U.S. v. Funches

Decision Date20 May 1996
Docket NumberNo. 94-1419,94-1419
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Riley D. FUNCHES, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

William J. Liscomb (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Elizabeth Cavendish-Sosinski (argued), Madison, WI, for Defendant-Appellant.

Before FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

Riley D. Funches was convicted by a jury of two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). Specifically, Funches was convicted of robbing a Bank One Branch and an Equitable Bank Branch, both located in Milwaukee, Wisconsin. Funches was identified prior to trial and in court by a teller from each bank. On appeal, Funches challenges, on due process grounds, the admissibility of the in-court identifications, claiming they stemmed from out-of-court identification procedures that were suggestive and unreliable. We affirm the convictions on both counts.

I.

On August 30, 1993, the Equitable Bank, located at 219 E. Wisconsin Avenue in Milwaukee, was robbed of $912. The robber walked up to Cherita Graham's teller window and demanded that she put money in a bag. Sitting six to seven feet behind Graham, with an unblocked view of the robber, was teller trainee Paula Holley. Graham testified at trial that, as she emptied her drawer, she concentrated on the robber "the whole time," focusing on his facial features, as she had been trained to do. Immediately after the robbery both witnesses filled out physical description forms describing the robber. Graham described the robber as 5'6"--5'9" tall, 160-170 pounds, slender, with a small build and a dark complexion. Holley described the person as 5'6"--5'9" tall, 150-160 pounds, slender, with a medium build and a medium complexion. Four days later, on September 3, 1993, both Graham and Holley were asked to view a line-up, in which Funches was not a subject. Teller Holley positively identified a person in this line-up as the robber. Graham, on the other hand, did not identify anyone during this line-up.

Eight days after the Equitable robbery, on September 7, 1993, the Bank One Branch at 69th and Capitol in Milwaukee was robbed of $6,888. At about 12:30 p.m. that day, teller Jacqueline Haley was standing at her station looking out of the front of the bank, which is made entirely of glass. She saw an individual walk past the glass, enter the bank, and then place a surgical-type mask over his face. Haley testified that she had a clear view of the person's face before he put the mask on. The individual walked up to her window, pulled out what looked like a black pistol, and said "clear it now." After the robber had stuffed all of the money from Haley's window into a bag, he moved to the next window, where teller Diane Hawkinson was working. Hawkinson also emptied her teller drawer. Five hundred of the dollars taken from Haley's window was "bait money," i.e., the serial numbers of these bills had been previously recorded. When the police arrived, both Haley and Hawkinson were asked to fill out forms describing the assailant. Hawkinson admitted that she did not get a good view of the robber's face, although she did recall that he was wearing an LSU baseball cap.

Minutes after the Bank One robbery, an off-duty police officer who lived near the bank, Sergeant John Hogan, observed an individual wearing an LSU baseball cap picking up money off the street in front of his house. The person walked toward Hogan, coming within 20 feet of him. Feeling the person was acting suspiciously, Hogan made "mental notes" of the person's description. Hogan then went to the scene of the Bank One robbery and told the officers there what he had observed. The officers were also informed at the time that a person connected with the robbery was at the nearby Economy Inn. Upon arriving at the hotel, the officers were told that the suspect and a female companion had recently left by cab. A search of the room rented by the suspects revealed a jacket, shoes, and a baseball cap, which were later identified by teller Haley as the clothing worn by the robber. The officers also found an identification card bearing the name of defendant Funches and a card identifying Funches' girlfriend, Angenell Fulton. The room was apparently rented under Fulton's name.

One of the addresses recovered at the motel room led the police to Funches' mother's house. Funches and Fulton arrived at the house shortly after the police and were promptly arrested. A search of Fulton's purse yielded $4,060 in cash. Five hundred of this money was banded together in a Bank One wrapper, and the serial numbers on the bills matched those of the bait money taken earlier that day. Another $1,956 was recovered from Fulton's person, for a total of $6,016. Within an hour of the arrests, and approximately three hours and forty minutes after the robbery, the police brought Funches back to the Bank One for a show-up procedure. The officers conducting the show-up told the two tellers that "this is a procedure that is normally conducted. Sometimes the police have the suspect, sometimes they have someone who is totally not involved." After viewing Funches through the glass front of the bank, Haley identified Funches as the robber. Hawkinson was unable to make an identification.

