UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
December 12, 1974
UNITED STATES OF AMERICA
JAMES E. JACKSON, APPELLANT 1974.CDC.277 DATE DECIDED: DECEMBER 12, 1974
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 event we perceive no impediment to an effort to fortify the basis for moving in that direction. There is neither claim nor evidence that the methodology of the photographic display in question was in any way suggestive. *fn32
Appellant's remaining ground is that testimonial reference to the photographic identification unfairly embarrassed his ability to persuade the jury that Ms. Butler had misidentified him. The argument is that appellant could best defend against the identification by exhibition of the photographs to the jury for its appraisal of the accuracy of the identification, a course fraught with danger because the photographs were, in the vernacular, mug shots. In support of this argument, appellant relies on our holding in Barnes v. United States *fn33 that since an accused's mug shots intimate a prior criminal record, the Government may not ordinarily present them for the jury's inspection. *fn34
We think appellant presses Barnes much too far. The photographs themselves were not placed in evidence, *fn35 nor were they ever referred to in the jury's presence as mug shots; the question is whether the identification they promoted was outlawed simply by their character. We have consistently honored the Government's prerogative to show testimonially pretrial photographic identifications, which may well be "more meaningful to the jury than the more ritualized in-court identification." *fn36 Our decisions make clear that that prerogative extends to testimony of identifications based on photographs not typically mug shots, *fn37 and we see no sound reason for concluding differently when a mug shot is utilized, *fn38 for the accused need not face the Hobson's choice appellant imagines. The problem to which appellant points may be avoided simply by eliminating the objectionable features of the mug shots, *fn39 a course trial courts, in exercise of their powers to safeguard the fairness of trials, may insist upon. At appellant's trial, the District Court's discretion to that end was never invoked, *fn40 if indeed appellant wished to test the identification against the photograph. We cannot find just cause for the present complaint. III. THE LINEUP IDENTIFICATION
Appellant next complains of the lineup at which, following the photographic presentation, he was again identified by Ms. Butler before trial. The contention is that the lineup was impermissibly suggestive because he was the only one in the lineup with a bush hairstyle. The initial inquiry here is whether the lineup "was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." *fn41 If suggestive but not unconstitutionally so, *fn42 the further inquiry is "whether under 'the totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." *fn43 Our answers to both questions are in the negative.
Shortly after the robbery, Ms. Butler described the armed robber as "a Negro male, late 20's, five-foot-ten, stocky build, medium complexion, bush haircut dark clothing." *fn44 In the challenged lineup were eleven black males who, though generally of similar appearance, nonetheless presented the viewer with some range of variation. Between the shortest and the tallest was a difference of about eight inches; eight in the line-up, including appellant, were within approximately four inches of equal height. None was unusually slender or abnormally stout, but there were differences in build. None seemed particularly young or particularly old, but it was manifest that they were not all of the same age. None had a distinctly heavy beard, but some had facial hair and some did not, and haircuts diverged considerably. In this context, we think it clear, as the trial judge concluded, *fn45 that appellant's bush hairstyle was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to amount to a constitutional violation. *fn46
Moreover, even assuming arguendo that the hairstyle was in some degree suggestive, we cannot believe that it so distinctively marked him as to generate a substantial likelihood of misidentification. *fn47 In Neil v. Biggers, *fn48 the Supreme Court instructed that
the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. *fn49
Ms. Butler observed the robber bearing the shotgun over a period of fifteen or twenty minutes, *fn50 throughout which she was in close proximity to the gunman -- sometimes face-to-face. *fn51 During a good part of the time the lighting conditions were good, *fn52 and Ms. Butler had good reason to remember her assailant. *fn53 After her ordeal was over, she was able to give the police a reasonably accurate description of the gunman, *fn54 and her successive identifications of appellant were consistent and invariably emphatic. In "the totality of the circumstances" *fn55 we discern no ground for doubting the reliability of the lineup identifications. *fn56 We accordingly sustain the trial judge's conclusion that the lineup was constitutionally fair, *fn57 and his action in admitting testimony of the lineup identification at trial. IV. THE IN-TRIAL IDENTIFICATION
Our holdings that Ms. Butler's photographic *fn58 and lineup *fn59 identifications pass constitutional muster mean necessarily that her in-trial identification was free from any vitiating taint of illegality. *fn60 It does not mean, however, that inquiry into her capacity to undertake a courtroom identification is at an end. Appellant argues that inconsistencies in Ms. Butler's trial testimony *fn61 demonstrate that her in-trial identification was the product of the pretrial identification sessions rather than of observations at the time of the robbery, and as such was improperly allowed. In considering this contention, we deal not with a constitutional infirmity, but rather with the competence of the witness.
