Frank v. Blackburn

• Decision Date: 02 November 1979
• Docket Number: No. 78-3452,78-3452
• Citation: 605 F.2d 910
• Parties: Jimmy FRANK, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 910

605 F.2d 910

Jimmy FRANK, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary Respondent-Appellee.

No. 78-3452.

United States Court of Appeals Fifth Circuit.

Nov. 2, 1979.

Rehearing En Banc Granted Jan. 7, 1980.

J. Donice Alverson, New Orleans, La. (Court-appointed), for petitioner-appellant.

Robert Brinkman, Asst. Dist. Atty., Opelousas, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before GEWIN, AINSWORTH and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

Jimmy Frank was convicted by a jury in a Louisiana state court of armed robbery and sentenced by the court to thirty-three years in prison. In this 28 U.S.C. § 2254 suit, Frank attacks his conviction on the grounds that identification testimony was inadmissible and that the prosecutor's argument referred to Frank's failure to testify. He attacks the sentence on the ground that the trial judge impermissibly increased the term of confinement because Frank rejected a plea bargain offer and elected to stand trial. The federal trial court denied habeas corpus. We do not find fault with the conviction, but we remand this cause to the federal trial court to await and insure resentencing of Frank by the Louisiana court.

FACTS

Jimmy Frank was arrested within seven blocks of the Kajun Kitchen Restaurant shortly after it was robbed. The robber, a black male with a goatee, wore a coat, a

knit cap, and sunglasses. Frank, a black male with a goatee, had a coat, a knit cap, and sunglasses in his possession when he was arrested. The robber took a twenty dollar bill, three fives, and some ones; Frank had a twenty, three fives, and nine ones in his possession. The robber was armed with a gun; no gun was found on Frank. The restaurant was robbed on Sunday night. On Saturday, Frank had told an auto mechanic he would pay him the $42.00 he owed for work done on Frank's car. When arrested, Frank had $44.00.

SUGGESTIVE IDENTIFICATION

Frank contends that the procedures by which he was identified were unnecessarily suggestive and therefore deprived him of due process. Frank was fully apprised of his Miranda rights when the police apprehended him and no claim is presented of an involuntary waiver of counsel. Immediately after his arrest, Frank was taken to the Kajun Kitchen and presented before Linda Young, an employee of the restaurant who was the robbery victim. At first appearance, Young was unable to identify Frank as the perpetrator of the crime. Young was then led into another room while Frank donned the clothing in his possession: the knit cap, coat, and sunglasses, items also worn by the robber. On reexamination, Young identified Frank as the robber with some hesitation and reservation. Frank contends that this one-on-one confrontation was impermissibly suggestive.

The Supreme Court has stated that "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it . . . ." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967). A violation occurs when the procedure is "unnecessarily suggestive and conducive to irreparable mistaken identification." Id. As this circuit explained in Allen v. Estelle, 568 F.2d 1108 (5th Cir. 1978), the due process requirement takes two steps:

First, as a threshold inquiry, the Court must decide whether the identification procedure was unnecessarily suggestive. A finding of impermissible suggestiveness raises concern over the reliability of identification and triggers closer scrutiny by the Court to determine whether such a procedure created a substantial risk of misidentification.

Id. at 1112; Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In this case Frank fails to clear the first hurdle. Although "(t)he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned," Stovall v. Denno, 388 U.S. at 302, 87 S.Ct. at 1972, exigent circumstances, such as "the interest served by rapid crime solution," may justify one-on-one confrontations. Allen v. Estelle, supra at 1112-13. Defendant was apprehended less than thirty minutes after the robbery seven blocks from the restaurant by police responding to a broadcast description of the suspect. Under these circumstances an immediate confrontation not only prevents the suspect from substantially altering his appearance and allows the witness to test her recollection while her memory is still fresh, but permits "expeditious release of innocent subjects." United States v. Wilson, 140 U.S.App.D.C. 331, 333, 435 F.2d 403, 405 (D.C.Cir.1970). "Additionally, where the innocent have been mistakenly apprehended, prompt identification allows the police to realize their error and to continue their search while the criminal is still within easy reach." Allen v. Estelle, supra at 1112-13.

