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11/09/72 United States of America v. Philip Smallwood


November 9, 1972






Bazelon, Chief Judge, and Robinson and Robb, Circuit Judges. Bazelon, Chief Judge, concurring.


Appellant was convicted by a jury of armed robbery (22 D.C.Code §§ 2901 and 3202) and assault with a dangerous weapon (22 D.C.Code § 502). He was sentenced to concurrent indeterminate terms under the Youth Corrections Act (18 U.S.C. § 5010(b)). On this appeal he contends that his constitutional rights were violated when he was identified by a government witness in a lineup, and later in court. We affirm the judgment.

At approximately 1:20 P.M. on May 11, 1970, two men, one armed with a sawed-off shotgun, held up Hymie's Restaurant and Carry-Out at 4408 Arkansas Avenue, N.W., in Washington. The man with the shotgun remained at the door of the restaurant while the other man entered the store and told the proprietress, Mrs. Mary Hyman, to put the money from the cash register in a bag. She complied, placing approximately $86.00 in a bag, which the man took. She noticed that this man was short, very dark, and that his head was clean-shaven. The robbers then left the store and escaped.

Officer Clarence Wheeler, a crossing guard at 13th and Upshur Streets, within a block of Hymie's Restaurant, knew Smallwood by sight, having seen him "in the neighborhood" twenty or twenty-five times. Shortly before 8:00 o'clock on the morning of the robbery Smallwood passed Officer Wheeler's post driving a red 1965 Corvair bearing temporary license tags numbered DX-2920. The car "had very loud mufflers" and was "going a little over the speed limit," which led Officer Wheeler to make a note of the tag number. He noticed also that there were two passengers in the car, one of whom had a clean-shaven head.

At about 1:20 P.M. on May 11, Officer Wheeler left his traffic post and headed for Hymie's for lunch. On the way he noticed Smallwood standing next to his car which was parked just around the corner from the restaurant. Smallwood "appeared to be nervous like he was waiting for someone." As the officer entered the restaurant two men ran out, one of them being the individual with the clean-shaven head who that morning had been a passenger in Smallwood's Corvair. When Mrs. Hyman told the officer that she had been robbed, he turned, followed the two men around the corner and saw them get into Smallwood's car. At this time the officer was within thirty feet of the car. Smallwood got behind the wheel and drove off at a fast rate of speed. Officer Wheeler went to a call box and reported the robbery, giving the tag number and a description of the car. A few minutes later he also furnished a description of Smallwood.

On May 11 Officer Davis and his partner were working in plain clothes as tactical officers, their duties being to gather intelligence and make observations of "things out of the ordinary." Pursuant to this assignment they were cruising in a police car in the neighborhood of Hymie's Restaurant. Officer Davis sat on the passenger side of the front seat. At about 1:20 P.M. Davis noticed Smallwood, just around the corner from the restaurant, standing next to a maroon Corvair with temporary tags DX-2920. The officers' attention was attracted because they "were trying to take special notes, especially of temporary tags" and they "knew that a lot of cars are stolen and using temp tags. . . ." Officer Davis noted the tag number and noticed that Smallwood was "acting nervous . . . standing beside the automobile looking around as if to be waiting for someone." The officers cruised approximately four blocks beyond the car, then turned back to observe the scene again, but found that Smallwood and the car were gone. Moments later Officer Davis heard the radio lookout for the robbery, with the description of the car and Smallwood. He realized immediately that the car and the man described were the car and the man he had just seen. He later testified that to the best of his recollection the description he heard was "Negro male, five foot nine inches to five foot 11 inches, dark complected, close cut hair, wearing a green pullover shirt. . . ."

On May 26, 1970, Officer Davis identified Smallwood in a lineup held pursuant to court order. Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968). Appellant's court appointed counsel was unable to be present because of illness, but substitute counsel appeared for Smallwood. Officer Davis also identified the appellant at trial.

