Sutton v. United States

Decision Date19 August 1970
Docket NumberNo. 22210,22342.,22210
Citation140 US App. DC 188,434 F.2d 462
PartiesGlenn SUTTON, Jr., Appellant, v. UNITED STATES of America, Appellee. UNITED STATES of America v. Robert F. BIGSBY, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

COPYRIGHT MATERIAL OMITTED

Mr. Neal Michael Mayer, Washington, D. C. (appointed by this Court), for appellant in 22,210.

Mr. Alan S. Ward, Washington, D. C. (appointed by this Court), for appellant in 22,342.

Mr. Edwin K. Hall, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Theodore Wieseman, Asst. U. S. Attys., were on the brief, for appellee. Mr. David G. Bress, U. S. Atty. at the time the record was filed, also entered an appearance for appellee. Mr. Clarence A. Jacobson, Asst. U. S. Atty., also entered an appearance for appellee in 22,210.

Before McGOWAN and MacKINNON, Circuit Judges, and JAMESON,* Senior District Judge.

Petition for Rehearing in No. 22210 Denied September 22, 1970.

MacKINNON, Circuit Judge:

At about 12 o'clock noon on August 3, 1967, two armed men robbed the Executive House Motel in the District of Columbia. One man, later identified as appellant Bigsby, entered the auditor's office, told three employees there present that they would be shot if they moved, and then stole the motel's payroll (which was contained in payroll envelopes)1 and other money from the office. In the middle of the robbery, when Bigsby was filling some bank bags with money, another armed man entered the auditor's office, Bigsby handed him a couple of the bags containing money, and the two robbers then together took the three employees from the auditor's office next door into the sales office of the motel, told them to stay and the two then left the building and escaped.

The Government also presented evidence that the second man, later identified as appellant Sutton, had originally entered the sales office at about the time Bigsby first entered the auditor's office. These two offices are on the same floor, only about ten feet apart. When he entered the sales office Sutton had a gun and a paper bag. He told the sales manager and his secretary (Heher and Birney) to "Put your heads down, this is a holdup." They complied and Sutton then left the room for about two or three minutes when he returned and placed them in the closet of the sales office. About ten minutes later the employees from the auditor's office opened the closet door and the sales office employees then joined them and reported the robbery to the manager who reported it to the police.

Shortly thereafter the five employee-witnesses were taken to police headquarters and were shown several hundred photographs, but no identifications were made. A few days later, a police detective received a tip that appellant Bigsby was one of the robbers and he took a single photograph of Bigsby to the motel and asked the witnesses if they could identify the picture. The witnesses were separated for this purpose, and two of the three employees who were in the auditor's office during the robbery positively identified Bigsby, the third being less certain.2

A warrant then issued for Bigsby's arrest and he was arrested ten days later at his apartment. The apartment was searched incident to his arrest and a number of the individual payroll envelopes were found on or under the couch or daybed in the living room.3

Later that afternoon Bigsby was placed in a lineup at police headquarters at which time all three of the employees who were in the auditor's office at the time of the robbery identified Bigsby as one of the robbers. Bigsby was represented by counsel at the time of this lineup.

Thereafter appellant Bigsby implicated appellant Sutton as the other robber who participated in the robbery with him and a warrant issued for Sutton's arrest. Sutton was subsequently arrested in Camden, New Jersey, and taken before a United States Commissioner there at which time bond was set and a removal hearing scheduled. At the removal hearing four days later, the report of the United States Commissioner to the court stated that Sutton had voiced no objection to his removal to the District of Columbia and he was transported back to the District two days later. Upon his arrival, he appeared before a local United States Commissioner so that bail could be set. Later that day he was identified in his cellblock as one of the robbers by the two employees who were present in the sales office at the time of the robbery.4 Sutton was represented at this lineup by two "substitute" counsel from the local Legal Aid Agency.

Prior to trial, appellant Bigsby moved to suppress the payroll envelopes which were seized at his apartment at the time of his arrest. At the hearing, the policemen involved testified that the pay envelopes were found in a paper bag under the daybed in the living room during the course of a search of Bigsby's entire apartment. The court permitted the introduction of this evidence on the authority of Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947).

At trial, counsel for both appellants questioned the procedures used by the police in obtaining their clients' identifications and a hearing was held out of the presence of the jury. Counsel for Bigsby argued this his client's lineup was improper primarily on the ground that of the five participants only Bigsby wore a dark shirt. The detective in charge of the lineup testified that the reason he didn't have the participants remove their shirts was that one of the witnesses had stated that the robber had a tatoo on his arm. After hearing this evidence, the court ruled that Bigsby's lineup was proper.

The facts surrounding the identification of appellant Sutton were also explored at this time. It developed that Sutton was identified out of a group of five while in his cellblock. His counsel stated that he had no objection to the introduction of evidence of this identification.

The Government relied primarily on identification evidence at the trial. The three employees present in the auditor's office all positively identified Bigsby as the man who had entered their office. These employees testified that they had ample opportunity to observe the robber,5 that the lighting was good and that they had previously identified Bigsby in the lineup. Moreover, it was brought out that the witnesses' original descriptions of the robber to the police were consistent with each other.

The pay envelopes seized in Bigsby's apartment were then introduced into evidence along with the seizing officer's testimony that he found the envelopes on a couch in the living room. An employee of the motel testified that these pay slips were the ones taken from the motel.

The Government's case against Sutton was similarly based on identification evidence. The two employees who were in the sales office at the time of the robbery both positively identified Sutton as one of the robbers and testified that they had previously identified him at a lineup in his cellblock.6

Neither appellant took the stand or introduced any evidence. The jury found both appellants guilty of robbery and five counts of assault with a deadly weapon. Appellant Bigsby was sentenced to five to fifteen years for the robbery and three years and four months to ten years for each of the assaults with the assault sentences to run concurrently with each other but consecutively to the robbery sentence. Appellant Sutton was similarly given five to fifteen years for the robbery and two to six years for each of the assaults with the assault sentences to run concurrently with each other but consecutively to the robbery sentence.

On this appeal, both appellants allege several points of error. We consider all of the points to be without merit and affirm both convictions. We shall treat appellant Bigsby's contentions first.

No. 22342United States v. Bigsby

I

Appellant Bigsby first argues that the procedures used in his identification were so suggestive that they violated due process of law under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).7 He points to his original identification by means of a single photograph as being patently unfair. He argues that when this unfairness is coupled with his lineup, in which he was the only one of the five participants wearing a dark shirt, the violation of due process is clear.

The Government agrees with appellant that the showing of a single photograph might be considered somewhat suggestive under the purview of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).8 In that case, petitioner Simmons had originally been identified shortly after a bank robbery by means of group photgraphs which included him and others. Mr. Justice Harlan, writing for the majority, first discussed the potential dangers of photographic identifications, making specific reference to the danger of suggestiveness inherent in identification by means of a single photograph. However, despite the dangers of misidentification, the Court declined to prohibit this technique in aid of law enforcement. The Court stated:

Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. * * * We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic
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    ...is permitted to charge lesser included or alternate offenses in order to allow for contingencies in proof. Sutton v. United States, 140 U.S.App.D.C. 188, 199, 434 F.2d 462, 473 (1970), cert. denied, 402 U.S. 988, 91 S.Ct. 1676, 29 L.Ed.2d 153 On the basis of the above authorities, we conclu......
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