United States v. Willie S. King
461 F.2d 152
D.C. Cir.
1972
Check Treatment

*1 accused, whether or not fair, to be evinces an un- due to a desire certainty lightly ignored. cannot

Moreover, Court excluded the District

her identification as in-court “tainted viewing way by the recent ruling

photograph.” Implicit in this finding Government heavy

failed sustain its burden convincing evi- “clear

dence” that in-court solely was based on her recollection ‍​‌​‌‌​​​​‌​​​​​‌​‌‌‌​‌‌​​​​​‌​​‌​​​‌​​‌‌‌​‌‌‌​​​‍af- robbers themselves and was not subsequent exposure

fected her photographs.

defendants and

light “key played by role” determining

trial court in whether there independent

anwas source for iden- tification, Clemons v. Unitеd su-

pra, 408 F.2d at 1241, I see no reason to disturb Dis- ruling.

trict Court’s respectfully dissent.

UNITED STATES of America KING,

Willie Appellant. S.

No. 24381. Appeals, States Court of District of Columbia Circuit.

Argued May 28, 1971.

Decided March *2 manager, Safeway

store and three Hobson, Jr., em- ployees, Julius E. Duane Wilkes and Charles Pernell. follow- morning Mr. Creel Mr. Wilkes were summoned to station they pho- where tographs. were shown 200 to 300 tentatively Creel identified appellant and Fred Smith from these (Tr. 42.) Although photographs. identity “had Wilkes an idea” as to the one of he was not “abso- robbers 119-20).3 lutely positive.” (Tr. Two days later, while at the Court of General Washington, Winter, Lawrence Mr. J. (now Superior Court) on an Sessions court) ap- (appointed by for D. C. entirely matter, unrelated Mr. Creel saw pellant. appellant and Smith. Higgins, U. S. Mr. Asst. Robert J. a notified then detective who ascertained A. Atty., whom Mеssrs. Thomas with A Creel identities. week later Flannery, Atty. time U. S. again appellant identified and Smith Terry filed, and John John A. brief photo- forty group from a about Attys., on Evans, were F. Asst. U. S. graphs by a shown to him detec- brief, appellee. for January 28, more, Once tive. both BAZELON, Judge, and Before Chief men were from a identified Mr. Creel Judges. TAMM, Circuit MeGOWAN and lineup.4 nine-mаn counseled trial, morning March On Judge: TAMM, Circuit prosecutor to indicated Appellant, co-defendant, a Fred Creel, sev addition to Mr. court Smith, a were convicted D. witnesses, namely Mr. Hob- eral other robbery and four three armed counts of in son, Pernell had Mr. Wilkes and Mr. dangerous with counts of assault a him too formed weapon.1 Urging identifica- defective (Tr. 9.) appellant. ‍​‌​‌‌​​​​‌​​​​​‌​‌‌‌​‌‌​​​​​‌​​‌​​​‌​​‌‌‌​‌‌‌​​​‍procedures, invokes tion jurisdiction of time that because stated Hav- and aid this court. crime,5 these other argu- carefully all the considered previously identified had not witnesses by appellant, made we affirm ments a he felt appellant or attended set hereinafter conviction reasons he if be to fairer forth. prior witnesses, to these other showed evening January coun early In the 1969, men,2 sel, which arm- six some of whom were a attended, ed, Safeway rather store in Northwest had robbed a Creel Mr. merely limiting Washington. to Among Creel, Jr., court. face confrontation event were Norman L. face along did 22-3202, Mr. Creel 1. Hobson D.C.Code 22-502 Mr. §§ February 4 in which attend robbery 2. The other men were four par- Smith was nor neither never identified. ticipant. been 3. The argument, During we asked oral 5. 9, 1965, taken on June supplemental mem- government file a prior years date and one-half speedy trial. on the issue orandum robbery. picture had Mr. Smith’s contents, Having carefully its considered years robbery. taken before the compels nothing us find (Tr. 125-26.) reverse. Inadvertently, not been Mr. Hobson had January asked attend eye-witness appellant’s objection, these wit vietions based on Over photograph. following pretrial cation at trial shown the nesses were posi by photograph will be Both Wilkes Mr. Hobson Mr. ground tivеly appellant. Pernell set aside on that identified if robber, procedure said “resembled” impermissibly suggestive “positive.” was so but 28.) could not *3 give very to a likeli- rise substantial irreparable hood of misidentification. Following photographic identifica- the (Emphasis tion, judge 384, conducted Id. at supplied). 