At trial Smallwood disclaimed any knowledge of the robbery. He testified that he knew Officer Wheeler and that around 9:30 on the morning of May 11 he had driven past Wheeler, who was directing traffic at 13th and Upshur Streets. He conceded that his car was a maroon Corvair with a loud muffler, bearing temporary license tags No. DX-29201 and that he was wearing a green shirt. He said he had gone to Hymie's Restaurant at about ten o'clock and had remained there until about half past twelve when he left and went to his brother's house, arriving around one o'clock, and he then went to his mother's house. He said that before leaving Hymie's he stood beside his car for a while, watching "some kids" shooting crap.

The appellant filed a pretrial motion to suppress the identification testimony of Officer Davis. After an extended hearing the district judge overruled the motion, holding that the matter of identification was one for the jury. The appellant now challenges this ruling on several grounds. First, he says that the officer's testimony was "tainted" because he heard the broadcast description of the suspect. Second, he argues that counsel representing Smallwood at the lineup was ineffective, since he did not know at the time that Officer Davis had heard the broadcast and because he failed to provide trial counsel with an account of the lineup. We think the identification testimony was properly admitted.

The broadcast description of the appellant that Officer Davis heard coincided with the picture of the appellant that Officer Davis had in his mind from his own observation a few minutes before the broadcast. Had the officer recorded this description in his own notebook immediately after seeing the appellant, there could hardly be a valid claim that the description tainted his identification of the appellant in the lineup. That the description was recorded in a police broadcast does not change the result, for Officer Davis relied upon the image of Smallwood that he carried in his mind.

The claim of ineffective assistance of counsel is raised for the first time on appeal. At the pretrial hearing Smallwood's counsel, after noting that he had been unable to talk to the substitute lineup counsel, stipulated that he raised "no Sixth Amendment point." He said:

I do not think his [substitute counsel's] presence would add anything here. We know that Mr. Smallwood was represented and as far as possible, I believe, Your Honor, we have spread before the Court the circumstances of the lineup, so I would be willing to stipulate that Mr. Smallwood did have counsel at the lineup without in any way prejudicing the motion.

Nevertheless, we have carefully examined the record bearing on the appellant's claim of ineffective assistance, and we conclude that the appellant was not prejudiced.

Substitute counsel at a lineup satisfies the requirements of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). See United States v. Neverson, 150 U.S.App.D.C. 133, 463 F.2d 1224 (1972); United States v. Randolph, 143 U.S.App.D.C. 314, 317, 443 F.2d 729, 732 (1970); United States v. Kirby, 138 U.S.App.D.C. 340, 344, 427 F.2d 610, 614 (1970). Here substitute counsel was present and the "lineup sheet," which was in evidence, shows that he was "satisfied with position and appearance of line-up." A photograph of the lineup, which is before us, demonstrates that his satisfaction was justified. The lineup consisted of ten Negro males, including Smallwood. Smallwood wore a white shirt, not a green shirt, and at least six men in the array fitted his general description. There is not the slightest indication of any attempt to rig the lineup by including persons whose descriptions were unreasonably different from the description of Smallwood. As we said in Patton v. United States, 131 U.S.App.D.C. 197, 200, 403 F.2d 923, 926 (1968), "there is no challenge of any kind to the authenticity of the photograph, and its effect is decisive." See United States v. Queen, 140 U.S.App.D.C. 262, 263, 435 F.2d 66, 67 (1970). We are at a loss to know what change in the lineup could have been requested by counsel if he had known of the broadcast description of the appellant.

Counsel argues that in describing the appellant, Officer Wheeler noted the presence of scars on the appellant's face, and counsel concludes that this description might have cued Officer Davis in his identification. Officer Davis, however, made no reference to such scars, and apparently did not rely upon them when he identified the appellant. Moreover, and more important, the photograph of the lineup does not show Smallwood's scars, although blemishes are visible on the faces of the men standing on either side of him.

