Marshall v. United States

• Decision Date: 24 September 1970
• Docket Number: 23578.,No. 21703,21703
• Citation: 141 US App. DC 1,436 F.2d 155
• Parties: Maurice MARSHALL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

141 US App. DC 1, 436 F.2d 155 (1970)

Maurice MARSHALL, Appellant, v. UNITED STATES of America, Appellee.

Nos. 21703, 23578.

United States Court of Appeals, District of Columbia Circuit.

Argued April 20, 1970.

Decided September 24, 1970.

Petition for Rehearing Denied February 17, 1971.

Mr. David S. Abrams, Washington, D. C. (appointed by this Court) for appellant.

Mr. John D. Aldock, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Messrs. David G. Bress, U. S. Atty., at the time the record was filed, Harold H. Titus, Jr., Principal Asst. U. S. Atty., and Daniel J. Givelber, Asst. U. S. Atty., also entered appearances for appellee. Mr. Daniel E. Toomey, Washington, D. C., also entered an appearance for appellee in No. 23,578.

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

WILKEY, Circuit Judge:

Appellant was convicted of bank robbery, assault with a dangerous weapon, and carrying a dangerous weapon.¹ On appeal he challenges, inter alia, probable cause for his arrest and admission of the evidence obtained by the search incident to arrest, the use in evidence of photographs of himself in custody at the scene of his arrest, and the failure of the trial court to take into consideration alleged new evidence discovered which might show that the pre-trial lineup in which he was identified was unnecessarily suggestive. Believing that on the evidence in this case none of these points requires reversal, we affirm the convictions.²

About 1:25 p.m. on 21 July 1967 a man entered the Watergate branch of the Riggs National Bank, pointed a revolver at the bank manager and his secretary, and demanded money to fill a manila envelope. The envelope, on which was printed "Washington Hospital Center," was filled with money, some of it whose serial numbers had been previously recorded. As the robber fled by the front entrance, the manager pulled the burglar alarm. At 1:30 p.m. the doorman of the Watergate East apartments saw a man matching appellant's description hurrying down the steps to the shopping mall which leads to the Watergate parking lot located only about 100 yards from the bank. Within three or four minutes after the alarm the police arrived at the bank.

One of the policemen (Sorah) who responded to the call proceeded immediately in the direction the robber was seen to have taken toward the parking lot. There Officer Sorah was informed by a construction worker that shortly before he had noticed a man crouched, half in the door of a car. After the workman had ascertained that the man was still in the car, Officer Sorah went to the car and saw appellant lying on the floor in the rear. When he opened the door and told appellant to get out, there was no response. Sorah also inquired of appellant if this was his car and received no response. The officer observed that, while appellant was perspiring profusely, his cap, trousers and shirt were completely dry. He was not wearing a belt or shoes and his trousers were unzippered. After making these inquiries and observations, Sorah pulled appellant out of the rear of the car. Underneath appellant was a brown paper bag filled with miscellaneous items of clothing. Appellant was then placed under arrest. Officer Sorah immediately asked the construction worker to go to his vehicle and radio for help.

Later there was found in the car a shopping bag containing, among other things, a hat, trousers, and gun. Also found in the car was a brown manila envelope marked "Washington Hospital Center" (where appellant later testified that the mother of his child worked) and filled with $2,440.00 in large bills. These items were identified by the bank manager and his secretary. The hat was identified by the doorman as being "very similar" to that worn by the person he had seen just after the robbery.

