428 F.2d 1152 (5th Cir. 1970), 27899, United States v. Sutherland

Docket Nº:27899.
Citation:428 F.2d 1152
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ben Herbert SUTHERLAND, Defendant-Appellant.
Case Date:April 29, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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428 F.2d 1152 (5th Cir. 1970)

UNITED STATES of America, Plaintiff-Appellee,


Ben Herbert SUTHERLAND, Defendant-Appellant.

No. 27899.

United States Court of Appeals, Fifth Circuit.

April 29, 1970

Rehearing Denied June 4, 1970.

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[Copyrighted Material Omitted]

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Lewis Tarver, Jr., San Antonio, Tex. (court-appointed), for defendant-appellant.

Seagal V. Wheatley, U.S. Atty., Wayne F. Speck, Reese L. Harrison, Jr., Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Before THORNBERRY, DYER and CLARK, Circuit Judges.

CLARK, Circuit Judge:

A jury convicted Ben Herbert Sutherland on three counts relating to bank robbery. Because the District Court found that an impermissibly suggestive photographic identification created a substantial likelihood of misidentification, yet allowed the question of an incourt identification to go to the jury, we reverse and remand for a new trial. Other issues raised in this appeal which may arise on retrial are also considered.


Sutherland was indicted for conspiracy to rob unnamed banks, 1 Bank robbery 2 and robbery with a dangerous weapon. 3 He pleaded not guilty to all three counts of the indictment but was found guilty by the jury on all three counts.

The crimes for which Sutherland was indicted supposedly had their genesis in a jail in Phoenix, Arizona, where Sutherland and one William James Kump shared a cell. During their incarceration, Sutherland and Kump were supposed to have participated in what amounted to a seminar on techniques for successful bank robberies. The Government contends that the theories espoused by the two cell-mates, and others, were put into practice by Sutherland and Kump upon their release.

When Sutherland and Kump were released from the Phoenix jail, they first went to California, then headed east supposedly bound for the promised land of Mississippi. Their peregrinations finally brought them to San Antonio, Texas, where they stayed for several days. Upon arrival in San Antonio on September 26, 1968, the companions registered in one hotel as 'Joe McDonald and Son.' Several days later they changed hostelries but again registered as McDonald and son. At about 2:00 p.m. on October 1, 1968, Kump robbed the Northeast National Bank of some $5,457.00, but was shot and killed by a guard as he tried to make his getaway.

Within a few hours of the robbery, Sutherland-- with his and Kump's luggage--departed San Antonio aboard a Greyhound Bus, bound for San Jose, California, where he was arrested by the F.B.I. immediately after his arrival several days later.


The only direct evidence connecting Sutherland with the robbery was given by two female employees of the bank who identified him in the courtroom as having been the man they saw running toward the bank immediately after the robbery had occurred and Kump had been shot. The difficulty with their in-court identifications is that they were preceded in both cases by a photographic identification or picture

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spread which the trial court described as 'illegal, improper, and should not have been done' and held created a 'considerable chance that the procedures utilized led to misidentification of the defendant.' In our view, this amounts to a ruling that the picture spread was conducted in such a way as to run directly afoul of Simmons v. United States. 4 Simmons held that:

'* * * convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside * * * if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. 5

Having thus ruled the picture spread defective, the District Court instructed the jury it must disregard the photographic identification, but permitted the jury to decide whether in-court identifications were entitled to any weight as evidence. The judge commented on the in-court identification evidence under the following instruction:

'Now, we get to the courtroom identification. It is true that a positive identification of the defendant was made by each lady in the courtroom. You must decide, therefore, whether or not, in view of all of the circumstances in the case, this identification is valid. In other words, you must determine the extent to which the image of the defendant, reflected by the photograph of him, seen by the witnesses, influenced their identification of him in the courtroom.'

As we read Simmons, an 'impermissibly suggestive' picture spread requires the exclusion of any in-court identification as to which there was a 'substantial likelihood of irreparable misidentification.' Since the District Judge had clearly ruled that both elements of Simmons were present in the instant case, we hold that he was in error in not excluding the in-court identifications. This case must...

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