The following day, on September 8, 1993, another lineup was conducted for the Equitable Bank tellers and for Sergeant Hogan. This time Funches was one of the participants. Detective Jack Nehmer conducted the line-up and testified at trial as to the procedures he used. Nehmer first determined how old Funches was, how much he weighed, and how tall he was. He also examined Funches' general appearance before going to the city jail to find other subjects with similar measurements and characteristics. Based on the ages, heights, and weights reported by the line-up participants (the subjects were never measured or weighed), Funches was the oldest, the shortest, and weighed the least. According to Funches, he stood 5'5" tall and weighed 130 pounds. The other participants reportedly ranged in height from 5'8" to 5'10" and weighed between 150 to 175 pounds. Funches was also the only suspect wearing a dark green t-shirt rather than a county jail issued white t-shirt under his jumper, which they all wore.

Viewing this line-up, Equitable Bank teller Graham positively identified Funches as the robber. She based her identification on his appearance and his voice, which she heard during the line-up when Funches repeated the words of the robber. Teller Holley was unable to make a positive identification but wrote "Number 2 [Funches] looks like the suspect, but I'm not sure." Sergeant Hogan also identified Funches from the line-up as the man he had seen picking up money minutes after the Bank One robbery. He based his identification on Funches' facial features, height, build, complexion, mannerisms, and walk.

Prior to trial Funches moved to suppress the identification of teller Graham, arguing the September 8, 1993 lineup was unduly suggestive. Funches pointed to the physical dissimilarities among the participants in support of his motion. The district court denied Funches' motion, finding the dissimilarities "insignificant," and further that, even if the line-up was suggestive, Funches had not shown there was a substantial likelihood of misidentification. At trial, then, Graham identified Funches in open court as the Equitable robber and testified to her identification at the line-up. In addition, both Graham and Holley identified a photograph of the robber taken by the bank surveillance camera as the Equitable robbery occurred. Sylvia Tolar, Angenell Fulton's sister, identified the person in the photograph as Funches, whom she had known for 14 years.

As to the Bank One robbery, teller Haley, without objection, identified Funches in court and testified about her identification during the show-up procedure. Sergeant Hogan also identified Funches at trial as the man in the LSU cap he had seen picking up money on the street. Hogan additionally testified as to how he identified Funches in the September 8, 1993 line-up. The government also presented evidence that clothing found in a hotel room rented by Fulton, Funches' girlfriend, was identified by Haley as that of the robber, that identification cards for Fulton and Funches were found in the same hotel room, and that when Funches was arrested, Fulton was carrying over $6,000 in cash, $500 of which was bait money from Bank One that was banded together with a Bank One wrapper. The jury convicted Funches of both counts of bank robbery.

II.

Funches maintains on appeal that the trial court clearly erred in denying his motion to suppress the identifications of Cherita Graham, claiming that both the in-court and out-of-court identifications stemmed from an unduly suggestive and unreliable line-up procedure. Funches also contends that it was plain error to allow Jacqueline Haley to identify Funches in court as the Bank One robber, as her identification resulted from a suggestive and unreliable show-up procedure. The admission of these tainted identifications Funches argues, violated his right to due process.

A.

We review the district court's decision to allow the identification testimony of Equitable teller Graham (stemming from the September 8, 1993 line-up) for clear error only. United States v. Donaldson, 978 F.2d 381, 387 (7th Cir.1992). In evaluating a challenge to identification testimony, we engage in a two-step inquiry. The defendant must first establish that the identification procedure employed was unreasonably suggestive. United States v. Larkin, 978 F.2d 964, 970 (7th Cir.1992), cert. denied, 507 U.S. 935, 113 S.Ct. 1323, 122 L.Ed.2d 709 (1993); Donaldson, 978 F.2d at 385; Kubat v. Thieret, 867 F.2d 351, 357 (7th Cir.), cert. denied, 493 U.S. 874,...

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