I

On this record we have no difficulty in saying that the police officer had probable cause to arrest appellant after he had pulled him from the car. All of the events described above were compressed into an extraordinarily short space of time. Probably no more than 10 to 12 minutes elapsed from the time appellant entered the bank until the officer pulled him from the rear of the car where he was hiding not 100 yards from the scene of the crime. All visible indicia pointed to the conclusion that appellant was engaged in a fast switch of clothes interrupted by the speedy arrival of the police. Given the suspect in his unusual,³ plainly visible condition 100 yards away from the bank in the direction the robber was seen to flee, the suspect's non-response to the officer's questions, the officer's duty was to arrest him immediately, not to trifle with this probable armed bank robber further, nor to take time to obtain a search warrant for the vehicle, which would have uncovered the remainder of the damning evidence.⁴

II

There is no more merit in appellant's contention that the photographs of him "in custody of the police," taken by newspaper photographers at the scene of his arrest, were highly prejudicial. The photographs do not show appellant in handcuffs, as alleged, but show him standing with the police officers on the parking lot. Aside from the fact that appellant had both hands behind his back, a pose frequently assumed by, among others, some well-known public figures, there is nothing whatever to indicate he was being restrained by the police or placed in an undignified position. Appellant did not object to the introduction of the photographs at trial.⁵ Thus, even assuming the photos could properly have been excluded, we do not think that their unopposed introduction here constituted "plain error."⁶

III

We turn now to appellant's argument that he was denied his constitutional right of due process under the Fifth Amendment because the identification lineups to which he was subjected were suggestive and conducive to irrevocable mistaken identification,⁷ in accordance with the Supreme Court precepts set forth in Stovall v. Denno.⁸

The established facts in regard to the lineup are these. Appellant was placed in a seven-man lineup at about 4:30 p.m. the day of the robbery, i.e., within three hours after he had left the bank. The bank manager and his secretary identified appellant in the lineup and at trial. The Watergate doorman was unable to make any positive identification. A bank customer and the bank teller picked someone other than appellant at the pre-trial lineup.⁹

On the basis of what appellate counsel described as "new evidence," i.e., notes made at the lineup and affidavits newly made by the Legal Aid attorneys who had been present at the lineup on appellant's behalf, appellant moved for a new trial claiming that the lineup had been suggestive and prejudicial in violation of the standards set by the Supreme Court in Stovall. The trial court denied appellant's motion on the grounds that appellant had "not sustained his burden of demonstrating that he made diligent efforts to procure this new evidence at trial. He has not explained, for example, why trial counsel could not have discovered the notes through the same procedure used by present counsel."

The fault with the ruling of the trial court here is that appellant, if he has anything to complain about on this point, can complain that his constitutional right to due process under the Fifth Amendment has been denied him. Such alleged infringement of his constitutional rights could be raised by a collateral attack at any time subsequent to the conviction becoming final.¹⁰ If appellant can attack his conviction collaterally, his counsel's lack of diligence at time of trial should be no barrier to considering a motion for a new trial on the merits of the constitutional grounds raised.¹¹

On the merits, however, even if appellant were successful in establishing on what is still a rather murky and conflicting argument that the pre-trial lineup was suggestive and unfair,¹² on the record in this case we cannot find that such an error, if it occurred, calls for reversal. Granting that a constitutional right is involved here, Chapman v. California¹³ clearly held that constitutional error can be harmless and not require reversal. In so doing the Supreme Court said: "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."¹⁴ And, although "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," not all "trial errors which violate the Constitution automatically call for reversal."¹⁵ Although on the facts of Chapman the Supreme Court did not declare a belief that the error there was harmless beyond a reasonable doubt, yet even more recently in Harrington v. California¹⁶ the Supreme Court did so find in a case where a co-defendant had been denied his rights under the confrontation clause of the Sixth Amendment by two confessions of his co-conspirators being admitted into evidence, when those two co-defendants did not take the stand to testify in their own defense. The Supreme Court described the situation in Harrington in language very descriptive of that in the case at bar:

They the two co-conspirators did place him at the scene of the crime. But others, including Harrington himself, did the same. Their evidence, supplied through their confessions was of course cumulative. But apart from them the case against Harrington was so overwhelming that we conclude that this violation of * * * the right of confrontation was harmless beyond a reasonable doubt, unless we adopt the minority view in Chapman * * * that a departure from constitutional procedures should result in an automatic reversal, regardless of the weight of the evidence. It is argued we must reverse if we can imagine a single juror whose mind might have been made up because of the co-conspirators\'

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