Russell v. United States

• Decision Date: 24 January 1969
• Docket Number: No. 21571.,21571.
• Citation: 133 US App. DC 77,408 F.2d 1280
• Parties: Bobby RUSSELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

133 US App. DC 77, 408 F.2d 1280 (1969)

Bobby RUSSELL, Appellant, v. UNITED STATES of America, Appellee.

No. 21571.

United States Court of Appeals District of Columbia Circuit.

Argued September 17, 1968.

Decided January 24, 1969.

Certiorari Denied May 26, 1969.

Messrs. David S. Scrivener, and Robert T. Gaston, Washington, D. C. (appointed by this court) for appellant.

Mr. Clarence A. Jacobson, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and DANAHER and ROBINSON, Circuit Judges.

Certiorari Denied May 26, 1969. See 89 S.Ct. 1786.

BAZELON, Chief Judge:

This appeal from a conviction for housebreaking and petit larceny raises issues concerning the admissibility of identification evidence under United States v. Wade¹ and Stovall v. Denno.²

At day-break on June 28, 1967, one George McCann investigated the sounds of a blaring radio and breaking glass at the Community Shoe Shine shop. The radio was sitting on the sidewalk outside the broken shop window. Stationing himself in a brightly-lighted gas station across the street, he saw a man emerge from the shop, look across at him, and proceed past him up the street. McCann went directly to a nearby police station and reported the incident three or four minutes after it occurred. The police broadcast a radio look-out, and officers in a responding squad car promptly encountered appellant in the vicinity. Since he matched the radioed description of the suspect and fled from the approaching police car, the officers pursued him to the porch of a house. There they discovered that he had a radio in one hand and a hatful of cigarettes and small change concealed under his coat. He also had a coat hanger and a screwdriver in his pocket, and on this particular summer night he was wearing gloves. They arrested him³ and drove him to the shoe shine shop where McCann identified him as the man he had seen coming out of the shop.

At trial, a police officer described the out-of-court identification, and in addition McCann identified appellant in court. McCann also testified that the radio found in appellant's possession looked like the one he had seen on the sidewalk while appellant was in the shop. The owner of the shop established that cigarettes and change had been taken from his vending machines.⁴ Appellant, as the sole defense witness, denied having been in the shop and presented an implausible alibi which appeared even less plausible under cross examination. Impressive as was the government's case, however, it was not so overwhelming as to render a Wade or Stovall violation harmless error under the stringent standard set by Chapman v. California.⁵

I

In Wade, the Supreme Court held that a post-indictment lineup is a "critical stage" in the criminal process at which the presence of counsel is required⁶. Since McCann first identified appellant after Wade was decided, we must determine whether the Wade rule applies to prompt confrontations with an eyewitness at the scene of the crime.

The first court to confront this difficult question held that it does not. In Commonwealth v. Bumpus,⁷ the eye-witness had feigned sleep while a burglar prowled his bedroom, and immediately afterwards had called the police with a description. The police then picked up the defendant in the neighborhood and brought him back, without counsel, for identification. A unanimous court held Wade distinguishable on its facts and rationale and affirmed the conviction⁸.

But some of the language in Wade implies that a suspect has a right to counsel at any pretrial confrontation arranged by the police, regardless of the circumstances. The Wade Court said it was obliged to "scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial * * *."⁹ Scrutinizing, it discovered that

the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.¹⁰ It went on to observe:

The pretrial confrontation for purposes of identification may take the form of a lineup, also known as an "identification parade" or "showup," as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno * * *. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.¹¹

In all these confrontations the Court said the absence of counsel presents "serious difficulty in depicting what transpires * * *."¹² On the strength of this language, the Fifth Circuit Court of Appeals recently concluded that Wade

applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place * * *.¹³

Accordingly, in United States v. Kinnard,¹⁴ Judge Gesell of the District Court

for the District of Columbia felt compelled to exclude an on-the-scene identification occurring some 45 minutes after the robbery, in spite of his own vehement dissent to the wisdom of prohibiting such identifications.

The passage in the Wade opinion which most nearly confronts the circumstances of the instant case provides uncertain guidance. The Court said:

No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications * * *. We note that in the two cases in which the right to counsel is today held to apply, counsel had already been appointed and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontations. Moreover, we leave open the question whether the presence of substitute counsel might not suffice where notification and presence of the suspect\'s own counsel would result in prejudicial delay.¹⁵

This language leaves room for modification of the Wade rule in cases involving prompt confrontations. But it also leaves room for argument that at least "substitute counsel" would be required in any event.¹⁶

While the language of Wade would thus seem to encompass prompt on-the-scene identifications, they do not fall within the holdings of Wade or its companion case, Gilbert v. California¹⁷. The confrontations disapproved in these cases were post-indictment lineups. Similarly, though it spoke in broad terms, the Court was evidently focusing primarily on the routine lineup and show-up procedures employed by the police to obtain evidence for use at trial.¹⁸ The Court was concerned both to enhance the fairness of such procedures and to expose to judge and jury any elements of unfairness or unreliability which might attend them. In these typical cases, where counsel had been retained and time was not a factor it could find "no substantial countervailing policy considerations * * * against the requirement of the presence of counsel."¹⁹

The present case, however, involves an immediate on-the-scene confrontation at 5 o'clock in the morning when there would necessarily be a long delay in summoning appellant's counsel, or a substitute counsel, to observe a formal lineup. Such delay may not only cause the detention of an innocent suspect; it may also diminish the reliability of any identification obtained, thus defeating a principal purpose of the counsel requirement.²⁰

Unquestionably, confrontations in which a single suspect is viewed in the custody of the police are highly suggestive²¹. Whatever the police actually say to the viewer, it must be apparent to him that they think they have caught the villain. Doubtless a man seen in handcuffs or through the grill of a police wagon looks more like a crook than the same man standing at ease and at liberty. There may also be unconscious or overt pressures on the witness to cooperate with the police by confirming their suspicions. And the viewer may have been emotionally unsettled by the experience of the fresh offense.

Yet, on the other hand, recognition of a person or face would seem to be as much the product of a subjective mental image as of articulable, consciously remembered characteristics. A man may see clearly in his "mind's eye" a face or a figure which he is hard put to describe adequately in words. Though the image of an "unforgettable face" may occasionally linger without any translation into words, photographic recall is most often ephemeral. Vivid in the flash of direct observation, it fades rapidly with time. And the conscious attempt to separate the ensemble impression into particular verbalized features, in order to preserve some recollection, may well distort the original accurate image so that it is the verbalized characteristics which are remembered and not the face or the man.

Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations in circumstances like those of this case will "if anything promote fairness, by assuring reliability * *."²² This probability, together with the desirability of expeditious release of innocent suspects, presents "substantial countervailing policy considerations" which we are reluctant to assume the Supreme Court would reject. We therefore conclude, with some hesitation, that Wade does not require exclusion of McCann's identification.

This conclusion does not rest on a determination that McCann's identification was in fact especially reliable. It rests instead on a general rule that it is not improper for the police immediately to return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes...