Gregory v. United States

• Decision Date: 18 March 1969
• Docket Number: No. 21089.,21089.
• Citation: 133 US App. DC 317,410 F.2d 1016
• Parties: Clifton GREGORY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

133 US App. DC 317, 410 F.2d 1016 (1969)

Clifton GREGORY, Appellant, v. UNITED STATES of America, Appellee.

No. 21089.

United States Court of Appeals District of Columbia Circuit.

Argued August 15, 1968.

Decided March 18, 1969.

Petition for Rehearing Denied April 25, 1969.

Mr. John A. Shorter, Jr., Washington, D. C. (appointed by this court), for appellant.

Mr. Lawrence Lippe, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

BAZELON, Chief Judge:

The owner of a liquor store in the District of Columbia was shot in the back and killed by an armed robber on the morning of October 29, 1964. Four witnesses identified Clifton Gregory as the assailant; the Government also relied upon the appellant's resistance at the time of his arrest to show a consciousness of guilt. The appellant produced one witness, a customer at the store, who testified that he was not the murderer. He also attacked the reliability of the Government witnesses' identifications. After a nine-day trial, the jury returned a verdict of guilty on counts of felony murder and robbery, recommending life imprisonment for the former. The trial judge imposed a concurrent sentence of ten years for the robbery.

Two earlier trials resulted in a reversal by this Court¹ and a mistrial. The appellant contends that his third trial was vexatious and placed him twice in jeopardy. In addition, Gregory argues that it ws improper to treat the third trial as a capital case since the jury recommended life imprisonment in the first trial. Since the mistrial was declared at the request of the defense and since the present conviction did not result in a sentence of death, neither contention is tenable.²

The appellant also challenges the testimony of a Government witness whose name was not on the original "capital list" required by 18 U.S.C. § 3432 (1964).³ And his contention that the identification testimony of another witness was inadmissible on due process grounds compels this Court to examine once again the implications of Stovall v. Denno.⁴ We deferred consideration of this case pending our en banc decision in Clemons v. United States.⁵ Applying the principles established there, we conclude that no impropriety in the admission of identification evidence requires reversal. Since we also conclude that the addition of a Government witness to the "capital list" was proper in the circumstances of this case, we accordingly affirm the conviction.

I

Robert Rosenstein, the manager of the liquor store and the son-in-law of the murdered owner, testified that he heard a sharp noise while in a back storeroom on the morning of the robbery. Upon returning to the front of the store, he saw his father-in-law lying on the floor. The gunman instructed him to lie down, then told him to empty the safe. Mr. Rosenstein complied, at gunpoint. He also handed the contents of the cash register to the robber. At all three trials he identified the appellant as the gunman, and also testified upon direct examination to a prior line-up identification which occurred on November 17, 1964, about three weeks after the robbery. The appellant does not challenge this testimony.

The second eye-witness was Glenn Caddell, a plumber who entered the store to purchase a soft drink while the robbery was in progress. A man standing behind him said, "This is a hold-up." When Mr. Caddell turned to look at the robber, he was pistol-whipped on the jaw. When the hold-up was completed, some several minutes later, the robber told him to lie on the floor. Caddell identified the appellant at trial, and also testified to a prior identification at the police station.

George Matthews was working at a gas station near the liquor store on the morning of the robbery. At the third trial he testified that the appellant ran through the station carrying a paper bag at about the time of the crime. In the course of his testimony he stated that a young boy, Cleveland Bryant, was also at the gas station. With the help of the witness, the Government located the boy and sought permission from the court to call Mr. Bryant as a witness. To meet the defense objection that the boy's name was not on the witness list which 18 U.S.C. § 3432 (1964) requires the Government to provide the defense three days before trial, the Government moved for a three-day continuance. When the trial reconvened, the defense counsel argued that although he had interviewed Mr. Bryant, the time had been inadequate for a full investigation. Although both the Government and the court suggested that Mr. Bryant could testify later in the trial, thereby allowing more time for investigation, the defense continued to insist that Mr. Bryant should not be allowed to testify under any conditions. After holding a hearing to determine why the new witness was not on the original capital list, the trial judge permitted Mr. Bryant to testify; he identified the appellant.

The argument of the defense at trial and now on appeal is that only the Government's negligence caused the late discovery of Mr. Bryant as a potential witness, and consequently that the prosecutor should not have been allowed to add his name to the list. The Government argues persuasively, however, that despite reasonable efforts to locate all witnesses, it first heard the name Cleveland Bryant during George Matthews' testimony in the third trial. Although he had vaguely mentioned to both the police and the prosecutor at various times that a boy was with him at the station when the robber ran through, he had not been responsive to requests for his companion's name. The record amply supports the proposition that Mr. Matthews was neither an articulate nor a cooperative witness. During the first trial, although initially called as a Government witness, he abruptly altered his story and testified for the defense that the robber he observed was not Clifton Gregory. It was only during the course of the third trial that the Government succeeded in locating him once again and subpoenaed him to testify. He then did, as noted, identify the appellant as the fleeing robber. When impeached by his inconsistent prior testimony, he stated that the veiled threats of the appellant's friends at the first trial had convinced him that he should not, could not safely identify Gregory. His explanation for not revealing Cleveland Bryant's name sooner was consistent with his claimed fear of the defendant and his friends: "I didn't want to get the boy involved."

In these circumstances, we cannot conclude that the Government was at fault in failing to discover Cleveland Bryant before the start of the third trial. More important, we do not find that the appellant was prejudiced by the sudden appearence of Mr. Bryant as a witness. Had his name been placed on the original "capital list", the defense would only have been guaranteed three days by the statute to interview and investigate him. In this case, the defense actually had at least four days. Therefore, we conclude that the trial judge did not err in permitting Mr. Bryant to testify. We need not decide what showing of prejudice to the defendant or lack of diligence on the part of the Government would dictate a different result.⁶

II

The circumstances of Glenn Caddell's out-of-court identification of the appellant Gregory are less than luminously clear. In the present trial Mr. Caddell identified the appellant in court on direct examination. On cross examination, the defense counsel attempted to impeach the identification by pointing out certain rather minor inconsistencies between the actual height, weight and appearance of Gregory and the description Mr. Caddell gave to the police shortly after the shooting.

To rehabilitate the witness, the Government on redirect examination introduced evidence of the previous out-of-court identification. Mr. Caddell testified that he was called to the police station on November 17, 1968, the day the appellant was arrested. He arrived too late for the lineup at which Mr. Rosenstein identified Gregory. Walking down a hallway with a police officer, however, Mr. Caddell passed the appellant. The defense counsel objected to testimony concerning the conversation between Mr. Caddell and the police officer that then occurred. The police then took Mr. Caddell to an office used by detectives on the force. Mr. Caddell testified that a special lineup with five participants was held there, and that he identified the appellant.

The defense counsel on recross examination confronted Mr. Caddell with his testimony in the first trial that he had seen the appellant alone in the detectives' office rather than in a lineup. The witness replied that there must have been some mistake in the first trial, that he had indeed seen a lineup.

The defense also elicited on recross examination testimony that the police officer had asked Mr. Caddell in the hallway, after passing the appellant, whether Gregory was the robber. Counsel did not, however, pursue this inquiry to reveal the details concerning this conversation to which Mr. Caddell testified in the first trial. The witness had then said,

I was walking in the hall down there to where they take the pictures and everything, and I met Mr. Gregory in the hall, and they said was that him? I said he was a little too tall and he had a goatee on. And they said he has double heels on his heels and the goatee is fresh.

The defense counsel not surprisingly seized upon the conflict in Mr. Caddell's testimony in the first and third trials concerning the circumstances of the confrontation in the detectives' office. The Court agreed that the defense had a right to explore the matter, and the Government agreed to find out what detectives were present at the time.

Later in the trial, the Government introduced testimony from one police officer who claimed to...