Patterson v. United States

• Decision Date: 28 March 1978
• Docket Number: No. 11525.,No. 11560.,11525.,11560.
• Citation: 384 A.2d 663
• Parties: William PATTERSON, Appellant, v. UNITED STATES, Appellee. Jesse WITHERSPOON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

384 A.2d 663

William PATTERSON, Appellant, v. UNITED STATES, Appellee. Jesse WITHERSPOON, Appellant, v. UNITED STATES, Appellee.

No. 11525.

No. 11560.

District of Columbia Court of Appeals.

Argued December 13, 1977.

Decided March 28, 1978.

Francis D. Carter, Washington, D. C., for appellant in No. 11525.

William H. Dowdy, Washington, D. C., with whom Warren C. Nighswander and Silas J. Wasserstrom, Washington, D. C., were on brief, for appellant in No. 11560.

Cheryl M. Long, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty. and John A. Terry and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before KELLY, GALLAGHER, and FERREN, Associate Judges.

FERREN, Associate Judge:

Appellants claim that the trial court erred in failing to suppress their identifications by a robbery victim at pretrial lineups and at trial. They argue that a suggestive photographic display had preceded and tainted these identifications. Because we can perceive no possibility of the substantial risk of misidentification proscribed by the due process clause of the Fifth Amendment, we affirm.

I

Just after 11:00 p. m. on September 6, 1975, Raymond Holmes set out for a local bar on Fourteenth Street, N.W. As he approached the corner of Fourteenth and Buchanan Streets, Mr. Holmes spotted two men standing on the opposite side of the street. As he was waiting at the corner for a vehicle to pass, one of the men approached him, grabbed him from behind, and, pressing a hard object into his back, demanded his money. When Mr. Holmes turned and discovered that he was being threatened at "Coke-bottle-point," he started to scuffle with the assailant. At that point the second individual whom he had observed across the street approached, struck him on the head with a bottle, and removed his watch. After some further scuffling, during the course of which Mr. Holmes observed the facial features of the attackers, the robbers took flight amidst a shower of hard objects (stones, bottles, etc.) thrown by Mr. Holmes. The entire incident lasted approximately five minutes.

Mr. Holmes hailed a passing policewoman and reported the incident; she summoned another officer by radio. The police transported Mr. Holmes around the vicinity for a while, hoping that he might spot the attackers. After approximately one-half hour of unsuccessful searching, they returned him to his home.

Before long, Mr. Holmes set out once again for the bar. Sometime between 12:30 and 12:45 a. m. on September 7, as he neared the same corner at which he was robbed, he saw the individual who had first grabbed him coming down Buchanan Street. Mr. Holmes called the police, pointed out the assailant to Officer Belisle (who had responded to the call), and rode with the officer down the block to the robber's location. As he observed Officer Belisle arresting the first attacker (later identified as appellant Witherspoon), Mr. Holmes saw the other assailant (appellant Patterson) standing among the onlookers. He apprised Officer Thornes who was standing nearby, whereupon Officer Thornes arrested Mr. Patterson.

The grand jury indicted Messrs. Patterson and Witherspoon, each on one count of robbery (D.C.Code 1973, § 22-2901), on December 1, 1975. On the morning set for trial, April 1, 1976, the Assistant United States Attorney assigned to the case displayed "mug shot" photographs of the defendants to Mr. Holmes to be certain that he could identify them at trial. To the prosecutor's surprise, Mr. Holmes first stated that the individuals in the photographs did not look like his assailants — that the men in the pictures looked older, more mature. Only after more viewing and reflection did Mr. Holmes decide that the photographs depicted the likenesses of the robbers.¹

The prosecutor informed defense counsel and the court about these events. The court then entertained defense motions to suppress prospective in-court identifications because of the suggestiveness of the single-photo displays. After hearing the motions, the trial court decided to permit the in-court identifications. Although the judge did not specify the ground for this ruling, he apparently concluded that there were reliable bases for the identifications independent of the suggestion inherent in the photographic showing. Trial could not commence on schedule because the case had to be assigned to another Assistant United States Attorney — a result precipitated by the defense decision to call the original prosecutor as a witness to the photo displays. In view of the delay, the trial court ordered that a lineup be held for each defendant. (None had been conducted previously.) Mr. Holmes identified both Mr. Patterson and Mr. Witherspoon at these lineups.

