*1 ap- in an should be included ra- costs survey of Louisiana aof the results expenses. plicant’s Here statement all sta- indicated which dio stations can for us to note KSIG is sufficient questionnaire responding tions expect least to have a reserve recording production or at. form of some $7,400 payments for the rejected and that rental Board Review studio. maturing the close site since transmitter not in- however, did evidence, because hearing by no means exhaust responding dicate “whether first-year this reserve. operations, or were stations production fa- recording or whether the contentions, which other KSIG’s subsequent furnished cilities telephone and relate matters as to such ****’’ operation year of first their pay expenses and insurance electrical ments, admitting Although 8.) (J.A. n.53 involve substantial do not * * * proposal Capital’s [was] Rice find in if were to amounts. Even we (Id.), than ideal” less somewhat issues, there on this favor KSIG thought Consid- it was feasible. Board enough money in more than would be ering expertise, we have Board’s reserve, Capital’s anticipated even Rice disagree. reason to deducting payments rental after site, the additional transmitter to cover Appellant’s next contention Thus, expenses. there we conclude that failing Board erred that the Review support evidence to is substantial expense certain to consider as items proposed ra that the Board’s conclusion Capital is payments Rice rental which financially qualified. dio station was proposed required trans for its make May Rice site. mitter Affirmed. making payments Capital has been per Re site. The month for this $56 Capital’s in Rice Board did include view maturing prior payments all costs hearing, it would it felt close of the but pay stringent” “unduly include accruing (J.A. ments thereafter. Board’s understand the Review
We can of America UNITED STATES attempt to estimate reluctance to accrue amount of rent which would CLEMONS, Appellant. Rudolph Capital commences con the date Rice reasonably Capital could Rice struction. No. 23577. expected construction to defer been Appeals, United States Court concerning applica appeals until all Circuit. District Columbia decided, apparently tion has, as it Argued Dec. 1970. virtually impos this made it May 14, Decided predict when con for the Board sible begin. Moreover, if the struction would Rehearing Denied Petition for ap attempt Board did to estimate June peals taken and which would be payments would accrue rental which appeals consum while these mated, setting precedent would be whereby appeal process used could be deplete applicant’s resources and qualifications
bring his financial
question. In the future the Commission thought give perhaps de some
should method, veloping parties, fair to both currently determining accru- *2 Mulroney, Washington,
Mr. Michael (appointed by ap- D. Court), C. for pellant. Robinson, Mr. Kenneth M. Asst. U. S. Atty., with whom Thomas A. Messrs. Flannery, Atty., U. S. and John A. Ter- ry, Atty., brief, Asst. U. S. on the appellee. for BAZELON, Judge, Before Chief TAMM, SMITH,* Judge, Circuit Judge, Chief U. S. Court District District of Montana. Judge: TAMM, Circuit
Bazelon, opin- Judge, Chief filed an concurring ion in the result. Appellant jury by a convicted charging
both counts of an indictment robbery dangerous and assault with a weapon.1 Though carefully we have arguments by considered all the made appellant, we affirm the convictions. early-morning In the hours Novem 16, 1968, Gordon, ber Edward R. night manager gasoline station, gunpoint robbed at That same $68. morning, when Mr. Gordon was sum police station, moned to the he selected from photographs2 book about 30 appellant’s picture representing up. man who had held him On Decem again ber picked Mr. Gordon appellant out time —this properly lineup eight held At men. the trial Gordon once more identi Mr. appellant fied as the man who had gunpoint. him robbed appellant’s objections main appeal origin pic find their by ture identification made the com plaining morning witness on Specifically, objects appellant crime. jury mention to the of his pictures identified Mr. Gordon from gathered by police. that had been Appellant claims that such reference improper since it indicate to would any reasonably juror “appel alert prior lant at least arrest record (Brief probably a criminal record.” * Sitting by designation pursuant Though to 28 people 292(c) (1964). U.S.C. records, they § were not of the typical “mug variety. shot” 22-2901, §§ D.C.Code 22-502 Appellant appellant’s permit employed the method must claim trial error deals with here. second suggestiv- possibility of irretrievable We now devote our attention to ity encompassing process select- contention, e., the second i. ing appellant’s picture. possibility suggestivity *3 selecting appellant’s picture. must of It problem of the will first discuss always admitted dan that there is a photo- prosecution’s the reference to
the
ger of
aof
defendant
misidentification
v.
graphic
In Barnes
identification.
by
photograph
from a
viewed
an excited
States,
U.S.App.D.C.
124
United
angry'
and sometimes
victim
crime.
of
held
F.2d
was
365
509
danger
though
exists,
This
lesser
to a
showing
“mug
photograph
a
shot”
the
of
degree,
police employ
even
the
when the
preju-
jury
the defendant to the
of
stringent
safeguards.
most
of
re
With
error,
pro-
thus
there was
dicial
since
gard
problem
Supreme
to this
the
Court
strong
prior
a
inference
a
duced
of
States,
in
v.
Simmons
U.S.