88 at 971. the district S.Ct. hearing Hob- further indicated Wade-Stovall Mr. Court wherein although suggestiveness that, any not he had that claim of son testified light totality appellant robbery, of the of the be “evaluated seen surrounding at “certain” one the Id. of circumstances.” the conclusion, 383, support Applying test his of 88 at 970. S.Ct. robbers. ap- no reason Hobson stated had looked at the case we that he instant find disturbing pellant “no than from a distance of decision below. more the lighting “very good” con- 4 feet” under captured photograph is a moment A and a ditions for “a minute or a minute eternity. immutable It stands for against (Tr. 108-10.) ech- half.” Mr. Wilkes of vicissitudes chameleonic “cer- oed these He too was statements. question raised as Since no life. rob- tain” one of the validity corporeal it of the (Tr. 110.) bers. His belief was based self, of that upon a view of at distance exists unless there remains unassailable “eight minute no feet” for “a of the infirmity exhibition and one-half or two minutes.” 117-18). Having Unit See photograph to the witnesses. the evidence ad- heard U.S.App.D.C. 24,452, Brown, 149 ed States v. hearing, duced at learned dis- (opin (1971) -, judge appellant’s trict denied motion 1972); 1, United States ion filed March suppress testimony of 1969). (4th Collins, 416 F.2d 696 Cir. v. Clearly, Mr. Wilkes and Hobson as well as Mr. sur instant circumstances 6 (Tr. 140.) Creel. Mr. rounding showing of the Creel, At trial and Mr. Mr. Hobson While the no unfairness. indicate such par previously in court. Wilkes identified two witnesses not ap- trial, ticipated At the conclusion of the both lineup, in the counseled co-defendant, pellant Smith, photographs separately and his were shown the guilty jury. presence were found coun any sel. The entire was devoid presented ap- The sole on issue to us suggestiveness. hint of peal is exhibition, whether the counsеl, urges However, timing a formal counseled exhibition day viola- nesses trial is a was fatal. that to show photos morning tion due four- robbery, months teen after the results set standard forth appel- an “in-court guide us in the issue resolution ar- lant have been not [which] States, is found in Simmons v. United independent improper rived at of [the] 967, 377, 390 U.S. 88 19 L.Ed.2d S.Ct. [reinforcing] photographic identifica- (1968), Supreme 1247 where the Court Brief for tion.” stated: photo We hold each be con- We not think that the case must do facts, graphic showing sidered on its own ren positively testify 6. Since Mr. Pernell identification issue. did identify appellant, permitted (Tr. 140.) he was holding lineups, process prompt and efficient dered invalid аs a matter of due ease to invalidate mere of time between original opportunity to fruit of identification which was the lay observe; presentment. Court thus the District holding in-court did not err Secondly, no court has we note that Timing, identification was admissible. ever held there is absolute constitu normally goes matter which a weight right See tiоnal to a credibility evidence and Ash, United States admissibility witness, of an not the - (1972) 461 F.2d prov jury’s within dissenting); (Wilkey, J., United States California, 394 ince. Foster U.S. See Hamilton, n. L.Ed.2d n.2 S.Ct. (1969); n.11 420 F.2d Brown, (1969); States v. U.S.App. Kennedy v. United supra (upholding photograph exhibition ; (1965) *4 291, 295, 462, 466 D.C. trial); prior to to weeks witness Munroe, supra; United United States v. Roth, v. 430 F.2d United States Ravich, 1196, 1202- States v. 421 F.2d (2nd 1970) photo (upholding 1140 graph Cir. 1970). Certainly in (2nd Cir. during rеcess exhibition to witness including case, this circumstances Munroe, trial); ‍​‌​‌‌​​​​‌​​​​​‌​‌‌‌​‌‌​​​​​‌​​‌​​​‌​​‌‌‌​‌‌‌​​​‍v. United States presence of photographic in the 1970) (5th (upholding Cir. counsel, failure to we do not think the lapse); time in-court identification after transgresses lineup corporeal hold a Baker, 419 F.2d United States v. due clause. (2d 1969), denied, Cir. 397 U.S. cert. record clear from the It is (1970) (up 90 S.Ct. 25 L.Ed.2d 271 purpose prosecutor’s a offer of holding photograph exhibition to witness prior photographic trial to days trial); prior to United v. appellant. view of the was to assist Collins, supra (upholding photograph ex fact there was a considerable hibition a after to witness 18 months crime time since the and bеcause crime). fully aware pre- not and Hobson had nesses Wilkes timing photo nature and viously attended identified graphic to it assist involved, lineup a in which weighing testimony. The the witnesses’ thought prosecutor be fair- spoken. by its We abide er were to if witnesses decision. lineup prior photographs of shown also that he upon solеly relying to trial rather was entitled reason- His an in-court identification. he which received before witness ing First, feared the he was twofold. Creel, but also to one before witnesses suggestiveness an in-court inherent Hobson and Wilkes after a where defendant identification spicuously arrest. such