UNITED STATES of America v. Robert L. SCRIBER, Appellant.
No. 72-1841.
United States Court of Appeals, District of Columbia Circuit.
May 16, 1974.
Rehearing Denied June 14, 1974.
162 U.S. App. D.C. 388 | 499 F.2d 1041
Before FAHY, Senior Circuit Judge, WISDOM, United States Circuit Judge for the Fifth Circuit, and WILKEY, Circuit Judge.
Argued April 19, 1973.
The only point appellant attempts to make with respect to the testimony of the absent witness was that appellant‘s trial counsel should have been afforded the opportunity to cross-examine the witness as to where she was standing when she saw the murder. Testimony on that precise point, however, was fully elicited through extensive cross-examination by defendant‘s counsel at the preliminary hearing and at trial by cross-examination of Crowder who was with Miss Brown. Thus no objection is raised that in any way goes to the reliability of the testimony and the claim of prejudice in the lack of any cross-examination at trial is shown not to exist. I would accordingly affirm the conviction.22
N. Richard Janis, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
WILKEY, Circuit Judge:
Appellant and three others were indicted 25 May 1971 on three counts of armed robbery under
At a pretrial hearing on defense motions to suppress, the court ruled that the Government would not be allowed to introduce at trial earlier lineup identifications of appellant by five eyewitnesses. However, the court held that despite the impermissibly suggestive nature of the lineups, the five witnesses could identify appellant at trial because their in-court identifications would be based on an independent source.2 Appellant contends that he was denied due process of law by the court‘s refusal to suppress the eyewitnesses’ in-court identifications.
He further argues that the trial court erred when it failed to impose sanctions on the Government for the loss of certain evidence that might have been useful in appellant‘s defense. The lost evidence included police notes of eyewitness descriptions taken on the day of the crime and an array of photographs from which three of the eyewitnesses identified appellant prior to trial.
We find that the trial court did not err in allowing the five eyewitnesses to identify appellant in court and in not imposing sanctions for the failure to preserve evidence. We therefore affirm appellant‘s conviction for armed robbery. However, we must vacate his conviction for the lesser-included offense of assault with a dangerous weapon.
I. Factual Background
On 20 January 1971 four men entered the Cleveland Park Branch of the United States Post Office. Three of the men proceeded to the area behind the service counters where the postal clerks and managerial personnel were working. While the man who remained in the lobby held the employees there at gunpoint, one of the other three pointed a gun at the supervisor, Mr. Myrick, and instructed him to “cool it.” The other two men, one of whom was subsequently identified as appellant, rifled the drawers behind the counter and removed approximately $800 in United States Post Office money. The man identified as appellant later accompanied Myrick to the Post Office safes and stood by as Myrick opened two of them. Neither safe yielded any further cash. After spending five to seven minutes in the building, the perpetrators of the robbery fled.
Later on the day of 20 January Detective Sergeant Noone of the Metropolitan Police Robbery Squad interviewed the eyewitnesses and made written notes as they described the robbers. On 1 February he returned to the Cleveland Park Station and displayed several black-and-white photographs3 to Mr. Myrick and two other employees, Mr. McGriff and Mr. Baylor. Each witness, outside the presence of the other two, selected appellant‘s photograph from the array. Appellant was arrested on 3 February. On 4 and 11 February Myrick, Baylor, McGriff, and two other postal employees who witnessed the robbery, Mr. Johnson and Mrs. Taylor, identified appellant at police lineups.
At the pretrial suppression hearing, held the same day as the trial commenced, the five eyewitnesses who had identified appellant testified, as did Detective Sergeant Noone. The eyewitnesses were questioned by government and defense counsel4 concerning their lineup identifications, and McGriff, Baylor, and Myrick testified about their selection of appellant from the photographic array. In addition, the five eyewitnesses briefly outlined their recollections of the robbery, testified about how they had described the robbers to the police, and identified appellant in the courtroom.
At trial McGriff, Myrick, Baylor, Johnson, and Taylor appeared as prosecution witnesses and identified appellant as one of the robbers. In addition, two other Post Office employees testified to the fact of the robbery. The defense presented no evidence. The court submitted the case on instructions to the jury, which returned guilty verdicts as described above.
