United States v. Hardy, 71-1324.

• Decision Date: 15 September 1971
• Docket Number: No. 71-1324.,71-1324.
• Citation: 448 F.2d 423
• Parties: UNITED STATES of America v. James Alzie HARDY et al., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

448 F.2d 423 (1971)

UNITED STATES of America v. James Alzie HARDY et al., Appellant.

No. 71-1324.

United States Court of Appeals, Third Circuit.

Argued August 25, 1971.

Decided September 15, 1971.

David Rudovsky, Defender Association of Philadelphia, Philadelphia, Pa., for appellant.

Charles B. Burr, II, Asst. U. S. Atty., Philadelphia, Pa. (Louis C. Bechtle, U. S. Atty., John F. Penrose, Asst. U. S. Atty., on the brief), for appellee.

Before HASTIE, ADAMS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

James Hardy appeals from his conviction after a jury trial in the United States District Court for the Eastern District of Pennsylvania on a four count indictment charging him and a co-defendant with robbery of the Berean Savings and Loan Association in violation of 18 U.S.C. §§ 2113(a), (b) and (d). Hardy advances three contentions in support of his motion for a new trial. First, he claims the FBI put undue pressure on a witness, Susan Bates, to identify him at trial. Second, he asserts that the in-court identification by a second witness, Christina Williams, was the product of an unconstitutional confrontation. Third, he argues that the trial judge erred when, following summations by counsel, but prior to the charge, he showed to the jury certain photographs of the robbers taken by the bank surveillance camera and asked the jury to compare the defendants with the likenesses exhibited in the photographs. We shall consider these points seriatim.

We find no merit to the claim that Susan Bates was subjected to undue pressure from the FBI. She was in the bank working as a teller on October 5, 1970, the day the robbery occurred. On October 20th, Hardy was arrested, and on October 22nd, Miss Bates viewed a photographic display and a line-up, which included the defendant.¹ Although Miss Bates made a subjective identification of Hardy on this occasion, she did not relate this fact to anyone at the time of the line-up. Sensing that her failure to identify anyone in the line-up was motivated by fear for her own safety rather than a lack of recognition of any of the participants, FBI Agent Walsh approached Miss Bates in the middle of January, 1971 to determine if his "feeling" were correct. It is at this point that the government and Hardy disagree as to what happened. Appellant claims that Agent Walsh "told her that it was important that she identify Hardy * * *" (emphasis added). But a careful reading of the record fails to support this version of the January meeting. Rather, it reveals that Walsh explained to Miss Bates the importance to the bank and to the prosecution of her coming forward if she had in fact recognized anyone on October 22nd. Walsh further told Miss Bates that if she were afraid and for that reason would not make an identification, protection would be provided for her. In response to the discussion with Agent Walsh, Miss Bates did state that she had recognized two men at the line-up. It is significant to note that Agent Walsh never asked Miss Bates which two she had recognized, nor did he show her pictures of the lineup or of the men who had been arrested. Although Walsh named certain persons at that time, Miss Bates testified that, "He mentioned some names but I don't know any of them by name." She thereafter identified Hardy at the trial in March, 1971. We find no support for Hardy's contention that Agent Walsh unduly pressured Susan Bates into identifying Hardy.

Second, we hold that the totality of the circumstances surrounding a chance viewing by Christina Williams of Hardy in the courtroom prior to the commencement of the trial was not "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); cf. United States v. Lipowitz, 401 F.2d 591 (3rd Cir. 1963), cert. denied sub nom. Muller v. United States, 395 U.S. 924, 89 S.Ct. 1778, 23 L.Ed.2d 240 (1969). Mrs. Williams, also an employee of the bank, was present at the bank on the day of the robbery. Although she had told investigators she might be able to identify the robbers, she was not taken to the line-up in which Hardy appeared, and, therefore, had never made any identifications prior to the trial. She was asked to appear in court on March 1, 1971, in order to describe the occurrence of the bank robbery and to be the witness through whom the bank's federal insurance documents were to be entered into evidence

She entered the courtroom with Miss Bates and both took seats...