United States v. Terrill Wayne Jewett
520 F.2d 581
1st Cir.
1975
Check Treatment

*2 COFFIN, Judge, Chief McEN- Before CAMPBELL, Judges. Circuit TEE McENTEE, Judge. Circuit May 23, m., at 11 On a. two men the Forest Avenue robbed branch of the Portland, National Bank in Canal Maine. displayed of the men handgun One a money the cage; took teller’s a shotgun other carried sawed-off quietly near remained entrance. At Jewett’s trial for defendant bank rob- possession bery illegal unregis- firearm, the bank tered employees testi- man that this second yellow fied wore a wig jacket a black similar to those found, along with the shotgun, in the getaway shortly car robbery. after the teller Lund Bank identified him as the bank, man second identified him as passenger Jurenas in getaway car. A fingerprint expert fingerprints that Jewett’s were found on several internal parts of the shotgun, which had been purchased the day robbery. before the In defense Jewett called several alibi witnesses, whose prosecu- sought by to rebut the testimony Ross of the police. Detective Portland jury reach The could not a verdict on the robbery count, but convicted Jewett the firearms offense.

Defendant first contends that in-court witness Lund’s identification was irreparably tainted a fleet between them that ing confrontation oc prior prelimi- the hall curred think that sixth magistrate.1 do we amend- hearing before Nor nary to counsel was right that while ment violated passing Lund We observe confrontation present the inadvertent here. Id. identify defendant did during robbery, at 967-68. bank not evidently did believe jury which *3 doubt, she never a reasonable The contention that beyond witness possession of a that he had fire in-court Jurenas’s identification of de extent to which her prior Hence the tainted her imper fendant was arm. defendant with prejudiced photographic is missible identification identification crime of which he merit. The photographic was also without respect any remain unclear. At was line-up completely non-sugges must itself convicted any tive, way condoning spread in the and the mere fact that rate, without the only in contribu five photographs carelessness contained does not government’s confrontation, we unduly suggestive. believe to this render it United ting not, totality Lawrence, in the of (4th it was the States v. 962 that circumstances, v. Biggers, 1974). Neil 409 Although U.S. Cir. Jurenas observed 375, (1972), 34 401 188, 93 L.Ed.2d Jewett a few away very S.Ct. from feet only Hall, 1100, (1st F.2d briefly, Alabama, v. 511 1101 Coleman v. see 399 Stroud 1999, 1975), unnecessarily suggestive 1, “so S.Ct. 26 U.S. 90 L.Ed.2d 387 Cir. v. irreparable (1970); to conducive mistaken 456 Bamberger, (3d Cir.), to deny defendant due F.2d 1119 cert. denied identification” sub nom. States, Denno, 969, of law. Stovall v. Elam v. 406 process 388 United 92 U.S. 1967, 293, 302, 1972, 2424, 32 (1972); 87 S.Ct. L.Ed.2d 668 18 S.Ct. U.S. United Davis, (1967). 1199 The (4th confrontation v. 407 F.2d 846 L.Ed.2d States Cir. closely 1969), resembles those in surpris United the circumstances were here so Jones, (9th 512 v. F.2d 347 ing Cir. that she could well have States retained a Jackson, 1975) memory States v. 448 appearance, United clear of his and her 1971), (9th day 963 Cir. cert. denied sub on the of the description ap F.2d crime States, v. 405 parently Willis U.S. well with ap nom. tallied Jewett’s 970, (1972).2 30 796 924, pearance, Higgins, 92 S.Ct. L.Ed.2d see United v. it apparently (3rd cases was 465 1972). those inad 458 F.2d Cir. While As in elapsed and other substantial evidence six months between her vertent observa identification, to the crime. Lund photographic defendant tion and the linked given (seven an descrip Biggers, supra accurate see Neil previously had months), U. say of the robber3 the S. Attor we cannot the identification question, gratuitous although suggestive un “so ney’s impermissibly was as to fortunate, was no more suggestive give very than rise to substantial likelihood conduct prosecution’s in Jackson. irreparable justify- the of misidentification” Attorney’s guard 1. Lund was seated the U. S. of- fendants were seated under at the coun- door, fice, Attorney to while the back con- sel table for about an hour in a courtroom preliminary hearing with a man she later versed realized was de- before a while several wit- opened nesses, The counsel. door fendant’s behind of most whom assumed that the indi- say “they going defendants, she heard a voice her and are viduals were the looked on and Glancing caught sight upstairs.” around she identity. discussed their See also United part doorway. Matlock, (6th of of defendant’s face in the 491 States v. F.2d 504 Subsequently walked her defendant in the Weighing Big- 3. the factors forth set in Neil v. proceeded upstairs the office and hall outside gers, supra, we note Lund that was 30-40 feet Attorney Assistant S. counsel. The U. with robber, standing distant from who was anybody her out and asked if she saw came adequately lighted bank, part of the knew, replied she and she wanted a better she him “stared” at for one to two minutes. The difficulty at defendant. She had no iden- look only confrontation occurred two months after preliminary tifying robber him as the crime, though Lund was of unsure his hearing. identity identify- the hall she had no trouble ing hearing. him at Jones witnesses In several viewed defendant hallway prior to trial. In Jackson de- “after” Jewett sense opprobrious States, v. United some ing Simmons reversal. by tapping interchange 967, 971, initiated 377, 384, 19 and 88 S.Ct. 390 U.S. prosecution The the shoulder. on (1968). perceive do him Nor we L.Ed.2d 1247 of implications rebut the to entitled jury’s was inconsistency between the any that Ross did by showing on the firearms of defendant conviction in fact and that Jewett Jewett want inability to a ver- not charge its reach by asking ques- first him charge. approached Haml- robbery See dict on Moreover, in recounted. Ross States, 87, 101, which 418 U.S. 94 tion ing v. United testimony by de- previous (1974). view 41 L.Ed.2d upon Lekousi fendant’s also a series Defendant raises robbery day Jewett hearing to questions as the rebuttal undoubtedly abe he would told had sequestration Ross. The of Detective prior criminal of his because suspect *4 trial is a matter within the witnesses see that the corrobora- record, we to fail v. Mal court’s discretion. of remark Jewett’s introduction ting lis, (3d deci 1972). F.2d 567 Cir. Its 467 could mate- lines to Ross same along the a questioned not be absent will sion him. prejudiced rially have prejudice. v. showing of United States 1004, Cir.), (2d 490 F.2d DeAngelis, 1008 Affirmed. denied, 956, 1970, 416 94 cert. U.S. (1974). 306 Detective Ross’s