II. Independent Source for the In-Court Identifications
The trial judge‘s ruling that the five eyewitnesses could identify appellant in court was proper if “the Government . . . establish[ed] by clear and convincing evidence that the in-court identifications were based upon observations other than the lineup identification.”10 The finding by the trial court that the eyewitnesses’ in-court identifications were based on an independent source is entitled to great deference on appeal,11 particularly since the trial court had the opportunity to observe the demeanor of the witnesses and thereby assess their credibility and reliability.12 Upon examination of the record,13 we
The record reveals that the five eyewitnesses who identified appellant at trial had excellent opportunities to observe him during the course of the robbery. Appellant wore no mask to obscure his features.14 The Post Office was illuminated by fluorescent lighting, which was described as “very good.”15 Behind the counters, in the area where appellant was operating during most of the robbery, there were no screens or barriers to obstruct the employees’ views.16 Appellant was in the building for a period of from five to seven minutes.17 When Myrick led appellant to the Post Office safes, he spent approximately three minutes either “side-by-side” or “eyeball to eyeball” with appellant.18 Appellant rifled Mrs. Taylor‘s cash drawer while she stood “right beside” him,19 and he warned her that “if [she] continued to look at him he would shoot [her].”20 McGriff testified that appellant was in his presence for three or four minutes during the robbery21 and that he got a good look at appellant‘s face from a distance of about ten feet.22 Baylor had an unobstructed view of appellant from about fifteen feet away.23 Johnson remembered appellant as one of the men who “came over the counter and was taking the money from the cash drawers”24 and testified that his opportunity to view appellant lasted three or four minutes.25 The excellent opportunities that the five identification witnesses had to observe appellant during the robbery were clearly sufficient to provide a solid basis for identification despite any later taint created by the suggestive pretrial lineups.26
United States v. Wade27 listed several other factors bearing on whether an in-court identification is fatally tainted by a prior unlawful lineup. These factors,28 and their application to the case at bar, are as follows:
(1) “the existence of any discrepancy between any pre-lineup description
(2) “any identification prior to lineup of another person“; (None of the witnesses made such an identification in the case at bar.)
(3) “the identification by picture of the defendant prior to the lineup“; (Three of the witnesses did make pre-lineup photographic identifications of appellant. The impact of those identifications here is discussed in Part III infra.)
(4) “failure to identify the defendant on a prior occasion“; (No such failure occurred here.)
(5) “the lapse of time between the alleged act and the lineup identification.” (The lineups were held on 4 and 11 February 1971, 14 and 21 days, respectively, after the robbery. During the lapse between the crime and the first lineup, it is unlikely that the witnesses’ recollections of appellant‘s description became so dim that the suggestive lineups overcame those recollections.)
Thus, the possibility that the eyewitnesses’ in-court identifications of appellant were tainted by the lineup identifications seems slight when the Wade criteria are applied.
In light of the foregoing, we can only conclude that appellant was not deprived of due process by the trial court‘s ruling that the five eyewitnesses could identify appellant at trial.
III. The Pre-Lineup Photographic Identifications
Appellant contends that the pre-lineup photographic identifications of appellant by Myrick, McGriff, and Baylor fatally tainted the in-court identifications by those witnesses. Appellant does not directly challenge the procedures employed by the police when the photographic identifications were procured, but argues that: (A) the identifications must be presumed suggestive since the Government was unable to produce the photographic array at trial; (B) although the Government did not use the photographic identifications as evidence at trial, its failure to preserve the photographs deprived appellant of a fair trial by denying him the opportunity to use the possibly suggestive photographs in cross-examining McGriff, Myrick, and Baylor; and (C) the Government‘s failure to produce the photographs should have resulted in the imposition of sanctions under this court‘s decision in United States v. Bryant.30 We reject these contentions.
A.
