United States v. Shannon

• Decision Date: 29 April 1970
• Docket Number: No. 17485.,17485.
• Parties: UNITED STATES of America v. John W. SHANNON, Jr., Nathaniel Wiggins, Harry William Parker, Leroy Wiggins, Theodore R. Whaley, Leroy Wiggins, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

424 F.2d 476 (1970)

UNITED STATES of America v. John W. SHANNON, Jr., Nathaniel Wiggins, Harry William Parker, Leroy Wiggins, Theodore R. Whaley, Leroy Wiggins, Appellant.

No. 17485.

United States Court of Appeals, Third Circuit.

Argued April 2, 1970.

Decided April 29, 1970.

M. Gene Haeberle, Camden, N. J., for appellant.

D. William Subin, Asst. U. S. Atty., Camden, N. J. (Frederick B. Lacey, U. S. Atty., Newark, N. J., on the brief), for appellee.

Before HASTIE, Chief Judge, and MARIS and ADAMS, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

Leroy Wiggins was one of five defendants charged with armed robbery of a bank on May 26, 1967, in violation of 18 U.S.C. §§ 2113(a), 2113(b), 2113(d). Following a jury trial, Wiggins was found guilty on all three counts and sentenced to twelve years imprisonment. Wiggins appeals the conviction contending that pre-trial identifications of him by a bank teller were so "prejudicially unfair" that the in-court identification by the teller witness was reversible error. The contested pre-trial identifications were based on FBI photographs and on a one-man line-up.

On the Monday following the robbery, an FBI Agent showed one of the bank tellers, Mrs. Linda Dempsey, eleven photographs. From these photographs, she identified Wiggins as the man who appeared at her teller's cage. The photographs were all of Negro males; nine of the eleven men pictured had mustaches; the pictures of Wiggins and one other man did not have mustaches; and three photographs, including that of Wiggins, had notations of prior criminal records on the backs of the pictures. Some time after the photographic identification, Mrs. Dempsey identified Wiggins at a police station in a one-man line-up. She did not identify Wiggins immediately at the police station, but did so after he was requested to dress in clothing similar to that worn during the robbery. At trial, Mrs. Dempsey identified Wiggins as the man who appeared at the teller's cage, pointed a gun at her, and handed her a bag to be filled with money.

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court held that a post-indictment line-up was a critical stage of the criminal proceeding at which an accused was guaranteed the right to counsel by the Sixth Amendment, and that a courtroom identification must be excluded unless the prosecution shows, by "clear and convincing evidence", that it had an independent origin. The Wade doctrine does not apply to this case because the line-up here was conducted before the date of the Wade decision, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), held that Wade is not applicable to line-ups conducted prior to the date of that decision.

Pre-trial viewing of a defendant standing alone has been held not to be so unfair and inherently prejudicial as to require exclusion of an in-court identification and reversal of a conviction unless there are other circumstances indicating a likelihood of misidentification. See e. g. United States v. Black, 412 F.2d 687 (6th Cir. 1969); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968); Cline v. United States, 395 F.2d 138 (8th Cir. 1968). See also Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968). Wiggins contends that the photographs presented to Mrs. Dempsey unfairly emphasized him, and that such emphasis in combination with the one-man line-up could have easily resulted in misidentification. We do not agree.

This case is controlled by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In Simmons the Supreme Court recognized that there are dangers of misidentification inherent in pre-trial examination of photographs, just as there are dangers of misidentification from line-ups. When prejudicial photographic procedures focusing on a particular suspect are used, the possibilities of misidentification are increased. The Supreme Court did not, however, prescribe a prophylactic rule excluding all in-court identifications based on pre-trial identifications which were not absolutely proper. In Simmons the Court said that "each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification". 390 U.S. at 384, 88 S.Ct. at 971. See also United States v. Conway, 415 F.2d 158 (3d Cir. 1969).

Although the photographs selected by the FBI in its investigation may have tended to focus on Wiggins by including too few suspects without mustaches, there are sufficient...