Bazelon, Chief Judge, and Leventhal and Robinson, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 837-71).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
Appellant was convicted by a jury of armed robbery *fn1 and assault on the robbery victim with a dangerous weapon. *fn2 This appeal focuses upon the victim's pretrial and in-trial identifications of appellant, and evidentiary emanations assertedly indicative of his involvement in other criminality. We vacate the conviction on the assault count *fn3 and affirm on the robbery count. I. THE FACTUAL BACKGROUND
Late one night, Alfreda Lillian Butler entered her apartment building and noticed two men in the basement. As she walked toward her apartment on the second floor, the men approached from the rear. They followed her into the apartment and announced that their purpose was a holdup. One stood in front of Ms. Butler holding a sawed-off shotgun while the other stayed behind her. She was told to empty her purse on the living room floor, which she did. The man with the shotgun cursorily checked two other rooms in the apartment and subsequently took Ms. Butler into her bedroom, while the second man searched more thoroughly. When the search ended they left taking among other things, a stereo set.
Fifteen to twenty minutes elapsed from the men's entry to their departure. During that period, Ms. Butler was face to face with the gunman on several occasions. Lights were on over the front door, in the living room and in a bedroom in which her son was asleep, although her own bedroom may have been unlighted. *fn4 Ms. Butler could not observe the second man sufficiently to enable a later identification. *fn5
Ms. Butler gave the police a description of her armed assailant. *fn6 A few weeks later, Officer Joseph T. Kaclik received word from an informant that appellant was a participant in the robbery. *fn7 From that point onward, the investigation implicated appellant more and more. Officer Kaclik selected black-and-white photographs of eight persons, including appellant, of the same age group and general description, *fn8 and presented them to Ms. Butler, who immediately and positively identified appellant as the man who held the shotgun during the robbery. *fn9 A search warrant executed at appellant's apartment netted a sawed-off single-barreled shotgun. *fn10 Ms. Butler identified a stereo set recovered by the police *fn11 as the one taken from her apartment during the robbery. From an eleven-man lineup at police headquarters, *fn12 Ms. Butler again made a positive identification of appellant. *fn13 These and other events *fn14 culminated in an indictment.
Shortly prior to trial, appellant moved to suppress the photographic and lineup identifications, and any in-trial identification to be undertaken. After an evidentiary hearing, the judge denied the motion. *fn15 At trial, Ms. Butler described the robbery, identified her stereo set, and said that the shotgun found in appellant's apartment was similar to the one used in the robbery. *fn16 Ms. Butler also testified to her previous photographic *fn17 and lineup *fn18 identifications of appellant, and once again identified him in the courtroom. Officer Kaclik confirmed her pretrial identifications of appellant and the stereo set.
A key witness for the Government was Roland Carey, appellant's roommate, whose testimony we may profitably pause to summarize. *fn19 On the night of the robbery, appellant, Wendell Hiett and Carey talked in appellant's apartment about a "hustle" -- a robbery. Carey spurned the plan, so appellant and Hiett left to execute it on their own. Appellant took along the sawed-off shotgun, which he kept in the apartment.
Hiett, carrying Ms. Butler's stereo set, returned to appellant's apartment later, but Carey refused to let him come in. Hiett then went to his own apartment, located in an adjacent building. *fn20 Still later, Carey saw appellant run into Hiett's apartment house. Carey joined them, and both appellant and Hiett told him about the robbery of Ms. Butler. *fn21
Appellant's defense was alibi and mistaken identity. He and two witnesses testified that they were playing and watching television in the witnesses' apartment when the robbery was in progress. *fn22 Appellant also testified that the shotgun did not belong to him but to Carey. The jury persuaded instead by the Government's evidence, convicted. II. THE PHOTOGRAPHIC IDENTIFICATION
The challenge to Ms. Butler's photographic identification of appellant is predicated upon three distinct grounds, the first of which may at once be discarded. That ground is that, because appellant was already in custody on another charge, *fn23 the police could not, in the absence of counsel on his behalf, utilize a photographic identification to link him to the robbery. The Supreme Court's recent holding in United States v. Ash, *fn24 that no Sixth Amendment right to counsel attaches at photoidentification sessions, plainly forecloses acceptance of that argument.
A second ground urged is that, with appellant in custody and assertedly available for a corporeal lineup, *fn25 a photo-identification procedure in lieu of the normally more reliable lineup procedure *fn26 was constitutionally impermissible because unnecessary. *fn27 We are unable to characterize the resort to photographs as a gratuitous undertaking here. *fn28 Photo-identification is an established investigative technique which the Supreme Court has refused to outlaw *fn29 and which, as Ash and other decisions demonstrate, may properly serve law enforcement needs other than apprehension of criminals at large. *fn30 Ms. Butler's examination of the photographs was designed to test unverified information from a paid informant that appellant was one of her assailants. We are less confident than appellant that his presence in a robbery lineup was than compellable, *fn31 but in any ...