positively identified defendant as the robber of the Arena Liquor Store.
All of the persons present in the cell were dressed in the clothes in which they had been arrested. Det. Hannon gave no information to the witness concerning which man in the cell was the suspect; however, the fact that most of the other prisoners were Negroes is significant.
At the time he went to headquarters that Monday morning, Mr. Jones was aware that his employer had identified a man the day before, but not that that individual was among the men in the cell. Like Mr. Alberstadt, Mr. Jones had tentatively identified defendant from a number of photographs the night of the robbery, but was not told that the man he had tentatively identified was among those in the cell. There being a conspicuous unavailability of detailed evidence on the exact description of the other white males in the cell at the time, the Court makes no findings in this regard.
(6) Admissibility of evidence of pre-trial identification by the witness Jones.
The issues here presented are essentially those considered in (3). The same case law and the same tests are applicable. Applying these tests to the circumstances surrounding the pre-trial identification of defendant by the witness Jones, the Court concludes that this procedure exceeded the bounds of Stovall v. Denno and was "unnecessarily suggestive" under what seems to be the prevailing interpretation of that phrase in the District of Columbia.
There is and always will be insufficient evidence to find that defendant was then in the company of others comparable in appearance. The witness Jones is unable to recall exactly what statements were made to him by his employer before he left for headquarters that morning. Unlike the previous day, defendant was shown to the witness in a cell and was a natural object of scrutiny as a possible suspect. Since defendant was already in custody, and being held in the line-up area, it appears that Det. Hannon should have been able to delay the confrontation in order to fashion a better test of the witness' ability to identify defendant. Of course, no affirmative suggestive influences such as tangible or intangible evidence connecting defendant with the offense were present, nor was there an verbal reinforcement of the witness Jones' opinion from Det. Hannon or other witnesses. In addition, the witness Jones had already made a tentative identification of defendant, indicating that his recognition of Clark was not the product of suggestion.
However, the Court's conclusion that the headquarters identification of defendant by the witness Jones was not the product of suggestion does not directly bear on the issue of whether the jury may be told of such identification. The natural inference that the jury might be expected to draw when presented with a prior identification is that the identifying witness has always been sure of the identity of the offender and that the pre-trial confrontation, being essentially another test of the witness' recollection, is probative of the defendant's guilt. If the challenged confrontation is suggestive, and as such not a good test of the witness, the jury should not be permitted to hear of the confrontation and draw this inference.
Upon weighing the circumstances, the Court concludes that the pre-trial confrontation of defendant by the witness Jones was suggestive to the extent of being inadmissible in evidence as part of the Government's case.
As with the witness Alberstadt, the Court recalls that Government counsel did not seek to fortify his case with the pre-trial identification of defendant by the witness Jones. No reference at all was made to the Monday confrontation until cross-examination had begun. The Court is of the opinion that if for tactical reasons, defense counsel chooses to place before the jury an allegedly prejudicial confrontation, the Government should be permitted to defend the testimony of its witnesses by seeking to convince the panel of the unsuggestive nature of the challenged confrontation.
(7) Admissibility of courtroom identification by the witness Jones.
The issues before the Court here are essentially those considered in (4). The Court having determined that the pre-trial confrontation of defendant by the witness Jones was unnecessarily suggestive and thus inadmissible in evidence, the Government has the burden of demonstrating by clear and convincing evidence that the in-court identification of defendant by the witness Jones had an origin other than the events which transpired on Monday, March 7, 1966. Upon consideration of the testimony elicited both at trial and at the remand hearing, the Court concludes that the Government has met this burden.
James Jones was present during the entire robbery and viewed the offender under the same advantageous conditions as did his employer. Lighting conditions were favorable to a good identification and the robber wore no mask which would conceal his memorable facial features. Mr. Jones, as did Mr. Alberstadt, recalled clearly the unusually colored and deep set eyes of the robber.
Moreover, the witness Jones was able to tentatively identify defendant from a number of photographs on the very night of the robbery when his recollection would be at its best.
These facts and the assertion of the witness that his identification was in no way influenced by his observation of defendant in the cell on March 7 provide clear and convincing evidence that the pre-trial confrontation between James Jones and David Clark was not the basis of the witness' courtroom identification. The Government having met its burden of showing by such evidence that Jones' in-court identification of defendant had a source independent of the confrontation, the Court concludes that said identification was admissible.