U.S. v. Scott

• Citation: 518 F.2d 261
• Decision Date: 03 July 1975
• Docket Number: No. 74-2279,74-2279
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James SCOTT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 261

518 F.2d 261

UNITED STATES of America, Plaintiff-Appellee, v. James SCOTT, Defendant-Appellant.

No. 74-2279.

United States Court of Appeals,

Sixth Circuit.

July 3, 1975.

Thomas E. Jackson, Federal Defenders Office, Kenneth Sasse, Loren G. Keenan, Detroit, Mich., for defendant-appellant.

Ralph B. Guy, U. S. Atty., Loren G. Keenan, Detroit, Mich., for plaintiff-appellee.

Before PECK and MILLER, Circuit Judges, and ALLEN, ^* District Judge.

WILLIAM E. MILLER, Circuit Judge.

On December 5, 1973, the defendant, James Scott, was indicted for armed bank robbery and for the forcible abduction of a person during the commission of the offense, in violation of 18 U.S.C. §§ 2113(a), (d) ¹ and 2113(e). ² Trial was held in district court from May 21 to June 12, 1974, and the jury returned a guilty verdict on June 13. ³ For his part in the crime, Scott was sentenced to serve concurrently 15 years on each of the two counts of the indictment. The defendant now raises several substantial issues on direct appeal.

The material facts are that on September 11, 1973, at approximately 1:45 p. m., three armed men robbed a branch office of the Detroit Bank and Trust Company. After entering the building, one man stood guard at the door and another held a customer at gunpoint, while a third member of the group emptied the cash drawers. The robbers then took the customer as a hostage and fled to an awaiting automobile driven by a fourth individual. After eluding pursuing police vehicles, the men abandoned the get-away car and released their hostage unharmed.

According to the government's theory, James Scott was the robber who held the customer at gunpoint in the bank and later dragged her from the building to the car. Essentially, the government's case was comprised of eyewitness identification and the testimony of the get-away driver and government witness, Lanaro Green. In his defense, Scott produced two witnesses who claimed that the defendant had been with them during the time of the robbery. On appeal, the defendant challenges the propriety of the out-of-court identification procedures used by the F.B.I. He further claims that he was denied access to a key government witness and that he was not given a speedy trial.

A. Pretrial Identification

F.B.I. agents came to the bank late in the afternoon on the day of the robbery to show several employees a group of photographs of possible suspects. Four employees, all of whom later testified at trial, either positively or tentatively selected the photograph of James Scott as having been one of the robbers. The photographic spread used by the authorities contained seven pictures. ⁴ Six of these were typical "mug shots" in that they provided a front and profile view of the subject, along with the name of a law enforcement agency and a date and identification number. However, the remaining picture was obviously not a police "mug shot" but a personal snapshot of a group of persons. It showed the defendant in the company of another man and two women. In the picture the defendant wore a large hat ⁵ and appeared to be quite a bit taller than the other individuals in the group.

In their descriptions to the authorities, the witnesses to the crime noted that one of the participants was very tall and had worn a large hat. Because these same characteristics were prominent in the photographic display, Scott claims a denial of due process on the ground that the spread was unduly suggestive and hence, that there was a substantial likelihood of misidentification. After a hearing on the defendant's motion to suppress the testimony regarding the photographs, the district court overruled this contention and permitted the witnesses to testify about the pretrial identification and to identify Scott at trial.

The principal case on the subject of photographic displays is the Supreme Court's decision of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). There the Court balanced the potential for misidentification against the desire for swift apprehension of criminals. Accordingly, the Court held:

that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Id. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253.

