United States v. Serio, 20612.

• Citation: 440 F.2d 827
• Decision Date: 06 April 1971
• Docket Number: No. 20612.,20612.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. August SERIO, also known as Delbert Beard, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

440 F.2d 827 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. August SERIO, also known as Delbert Beard, Defendant-Appellant.

No. 20612.

United States Court of Appeals, Sixth Circuit.

April 6, 1971.

Lawrence S. Katkowsky, Detroit, Mich., for appellant.

James W. Russell, Detroit, Mich., Ralph B. Guy, Jr., U. S. Atty., J. Kenneth Lowrie, Asst. U. S. Atty., Detroit, Mich., on the brief, for appellee.

Before PECK, BROOKS and KENT, Circuit Judges.

KENT, Circuit Judge.

This is an appeal from a conviction for bank robbery. 18 U.S.C. § 2113(d). In separate trials the appellant and two co-defendants were convicted of robbing the National Bank of Jackson, Michigan, Southwest Plaza Branch. The robbery of the bank, which is undenied, occurred on December 5, 1968. Issues were raised in connection with the identification of the individuals involved. One of the principle identification witnesses against this appellant was Jan Findley, who worked in a store two doors from the bank. She testified, in effect, that she observed three men walking by the window of her shop (immediately preceding the robbery) but was able to identify only the appellant and one of the other two individuals. Mrs. Findley identified the appellant in a line-up shortly after his arrest, made a photographic identification subsequent to the line-up, and identified him in the courtroom during the trial.

Appellant was represented by counsel at the time of the line-up and because of counsel's objections there were changes made in the personnel involved in the line-up. There was a conflict in the testimony with regard to certain other objections to the line-up which counsel alleged he made and which were denied by representatives of the Detroit Police Department. These objections apparently related to skin color or skin tone, since all of the individuals in the line-up were negroes, and the appellant had been previously described as "light skin." Appellant was also identified in the line-up by one of the bank tellers, who subsequently made a photographic identification of the appellant, and who identified him in the courtroom during the trial. No counsel was present at the time the witnesses made the photographic identification nor was counsel afforded an opportunity to be present.

Prior to the in-court identification of the appellant by the witnesses, the trial judge held an extended hearing as required by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), to determine whether the objections asserted to the line-up procedure were well taken before submitting the issue of identification to the jury and determining that the Constitutional rights of the appellant had not been infringed by the line-up procedure or by the photographic identification. We agree. The trial court indicated a recognition of the claim that some white people have difficulty in identifying negroes. In this case it appears that the witness, Jan Findley, was married to a negro, and she testified affirmatively that she had no such identification difficulty. It does not appear from the record that there were any great discrepancies in size or decription such as were found by this Court to have existed in United States v. DeBose, Jr., 433 F.2d 916 (6th Cir. 1970) where this Court held that there was no error despite the fact that the defendant was six feet five inches tall and the next tallest individual in the line-up was six feet tall.

We have examined with care the cases cited by counsel for the appellant, Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L.Ed.2d 402 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966); United States ex rel. Rutherford v. Deegan, 406 F.2d 217 (2nd Cir. 1969), and others. Each of the cited cases is distinguishable upon its facts or reaches a legal conclusion contrary to that advocated by counsel for this appellant. This Court is satisfied that the pretrial line-up identification by the witnesses was properly conducted.

Counsel for the appellant claims that the photographic identification of the appellant, following the line-up and in the absence of counsel for the appellant, violated the appellant's Constitutional rights under the Sixth Amendment. Counsel urges that the rule announced in United States v. Wade, supra, which requires the presence of counsel at a line-up should be extended to photographic identifications and relies upon United States v. Zeiler, 427 F.2d 1305 (3rd Cir. 1970). We are not persuaded by the Court's opinion in Zeiler and find that all other Circuits which have considered the issue have resolved against the claims of this appellant. The language of Judge Friendly in United States v. Bennett, 409 F.2d 888 (2nd Cir. 1969) cert. denied, 396 U.S. 852, 90 S. Ct. 113, 24 L.Ed.2d 101, reh. denied, 396 U.S. 949, 90 S.Ct. 376, 24 L.Ed.2d 256, meets with our approval and effectively disposes of the appellant's claims in this respect. As stated by Judge Friendly in 409 F.2d 888, at 889, 900:

"Against this, to require that defense counsel be allowed or appointed to attend out-of-court proceedings where the defendant himself is not present would press the Sixth Amendment beyond any previous boundary. None of the classical analyses of the assistance to be given by counsel, Justice Sutherland\'s in Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L. Ed. 158 (1932), and Justice Black\'s in Johnson v. Zerbst, supra, 304 U.S. 458 at 462-463, 58 S.Ct. 1019, 82 L.Ed. 1461 and Gideon v. Wainwright, supra, 372 U.S. 335 at 344-345, 83 S.Ct. 792, 9 L.Ed.2d 799, suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant\'s absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered.

Many other aspects of the prosecution\'s interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense\'s interviews, notably with alibi witnesses. Although in Simmons Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 1247 the Court noted that the right to counsel was not involved, since the photographs were shown to the witnesses before any arrests had been made, Mr. Justice Harlan\'s opinion contains language bearing on this problem, 390 U.S. at 384, 88 S.Ct. 967, at 971:

Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on mis-identification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method\'s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement.

And in Wade itself, the Court listed as one of the ways the prosecution might attempt to show that a witness\' identification of defendant at trial was not the fruit of a lineup held in the absence of counsel a showing of `the identification by picture of the defendant prior to the lineup,\' 388 U.S. at 241, 87 S.Ct. 1936 at 1940, which clearly implies that such identifications are permissible even when defendant\'s counsel is not present. Since we thus refuse to project United States v. Wade and its siblings into new ground, see McGee v. United States, 402 F.2d 434, 436 (10 Cir. 1968), we have no occasion to consider the effect or validity of 18 U.S.C. § 3502, added by § 701 of the Crime Control Act of 1968."

Accord see: McGee v. United States, 402 F.2d 434 (10th Cir. 1968); cert. denied 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220; Rech v. United States, 410 F.2d 1131 (10th Cir. 1969), cert. denied, 396 U.S. 970, 90 S.Ct. 457, 24 L.Ed.2d 438; United States v. Robinson, 406 F. 2d 64 (7th Cir. 1969), cert. denied, 395 U.S. 926, 89 S.Ct. 1783, 23 L.Ed.2d 243; United States v. Ballard, 423 F.2d 127 (5th Cir. 1970); United States v. Collins, 416 F.2d 696 (4th Cir. 1969), cert. denied, 396 U.S. 1025, 90 S.Ct. 601, 24 L.Ed.2d 519; Allen v. Rhay, 431 F.2d 1160 (9th Cir. 1970).

This Court is satisfied that United States v. Wade, supra, should not be projected to require the presence of counsel during the course of a photographic identification by witnesses as claimed by this appellant, and we hold that the presence of counsel under such circumstances is not required.

We now come to an interesting facet of this trial. During the course of the trial the appellant and one of his co-defendants...