Appellant‘s first two contentions are almost directly controlled by the Supreme Court‘s decision in Simmons v. United States.31 The procedures and circumstances of the photographic identifications in Simmons were virtually identical to those in the case at bar. As in this case, the photographs were displayed to the witnesses prior to the defendant‘s arrest, so the photographic identification was a phase of the authorities’ search for suspects and not simply a device for procuring evidence against existing suspects. The bank robbery in Simmons took place in the afternoon, and the lighting in the bank was good. The same circumstances existed during the robbery committed by appellant and his cohorts. The robbers in Simmons, as in this case, wore no masks. Five bank employees viewed Simmons for periods ranging up to five minutes. In this case, five employees had good opportunities to view appellant during his five to seven minutes in the bank. All five employees were shown photographs of Simmons the day after the robbery “while their memories
In Simmons, the Court applied the following test to the facts described above:
[C]onvictions based on eyewitness identification at trial following a pre-trial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302 [, 87 S. Ct. 1967, 18 L.Ed.2d 1199] . . . .35
Under this test, the Court held that “in the factual surroundings of this case the identification procedure used was not such as to deny Simmons due process of law . . . .”36 The same conclusion is unavoidable on the facts of this case.
B.
It is significant that in Simmons, as in this case, the Government was unable to make the photographic array displayed to identifying witnesses available at trial. The Court assessed this circumstance as follows:
Although the pictures might have been of some assistance to the defense, and although it doubtless would have been preferable for the Government to have labeled the pictures shown to each witness and kept them available for trial, we hold that in the circumstances the refusal of the District Court to order their production did not amount to an abuse of discretion . . . . The defense surely knew that photographs had played a role in the identification process. Yet there was no attempt to have the pictures produced prior to trial pursuant to
Fed.Rule Crim.Proc. 16 . When production of the pictures was sought at trial, the defense did not explain why they were needed, but simply argued that production was required under§ 3500 . Moreover, the strength of the eyewitness identifications of Simmons renders it highly unlikely that nonproduction of the photographs caused him any prejudice.37
This analysis applies with even greater force to the present case, in which defense counsel failed to make a motion for discovery of the photographs at any stage of the prosecution.
C.
Finally, we must reject appellant‘s contention that the trial court erred by not enforcing the rule of United States v. Bryant38 against the Government for its failure to preserve the photo-
The lost court-work jacket also contained Detective Sergeant Noone‘s notes recording the eyewitnesses’ descriptions of the robbers on the day of the crime. Appellant asserts that these notes might have been helpful to him in cross-examining the identification witnesses at trial. Therefore, he contends, the Government‘s loss of the notes should have resulted in the imposition of sanctions under Bryant or the Jencks Act.46 First, it has been held that rough, investigative notes taken by police officers at the scene of a crime are not “substantially verbatim” statements within the coverage of the Jencks Act.47 Moreover, we note again that the appellant failed properly to raise any Bryant or Jencks Act issues by moving for discovery or sanctions in the trial court. In the absence of plain error in the record, we decline to tamper with the judgment below.
IV. Conclusion
For the reasons stated herein, we affirm appellant‘s conviction for armed robbery. However, we vacate appellant‘s conviction for assault with a dangerous weapon, which we have held a lesser-included offense of the crime of armed robbery.48
Affirmed as modified.
The District Court held that the in-court identifications of appellant as one of the robbers by five eyewitnesses were admissible as based in each instance on a source independent of previous identifications of appellant by these witnesses at two lineups which the court had found tainted,1 and, also, as to three of the witnesses, independent of photographs of appellant they had viewed but which were missing from the police files and were not available for inspection by the court. This court affirms, although none of the five identifying witnesses ascribed their identification at trial to a source independent of the suggestive lineups or missing photographs. I respectfully dissent.
At the conclusion of a pretrial suppression hearing at which the lineup identifications were considered the District Court‘s ruling appears from the following exchange:
[The Assistant United States Attorney]: . . . now that the Court has suppressed the lineup, I wonder if the Court would make a specific finding that the record that we have before us has shown, by clear and convincing evidence, independent source?
The Court: I believe that is so, and I will make such a finding.
*
I have no question with the independent source of any of those witnesses.
Defense counsel duly objected. There has been no testimony at any time by any of the witnesses that their identifications were or would be at trial based upon a source independent of the lineups which offended due process. One of the five witnesses, Mr. McGriff,2 was asked at the suppression hearing the basis for his identification. He replied: “It was based on what I saw during the robbery and based on the photos that I have seen of him since then.” Neither the District Court nor counsel similarly questioned the other witnesses.
