United States v. Jackson

Decision Date13 September 1971
Docket NumberNo. 71-1018-71-1020.,71-1018-71-1020.
Citation448 F.2d 963
PartiesUNITED STATES of America, Appellee, v. Howard JACKSON, Jr., Appellant. UNITED STATES of America, Appellee, v. Billy Joe PAYNE, Appellant. UNITED STATES of America, Appellee, v. Robert H. WILLIS, Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Tom O'Toole (argued), Tom Karas, Phoenix, Ariz., for Howard Jackson, Jr.

Michael E. Bradford (argued), Phoenix, Ariz., for Billy Joe Payne.

Joel Jay Finer (argued), Tucson, Ariz., for Robert H. Willis.

Charles Diettrich, Asst. U. S. Atty. (argued), Richard Burke, U. S. Atty., N. Warner Lee, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before BARNES, HAMLEY and HUFSTEDLER, Circuit Judges.

HAMLEY, Circuit Judge:

Howard Jackson, Jr., Billy Joe Payne and Robert H. Willis were jointly tried and convicted of bank robbery with a gun, in violation of 18 U.S.C. § 2113(a)(d). Their individual appeals have been consolidated. We affirm all three judgments.

At 11:45 a. m., on April 28, 1970, three masked Negroes robbed the Valley National Bank, Phoenix, Arizona, of over ten thousand dollars. Employees and customers testified that all three robbers wore stocking masks and at least some of them were armed. The three defendants were arrested and charged with this crime.

All three defendants filed motions to suppress various items of physical evidence. At the pretrial court hearing on these motions there was a confrontation between defendants and five Government eyewitnesses, in the absence of counsel, which provides the basis for defendants' first argument on appeal.

The hearing on the motions to suppress was scheduled to begin at 9:30 a. m. on September 1, 1970. The eyewitnesses came to the courtroom about that time to participate in this hearing and took seats in the spectators' section. The hearing, however, was delayed as the court had asked opposing counsel to first meet in an adjoining room to examine evidence. Counsel for defendant Jackson passed through the courtroom shortly after 9:30 a. m. and saw the Government witnesses sitting in the courtroom. He knew that defendants would be brought to the courtroom for the hearing. However, he did not anticipate that this would occur in the absence of counsel and therefore made no effort to postpone the prospective confrontation until counsel were present.

While opposing counsel were busily engaged in the adjoining room for about an hour, and in accordance with his usual routine, the United States Marshal brought defendants into the courtroom under guard and seated them behind defendants' counsel table. This was done without the knowledge of counsel for either side. While defendants were seated in the courtroom prior to the commencement of the hearing the eyewitnesses took occasion to observe them.

Most of the witnesses later testified that they assumed the three persons who had been brought in by the marshal were the persons who had been indicted for the offense. Two of the witnesses indicated that they, and the other witnesses, left the courtroom during this period, looked back at the defendants through the window in the courtroom door, and that there was some conversation between them as to the identity of the three individuals who had been seated at the counsel table.

When counsel returned to the courtroom about 10:40 a. m., and the suppression hearing commenced, the court excluded the witnesses from the courtroom except when they were called individually to testify, and admonished them not to discuss the case with each other. Only thereafter did counsel for Jackson and Willis call the court's attention to the confrontation which had occurred, and no objection or motion pertaining to the incident was made at that time.

The five eyewitnesses were called to the witness stand during the suppression hearing which continued into September 2, 1970. At this time the three defendants were apparently scattered about the courtroom. Among other questions, each witness was asked in turn whether he saw in the courtroom any of the robbers. Witnesses Wiggins and Palmer identified defendants Payne and Jackson. Witness Esmeier identified defendant Willis. Witness Moulton identified Payne and witness Welch identified Payne and Willis. All five testified that their identifications were based upon their observations at the time of the robbery, and they were not assisted by the confrontation which had occurred on the previous day.1

Counsel for defendants voiced no objection to these courtroom identifications during the suppression hearing. When witness Esmeier asked if he could stand up while he looked at persons in the courtroom, the court asked all of the defendants to stand. They did so. None of the defense counsel objected to this procedure. At least in the absence of objection, this practice does not deprive a defendant of due process. United States v. Zammiello, 432 F.2d 72, 73 (9th Cir. 1970).

