United States v. Telfaire

• Decision Date: 19 June 1972
• Docket Number: No. 24688.,24688.
• Citation: 469 F.2d 552
• Parties: UNITED STATES of America v. Melvin TELFAIRE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

469 F.2d 552 (1972)

UNITED STATES of America v. Melvin TELFAIRE, Appellant.

No. 24688.

United States Court of Appeals, District of Columbia Circuit.

Argued September 21, 1971.

Decided June 19, 1972.

Mr. Andrew L. Frey, Washington, D. C. (appointed by this Court), for appellant. Mr. Robert M. Beckman, Washington, D. C. (appointed by this Court), was on the brief for appellant.

Mr. Barry W. Levine, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and John S. Ransom, Asst. U. S. Attys. were on the brief, for appellee.

Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and ADAMS,^* Circuit Judge, United States Court of Appeals for the Third Circuit.

PER CURIAM:

Appellant was found guilty of robbery, D.C.Code § 22-2901, and sentenced under the Youth Corrections Act. On this appeal it is contended the judge erred (1) in sending the case to the jury on the uncorroborated testimony of a single witness; (2) in failing to initiate a special instruction on identification even in the absence of request by defense counsel, and (3) in failing to give an instruction on the absence of flight. We affirm.

I.

Anglo-American jurisprudence has accepted the "one witness" rule, declining to follow the rule of the canon and civil law requiring a greater number of witnesses or corroboration,¹ with exceptions requiring corroboration for particular crimes, notably "sex" offenses, where the urge to fantacize or motive to fabricate makes the risk of unjust conviction high.²

The one witness rule recognizes that certain crimes are solitary, and as to such crimes both the deterrence of punishment and the rehabilitation of offenders are proper concerns of the state. Moreover, Anglo-American jurisprudence—with its strong presumption of innocence, and adversary system—has safeguards which dilute the danger of conviction of the innocent, a problem that concerns every civilized system of justice.

With retention of the one-witness rule, which is plainly applicable to the crime of robbery,³ the evidence in this case—set forth in the footnote⁴— while having some weak spots, is sufficient to preclude us from finding an abuse of discretion on the part of the trial judge in sending the case to the jury.⁵

II.

The presumption of innocence that safeguards the common law system must be a premise that is realized in instruction and not merely a promise. In pursuance of that objective, we have pointed out the importance of and need for a special instruction on the key issue of identification, which emphasizes to the jury the need for finding that the circumstances of the identification are convincing beyond a reasonable doubt. This need was voiced in 1942 in McKenzie v. United States⁶ and it has been given vitality in our opinions of recent years—following the Supreme Court's 1966 Wade-Gilbert-Stovall trilogy⁷ focusing on the very real danger of mistaken identification as a threat to justice. We refer to our post-Wade opinions in Gregory⁸ and Macklin.⁹ These opinions sought to take into account the traditional recognition that identification testimony presents special problems of reliability¹⁰ by stressing the importance of an identification instruction even in cases meeting the constitutional threshold of admissability.¹¹

We do not qualify in any particular the importance of and need for a special identification instruction. But in evaluating the prejudice inherent in the failure of the trial court to offer one, we have taken into account that in the circumstances of a particular case, the proof, contentions and general instructions may have so shaped the case as to convince us that in any real sense the minds of the jury were plainly focused on the need for finding the identification of the defendant as the offender proved beyond a reasonable doubt.¹²

In this case, as in Macklin, we consider the instructions given by the trial judge¹³—both the initial instructions on the burden of proving beyond a reasonable doubt all the elements of the offense, and the follow-on instructions dealing with the defense of alibi, and the problem of mistaken identity—and the overall context of the case, and we are satisfied that the attention of the jury was significantly focused on the issue of identity.

Moreover, this case exhibits none of the special difficulties often presented by identification testimony that would require additional information be given to the jury in order for us to repose confidence in their ability to evaluate the reliability of the identification.¹⁴ Here the victim had an adequate opportunity to observe, and the testimony revealed a spontaneous identification of the defendant in the lobby of the hotel where the robbery took place as soon as the complainant entered the lobby with the police officers (see fn. 4). The absence of a special identification instruction did not prejudice appellant's defense.¹⁵

We do, however, consider our appellate function to require a supplement to our prior rulings. In Macklin, we called attention to a standard criminal jury instruction prepared in 1966 by the Junior Bar Section of the District of Columbia Bar Association. That instruction does little more than incorporate one sentence modeled on our 1942 opinion in McKenzie. It does not take note of the discussion in Wade and subsequent cases.

In Barber v. United States¹⁶ the Third Circuit undertook to present an approach that would "recognize a compelling need for guidelines which will obviate skeletal pattern instructions and assure the essential particularity demanded by the facts surrounding each identification." To further the administration of justice in the District of Columbia the Appendix contains a model instruction, using material from Barber to some extent, which trial judges can use to focus on the identification issue— with revision and adaptation to suit the proof and contentions of a particular case. It is not being set forth in terms of compulsion, but a failure to use this model, with appropriate adaptations, would constitute a risk in future cases that should not be ignored unless there is strong reason in the particular case.

III.

Defense counsel requested an instruction, set forth in the footnote, on the absence of flight.¹⁷ It is a paraphrase, with verbal reversal, of an instruction on the inference from flight which appears in the Junior Bar Section's standard instruction.¹⁸ That flight instruction is one which we have criticized as weak and as relating to an "extraordinarily complex action, potentially prompted by a variety of motives other than guilt of the actual crime."¹⁹ We have ruled that such an instruction may be used only "sparsely"²⁰ and only if the trial judge accompanies it with an indication of the variety of motives that may account for flight.

In this case, the trial judge, presented with what can fairly be described as a new "form" instruction—on the absence of flight—noted that this court has approached the "whole question of flight" with circumspection, and concluded that the instruction should not be given. The court ruled that counsel would be permitted to argue the concept to the jury.

We approve the trial court's exercise of discretion. We need not consider what the situation would have been if defense trial counsel had presented an instruction that advised the jury that an inference might be drawn from the absence of flight, and at the same time advised the jury of different inferences which might also be drawn. While the inference from the absence of flight could properly be argued to the jury, we see no basis for requiring it to be elevated above any other inference that might be argued to the jury, and given the status of being particularly significant by being enshrined in an instruction. If anything, the interest of justice might better be served by removing entirely from instructions both flight and absence of flight, and relegating the entire subject to the give and take of argument.

Affirmed.

Appendix: Model Special Instructions on Identification

One of the most important issues in this case is the identification of the defendant as the perpetrator of the crime. The Government has the burden of providing identity, beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

In appraising the identification testimony of a witness, you should consider the following:

(1) Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?

Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past.

In general, a witness bases any identification he makes on his perception through the use of his senses. Usually the witness identifies an offender by the sense of sight—but this is not necessarily so, and he may use other senses.^*

(2) Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

If the identification by the witness may have...