As held in United States v. Sanders, 156 U.S.App.D.C. 210, 479 F.2d 1193 (1973), following United States v. Wade, 388 U.S. 218, 240 (1967), and see Gilbert v. California, 388 U.S. 263, 272-273 (1967), the identifying evidence at trial would be admissible only upon clear and convincing evidence adduced by the Government that it would rest upon a source independent of the pretrial tainted identifications. To this effect, in addition to United States v. Sanders, supra, are our cases of United States v. Ash, 149 U.S.App.D.C. 1, 461 F.2d 92, 105-106 (1972) (en banc), rev‘d on other grounds, 413 U.S. 300 (1973); Mason v. United States, 134 U.S. App.D.C. 280, 414 F.2d 1176, 1182 (1969); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc). Cf. Foster v. California, 394 U.S. 440, 443 (1969). The court now departs from this previously established framework within which this case falls.
The question before this court is not whether the witnesses could have identified appellant independently of the tainted lineups and, as to three witnesses, the missing photographs, but whether it was established by clear and convincing evidence that their trial identifications were in fact independent of such influences. We know from his own statement that it was not in the case of Mr. McGriff, and we have no testimony one way or another from the other four witnesses. The five witnesses testified at the trial upon the background of their recollections of the robbery, their subsequent view of the tainted lineups, and, as to three of the witnesses, their viewings of the missing photographs, and we have no evidence, much less clear and convincing evidence, that these identifications were not based on this mingling of both tainted and untainted observations of appel-
After the District Court suppressed the lineup identifications as illegal and tainted it was within the court‘s competence to decide that the taint was not so heavy as to preclude trial identifications stemming in each instance from a source independent of the taint, and the missing photographs in the case of three of the witnesses; but I think it was not within the court‘s competence to rule on the record of the suppression hearing that the trial identifications would in fact stem from such a source independent of these influences.
The majority opinion considers the several factors enumerated in Wade which bear upon whether an in-court identification is fatally tainted by a prior unlawful lineup, and states that here the possibility that the eyewitnesses’ in-court identifications were tainted seems slight. Under Wade, however, the taint in the present case stemming from the suppressed lineups persisted unless it were established by clear and convincing evidence that it would not affect the prospective trial testimony of the witnesses. The taint was deep enough to require suppression of the lineup identifications as a violation of due process. To state on the appeal that the possibility of tainted in-court identifications seems slight does not comply with the rule of proof by clear and convincing evidence of an independent source. Moreover, the court omits reference to the missing photographs which had also been shown to three of the witnesses.
It is altogether possible that the eyewitnesses, excluding Mr. McGriff, might have been able to identify appellant solely by what they remembered of the robbery, eliminating from their minds the subsequently tainted source and the use of the missing photographs, but their ability to do so was not developed. Therefore, we must assume that their identifications at trial were a conglomeration of all that had gone before. Even in cases where the witnesses have explicitly testified that the in-court identification is independent of intervening tainted identification procedures this court has refused to allow the in-court identification to stand because the showing was not clear and convincing. United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148 (1971); United States v. Johnson, 147 U.S.App.D.C. 31, 452 F.2d 1363 (1971).4
Notes
It is demonstrable that the record before the District Court and this court in the present case furnishes no basis for a suggestion even that Mr. McGriff‘s reliance in part upon photographs in his identification of appellant was of an “immeasurable quantum” or within the compass of “trace residuals.” Two sets of photographs were seen by Mr. McGriff. One set was composed of separate pictures of two lineups, each of which lineups the District Court found was so impermissibly suggestive as to violate due process of law. This finding is undisturbed. The other set of photographs was missing from police files and was not available to the District Court or to this court to view. Accordingly there is no basis whatsoever for a suggestion that those photographs were not impermissibly suggestive.
While the proofs for this opinion were at the printer, the Supreme Court adopted certain amendments to the
Use.—At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as defined in subdivision (g) of this rule . . . .
And the definition of “unavailability” continues to include the situation where the deponent merely “is absent from the hearing and the proponent of his deposition has been unable to procure his attendance by process or other reasonable means.”
Adequate records of the photographs shown to each witness must be kept so that the exact group of photographs from which an identification was made can be presented in court at a later date to counter any claim of undue suggestion and enhance the reliability of the in-court identification. This information shall be recorded in the statement of facts of the case.
United States v. Clemons, 144 U.S.App.D.C. 235, 238 n. 7, 445 F.2d 711, 714 n. 7 (1971).