U.S. v. Hamilton
| Citation | 684 F.2d 380 |
| Decision Date | 02 August 1982 |
| Docket Number | No. 81-1321,81-1321 |
| Parties | 11 Fed. R. Evid. Serv. 433 UNITED STATES of America, Plaintiff-Appellee, v. Derrell Darnell HAMILTON, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Thomas V. Wilhelm, Deputy Federal Defender, Kenneth R. Sasse, Detroit, Mich., for defendant-appellant.
Richard A. Rossman, U. S. Atty., Sheldon N. Light, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.
Before CONTIE, Circuit Judge, and CELEBREZZE and BROWN, Senior Circuit Judges.
Derrell Darnell Hamilton appeals from his convictions for uttering altered obligations of the United States in violation of 18 U.S.C. § 472. Three counts were brought against Hamilton. Count One alleged that he uttered an altered obligation in a fast food restaurant on May 27, 1980. Count Two alleged that he aided and abetted an unknown person in passing an altered obligation on the same date at the same location. Count Three alleged that Hamilton uttered an altered obligation at a gas station on June 5, 1980. Hamilton denied being at either location on the dates in question, and raised an alibi defense as to Counts One and Two. After a trial by jury, Hamilton was found guilty of Counts One and Three and not guilty of Count Two.
Hamilton raises four issues on appeal. He claims that the district court erred: (1) in not suppressing identification evidence; (2) in not granting his motion for a separate trial on Count Three; (3) in admitting evidence of a prior similar act of passing an altered obligation; and (4) in not giving a requested alibi instruction as to Counts One and Two. We find no merit in Hamilton's first three claims. We do find, however, that the district court committed reversible error in not giving the requested alibi instruction. Accordingly, we affirm Hamilton's conviction on Count Three and reverse and remand for a new trial his conviction on Count One.
On the afternoon of May 27, 1980, two men entered Church's Fried Chicken Restaurant and approached the counter to place their orders. The cashier, Antonio Tramble, had just opened his register and the two men were his first customers on that day. The first man placed his order and paid with what appeared to be a $20 bill while the second man talked to Tramble. The second man then placed his order and also paid with what appeared to be a $20 bill. Tramble examined the second bill After both men left the restaurant, Tramble examined the bill the first man had given him and discovered that it had been similarly altered. Tramble ran out of the restaurant in time to see the two men driving away in a green Monte Carlo. He wrote the license number on the wall and then called the police. The police established that the reported license number had been issued to Hamilton. It was also established that Hamilton drove a green Monte Carlo.
because he felt that the second man had been trying to distract him by talking to him. Upon examination, Tramble saw that the second man had handed him a $1 bill with the corners of a $20 bill pasted on it. The second man took the bill back, saying that he had won it in a crap game and that he would kill the man who gave it to him.
On June 7, Tramble was shown a photo array of seven pictures and asked if he recognized either of the men involved in the May 27 incident. Of the seven pictures in the array, three were of Hamilton. The detective who prepared the array testified that he put in three pictures of Hamilton because the pictures showed him with different hairstyles and different facial hair. Tramble looked at the pictures and immediately identified Hamilton as being the second of the two men who passed him the altered bills.
The second crime, upon which Count Three was based, occurred at a gas station on June 5, 1980. At noon, two men drove a green Monte Carlo into the station. While Daniel Muszynski pumped gas for the two men, his co-worker Thomas Melton pumped gas across the island. Muszynski spilled some gas on the car, prompting the driver to get out of the car to complain. After some discussion about the spilled gas, Muszynski accepted what appeared to be a $50 bill in payment from the driver of the green car. As the car drove away, Muszynski discovered that he had been given a $2 bill with the corners of a $50 bill attached. On June 9, Melton and Muszynski were shown the same photo array previously shown to Tramble. Melton identified the same photograph originally picked by Tramble as being the driver of the car. Muszynski could not identify any of the photographs.