While the suppression hearing was in recess defendants formally moved to suppress the in-court identification of defendants by the five Government eyewitnesses. Counsels' ground for this motion was that the confrontation on September 1, 1970, tainted the witnesses' ability to make reliable in-court identification and thereby deprived defendants of due process. The motion was denied. At the trial the five eyewitnesses repeated their in-court identifications of defendants. While witness Welch was making her identification the court again, without objection, had all of the defendants stand. During the trial defendants several times renewed their motions to suppress the in-court identifications, but the motions were denied.

All of the defendants here contend that the in-court identifications described above deprived them of due process of law.

Defendants are entitled to reversal if the confrontation on September 1, 1970, "was so unnecessarily suggestive and conducive to irreparable mistaken identification" as to amount to a denial of due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L. Ed.2d 1199 (1967); Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L. Ed.2d 402 (1969); Coleman v. Alabama, 399 U.S. 1, 3-6, 90 S.Ct. 1999, 26 L.Ed. 2d 387 (1970). See Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed. 2d 1267 (1968). As observed in Stovall, 388 U.S. at 302, 87 S.Ct. 1967, such a claimed violation of due process of law depends upon the totality of the circumstances surrounding the confrontation at issue. Stovall further indicates that the relevant considerations are not limited to those bearing upon the suggestive character of the confrontation itself, but include those pertaining to the reasons why the confrontation occurred. In addition, Foster, supra, 394 U.S. at 443, 89 S.Ct. 1127, indicates that the spontaneity of the witness' identification at the confrontation is to be considered; while Coleman, supra, 399 U.S. at 5-6, 90 S.Ct. 1999, teaches us that we are also to weigh the question of whether it was the confrontation, or an independent source,2 which formed the basis of the witness' later in-court identification. Finally, both Foster, 394 U.S. at 443, 89 S.Ct. 1127, and Coleman, 399 U.S. at 6, 90 S.Ct. 1999, treat as relevant the expressions of law enforcement officials to the witness concerning the identity of the individual exhibited.

An examination of the facts in the case at bar, in light of the factors relied upon in the above Supreme Court opinions, convinces us that, considering the totality of the circumstances, defendants were not deprived of due process under the Fifth Amendment by the September 1, 1970, confrontation. The circumstances which persuade us are: (1) the confrontation was not planned by prosecuting or enforcement officials, but was inadvertent; (2) no officials indicated to the witnesses that the men led into the courtroom were the defendants in the bank robbery case, or even connected with the case in any way; (3) the assumption made by some of the witnesses that these were in fact the defendants appears to have stemmed as much from the witnesses' spontaneous recognition of the men based upon their observations at the time of the robbery, as from the fact that the men were seated at the counsel table; (4) all of the eyewitnesses who participated in the confrontation and later testified at the suppression hearing and the trial, testified that the confrontation did not assist them in making their in-court identifications; (5) there was substantial evidence, other than from these eyewitnesses, connecting the three defendants with the robbery; and (6) the inadvertent confrontation prior to the suppression hearing was less suggestive than the "stand up" procedure followed, in the presence of counsel and without objection, at the suppression hearing and the subsequent trial.

In reaching the conclusion that the defendants were not deprived of due process in this case, we do not intend to intimate that we will, in other and more aggravated circumstances, condone the use by prosecuting attorneys of pretestimony courtroom confrontations to "firm up" the uncertain memories of potential witnesses. In this respect we agree with the District of Columbia Circuit that, where a normal jailhouse lineup could have been arranged, the use of a non-lineup confrontation "* * * is, at the least, a practice fraught with perils to a degree suggesting its sparing use as the part of prudence." Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1240-1241 (1968). Rather, we decide here only that the circumstances of the present case are not so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification," Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L.Ed.2d 1247 (1968), quoted in Coleman v. Alabama, supra, 399 U.S. at 5, 90 S.Ct. 1999.3

With reference to the confrontation incident, defendant Willis invokes not only the Due Process...

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