Mason v. United States

• Decision Date: 30 June 1969
• Docket Number: No. 21818.,21818.
• Citation: 414 F.2d 1176,134 US App. DC 280
• Parties: William R. MASON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

134 US App. DC 280, 414 F.2d 1176 (1969)

William R. MASON, Appellant, v. UNITED STATES of America, Appellee.

No. 21818.

United States Court of Appeals District of Columbia Circuit.

Argued January 8, 1969.

Decided June 30, 1969.

Mr. Milton A. Kallis, Washington, D. C. (appointed by this court), for appellant.

Mr. Roger E. Zuckerman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty. at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, and Thomas Lumbard, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, BURGER^* and ROBINSON, Circuit Judges.

BAZELON, Chief Judge:

This appeal presents several questions concerning the admissibility of identification evidence under United States v. Wade¹ and Stovall v. Denno.²

Appellant was convicted of forgery and uttering. The evidence showed that on the morning of June 22, 1967, a man and a woman withdrew $1300 from the savings account of one Mrs. Sudie Mokrane, using the latter's savings account passbook and a forged withdrawal slip. Shortly thereafter Mrs. Mokrane discovered the apparent theft of the passbook and some cash from her apartment. She then told the police that she suspected appellant, who had seen where she kept her money during a visit two nights before and who had been in the neighborhood at about the time when the theft apparently occurred.³

Miss Linda Schulz, the bank teller who handled the withdrawal transaction, identified appellant as the male member of the withdrawal team.⁴ In addition, she described an identification she made of appellant in the Court of General Sessions when he appeared, along with a number of other criminal defendants, for his preliminary hearing. In a Wade-Stovall hearing out of the jury's presence, she said she had also identified a single photograph of appellant shown to her by the police on the afternoon of the withdrawal. However, while admitting her other identifications, the trial court excluded evidence of this photographic identification.

Appellant contends that none of Miss Schulz's three identifications were properly admissible against him. Unimpressed, the Government maintains that even the photographic identification should have been received. We agree with appellant.

I

At the Court of General Sessions some two weeks after the offense, Miss Schulz was told to sit among the spectators and watch the area where defendants awaiting hearings are seated, to see if she recnized anyone. She knew that the arrested suspect would appear in court, and she apparently also knew that he was the man whose photograph she had previously identified.⁵ She spotted appellant among a group of perhaps a dozen defendants seated in two rows, at a distance from her of some 30 feet. She said she saw him two or three minutes after she arrived. Police Detective Rogers said the identification occurred a half-hour after her arrival. Rogers was uncertain whether appellant was in the first group of defendants to appear, but thought there might have been one or two groups before his.⁶ Miss Schulz testified that she sat by herself and that, a few minutes after she saw appellant, Rogers walked up to her and asked if she had recognized anyone. Rogers testified that he sat together with the witness throughout and asked her nothing. It appears that of 38 persons who had hearings in General Sessions that morning, 30 were Negro and 5 were white; the color of the other three is unknown.⁷ Rogers was unable to say whether appellant was the only white man in his group, but he believed not. The question presented is whether Wade entitles a defendant to the assistance of counsel at identification confrontations such as this.⁸

As we noted in Russell v. United States,⁹ Wade speaks in broad and sweeping terms. While directly concerned only with a post-indictment line-up, it asserts that

the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.¹⁰

These dangers, it was held, make a post-indictment line-up a "critical stage" of the criminal process at which the presence of counsel is accordingly required. The Court suggested no reason why other identification confrontations should be any less "critical." Indeed, the only argument against a counsel requirement recognized by the Wade court is that it might forestall prompt identifications — a danger not relevant to post-indictment line-ups; and the Court suggested only that "substitute counsel" might be a permissible means of avoiding this danger.¹¹

In Russell, we held that in spite of its comprehensive language Wade did not apply to on-the-scene identifications occurring moments after an offense. We reached this conclusion only because we found compelling countervailing policy considerations militating against delaying identification confrontations in those circumstances.¹² Where time is not a factor, however, we were mindful of the Court's expressed inability to find any "substantial countervailing policy considerations * * * against the requirement of the presence of counsel."¹³

Assuming that irreparable prejudice may result from unsupervised preliminary hearing confrontations — an assumption apparently compelled by Wade — we can think of no sound reason why counsel should not be present at any such viewing. If legal assistance for indigent defendants is available anywhere, surely it may be obtained in the Court of General Sessions.

The Government says somewhat obscurely that a counsel requirement would complicate the already chaotic preliminary hearing process and more specifically that it would hinder efficient scheduling of such hearings.¹⁴ But it has long been established that defendants are entitled to the assistance of counsel at preliminary hearings upon request, irrespective of any identifications which might occur.¹⁵ If a defendant requests appointed counsel at his initial presentment before a magistrate,¹⁶ it is common practice to postpone his preliminary hearing¹⁷ in spite of the kind of scheduling difficulties the Government foresees.¹⁸ Application of the Wade rule to preliminary hearings would do no more than extend similar protections to defendants who do not request counsel in situations where the police intend covertly to obtain identification evidence at the time of the hearing. The practical impact of such an extension would be principally to require exclusion of identification witnesses from the courtroom until counsel has been appointed.¹⁹ If this limited consequence is really as procedurally burdensome as the Government suggests, a simple (and in most cases eminently desirable) solution is to hold a formal line-up in the presence of counsel or, if necessary, "substitute counsel" arranged for by police or prosecutor, either before or after the hearing.

Thus, if we are to adhere to the view of Wade we took in Russell, we must conclude that it applies to preliminary hearing confrontations.

The Government earnestly contends, however, that upon examination the rationale of Wade does not extend to such open-court viewings. It says that they entail no serious potential for improper influence and that in any event counsel could do little to alleviate such suggestivity as may inhere. Accordingly, it concludes that the General Sessions confrontation in the instant case was not a "critical stage" of appellant's prosecution.

The assertion that prejudicial influences are unlikely to be present rests primarily on the fact that the police presumably cannot "rig" the "line-up" parade out of the cellblock and into the courtroom. But while it pointed with alarm to recorded instances of unfairly contrived line-ups, the Wade Court was expressly concerned with unintentional as well as deliberate unfairness. "We do not assume," it said,

that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification.²⁰

These dangers may result from such diverse influences as the witness's desire to cooperate with the police, from his knowledge that he is expected to identify some one he sees (or indeed, as in the instant case, that he has already identified some one he will see), from uncertain recollections of a stranger's face distorted by a mental focus on particular features, from a generalized feeling of anger or vengeance, from suggestions subtly planted by the conduct or demeanor of a nearby policeman or other witness, from a calling of the defendant's name or an overheard description of his offense, and of course from a fortuitous line-up grouping which makes the defendant conspicuous or unique. A preliminary hearing viewing in open court reduces some of these inherent hazards, but it hardly eliminates them. In fact, the lack of police control over the makeup of a courtroom line-up is a double-edged sword: it precludes conscious alleviation, as well as deliberate exaggeration, of unfairly suggestive elements.²¹

Nor do we think it manifest that counsel is not needed to detect and counteract those suggestive influences which remain. The Government relies on the fact that preliminary hearing viewings are matters of public record, lacking in secrecy and capable of reconstruction at trial by enterprising defense counsel. An absence of secrecy, however, is at best a modest benefit if no one is watching. So long as only the policeman and the witness know that an identification confrontation is in progress, the defendant will be hard put to discover the myriad subtle suggestions which may have passed from policeman to witness. Nor is ther any likelihood that the many actors on the General Sessions stage, each absorbed...