The opinion of the court was delivered by: GASCH
Pursuant to an order of the United States Court of Appeals for the District of Columbia, filed March 21, 1968, this Court held an evidentiary hearing in the above-captioned case to augment the trial record with respect to those points enumerated in the remand order. At this hearing, held May 13, 1968, the Court heard the testimony of the following witnesses: Mr. Frank Alberstadt, Mr. Lenard G. Kragh, Lt. Alexander P. Fury, Mrs. Jessie B. Clark, Det. Martin J. Hannon, Det. James K. Kelly, and the defendant David E. Clark. Having considered the totality of the testimony elicited, and having weighed the inconsistencies in the testimony with the Court's evaluation of each witness, the Court will proceed to render its findings of fact and conclusions of law, in the order indicated by the Court of Appeals.
(1) Time, place, circumstances and legality of appellant's arrest.
Sometime in the mid-afternoon of Sunday, March 6, 1966, between 2 and 3 o'clock in the vicinity of Logan Circle in northwest Washington, Det. Martin J. Hannon, awaiting the return of Det. James K. Kelly, observed the defendant on the street. He had previously met the defendant at 14th and U Streets, N.W., one day in the preceding month, and believing at that time the defendant was wanted in connection with a matter unrelated to the instant case, had arrested him. When it became apparent that defendant had been mistakenly arrested, Det. Hannon apologized and in the company of Det. Bracey, drove the defendant to his place of employment, the dining room of the Westchester Apartment complex. Upon arriving at the Westchester, Hannon, Bracey, and the defendant engaged in extended conversation over dinner, which conversation included some discussion of the defendant's troubles with narcotics. Det. Bracey offered to put defendant in touch with a clergyman who he felt could be of some help to the defendant.
When Det. Hannon saw defendant near Logan Circle on March 6, he inquired of him as to why he had not called Bracey about his narcotics problem and offered to drive defendant down to the Metropolitan Police Robbery Squad so that further steps might be taken to bring defendant and the clergyman together. As Det. Kelly had not returned to the car, Hannon and defendant engaged in further conversation about guns, a subject of interest to the defendant Clark. Hannon offered to allow defendant to look at a book maintained by the Robbery Squad devoted to this subject. In addition, defendant volunteered the information that he knew of a house nearby where one "Dog" had been filing serial numbers off guns and further that "Dog" and his wife "Vicky" had been dealing in narcotics at this address. When Det. Kelly returned to the car, the three men drove to the Robbery Squad, detouring past a house pointed out by defendant as being the residence of "Dog." The Court notes that defendant, consistent with the testimony of the officers, admitted this detour but claimed that its purpose was to point out the house where an acquaintance, Jerry Bog, had threatened suicide. While the defendant steadfastly denies agreeing to accompany the detectives to the Robbery Squad, the Court finds that he did in fact do so. Det. Hannon had in mind the dual purpose of checking out defendant as a suspect in the instant case and then attempting, if possible, to use defendant, whom he knew to be acquainted with a segment of the city's criminal element, as a police agent, defendant having volunteered the information concerning "Dog." The testimony of Det. Hannon and defendant is absolutely irreconcilable on the matter of defendant's voluntary agreement to come to headquarters, but the Court notes that at no time until he was identified by Mr. Alberstadt did defendant communicate any desire to any other person either to refrain from coming to the Robbery Squad or to leave once he was there.
During the 1-1 1/2 hours that defendant spent at the Robbery Squad prior to being identified by Mr. Alberstadt, he was permitted to look at the gun book, and engaged in conversation by the officers present. He spoke with Det. Bracey on the telephone and began a like conversation with his mother. All of the testimony indicates that defendant was not under any form of spoken or unspoken restraint, but rather that the atmosphere was essentially informal and that no restraint was imposed.
In the meantime, without notifying the defendant, Det. Hannon had requested Mr. Alberstadt, the victim of the robbery in the instant case, to come to the Robbery Squad to view a suspect. This call was made after the arrival of Hannon, Kelly and the defendant. Upon his arrival, at about 4:30 that afternoon, Mr. Alberstadt accosted and identified defendant. Immediately thereafter defendant was arrested.
The Court finds that to some extent, Det. Hannon perpetrated a ruse on defendant in securing his presence for purposes of identification by Mr. Alberstadt. However, as defendant was not under restraint at the time, this ruse is of no consequence. See United States v. Chibbaro, 361 F.2d 365 (3rd Cir. 1966).