At a hearing prior to the commencement of trial on August 17, 1976, defendants renewed their motions for suppression of the in-court identifications. They also requested suppression of the lineup identifications. Defendants argued that the taint from the suggestive single-photo displays in April had infected the lineups, and that the taint from both the photo displays and the lineups would inevitably infect the in-court identifications. The trial court ruled that the lineup and in-court identifications would be permitted. Although the ground for the ruling again was not specified, the court apparently concluded that the first and second sightings on September 6 and 7, 1975, comprised a reliable, independent basis for the identifications.

After two days of trial, the jury convicted both defendants. On October 27, 1976, the trial judge sentenced Mr. Witherspoon to a term of from ten months to six years. He sentenced Mr. Patterson to a term of from two to six years, suspending execution of all but five months and imposing a three-year probation upon completion of the five months.

II.

Appellants are now before this court with their arguments that the unnecessarily suggestive photographs shown to Mr. Holmes on the morning of the initial trial date tainted the subsequent lineup and courtroom identifications, and that the admission of these identifications into evidence accordingly violated due process under the principles of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and its progeny. Such a challenge normally triggers a two-stage inquiry:

(1) Was the identification procedure "unnecessarily suggestive and conducive to irreparable misidentification"? Id. at 302 ;

(2) If so, given the "totality of the circumstances," was the resulting identification reliable nonetheless? Manson v. Brathwaite , 97 S.Ct. 2243, 2249 (1977); Neil v. Biggers, 409 U.S. 188, 199 [93 S.Ct. 375, 34 L.Ed.2d 401] (1972). See Simmons v. United States, 390 U.S. 377, 384 [88 S.Ct. 967, 19 L.Ed.2d 1247] (1968).

In the present case, the trial judge implicitly found suggestiveness; he then apparently proceeded to the second stage of the inquiry and found an "independent source" for the lineup and in-court identifications; i. e., a basis for identification that makes it nonetheless reliable.² His suggestiveness determination unquestionably was correct. The prosecutor, in his office on the morning of the day originally set for trial, had handed mug shot photographs of the two defendants to Mr. Holmes and asked if they were the men who had robbed him.³ Such single-photo displays are inherently suggestive. Manson, supra; Simmons, supra. They have been designated the "most suggestive" and therefore the "most objectionable method of pretrial identification." United States v. Dailey, 524 F.2d 911 (8th Cir. 1975).

Ordinarily, once unnecessary suggestiveness is found, its conduciveness to "irreparable misidentification" is obvious. The court accordingly proceeds forthwith, as the trial judge did here, to the second stage of the inquiry: the assessment of whether the identification is nonetheless reliable, based on the various factors enumerated in Manson, supra, and Neil, supra. Cf. United States v. Wade, 388 U.S. 218, 241-42, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (acknowledges possible "independent source" for in-court identification despite Sixth Amendment violation of right to counsel at pretrial lineup).⁴ The present case is of a rare breed, however, for although the single-photo displays were unnecessarily suggestive, they were not conducive to irreparable misidentification. Thus, as elaborated below, we do not leave the first stage of the inquiry; reliability does not become an issue in the same sense that it typically does following a suggested identification.

In the more common case of a challenged identification, a suspect is apprehended based on a police lookout, after which a complaining witness is asked to identify the suspect at a highly suggestive showup or at an arguably skewed or otherwise suggestive photographic array or lineup. From the very first identification, therefore, suggestiveness is inherent in the process; there is a risk of initial misidentification. Here, however, the first identifications occurred when Mr. Holmes sighted the suspects (who had robbed him merely an hour and a half before) and pointed them out to the officers. He led the police to the appellants; the police did not bring them to Mr. Holmes. Thus, the initial identifications to the authorities unmistakably were based on observation without suggestion.

It may well be true that the lapse of time between robbery and trial dimmed Mr. Holmes' memory of the suspects and that the single-photo displays helped bring his memory back. Nevertheless, as recent Supreme Court cases have made clear, these suggestive showings could not have created a "very substantial likelihood of irreparable misidentification." Simmons, supra, 390 U.S. at 384, 88 S.Ct. at 971 (emphasis added). See Neil, supra, 409 U.S. at 198, 93 S.Ct. 375. At worst, the "refresher" photos produced a misleadingly current, positive identification derived from a previously untainted one....