect’s identification, own in-court specified counsel.”8 two such convicted. the occurrence hazards Wade: Amend- In order decide the Sixth prejudice lineup, at the and the absence case, deter- we must in this ment issue meaningful confrontation at trial why infor- lacked this mine ignorant of such occurrences.9 lineup had been held mation. If the Government, attorney, providing If after absence require substitute fails to make reason- would States Wade ably But, attor- available trial counsel either reverse.4 Smallwood’s lineup, ney appear counsel or the observations failed substitute, provided hearing, pellant albeit those made at the second of haphazard continues unabated. Thus in a fashion.5 hazards rather per rule of se exclusion established suggested,6 ex- Wade apply.10 Wade still held,7 sat- pressly that substitute counsel appears grave there is Since Kirby Illinois, 92 S.Ct. potential prejudice, intentional or 1972) (U.S. 32 L.Ed.2d June pretrial not, in Amendment *5 limits Sixth capable trial, at not be of reconstruction occurring the to nfter counsel events presence itself can and since of counsel judicial proceed- criminal “initiation of prejudice assure a avert often meaningful ings.” 689, at 1882. But Id. at 92 S.Ct. trial, at there confrontation Kirly’s Alabama, citation of Coleman little that the can be doubt Wade 1, 1999, 26 90 L.Ed.2d 399 U.S. S.Ct. lineup post-indictment was a critical right (1970), makes it clear that the 387 stage prosecution the which he of at preliminary time the attach of does aid [of “ns much entitled to such hearing. . . as at the trial . counsel] 1926, 218, L.Ed.2d 18 3. S.Ct. 388 U.S. 87 itself.” (1967). 1149 236-237, (footnote Id. at at 87 S.Ct. 1937 omitted). permit True, the Govern 4. Wade would identifica to in-court ment resurrect express holding 10. there no While is independent show an tion could opinions point Circuit, this our California, 38S But Gilbert v. source. problem have our with the made concern 263, 1951, L.Ed.2d 1178 87 S.Ct. 18 clear: testimony (1967), re would render elects to use Where Government lating auto to identification satisfy to “substitute” ac- sug matically And no inadmissible. rights, may cused’s Sixth Amendment gestion of made admission has been upon prosecution well be incumbent See harmless. either identification was to the observations and ensure U.S.App. States, 141 United opinions of the substitute counsel are 1, (1970). F.2d 155 436 D.C. subsequent- transmitted the accused’s ly appointed trial Under this counsel. only 5. ten in- record discloses view, “diligence” of the trial counsel attorney, dividuals, each with his own learning of the events at the lineup; that a number listed for the particularly is Unless relevant. attorneys’ off names were crossed the Government takes affirmative attorneys list; of and that names provide with the action subject already present on behalf of one report of counsel’s observa- substitute place It entered in of those deleted. tions, the defendant be denied his attorneys appears that some of representing, thus Sixth Amendment to effective perhaps present with- assistance of counsel. many knowledge, prior as four out as U.S.App. Marshall v. United participants in the 18, D.C. 6 n. 436 F.2d 160 n. 18 at at 87 S.Ct. 1933. 388 U.S. (1970) ; see United States v. Johnson & U.S.App.D.C. Estes, g., Kirby, See, e. (1971). at n. at 1938 388 U.S. S.Ct. n. 27. But, request is no indication no a continuance Moreover, suggests record the Government failed the trial. the record Indeed, duty acquiescence hearing either. inferences that his at contrary may be drawn improper from trial stemmed from an desire to sel’s silence. Trial counsel had been avoid censure lack pointed preliminary prior hear- preparation.13 ing; at agree with court this record personal and his both does not show a substantial defect presence were ordered procedures identification themselves. court; discovery he later moved for Although clearly judge the trial surrounding lineup; the events inquiry troubled ended objection no the Govern- made question of sub- discovery response mo- ment’s to that not, thus, stitute counsel.14 do We received, tion; for, and he moved showing “prejudice” a clear in the suppression hearing identi- applied early harsh sense col- complain fication. At no time did involving lateral attack cases ineffective that he access to the lacked reasonable assistance.15 substitute. strong inquiry Amendment does believe that there is case to Sixth Wade, not end If trial made for however. reversal here without such showing. ignorance fully Conceivably, counsel’s traceable in Government, inquire “tactic,” could, still formed attorney must as de challenge performance constituted cide not whether an identification. record lapsed.11 surrounding H hearing concerning e shows assistance lineup,12 no counsel. information inexcusably he made events This knowledge client But an “meaningful of his counsel’s confrontation at only who chance lineup deprives observations learns trial,” nothing sure *as *6 1 1. Moreover, willing stipulate other difficulties with this Mr. Smallwood attention of did come to the have counsel without any way prejudicing in this Court. Trial counsel was subse the motion. you quently Well, stipulating indicted for Oourt: crimes took are place fact, in in that as a near time the trial the in matter this defendant course, guilty did have stant case then of proposition found insanity. In Sixth Amendment has been reason of another case in volving counsel, taken the same care of. doubts as Lynch: performance, Yes, coupled Mr. trial Your And if Honor. note, my Your Honor will motion existence of reasonable doubt as to sanity point. trial, I raise counsel’s at the no Sixth Amendment time Yes, you enough The Oom-t: to show assist have evidence. Lynch: Yes, Honor, yes, ance of counsel. See Your Edgerton, 24,927 (D.C.Cir. Your I No. Honor —I have evidence and June 1972). large part think it it in shows was due my quickly to forming in- dilatoriness 12. Counsel did state that had seen a Attorney the United States and the “line- I the fact wasn’t there and for up list,” supra. note 1 only apologize that I can Court list indicated he had been and take the Court’s censure. suggesting pre- lant’s pared thus Tr. 24-25. place. And, before took any case, accepted “prejudice” spawned “stipulation” He counsel’s rights precisely “preju- the Wade decision Smallwood’s Sixth Amendment is Transcript been him. dice” that accorded counsel could not detect after the fact. See, g., e. Bruce v. United Lynch: 13. Mr. We know that Mr. Small- 379 F.2d 113 represented wood was and as far as possible, believe, 16. A decision to learn spread nothing before the Court circum- of substitute counsel’s observa- is, effect, stances so I would be tions a waiver Supreme

required hand, record other Wade.17 On many factors as to vitally deficient importance in such would provide little aid ruling, and would complex attempts resolve our important to our questions that would disposition. subsequent necessary to send find would supplementation of the case back for relegate if affirmance record remedies. post-conviction however, raise settled, It is support claims fully and more on motion violation Sixth Amendment excusing that ac- for new without showing “due earlier tion with diligence.”18 TV, INC. ELECTRIC SERVICE CABLE Wyo Company tr as Teleservice Pennsylva Wilkes-Barre, ming Valley, Appellant, nia, FEDERAL COMMUNICATIONS

COMMISSION Broadcasting Company al., Taft et Intervenors.

No. 71-1936. Appeals, United States Court of District of Columbia Circuit. Argued Sept. 8, 1972. Decided Nov. lineup. Assuming 1933; see S.Ct. at knowingly, supra. could ever done cannot note 9 Yet, be done counsel alone. 33; See Fed.R.Crim.P. precisely purported what he to do here. n. supra. See note 13 n.