To be sure, an identification of one as the perpetrator of a crime may rest only upon impressions gained from the criminal activity. Identification - the singling out of the criminal -- can be accomplished from no other source. Post-offense identification confrontations, photographic or corporeal, may provide corroboration for an identification, but they may not serve as its foundation. It does not follow, however, that inconsistencies in an identification witness' trial testimony necessarily reflect a disqualifying inability to independently recognize the offender. Untrustworthiness of a proffered identification, and of course its inadmissibility, depend upon how impaired or lacking the ability to do so may be.
The problem of witness-competence is accentuated in cases wherein the guilt of the accused is sought to be rested on an uncorroborated identification by a single witness. *fn62 For situations of that sort, we have advised caution by the trial judge in retaining the case for the jury's decision on guilt. *fn63 The test for sufficiency of the identification as the foundation for a verdict of guilty, we said, is whether the circumstances affecting it give rise to a substantial likelihood of mistaken identification. *fn64 In the case at bar, Ms. Butler's identification of appellant was extensively confirmed by other evidence; *fn65 surely her competence as an identification witness was not to be judged by a more exacting standard. *fn66 And applying essentially the same test in another context, *fn67 we have detected no appreciable likelihood of error in her attempt at identifying appellant.
Short of that risk, the credibility of Ms. Butler's identification was a matter for the jury. *fn68 In sum, the relatively minor inconsistencies in her testimony at trial *fn69 did not call for intervention by the judge. The jury, fully aware of those inconsistencies and deliberating under unchallenged instructions by the judge, accepted the identification. In the circumstances, it was its prerogative to do so. V. THE OTHER-CRIMES REFERENCES
Lastly, appellant asserts that he was victimized by three separate trial occurrences which indicated to the jury that he had engaged in other criminality. He argues that the disclosure of the photographic identification, actually based on mug shots, *fn70 suggested to the jury his prior involvement with law enforcement authorities. The record makes plain, however, that at no time during trial were the mug shots referred to as anything but ordinary photographs, and that they were never introduced into evidence or shown to the jury. We are unwilling to speculate that somehow the jury may have recognized them for what they were. *fn71
Appellant next argues that the testimony that a search warrant was executed at his apartment *fn72 implicated him in another crime. The argument fails because there was nothing to indicate that the warrant was issued for any offenses other than those for which appellant was on trial. The questioned testimony was simply that an officer went to the apartment to execute the warrant, found appellant there, and recovered the shotgun later identified as the weapon used during the robbery. *fn73
Appellant's final complaint relates to a statement by Carey, on cross-examination by appellant's trial counsel, *fn74 that appellant had been arrested on another charge. *fn75 When that came out, the trial judge, at defense counsel's request, instructed the jury to disregard the statement and denied counsel's motion for a mistrial. Surely the statement cannot be charged to the Government, and in our view it did not warrant a retrial of the case. The evidence of appellant's guilt was strong, and the judge's adminitory instruction to the jury was swift. Whatever any uncured residium of the statement may have been, we are unpersuaded that it could have substantially swayed the verdict. *fn76
The judgment of conviction of assault with a dangerous weapon is vacated. *fn77 The conviction of armed robbery is affirmed.