Prior to trial, Hamilton moved for a separate trial on Count Three. He also moved to suppress the identification evidence. Both motions were denied following hearings. At the suppression hearing, Muszynski identified Hamilton as being the driver of the green car, despite his previous inability to pick out Hamilton in the photo array.
At trial, all three witnesses identified Hamilton. In addition to the identifications, the government introduced evidence that Hamilton had uttered an altered obligation in January 1979, and had been convicted in state court. On that occasion, Hamilton had passed a $2 bill with the corners of a $20 bill attached. The district court admitted the prior act evidence over Hamilton's objection. At the government's request, the district court gave a limiting instruction to the jury, advising it that the evidence could not be considered to show criminal propensity. The limiting instruction was repeated in the final charge to the jury.
Hamilton denied being in the restaurant on May 27 or at the gas station on June 5. He presented an alibi defense as to Counts One and Two, contending that he had been at a picnic on May 27. Three witnesses, all friends of Hamilton, corroborated his story. Hamilton also testified that he discovered his front license plate missing on May 27 and did not drive his car on that date. He obtained new plates on May 28.
At the close of the trial, the district court charged the jury, but failed to give a requested alibi instruction. Hamilton's counsel did not specifically object to this omission but had been granted a standing objection to any requested charges that the district court failed to give.
Hamilton contends that the identifications made by Tramble, Melton, and Muszynski all violated due process. He asserts that the use of the photo array created Since Tramble and Melton did initially identify Hamilton from the photo array, we must determine if the use of the array violated due process. There is little doubt that a photo array in which the defendant appears in three out of seven pictures is somewhat suggestive. 1 Suggestiveness of the identification procedure, however, does not merit suppression by itself. The proper standard is whether, under the totality of the circumstances, there was an impermissibly suggestive identification procedure used which caused a very substantial likelihood of irreparable misidentification. Robinson v. Smith, 624 F.2d 54 (6th Cir. 1980). The central focus is on the reliability of the identification. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Reliability is tested by considering the following factors: (1) the opportunity of the witnesses to view the criminal; (2) the witnesses' degree of attention; (3) the accuracy of the witnesses' prior descriptions; (4) the witnesses' level of certainty; and (5) the length of time between the first view of the criminal and the subsequent identification. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).
a substantial likelihood of misidentification. Initially, we note that Muszynski's in-court identification presents no problem since he did not identify Hamilton from the photo array. Muszynski's inability to pick Hamilton out of the photo array did not render his in-court identification invalid. United States v. Dobson, 512 F.2d 615 (6th Cir. 1975). The weight to be given to his identification was a jury question. Id. at 616.
The district court applied the proper standard and found that the identifications made by Tramble and Melton were sufficiently reliable to present an issue for the jury. We find that the district court's findings are not clearly erroneous.
Both Tramble and Melton had excellent opportunities to view the criminal. Tramble waited on him in a well-lit restaurant and spoke with him. Melton did not speak with the criminal but he had a prolonged opportunity to view him in daylight. Tramble could also be expected to have paid more attention to the criminal than he would have to the usual customer. Tramble testified that he paid more attention to him because of his discussion with him since Tramble usually did not engage in long conversations with customers. His attention was further focused when he confronted the customer with the altered bill and the latter said that he would kill the man who gave it to him.
Tramble and Melton both gave general descriptions of the criminal and the car. Tramble also got the license number, which is strong corroborating evidence. Both Tramble and Melton displayed a high level of certainty in making their identifications. Neither was the time between the crimes and the identification so long as to warrant exclusion. Tramble viewed the photo array approximately eleven days after the crime and Melton viewed it within four days. See United States v. Barron, 575 F.2d 752 (9th Cir. 1978) ().
Under the totality of the circumstances, we find no due process violation in admitting the identification evidence.
Prior to trial, Hamilton moved to sever Count Three from Counts One and Two, contending that a single trial of the two incidents would have a prejudicial effect.
The first step in our analysis is to determine whether the...
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