449 F.2d 1148 (D.C. Cir. 1971), 23512, United States v. Gambrill

Docket Nº:23512, 23806.
Citation:449 F.2d 1148
Party Name:UNITED STATES of America v. James O. GAMBRILL, Appellant. UNITED STATES of America v. Jerry L. HUNTER, Appellant.
Case Date:July 29, 1971
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1148

449 F.2d 1148 (D.C. Cir. 1971)

UNITED STATES of America

v.

James O. GAMBRILL, Appellant.

UNITED STATES of America

v.

Jerry L. HUNTER, Appellant.

Nos. 23512, 23806.

United States Court of Appeals, District of Columbia Circuit.

July 29, 1971

Argued Sept. 16, 1970.

Page 1149

Mr. Carl L. Taylor, Washington, D. C., with whom Mr. Richard B. Ruge, Washington, D. C. (both appointed by this Court) was on the brief, for appellant in No. 23, 512.

Mr. Wallace L. Duncan, Washington, D. C. (appointed by this Court) for appellant in No. 23, 806.

Mr. Julius A. Johnson, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Daniel Harris, Asst. U. S. Attys., were on the brief, for appellee. Mr. Robert J. Higgins, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, MacKINNON, Circuit Judge, and

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CHRISTENSEN, [*] U. S. District Judge, District of Utah.

MacKINNON, Circuit Judge:

Hunter and Gambrill were convicted of rape, robbery, assault with a dangerous weapon and unauthorized use of a motor vehicle. We reverse the judgments because of impermissible suggestion in the identification of the subjects and order a new tral.

The Facts of the Offenses and Identifications

At about 10:30 P.M. on October 1, 1968, a twenty-two year old female nursing student (hereinafter referred to as Mary) and her male companion (hereinafter referred to as John) drove in John's Chevrolet to a well-lighted picnic area in Rock Creek Park off of Beach Drive just north of the Military Road overpass in the District of Columbia. Around 12:30 A.M., when all other cars had left the area, two young men (subsequently identified as appellants Hunter and Gambrill), both wearing handkerchief-type masks covering their lower face below their eyes, 1 approached the car, one on each side, and with the taller man threatening John and Mary with a small calibre pistol (.32 or .38), 2 forced them out of the car. The assailants then forced their two victims to walk to a dimly lighted sandy beach area several feet below the level of the picnic area and some twenty-five feet away. There they tied John's hands, made him lie on the ground and took his watch and wallet containing money, credit cards and his driver's license. The shorter of the two men (subsequently identified as Gambrill) then sat on John while the taller man (subsequently identified as Hunter) unsuccessfully attempted to rape Mary. The two men then traded places and the shorter one (Gambrill) raped her. Thereafter, the two men tied up Mary, took her wrist watch and gagged her, apparently with the handkerchief the shorter of the two had been using as a mask. The assailants then left in John's car.

Mary and John freed themselves and Mary went to a hospital while John reported the crimes to the police, went with them to the scene of the crime and gave the police the following description of the attackers:

The taller individual [was] about six feet tall and approximately 180 pounds, Negro, medium complexion. * * * wearing a mask that covered a portion of his face below his eyes and covered down in a V-type as if a hanky or something had been folded over and attempted to tie around his face [sic]. He was wearing a lightcolored jacket and dark-colored trousers.

The second individual [was] shorter than the first individual; being about five-ten in height, between around 150 pounds, medium build, medium complexion. He was a Negro, also wearing a light-colored jacket and dark trousers. He had a similar type mask on and also covered his face to similar extent of the first individual [sic].

The next morning Mary gave the following description to the police:

[O]ne seemed to be taller and larger and he had short hair, and one was smaller and he seemed to be thinner and had more hair; had bushier hair.

The next night, about twenty-four hours after the attack, Hunter and Gambrill were arrested in a Plymouth exhibiting stolen license plates. Hunter was driving the car and Gambrill was in the front passenger's seat. As the police flagged the car to the curb, they

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observed Gambrill lean forward as if to place something on the floor. When the car was searched following the arrest, the license plates from the stolen Plymouth were found under the front seat where Gambrill had been riding and three of John's credit cards and his driver's license were also found under the front seat floor mat on the passenger side. John's Chevrolet was found the next day less than a block from where Hunter lived and a fingerprint identified as Hunter's was found on the left front vent window.

On October 3, 1968, Hunter and Gambrill were charged with the instant offenses.

On October 8, 1968, the police staged a seven-man lineup which included Hunter and Gambrill. It was viewed separately by John and Mary and both testified they were told prior to viewing the lineup that two persons arrested as suspects in the crimes would be in the lineup. 3 However, John was unable to identify any person in the lineup as a person he had seen commit the crimes. 4 Mary picked out Hunter and a person other than Gambrill as the two men who most "reminded" her of her assailants.

Hunter and Gambrill were each indicted for rape, robbery, assault with a dangerous weapon and unauthorized use of a vehicle and were convicted on all counts. These appeals followed.

I

Appellants' principal contention on this appeal is that they were denied due process of law when the trial court permitted Mary to identify both of them in court. A central point in this contention arises from the fact that at a conference held on January 23, 1969 (six months before trial) in the office of the Assistant United States Attorney, an unidentified police officer showed Mary two colored pictures of Hunter and Gambrill which had been taken on the night of their arrest. One picture showed side views, from the top of their hips up, of both Hunter and Gambrill, and the other showed similar length front views of the two men. From the testimony, it appears

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that, at the conference in question, Mary and an officer of the Metropolitan Police became engaged in a discussion concerning the relative heights of her assailants. The officer stated that the two were of the same height while Mary believed that one was taller than the other. To settle the controversy, the officer pulled from his pocket the two pictures in question and showed them to Mary while the Assistant United States Attorney was otherwise engaged. After both Mary and the officer looked at the pictures, they agreed that the two men were of different heights. Thus Mary's recollection was proved correct.

Appellants did not discover that Mary had been shown these two pictures until she was being cross-examined at trial and after a pretrial suppression hearing had been held. When the information concerning the pictures came to light, a second suppression hearing was held out of the presence of the jury. The court decided that there was an independent source for Mary's identification and thus refused to grant the mistrial requested by appellants on the ground that Mary had made an in-court identification of both Hunter and Gambrill.

In considering whether this was a proper decision with respect to the incourt identification, we do not question the testimony that the United States Attorney was not aware of, and played no part in, the showing of the pictures to Mary. We are concerned only with whether the surrounding facts support a conclusion that Mary should have been permitted to make an identification of appellants in court on June 19, 1969. To resolve that question we look to the totality of the surrounding circumstances 5 and follow the principles and reasoning of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

While Simmons involved the showing of photographs prior to arrest and indictment, and here the photographs were shown after appellants had been charged and indicted, the following remarks and reasoning of the Court on the use and possible misuse of photographs in identification are fully applicable to the facts here:

[a] witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw. * * * The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness is thereafter apt to retain in his memory the image of the photograph rather than of the person actually seen. * * * 6

After pointing out the merits of photographic identification and some of the pitfalls the Court referred to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) as departing from the prior rule that the manner

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of extra-judicial identification affects only the weight of such evidence and not its admissibility. Simmons then prescribed a general standard for appellate courts to follow with respect to the use of photographs in connection with identification of suspects:

[W]e hold that each case must be considered on its own facts, and that convictions based on...

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