40 L.Ed.2d COFFIN, Judge (concurring). Chief testimony contradicted that defend of I share the court’s that view witness only in ant’s alibi witnesses immaterial Lund’s “uncontrolled confrontation” with and could not have realistically details4 hallway and the appellant recogni- defendant. Nor we think prejudiced do put to inquiry her assistant impermissibly so tran his Attorney But, were regrettable. U. S. scope scended the of defendant’s case assuming good part faith on the of the recep to constitute the chief as court’s I cannot prosecutor, say any that this is of tion of it abuse discretion. See prejudicial than more identification in Jalbert, 892, v. itself, preliminary hearing ap- where 1974). (1st objects 893 Defendant sitting next pellant’s to his counsel only mildly to Ross’s recitation a in be equally suggestive. would Yet the criminating remark of defendant’s.5 gone have cases not far as to pro- so While defendant’s witnesses testified such scribe identification. fact only to the conversation be Ross and defendant not to its More disturbing, tween and because so unneces- content, they imply govern- did Ross was failure sary, is the here of you say? ed 4. Ross contradicted one of the witnesses who And what did raining it was my words, not when Ross first A And I don’t recall exact but I crime, though like, the hotel something ‘Why entered after Ross think it was would probably admitted he would not you?’ have noticed we want And at this time he stat- busy ed, if he you anywhere. rain were as had guys ‘I’d know You FBI, been. He also testified that he you talked to Jew- are with the here, if are and down 1, p. me’, ett 3 m. at you at rather than and that Jewett want at that time I myself had the hotel ten left for minutes two hours as a identified to him Portland robbery contrary Officer, to after the that he I asked Police him his Finally, day. name, had there all been he testified he told name me his was Ter- approached Jewett, him again why that Jewett rather hotel rill and I asked him And, know, you than vice versa and that he had not asked to we want him. would he inspect dye stated, Jewett’s hands for evidence of red ‘You are the FBI. with You pack” placed by a “bomb from the bank teller me.’ must want And at time I told money during robbery, time, stolen with the him didn’t At we want him. though Agent he Conley admitted he saw no evidence Jones Detective had dye. gone lobby such bar from and were talking with Lekousi.” happened? And what “Q lobby, A As we into the walked Mr. Jewett approached me and asked me what we wanted for.

585 arranged to have a proper ment for line-up the two

prompt witnesses. Instead, pass it let two months before

asking identify Lund to at the prelimi- hearing six

nary months before re-

sorting to a photographic spread in a city Jurenas.

distant for As behavioral

scientists have often demonstrated, the is an

passage time unreliable editor of perception. Buckhout,

remembered See

Eyewitness Testimony, 231 Scientific (December No. at 23

Amer. the use of a

While “less reliable proce-

dure where a more reliable one may be

available”, v. Biggers, Neil 409 U.S. 375, 382, 199, 93 S.Ct. 34 401 L.Ed.2d

(1972), is government’s not fatal to the

efforts to elicit later in-court identifi-

cation, I implicit Neil, think it and in Denno, 293, 302, Stovall U.S. *5 1967, 18 (1967), L.Ed.2d 1199 necessity for a suggestive procedure

is a factor to consider in reviewing “the

totality of the circumstances”. 388 U.S.

at Jackson, 87 S.Ct. 1967. United States v. (9th America,

UNITED STATES

Plaintiff-Appellee,

Henry GEELAN, Albert

Defendant-Appellant.

No. 74-2822. Appeals, Court Circuit. Ninth

July 25,