United
390
Barnes,
record. The court
criminal
however,
377, 88 S.Ct.
tions were described as excellent a record of all such pictorial arrays. complaining witness, had a who said he v. See United States “good” Hamilton, U.S.App.D.C. 89, 92, look for at face 137 420 least one full minute. That same morn- 1295 It would have achieving complaining step called been a witness was closer to the ideal himself, police view, certainty judging station of absolute when photographs. propriety photographic book of He testified identifica- long approximately requirements color As book contained tions. as the Negro met, however, males, due are are age appellant.4 say whom unable to same there was an abuse of them, said, judge’s allowing Most of he taken of trial discretion in subjects pose. testimony testimo- in the same into evidence. ny Jones, supra, in- States, of Detective Robert P. who See Simmons *4 substantially vestigated robbery, 386, the was 390 88 967. Assum- U.S. absolutely short, ing, right deciding, the In there is this same. without the of any nothing rigid providing ir- in the record indicate court to establish a rule regularity process. Depart- in the selection the manner in the Police indeed, mind, With these facts in ment shall maintain files for future unlikely quite complaining cases, find, light wit- that the in of recent com- singled pho- pictures regulations,7 police ness out the from mendable no reason tograph anof innocent man. to issue a mandate. such argues
Appellant, however, further Affirmed. array photos
that of from since the complaining which the witness selected BAZELON, Judge (concurring Chief photographic reproduced,5 cannot be the result): There identification cannot be allowed. procedural hint of a due lack of Appellant argues photographic that a process selecting photo- in the into identification should not be allowed graph involved, regroup inability this array photographs evidence when the of certainly photographs not the does reassem- shown the witness cannot be photographic court, make the bled. I think that the in dismiss- (cid:127) might Admittedly, pays have insufficient argument, invalid.6 this heed to our recent decision United procedure De- been a if the Police better (439 Hamilton, F.2d at ture conduct Government 4. See United States v. any 652) relate not to App.D.C. 89, 91, and since our facts 1294 420 F.2d solely inability only photo- to reassemble (1969), loss but “15 where there was faith, showing we see no graphs all, depicting with no of bad males of various Bryant bearing might ages.” need to discuss the the facts of this case. have on pic- Apparently, time the photos were ar- ture was selected all (May 16 7. Memorandum Order No. then, alphabetically. ranged how- 1970) Metropolitan Police De- of the they ever, been reassembled (2) provides partment II : in section thereby making according age, books photographs Adequate the records of reproduction impossible the actual kept must be to each witness shown photos group the witness viewed. group exact so the made was an identification from which was tried but before After this case presented later in court at a court, argued can in this we set forth Bryant, of undue claim date to counter v. 142 a rule in United States reliability suggestion enhance the U.S.App.D.C. 132, F.2d 439 642 This in- requiring in-court identification. to establish the Government recorded shall preserving formation evi- methods of all discoverable facts of case. gathered statement of of a criminal dence in the course fail- informed investigation. have not been laid down Since the rule police part to follow Bryant dealing preservation on ure regulation. only own evidence was meant influence /«-
715 Bryant, U.S.App.D.C. already promulgated 142 Memorandum States 16, quoted Order No. in footnote 7 opinion,
the court’s we would have I authority so, require do them to pain having subsequent convictions panel Bryant of this In unanimous arrays missing photographic based duty to held that the Government’s court already fact, step reversed. In has upon request disclose relevant Bryant, re- been taken in since that case implied duty preserve the evidence. fers to all discoverable evidence. tape-recording of That case concerned a Department placed on Police should be appel- a narcotics transaction between promulgation notice that of Memoran- agent. government lant and a undercover dum sufficient Order No. 16 is not alone piece tape obviously a critical satisfy due standards. As examine of evidence for the defense to clear, Bryant quote makes above trial, but their efforts to discover before good faith efforts to follow and enforce unavailing. it, A under Rule regulation required are well. days trial, few before Government finally tape admitted that II unaccountably lost. Bryant arrays court examined Su- these must be Granted
preme
future,
produced
recent decision
Court’s
what about
*5
Augenblick,
348, 89 particular
States v.
case?
and
case, therefore, there seems to be findings need for a remand for further
of fact. photographic arrays
That records of routinely kept not,
were never does
course, practice insulate the from retro-
spective dealing here We are review. designed prophylactic
not with a rule
discourage police misconduct which
abridges rights in a of individuals guilt
manner to their or inno- unrelated ; procedures
cence fair
must be the cornerstone of minimal- ly just system. criminal On the other hand, ignore we cannot the fact ret- application preservation
roactive re- quirement im- would have a substantial pact on the administration of the crimi- Miller, Wilbur K. Senior Circuit laws,
nal and that law enforcement offi- Judge, only. concurred in result relying long-standing cials judi- acquiescence cial procedures at- today.
tacked per- Such considerations Supreme
suaded the Court not to make retroactive,4 the Wade rule and I feel
bound apply this rationale to requirements strict Bryant only pro- spectively. I therefore concur in the re-
sult in this case.
UNITED STATES America
Eugene SCHAPPEL, Eugene A. A. a/k/a Schoppel, Appellant.
No. 23550. Appeals, Court of States District of Columbia Circuit.
Argued Nov.
Decided June Denno, 4. Stovall v. 87 S.Ct. 18 L.Ed.2d