a result is asserts rel- counsel table in seated at holding necessary conclusion our Second, any of should ative isolation. Adams 130 U.S. to unable have been these witnesses App.D.C. 203, 399 F.2d 574 photographic appellant’s prosecutor he We note reliance stated first Although upon misplaced. as Adams is we dismissal would have moved opinion pointed many out in means indictment. our 18 counts as arrange might 11-12).7 the Government custody relation to witnesses and when Wilkes However, fatal. See Hobson it this clear the traditional viewed. Collins, e., apprehend- reasons for a United States —i. Lawrence, People (4th 1969); sparing offenders innocent sus- Cir. pects Cal.Rptr. 204, ignominy P.2d in- arrest —are Cal.3d applicable 1971). already (en banc appear reluctance of some witnesses motivation Indeed, again clearly appellant. firm at a reassert our assist lineups spite pre- prompt are the most belief fact that believed reliable identification fairer We exhort the trial ones. bring forego power do all within appellant, he offered to rely exclusively belief to fruition. on an in-court cation His that was wish. if Admittedly, the suggestion passed without comment employed procedures in the con better counsel. defense inquiry case, our is not duct of this but heard, I I If [Prosecutor]: available, whether better methods were might suggest alternative, if this utilized was fair. whether the one but acceptable would be more to [defense totality Considering of circum suggested I have counsel]. case, surrounding we find stances personal my feel- own because was proce King that would afford Mr. sugges impermissibly dure was not so due But know of no give substantial tive rise country prevent that would irreparable misidentifiсa likelihood of calling me from now either one of tion. hearing pretrial these men in a Affirmed. to face have a face confrontation King room, the Court Judge (concur- BAZELON, Chief *5 subject him to cross-examination ring) : and see whether or [defense counsel] confrontation, not in a face face Although affirmance in the I concur identify King the can in witness emphasize King’s conviction, I of scrutiny under of Court Court the this unnecessary decision in our to rest and under cross-examination the of banc part en our recent whole ruling in [defense counsel]. Brown, States -, 24,452, 17.) F.2d now con- seeks to 1972.) protection (1971) (opinion vert filed March additional offered error; this, into a I join Brown source of reversible because I was unable permit. “pretrial Judge Wright’s shall not view that share photographic where identifications —even cognizant This court is that the the of involved is problems arising appeal on this could stage lineups, are, a critical like have itself— police been obviated dе prosecution which the accused of the at partment performed effectively. constitutionally assist- entitled to the The depart division of the F.2d of at ance counsel.” generally job ment does a commendable though dissenting). Even (Wright, J., is a what most difficult area of law here of at issue However, we enforcement. would make Brown crucial difference following hope observations in the present when here counsel is that improved upon. can efforts be displayed to First, greater should exert ef nesses. fort in lineups. the coordination of All (and presence relevant counsel ab- apprised be Given the of witnesses should of places any They lineups. times and ineffective assistance of sent claim of King personally counsel), should cannot assert viola- contacted immedi ately Wade, after the crime and tion United 388 U.S. before This is 18 L.Ed.2d a time-con 87 S.Ct. suming task, remains, however, necessary but a concomi There orderly justice. objection tant of Second, possibility under ‍​‌​‌‌​​​​‌​​​​​‌​‌‌‌​‌‌​​​​​‌​​‌​​​‌​​‌‌‌​‌‌‌​​​‍Stovall mindful of an Denno, the often difficult task of coordinat 388 U.S. S.Ct. theory attorney (1967), defense the L.Ed.2d 1199 on the schedules and -notwithstanding apparent implausibility its identification — unduly predicated suggestiv- so have counsel—was ity suggestive deny the defendant due so subtle that counsel defense clearly ques- process. not detect it. Thеse are court, jury. tions for the not the King support claim his Stovall In some cases inference drawn points delay fourteen months improbability from the of the identifica- his arrest and the between weight tion could lend indicia of to other here, that his at and he issue suggestivity, thereby requiring exclusion prejudiced photo- fense was principle of the identification under displayed im- graph of Stovall. But since the record mediately majority The trial. before sugges- no other reveals evidence of error, and indicates finds no tivity improbability and since the goes normally “[tjiming, a matter which great identification is so as to com- weight evidence and pel impropriety, an inference of I would witness, credibility admis- a matter conclude—as of law—that Sto- sibility is within vall not bar the does admission * * * jury jury's province. trial. at fully nature and tim- aware however, remains, There a further identification to problem to which was not Stovall —one weighing testi- the witnesses’ assist Dissenting Brown, addressed. I spoken. mony. We must pointed systematicаlly that we out its decision.” 