MEMORANDUM AND ORDER
YOUNGDAHL, Senior District Judge.
This case was brought for trial on a four count indictment for robbery
and assault with a dangerous weapon.
As a preliminary matter, however, this Court heard testimony and oral argument on the motions of the defendants
for dismissal of the indictment or in the alternative, suppression of evidence of identification. While this Court finds no basis for dismissal of the indictment,
the totality of the circumstances surrounding the process of identification establishes a serious and irreconcilable breach with due process of law, requiring the suppression of all evidence of identification, including subsequent incourt identification at trial.
On October 4, 1966, at approximately 5:40 P.M. four men entered the Kay Jewelry Store located at 1243 Good Hope Road, S.E., in the District of Columbia. At that time the store manager, Mr. Daniel O'Connell, along with two employees, Mrs. Helen Potter and Mr. Stephen Stein, were at work in the store. Mr. O'Connell was engaged with a lady customer at the rear of the store, and Mrs. Potter was in a back room wrapping a package. Mr. Stein approached the four men to offer assistance. They indicated that they wished to see a particular watch in a jewelry case, and when Mr. Stein returned to the rear of the store to get the keys to that jewelry case, the events of the armed robbery began to unfold.
One of the perpetrators, identified by Mr. Stein and Mrs. Potter as Walter McCollough, followed Mr. Stein to the rear of the store and held him at gun point while ordering Mrs. Potter to empty the cash from the safe and from the cash register. A second perpetrator, identified by Mr. O'Connell and Mrs. Potter as Samuel Washington, held Mr. O'Connell at gun point. A third perpetrator, identified by Mr. O'Connell as James McCollough stood as a lookout in the front of the store.
Shortly after the robbery, and on at least two occasions, Detective Harry Noone, who was the investigating officer assigned to the case, showed various photographs of suspected hold-up men to each of the three witnesses. The witnesses were unable to identify any of the photographs. Sometime later in November, 1966 Detective Noone was informed that the three defendants in this case and a juvenile had been arrested by the Alexandria Police Department on a robbery charge. After obtaining the photographs of the four from the Virginia authorities, Detective Noone, on December 1, 1966, showed the photographs to the witnesses for identification purposes.
At this point the record becomes somewhat blurred. There is conflicting evidence as to whether Mr. O'Connell was shown only the four photographs of the suspects
or whether he was shown the four in a group of about twelve photographs.
In addition, there is some conflicting evidence as to whether Mr. O'Connell identified all four suspects
or only two as he now maintains.
On December 3, 1966, Mr. O'Connell was taken by Detective Noone to Virginia to view the McCollough brothers. Mr. O'Connell testified that he identified James McCollough in a cell with five or six other men, and that he did so spontaneously. There is some evidence, however, that the men in the cell were distinctly older than James McCollough and that attention had been called to him by an officer who told him to rise.
Furthermore, Mr. O'Connell testified that on the same occasion he viewed Walter McCollough alone in a cell but was unable to identify him. The officer's affidavit of events on December 3, 1966 would establish, however, that Walter McCollough was viewed in a cell with six other prisoners, and that Mr. O'Connell did identify him.
Again on December 8, 1966, Mr. O'Connell was taken to Virginia for identification purposes. At that time Mr. O'Connell identified Samuel Washington in the hallway leading to the courtroom, and pointed him out to Detective Noone while in the courtroom. It is unclear, however, whether or not Mr. O'Connell was alerted to the presence of Samuel Washington.
Mrs. Potter's only corporeal view of the defendants occurred at a judicial proceeding during March, 1968 in the District of Columbia. Mrs. Potter was brought into a courtroom in which defendants Washington and Walter McCollough were sitting at counsel table. At that time she identified them both to Detective Noone. Mr. Stein, the third eye witness, did not view any of the defendants before arriving in court to testify at the hearing on these motions.
It should also be noted, that prior to this hearing there has been a significant amount of reviewing the case among the Government's witnesses. In fact, in a conference with the Assistant United States Attorney before the hearing Mrs. Potter and Mr. O'Connell again leafed through the photographs of the defendants, and by this time the photographs had been mounted on white paper upon which their respective names had been printed.
The events at issue in this hearing transpired prior to the trilogy of Supreme Court cases involving suspect identification procedures
and therefore the requirement of United States v. Wade,
and Gilbert v. State of California,
that counsel be present at identification confrontations does not apply. Despite the prospective application of Wade and Gilbert, however, Stovall v. Denno
requires that this Court inquire whether, under the totality of the circumstances, the identification procedures deprived the defendants of due process of law.
This Court adopts, as it has done on prior occasions,
the due process formula articulated in Simmons v. United States:
whether the identification procedure "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."
A finding of a due process violation does not, however, end the inquiry, for our own Court of Appeals has determined that "if * * * such a violation is found, the dispositional principles delineated in Wade and Gilbert should be applied analogously."
This Court must therefore consider whether, despite the violation, the Government has established "by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the [tainted] identification."
This Court finds that Simmons v. United States
is dispositive of the due process question. As the Supreme Court pointed out in Simmons:
It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. * * * Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witnesses only the picture of a single individual * * * or if they show him the picture of several persons among which the photograph of a single such individual recurs or is in some way emphasized. * * * Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen * * *.