456 F.2d 1119 (3rd Cir. 1972), 71-1114, United States v. Bamberger

Docket Nº:71-1114 to 71-1117.
Citation:456 F.2d 1119
Party Name:UNITED STATES of America v. Allen John BAMBERGER, Appellant in No. 71-1114, et al. Appeal of Donald Eric CRAPPS. Appeal of Roger ELAM. Appeal of Randall Phillip YOUNG.
Case Date:February 17, 1972
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1119

456 F.2d 1119 (3rd Cir. 1972)

UNITED STATES of America

v.

Allen John BAMBERGER, Appellant in No. 71-1114, et al.

Appeal of Donald Eric CRAPPS.

Appeal of Roger ELAM.

Appeal of Randall Phillip YOUNG.

Nos. 71-1114 to 71-1117.

United States Court of Appeals, Third Circuit.

February 17, 1972

Argued Dec. 7, 1971.

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Joel A. Murphy, Mills, Doyle, Hock & Murphy, Morristown, N. J., for Allen John Bamberger.

Richard M. Fishkin, Fishkin & Feltman, Hackensack, N. J., for Donald Eric Crapps.

Kent A. Losche, Losche & Losche, Hackensack, N. J., for Roger Elam.

Thomas W. Dunn, Wittman, Anzalone, Bernstein & Dunn, Hackensack, N. J., for Randall Phillip Young.

John J. Barry, Asst. U. S. Atty., Newark, N. J. (Herbert J. Stern, U. S. Atty., Newark, N. J., W. Hunt Dumont, Asst. U. S. Atty., on the brief,) for appellee.

Before HASTIE, ALDISERT and JAMES ROSEN, Circuit Judges.

OPINION

ALDISERT, Circuit Judge.

These are consolidated appeals from judgments of conviction entered on jury verdicts finding appellants guilty of bank robbery. 1 Although many contentions are urged, and all have been carefully considered, we deem it important to discuss the identification issue raised by appellants Bamberger and Crapps, the admissibility of evidence question raised by Elam, and the sufficiency of the evidence issue raised by Elam and Young.

During a daylight robbery of the Hackensack Trust Company, Saddle Brook, New Jersey, on March 6, 1969, some $67,000 was taken by four armed and masked men. Although one of the tellers activated the bank's surveillance cameras, none of the bank's employees or customers could identify the robbers because their faces were covered. John Morrow, employed by the post office next door to the bank, was informed by a passerby that a robbery was in progress. He telephoned the police and, observing through the post office window, saw three men emerge from the bank and enter a brown Oldsmobile, in which a driver was waiting. Morrow described these four men as Negro males, and testified that he acquired a frontal view of one of the robbers when a white handker-chief which had been shielding the man's face slipped. He made an in-court identification of this man as Bamberger. Although cross-examined by five defense counsel, Morrow did not waiver from the positive identification he made on direct examination.

Police officer Chester Cebula testified that while he was driving a police cruiser two blocks from the bank, he received a radio call to be on the alert for four Negro males in the vicinity. When he saw a brown automobile containing five Negro

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males leave the bank's parking lot, he began to follow it, and radioed his position and the car's license number to police headquarters. He stated that the brown car pulled to the curb and stopped and two men emerged, one from either side, and both began firing their weapons at his car, twenty feet behind. Cebula was hit by one of several bullets which penetrated his windshield. He testified that he lay down on the front seat with his head toward the passenger side while more shots entered the car from that side. He identified Crapps as the man who fired five or six times from the passenger side and identified Bamberger as the other gunman. This identification is the basis of the appeals by Bamberger and Crapps.

The next day, agents of the Federal described by them as reliable, obtained an arrest warrant for Elam, then known as "Roger, last name unknown, a/k/a Rahmann." When Elam was arrested that day at his home, agents seized certain recent purchases of clothing, later introduced into evidence. A former fellow-inmate of Elam's, one Riviello, testified that Elam told him that he participated in planning and executing the bank robbery. It is the admissibility of this evidence and testimony which forms the basis of Elam's appeal.

The same day, F.B.I. agents proceeded to 55 Chancellor Avenue, Newark, to arrest Young. They forced their way into a second floor apartment. Young was not on the premises but was later taken into custody. Whether the evidence seized at 55 Chancellor Avenue-a substantial amount of cash, including certain bait money traceable to the robbed bank-was sufficient to sustain Young's conviction forms the basis of his appeal.

I. Appeal of Bamberger, No. 71-1114

Appellant Bamberger contends that his conviction should be reversed because the identification testimony, although properly admissible, did not rise to a quality sufficient to sustain a verdict; alternatively, he seeks a new trial on the theory that certain items seized in California at the time of his arrest were improperly admitted into evidence.

Morrow made a positive in-court identification of Bamberger as "the last man to emerge from the bank." Morrow testified that he had the opportunity to observe Bamberger for two or three seconds after a "white shield" or something "like a white handkerchief . . . seemed to drop down," affording him a clear view of Bamberger's face. Morrow stated that he was interviewed by F.B.I. agents on three occasions-two days after the robbery, about a month and a a half prior to trial, and shortly before the trial began. During the second and third of these interviews, he was shown approximately fifteen photographs, but was not asked for, nor did he give, an identification of Bamberger or of any one of the bank robbers.

Bamberger seems to claim that this pretrial photographic display was unnecessarily suggestive or conducive to misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1967), teaches that questions concerning the propriety of pretrial photographic displays are to "be evaluated in light of the totality of the surrounding circumstances." 390 U.S. at 383, 88 S.Ct. at 970. See also United States v. Shannon, 424 F.2d 476 (3d Cir. 1970). Upon examination of the facts in this case, we are persuaded that Morrow's exposure to the photographic display was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S.Ct. at 971. Indeed, as in United States v. Conway, 415 F.2d 158, 159 (3d Cir. 1969), we find "the total absence of suggestiveness" in the conduct of these photographic displays.

Officer Cebula identified Bamberger as being "on the left-hand side of the police car firing his shots." On cross-examination, Cebula was asked a series of specific questions concerning

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the exact location of Crapps and Bamberger during the siege of the police cruiser:

Q. What was their position alongside your cruiser when you made a positive identification of these individuals?

A. I only saw Donald Crapps alongside the right front window, the passenger side window.

Q. Where was Mr. Bamberger at this time?

A. I don't know.

Q. Then actually you said just a minute ago, did you not, that you couldn't identify two individuals as they came out of the car?

A. I saw two individuals.

Q. You only saw Mr. Crapps by the window, but you didn't see Mr. Bamberger?

A. I saw both individuals when they first emerged from this car.

Q. And I specifically asked you, sir, at that time could you make a positive identification, and you answered no, did you not, just two minutes ago? Am I correct?

A. Yes.

Q. Now, I ask you, who came to the side of the cruiser, that passenger side, and began pumping bullets at you?

A. Donald Crapps.

Q. Where was Mr. Bamberger at this time?

A. I didn't see him.

Q. Then in God's name, how, if you don't even know that, how do you know Bamberger was even in Bergen County that day?

A. I don't know.

Bamberger contends that these facts elicited on cross-examination constituted a complete recanting of Officer Cebula's identification testimony, and that, therefore, we should apply the doctrine referred to in United States v. Barber, 442 F.2d 517, 522 (3d Cir. 1971), that when a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is "too inconclusive, contradictory, and uncertain to be the basis of a legal conclusion." However, here, as in Charles Price's testimony in Barber, we do not agree that there was a recanting of Cebula's identification testimony. Following the above colloquy, Officer Cebula reaffirmed his identification testimony during redirect examination:

Q. Officer, are you sure that the two men which you picked out in court yesterday were the same two men that fired at you on March 6, 1969?

A. Positive.

Q. Absolutely positive?

A. Yes, sir.

Thereafter, although Cebula was subjected to additional cross-examination by Bamberger's counsel, this positive identification testimony was not altered. It is incontrovertible that such positive eyewitness identification testimony is of the fabric required to sustain the verdict in this case.

Bamberger and appellant Crapps contend further that Cebula's in-court identification testimony was tainted by his pretrial exposure to photographs of appellants. On March 8, 1969, two days after the robbery, while still in the intensive care unit following his wounding, Cebula was shown photographs of fourteen or fifteen men. He then said that he could "possibly" identify Bamberger and Crapps. The next day, he was again shown the group of photographs. During the trial, he recounted:

I just told them those were the ones (Bamberger and Crapps) . . . that shot me.

Q. Are you sure?

A. Positively.

Q. Are you sure to this day?

A. Yes.

Q. Did either of those two [police lieutenant and F.B.I. agent] individuals

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