The opinion of the court was delivered by: CORCORAN
CORCORAN, District Judge.
The defendant, James York, was indicted in eleven counts for robbery and assault with a dangerous weapon
in connection with the holdup of a Hahn's Shoe Store on December 30, 1967. A jury found him guilty on all counts on August 22, 1968, and the Court sentenced him to three to ten years on each count, sentences to run concurrently.
The in-court identification of the defendant by Loren J. Seifert, the principal witness for the Government, was challenged on appeal as being tainted by the pretrial identification procedures followed by the police.
The Court of Appeals (Judge Robb dissenting) remanded this case for further proceedings in the District Court to determine if there was an independent source for Seifert's in-court identification. ( United States v. York, 138 U.S. App. D.C. 197, 426 F.2d 1191 (1969).
Briefly and chronologically, Seifert first identified the defendant from photographs supplied to him by the police the afternoon of the robbery and again three weeks later. He then picked the defendant out of a large group sitting in a General Sessions courtroom without prompting but, however, at a time when the defendant was not accompanied by counsel. At the preliminary hearing he made an in-court identification and underwent extensive cross-examination. Finally he made an in-court identification at the trial.
At the trial no reference was made to the General Sessions identification. However, while the appeal was pending, Mason v. United States, 134 U.S. App. D.C. 280, 414 F.2d 1176 (1969) was decided which made inadmissible General Sessions identifications when defendant's counsel is not present.
This decision led the Court of Appeals in York to comment:
"Early in the trial, the Court ruled that the Government might properly ask Seifert to identify appellant from the witness stand. But it is clear to us, as the Government now concedes, that the viewing in the Court of General Sessions infringed appellant's right to counsel as defined in our recent Mason opinion. So, with Seifert's in-trial identification thus jeopardized, we need not, even if we could, inquire whether that identification was further embarrassed by any impropriety accompanying the photographic displays to which Seifert was exposed.
"The record before us is deficient at too many points to enable us to proceed with confidence toward a decision as to whether there was an independent source that would vindicate the identification Seifert made at the trial." United States v. York, supra, at 1192-1193.
The remand hearing was held December 5, 1969. The Government produced Seifert as a witness. It also produced Officer Raymond E. Denz, Special Operations Division of the Metropolitan Police Department. Denz was the officer who displayed to Seifert the photographs from which the final identification just prior to the issuance of the arrest warrant was made. Defense counsel proffered no testimony but did cross-examine the Government witnesses.
Making necessary allowance for fading memories as to detail (the remand hearing was more than two years after the incident in question), the evidence adduced through the witnesses corresponded in substance to that previously produced. The totality of that evidence is substantially as follows:
The incident in question occurred at approximately 8:00 a.m. December 30, 1967. The lighting conditions were good -- it was "daylight" and the store's interior ...