461 abide eyes shortcomings shut our to all of the my majority’s view, answer spots trouble King’s point contention. misses witnesses are able Where already n avail- 1. Data suspect photograph four- from a (to Brown) able referred teen months after the commission suggests that based on a identifications crime, obviоusly going glimpse of the brief assailant *6 weight place great the identification may atmosphere fused fre- a crime pressed hard and the defendant will be dangers quently And the be unreliable. argue passage of time has significantly unreliability in- seem memory the witnesses. dimmed and the creased where the witness sus- it seems What fears —and peсt Yet we are of different races. Id. very concern—is realistic me a source very sweep have tried to cluster is like- of identification that rug by problems under the troublesome gov- suggestive ly when the be most opinion insisting majority —as postponed until the eve ernment has capable jury of han- here —that is prosecution point At of trial. may dling arise. difficulties influence, greatest incentive to has supported by ref- is not That insistence unconsciously, consciously or the wit- reasoning. erence to information or States United nesses’ conclusions. See even the trouble to And we take do not Brown, supra, v. meaningful jury provide infor- J., (Bazelon, C. at 147 pitfalls mation аbout the dissenting). an identifica- And where (The un- vacuous and cation helpful month fourteen occa- tion is after a instruction which is made exception.1) surely sionally no offered is possible delay, to infer the Government 1. Bar the Bar The burden prove See Junior Section Assoc, doubt, Columbia, beyond a reasonable District Jury committеd the offense was for the Dis Instructions Criminal indictment, also (1966): alleged but as Columbia, trict of person Identity who is the the defendant Mistaken jury’s result, our confidence aAs problem ability to handle innate PARKWOOD, re INC. In good common reflect does even TRUST AND AMERICAN SECURITY sense. CO., TRUSTEE IN REORGANIZATION here Clearly, more is at stake much INC., PARKWOOD, Appellant OF of law. a “technical” violatiоn v. all, question, not whether after EQUITABLE CO. LIFE INSURANCE stumbled, de whether constable but PARKWOOD, re INC. actually guilty. see I do not fendant we can over how turn TRUST AND AMERICAN SECURITY trying to question even critical without CO., TRUSTEE IN REORGANIZATION acquaint involved risks with the INC., PARKWOOD, OF information now available v. Compare inquiry. United illuminate its INSUR MANUFACTURERS LIFE Bennett, U.S.App.D.C. -, ANCE CO. (1972); Washington PROPERTIES, INC. In re ADAMS problem could any case, entire AND TRUST AMERICAN SECURITY majority avoided, as CO., IN REORGANIZATION TRUSTEE Ap out, suspect INC., points dis- PROPERTIES, had been if the OF ADAMS pellant played all prompt I am convinced that government interest no has defensible HARTFORD LIFE CO. INSURANCE postponing much for as Nos. 24116-24118. explain- Indeed, fourteen months. Appeals, United States Court judge out- situation District of Columbia Circuit. set of stated: Argued Feb. 1971. very Honor, case, frank- Your in this Decided Nov. 1971. ly, police department, the work perhaps part the derelic- because of Rehearing En Banc Denied police depart- part tion March ment, perhaps part also but overloaded schedule of police department, resulted say they people think now * * * [King], can

They have never attended a present.

Transcript photograph of a 8-9.

lineup held fourteen months earlier displayed to the three witnesses

then and two of them were able King. compelling There ‍​‌​‌‌​​​​‌​​​​​‌​‌‌‌​‌‌​​​​​‌​​‌​​​‌​​‌‌‌​‌‌‌​​​‍is no excuse for problem by a court wres- resolve this

tling inferences; makes this case plain prophylactic rule need

barring needlessly the introduction

postponed identifications.

committed it. You If must be satisfied the identifica- circumstances beyond convincing beyond a reasonable doubt of the ac- tion are not a rea- curacy doubt, you sonable find the you guilty. defendant before convict him. fendant not