The circumstances surrounding the lineup were exhaustively explored in the suppression hearing. As the appellant's trial counsel then stated, they were "spread before the Court." Trial counsel had available to him the full description which had been broadcast, the names of all the identification witnesses, the lineup sheet and the photograph of the lineup. Every detail of the lineup was developed by counsel's cross examination. We cannot fault his judgment that the presence of substitute counsel, or consultation with substitute counsel, would have added nothing. Failure to communicate with substitute counsel would have been of consequence if he had significant information to communicate. There is no indication, however, that substitute counsel had such information, and any suggestion that he did must be founded on sheer speculation and surmise.2

We note also that Officer Davis, a trained observer, testified that on the day of the robbery he saw the appellant from a distance of from five or ten feet, and made a mental note of his description -- a note that subsequently proved accurate. He testified that "I see a face and I never forget it. It stays with me . . .." There was therefore a substantial basis for the conclusion that the officer's identification of the appellant at trial derived from a source independent of the lineup.3

The judgment is affirmed.


The judgment is affirmed. IN AGREEMENT

BAZELON, Chief Judge, concurring:

Appellant's court-appointed attorney appeared at a suppression hearing on the day of trial totally ignorant of the circumstances surrounding the subject of that hearing: *fn1 an identification lineup conducted after the preliminary hearing. *fn2 The motion to suppress was denied, and trial began immediately. The identification at the lineup, and an in-court identification, were admitted, and appellant was convicted.

In order to decide the Sixth Amendment issue in this case, we must determine why trial counsel lacked this information. If the lineup had been held in the absence of any attorney, United States v. Wade *fn3 would require that we reverse.*fn4 But, when Smallwood's attorney failed to appear for the lineup, appellant was provided a substitute, albeit in a rather haphazard fashion.*fn5

Wade suggested,*fn6 and we have expressly held,*fn7 that substitute counsel satisfies the constitutional requirement, but only if it "[eliminates] the hazards which render the lineup a critical stage for the presence of the suspect's own counsel."*fn8 The Court specified two such hazards in Wade : the occurrence of prejudice at the lineup, and the absence of a meaningful confrontation at trial if counsel is ignorant of such occurrences.*fn9

If the Government, after providing substitute counsel, fails to make reasonably available to trial counsel either the substitute counsel or the observations he made at the hearing, the second of those hazards continues unabated. Thus the rule of per se exclusion established in Wade would still apply. *fn10

But, there is no indication in this record that the Government failed that duty either. Indeed, inferences to the contrary may be drawn from trial counsel's silence. Trial counsel had been appointed prior to the preliminary hearing; he was present at that hearing when both the lineup and his personal presence at the lineup were ordered by the court; he later moved for discovery of the events surrounding the lineup; he made no objection to the Government's discovery in response to that motion; and he moved for, and received, a suppression hearing on the lineup identification. At no time did he complain that he lacked reasonable access to the substitute.

The Sixth Amendment inquiry does not end with Wade, however. If trial counsel's ignorance is not traceable to the Government, we must still inquire whether his performance constituted ineffective assistance of counsel. This record shows that he inexcusably lapsed. *fn11 He had no information at the hearing concerning the events surrounding the lineup, *fn12 and he made no request for a continuance of the trial. Moreover, the record suggests that his acquiescence at the hearing stemmed from an improper desire to avoid censure for his lack of preparation.*fn13

I agree with the court that this record does not show a substantial defect in the identification procedures themselves. Although the trial judge was clearly troubled by the lineup, his inquiry ended with the question of the presence of substitute counsel. *fn14 We do not, thus, have a clear showing of "prejudice" in the very harsh sense applied in the early collateral attack cases involving ineffective assistance. *fn15

I believe that there is a strong case to be made for reversal here without such a showing. Conceivably, a fully informed attorney could, as a "tactic," decide not to challenge an identification. But an attorney who learns nothing of substitute counsel's observations and knowledge of the lineup deprives his client of his only chance to be sure of a "meaningful confrontation at trial," *fn16 as required by the Supreme Court in Wade. *fn17 On the other hand, this record is vitally deficient as to many factors that would be of importance in such a ruling, and would provide little aid in our attempts to resolve the complex questions that would be important to our subsequent disposition.

I would find it necessary to send this case back for supplementation of the record if affirmance would relegate Smallwood to post-conviction remedies. It is settled, however, that he may raise and more fully support his claims of a Sixth Amendment violation on a motion for a new trial without excusing that action with a showing of earlier "due diligence." *fn18

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