No evidence is presented that indicates that the police acted improperly in utilizing this identification procedure. An accused can be required to don clothing, utter words, or in other manners exhibit physical characteristics without running afoul of the fifth amendment right against self incrimination. United States v. Wade, 338 U.S. 218, 221-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149, 1154-55 (1967); United We add that Frank failed to establish any question concerning the reliability of his identification. The Supreme Court has identified five factors bearing on reliability: (1) the opportunity to view; (2) the degree of attention; (3) the accuracy of the description; (4) the witness' level of certainty; (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114-15, 97 S.Ct. 2243, 53 L.Ed.2d 149 (1977); Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. 375.

States v. Wilcox,507 F.2d 364, 367 (4th Cir. 1974), Cert. denied, 420 U.S. 979, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975). In the present case, there were no words or actions by police aggravating the suggestiveness of the confrontation. The suspect was asked to don clothing in his possession at the time of his arrest and was attired out of the presence of the witness. The confrontation was not impermissibly suggestive.

With the possible exception of factor number four, the level of certainty, a matter fully explored on cross-examination at trial, each factor supported the reliability of this identification. The witness, Linda Young, observed Frank when he entered the restaurant, walked to the cigarette machine, wandered into the dining room, and then returned to the telephone close to the counter where the witness was working. Apparently concerned at Frank's seemingly aimless path, she asked him if she could help him. Young stood directly in front of Frank, who was approximately one and one-half feet away, during the course of the robbery. Her description of the robber prompted police to arrest Frank who was carrying clothing identical to the robber's. The time between the crime and the confrontation was less than thirty minutes.

As noted earlier, Young was unable to identify Frank as the robber on first presentation. Even after Frank was dressed with the articles in his possession, Young's identification was made with reservations. The tentativeness of Young's identification was fully explored on cross-examination and, in any event, "(t)he fact that an identification is less than positive does not render it inadmissible." United States v. Malatesta, 583 F.2d 748, 758 (5th Cir. 1978), modified on other grounds, 590 F.2d 1379 (en banc), cert. denied sub nom. Bertolotti v. United States, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979). The admission of Young's identification testimony did not deprive Frank of due process.

PROSECUTORIAL COMMENT

During closing argument the prosecutor made the following statement:

The next aspect of this case I think that we have to consider very seriously, is that the defendant's defense in this case is an alibi, and the judge is going to explain to you that an alibi, just like any other specie of evidence, must be proven and must be believable. Can we believe the defendant's alibi that he was at the Airline Bar at the time this allegedly took place, and that the money he had on him was to pay a bill to Audrey Williams for car repairs. Audrey Williams told you that the defendant owed him $42.90 for repairs that he had done on the defendant's car one week before. Of course, now, the defendant, as I appreciate it, has been trying to convey to you that the automobile stopped because it was popping. It wasn't running well. But Audrey Williams told you he completely timed this car, timing gear, points and plugs, the whole thing, and that the car was running well, and that when the defendant called him on a Saturday the robbery takes place on a Sunday he made no complaints about his car running bad. Contrary, the car was running good. The officers proved that when they cranked the car over at the station. What does the defendant tell Audrey Williams on Saturday? "I don't have the money to pay you now, but I'll have it Monday." I don't have it now, but I'll have it Monday. Up until that point in the case, there was no real motive for this robbery, but now the defendant, with one of his witnesses, injects a motive. He has got to have $42.90 by Monday. I don't have it on Saturday, but I'll have it on (State Record, Vol. II, pp. 185-86).

Monday. When he's caught, he's got it. We know he doesn't have it Saturday, but when he's caught on Sunday night, he had it. Well, now what explanation does he have for that? He doesn't tell us where he gets the money with Willie Aaron . ¹

Defendant contends that this comment drew the jury's attention to the fact that he did not testify and therefore infringed his fifth amendment right, Citing Griffin...