This Circuit's most recent application of the Simmons decision is in United States v. Clark, 499 F.2d 889 (6th Cir. 1974), cert. denied, 420 U.S. 910, 95 S.Ct. 830, 42 L.Ed.2d 840 (1975). In that case an eyewitness to a robbery gave the police a detailed description of the perpetrator soon after the crime was committed. Later that day the witness was shown an array of pictures from which she selected the robber's photograph. This Court found that the display was suggestive because Clark's photograph was obviously not a "mug shot" and because the pictures of the other subjects did not reflect the defendant's distinctive features (i. e. his age, and his "droopy" moustache). Nevertheless, the Court relied on the totality of the surrounding circumstances to conclude that there was not a substantial likelihood of misidentification. Both the opportunity for the witness to observe the subject during the crime and the absence of any F.B.I. attempt to pressure or influence the witness' selection were critical factors. 499 F.2d at 892; see also Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In the present case, we have viewed the pictures in question, which were made a part of the separate ⁶ record as government exhibits. To the extent that the group photograph of the defendant emphasized both his height and his wide-brimmed hat, we find that the spread was suggestive. We conclude, however, that there were several countervailing factors that militated against any substantial likelihood of misidentification. See United States v. Clark, 499 F.2d at 892; see generally Annot., 39 A.L.R.3d 1000 (1971). First, the defendant wore no mask while participating in a daylight crime. Secondly, the robbery lasted a matter of minutes during which time the defendant was undoubtedly the center of attention since he held a hostage at gunpoint. Cf. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Thirdly, the identification procedure was conducted within a few hours of the crime ⁷ while the memories of the witnesses were still fresh. ⁸ Fourthly, the selection of the witnesses was not influenced by any suggestions from the F.B.I. nor were the witnesses permitted to discuss their choices among themselves until after all of them had viewed the spread individually. Finally, all of the witnesses who testified at the suppression hearing and before the jury were firm in their position that their in-court identifications of Scott were based on what they had observed during the robbery and not from what they saw in the picture. Moreover, there were no discrepancies between the defendant's actual appearance and the descriptions given by the witnesses immediately following the robbery, nor did the witnesses initially identify someone other than the defendant. See United States v. Higgins, 458 F.2d 461, 465 (3d Cir. 1972). Having considered these criteria, we find that the defendant was not deprived of due process of law by means of the pretrial identification procedures.

A second identification issue involves a pretrial confrontation between two witnesses and the defendant in the absence of the accused's counsel. Approximately three months prior to trial, the defendant was to be arraigned before a United States magistrate on the robbery and abduction charges. In the audience at the arraignment proceeding in the company of an F.B.I. agent were two prospective government witnesses the hostage and the bank manager. The defendant was unaware of their presence. The agent instructed the witnesses to take a look at everyone in the courtroom in an effort to identify the person responsible for abducting the hostage. A short while later the defendant and at least three other men were led into the courtroom. Within a matter of minutes, both witnesses recognized the defendant as one of the robbers. ⁹

First, the defendant argues that the confrontation was impermissibly suggestive and that it consequently tainted the subsequent in-court identifications made by these two witnesses. A confrontation, like a photographic display, is an accepted means of identification except where it is "so unnecessarily suggestive and conducive to irreparable mistaken identification that (the defendant is) denied due process of law." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). As a result, the challenged confrontation must be viewed in light of the totality of the circumstances. Ibid.

Arranging a post-indictment confrontation at the defendant's arraignment ¹⁰ for the offense in question is clearly a highly questionable procedure since by that time the accused has been formally charged with a crime and may appear at the proceeding in the custody of law enforcement officers. Even though the two witnesses were told to look at everyone in the courtroom, this instruction was of dubious value since it probably became immediately apparent that only a few persons in the room were criminal defendants. After that realization, a witness could easily conclude that the person to be identified was most likely among those present for arraignment. Because of the dangers of undue suggestiveness, a proper line-up is definitely preferable to an arraignment confrontation. United States v. Lipowitz, 407 F.2d 597, 599 (3d Cir.), cert. denied, 395 U.S. 946, 89 S.Ct. 2026, 23 L.Ed.2d 466 (1969). The United States seeks to justify its use of this method because the...