In arguing that he was under arrest prior to the identification by Mr. Alberstadt, defendant places great reliance on his subjective opinion of his status at the Robbery Squad. Defendant recognizes not only that subjective beliefs are not necessarily controlling, Hicks v. United States, 127 U.S.App.D.C. 209, 382 F.2d 158 (1967), but also that the Court should consider "what a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes," United States v. McKethan, 247 F. Supp. 324, 328 (D.D.C. 1965), affirmed by order (D.C.Cir. No. 20,059, 1966). The Court concludes, upon consideration of these circumstances of defendant's presence at the Robbery Squad, that the "reasonable man" in McKethan would not have considered himself under restraint, and moreover that the words and conduct of Det. Hannon and his fellow officers demonstrate the actual absence of an arrest status. Defendant demonstrated an unduly suspicious nature through his unsubstantiated assertions that he was viewed by many others on Sunday, March 6, but more importantly, by his own testimony, convinced the Court that he himself did not consider himself under arrest that afternoon before being identified by Mr. Alberstadt. Defendant's demeanor makes it adequately clear that he is not the type of man who would be intimidated into putting up with a situation with which he is not entirely satisfied. However, he made no effort to enlist the aid of his mother or the attorney who had represented him in prior involvements with the law. If he had considered himself under arrest at the time, it is reasonable to expect that he would have sought assistance promptly either from his mother or his attorney. Defendant's call to his mother, placed immediately before the arrival of Mr. Alberstadt, did not become a call in the nature of a request for assistance until after he knew that he was about to be identified by the victim of the crime. Having observed the defendant testify both at trial and at the remand hearing, the Court is convinced that some form of vocal or physical restraint would have been necessary to hold David Eugene Michael Clark at the Robbery Squad had he not been there of his own free will. There is no evidence of any such restraint.
Having found that defendant voluntarily accompanied detectives Hannon and Kelly to the Robbery Squad and that he was not under restraint while there, and having further found that defendant was not arrested until immediately after his identification by Mr. Alberstadt, the Court concludes as a matter of law that defendant's arrest was lawful and upon probable cause shown to the arresting officer that he had committed the armed robbery of Arena Liquor on February 14, 1966.
(2) Circumstances surrounding the pre-trial identification of appellant by the witness Alberstadt.
The circumstances surrounding defendant's presence at the Robbery Squad have been fully explored in (1). With regard to the identification incident itself, the Court makes the following findings:
On the night of the robbery, the witness Alberstadt was shown a number of photographs at police headquarters, including loose pictures in a book and slides projected upon a wall. He was able tentatively to identify defendant, conditioning any definitive identification upon seeing the man in person. There is no indication that the viewing of these photographs was anything but the initial step in a routine police investigation nor did it play any part in the subsequent identification of defendant by Mr. Alberstadt. Indeed his memory of the pictures is vague, while he was able to recall in some detail the incident at the Robbery Squad on March 6. In addition, he was not informed of any connection between the picture he had tentatively identified and the suspect he was to view on March 6.
On Sunday, March 6, 1966, he returned a call from Det. Hannon who asked him to come down promptly to the Robbery Squad to view a suspect. Arriving at the Squad room, he entered and saw the defendant seated behind a desk talking on the telephone. Defendant was attired neatly in a white shirt, dark long sleeved cardigan sweater, gray trousers and brown shoes. Nothing was said by anyone to Mr. Alberstadt. Det. Hannon who had called him did not see him arrive. Mr. Alberstadt was not aware of where in the room the "suspect" he was to view would be nor did he know that the suspect was to be in the Squad room. He testified that he expected to be taken to a cell to view the suspect. Upon seeing the defendant, the witness Alberstadt hurried toward him, paying little attention to others in the room. Enraged, he scuffled with defendant and was restrained by the officers present.
Present in the Robbery Squad room when Mr. Alberstadt entered were a number of detectives, a majority of whom were white. This number was variously approximated by the witnesses and the Court finds that it was between six and eight. These officers were dressed in normal business attire, some having their coats off and ties loosened. At least one detective present, Mark Gray, who is white, was nearly as tall as the defendant and others were over 6 feet. Defendant is white, 6 feet 4 inches, and of slender build. The atmosphere in the room was casual, many officers catching up on paper work. Some were seated, some were standing engaged in conversation. The desk at which defendant was seated was on Alberstadt's left as he entered the room, about four desks from the front. Defendant was seated in the prime desk chair, and not in the metal chair alongside customarily used for interviewing suspects and witnesses. After the excitement of the identification had passed, the witness Alberstadt was able to ...