440 F.2d 827 (6th Cir. 1971), 20612, United States v. Serio

Docket Nº:20612.
Citation:440 F.2d 827
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. August SERIO, also known as Delbert Beard, Defendant-Appellant.
Case Date:April 06, 1971
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 827

440 F.2d 827 (6th Cir. 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

Page 828

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

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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...

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