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June 24, 1970

Charles J. ASH, Petitioner,
UNITED STATES of America, Respondent

Luther W. Youngdahl, Senior District Judge.

The opinion of the court was delivered by: YOUNGDAHL

LUTHER W. YOUNGDAHL, Senior District Judge.

 This is a petition for post conviction relief pursuant to 28 U.S.C. ยง 2255. Petitioner Charles J. Ash was convicted on March 31, 1965 on two counts of robbery and sentenced to concurrent terms of 2-6 years on each count. Petitioner's conviction was affirmed by the Court of Appeals without opinion on June 21, 1966.

 Petitioner now claims that his conviction should be set aside on several grounds. His primary contention is that certain identification testimony was admitted into evidence in violation of the fifth amendment due process clause. A hearing was held in this Court on June 17, 1970 to consider the claims of petitioner. Even though only one witness to the robbery and the detective involved in the case testified at the hearing, the Court had before it all the evidence at the trial relating to identification because of the fact that those portions of the transcript relating to the issue involved in this hearing were received in evidence without objection. From that hearing and the transcript of the original trial the following facts appear.

 On December 9, 1964 two men entered and robbed a Holiday Inn located at 730 Monroe Street, N.E. in the District of Columbia. At the time of the robbery four employees of the Holiday Inn were working in the vicinity of the Inn's office where the robbery occurred. At about 10 P.M. an individual, not identified as the petitioner, entered the office with a gun and ordered an employee, Jan Martin, to leave his desk and go to a back room where two other employees, Joseph Brand and Chin Row, were talking. At this time the employees were ordered to lie face down on the floor. Another armed individual entered and ordered Mr. Martin to return to the outer office where the cash register was located. This individual was later identified as the petitioner, Charles J. Ash. After Martin turned over the contents of the cash register the robbers left.

 Following the robbery the police were called to the Holiday Inn where they were given a description of the robbers. The description with which we are concerned here indicated that one of the robbers was a Negro male, 25-30 years of age, 6' 1" tall, slim and weighing about 165 pounds, with a light brown complexion, and wearing a mustache as well as a small goatee on the chin. At the hearing Detective Walter M. Evanoff testified that this description was a composite one representing a summary of the individual descriptions given to the police by the three employees. The transcript of the trial proceedings reveals that the above description was given by each of the above named employees. In addition they described the petitioner as wearing sun glasses. The other robber was described as being shorter and of darker complexion.

 In the morning following the day of the robbery, employees Martin and Row went to the police station where they individually and out of the presence of each other thumbed through a loose leaf book of approximately 30 double mug shot photos. Each individual set of photographs consisted of one full face picture and one profile picture. Detective Evanoff testified at the hearing that he placed a double mug shot photograph of petitioner approximately in the middle of the book. Martin testified at trial that after picking out the photograph of petitioner he asked Detective Evanoff to pencil in a slight goatee over petitioner's photograph. Detective Evanoff stated at the hearing that he did this with a type of tracing paper so that no marks were left on the picture. Both Detective Evanoff and Martin testified that the drawing of the goatee occurred after Martin picked out the picture of petitioner and upon the sole request of Martin. There is some conflict in the testimony both at trial and at the hearing concerning the number of photographs of petitioner which was placed in the loose leaf book. But it is clear that at most there were two separate sets of photographs of petitioner placed in the book along with photographs of 28 or 29 other individuals. Detective Evanoff testified at the hearing that this procedure is sometimes used to check the strength of a photographic identification by seeing whether the witness will pick out both pictures.

 After Martin had selected the photograph of the petitioner Chin Row proceeded to examine the book of photographs. He, too, picked out the picture of petitioner. In his case no goatee was penciled in on the picture of petitioner.

 Detective Evanoff then took a batch of at least 12-15 photographs to the Holiday Inn where employee Brand chose the petitioner's mug shot. Again no goatee was penciled in on the picture of petitioner.

 After the photographic identifications were made petitioner was arrested and subjected to a lineup where he was picked out of a group of four men by both Martin and Row. Apparently there was then another photographic identification and petitioner was again identified by employees Martin and Row. At trial petitioner was identified as one of the holdup men by Martin, Row and Brand.

 In United States v. Wade *fn1" and Gilbert v. California *fn2" the Supreme Court held that an identification confrontation is a critical stage of the accusatorial process at which a defendant is entitled by the sixth amendment to assistance of counsel. Thus, testimony concerning an out of court identification made in the absence of counsel was subjected to a per se exclusionary rule. In addition, in order for a witness to make a subsequent incourt identification, the Government must establish by clear and convincing evidence that such in-court identification was based on an independent source.

 Stovall v. Denno, *fn3" decided the same day, limits Wade and Gilbert to prospective application. Therefore, the instant case does not fall within the ambit of these two cases. However, the Supreme Court in Stovall stated that as to pre- Wade and Gilbert cases an identification must be suppressed under the fifth and fourteenth amendments if in viewing "the totality of circumstances" the confrontation was "so unnecessarily suggestive and conducive to irreparable mistaken identification that [defendant is] denied due process of law." *fn4"

 In Simmons v. United States *fn5" the Supreme Court approved use of the basic Stovall standard to judge whether photographic identifications are violative of due process. The Court concluded that the totality of circumstances should be considered to discover whether the procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." *fn6"

 The first major case to apply the Stovall and Simmons doctrine in the District of Columbia was Clemons v. United States. *fn7" The Court of Appeals adopted the independent source rule and noted that if the in-court identification was based on sources independent of the improper confrontation, there was no ...

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