U.S. v. Ayendes
| Decision Date | 01 September 1976 |
| Docket Number | Nos. 76-1214,76-1215,s. 76-1214 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Louis Phillip AYENDES and James Frazier Noles, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Donald N. Krosin, Cleveland, Ohio, for Ayendes.
Timothy J. Potts, Summers, Potts, Burke & Hildebrand, Cleveland, Ohio (Court-appointed CJA), for Noles.
Frederick M. Coleman, U.S. Atty., John P. Berena, Cleveland, Ohio, for plaintiff-appellee.
Before WEICK, LIVELY and ENGEL, Circuit Judges.
On appeal from their convictions for armed bank robbery the appellants contend that photographic arrays shown to eyewitnesses were so unnecessarily and impermissibly suggestive as to require suppression of in-court identifications of the appellants by these witnesses. Each case involving the issue of pretrial photographic identification must be considered on its own facts.
A branch of the Second National Bank of Warren, Ohio was robbed by two white men at approximately 2:00 p. m. on January 9, 1975. Though both robbers had made some attempt to disguise their appearance, neither was fully masked. One of the men, who was carrying a weapon described as a double-barrelled shotgun, stationed himself in the lobby of the bank while the other robber went behind the area of the tellers' cages and took money from several cash drawers. The man in the lobby wore a disguise which consisted of a false nose and dark rimmed glasses and possibly a false mustache. The man behind the counter had on a knit cap described as being like a warmup or ski cap which was pulled down to the level of his eyes so that it was necessary for him to tilt his head backward in order to see ahead. The descriptions of these disguises as given by several witnesses were confirmed by a series of photographs made by a surveillance camera in the bank. There were no immediate arrests and, though they were interviewed shortly after the robbery, none of the eyewitnesses was shown any photographs until after the appellants had been arrested in February 1975.
Early in April 1975 a teller at the bank and one customer who was there at the time of the robbery were shown a spread of six photographs. Another customer was shown the same array in July 1975. Of the six photographs, three were black and white mug shots of white males and three were color snapshots. There was a color photograph of each of the appellants and a group snapshot in color of Ayendes, Noles and a woman later identified as Wilma Buchanan. At a suppression hearing, out of the presence of the jury, these three witnesses recounted similar experiences concerning the photographs. The witnesses were not together when the pictures were shown to them and each saw the photographic spread on only one occasion. All testified that they were merely asked to look at a group of pictures to see if they could identify any of the persons shown by them and that there was no discussion of the bank robbery. Each witness stated that there was no prompting by the FBI agent who showed the pictures. The teller, Darla Neugebauer, testified that she picked two pictures which "looked like" or "resembled" the robbers, but she had no recollection at the hearing in September 1975 of which pictures she had selected. One of the customers, Cantrell Miller, testified that he had selected the picture of Ayendes as the robber who remained in the bank lobby and had indicated that another picture looked like the other robber. The second customer-witness, Albert Moore, testified that he had picked photographs of two different people from the spread. He also was shown a photograph made by the bank surveillance camera of the robbery in progress.
An FBI agent testified that he showed the same six photographs to all the witnesses and asked them if anyone in the pictures looked familiar as far as their recollection of the robbery was concerned. He stated that the witness Moore identified both Ayendes and Noles; that Miller identified both, but was not positive about Noles; and that Neugebauer selected the pictures of both Ayendes and Noles, but was not positive about either one. Upon questioning by the court the agent testified that he had no conversation with any of the witnesses at the time he displayed the various photographs to them which would indicate that arrests had been made or that the appellants had committed the robbery.
The teller, Darla Neugebauer, further testified at the suppression hearing that she had observed the robber who went behind the tellers' working area for about three or three and one-half minutes and that he came within six inches of her when he took money from her cash drawer. Lighting conditions in the bank were very good. She also testified that she had observed the man who remained in the lobby for about three minutes, and gave estimates of the height of each of the robbers, relating her estimates to known objects. The witness stated that she had a direct frontal view of the robber who took the money from her cash drawer and had both front and side views of the one who remained in the lobby and who was about fifteen feet from her. Miss Neugebauer then made in-court identifications of Ayendes as the man who remained in the lobby and Noles as the man who took the money. She stated positively that her in-court identifications were based on her recollection of the robbery and not on the photographs which she had seen nearly three months after the robbery and that her memory of the partially disguised robbers was clearer than her memory of the photographs. The witness related the descriptions which she had given to investigators at the time of the robbery and, at the suppression hearing, remembered particularly that Ayendes had dark eyes and that he was a dark complexioned Caucasian. Though there were some inconsistencies in Miss Neugebauer's description of the disguises immediately after the robbery and the disguises as shown in the bank surveillance photographs, the witness repeated on cross-examination that she was sure of her in-court identification and that it was based solely on her memory of the robbery itself.
The witness Cantrell Miller testified that he was seated by the door of the bank through which the robbers entered. He said that the light was very good in the bank and that the man who covered the lobby with a shotgun passed within four or five feet of him. He described the robber in the lobby in great detail, including the fact that he had high cheekbones, a high forehead, thin lips and, extremely white and clean, beautiful teeth. He said that he concentrated on the man in the lobby and had a full five-minute view of him and observed the other robber for about one minute. He stated that he looked right into the face of the man in the lobby from about five feet and that he was within four or five feet of the man who took the money from behind the tellers' area when he left that area. This witness positively identified Ayendes as the man in the lobby and testified that Noles "resembles" the other robber. There were no serious discrepancies between the description of the man in the lobby given by this witness immediately after the robbery and the one which he gave at the hearing. In answer to a question by counsel for Ayendes, Miller said that even though there was no disguise on the photographs which the agent showed him he picked Ayendes because "the side of the face, the eyes, the cheeks, the mouth, it all looked the same." In response to a question by the court this witness stated that his testimony that Noles looked like the robber who went behind the teller area was based solely on his recollection of the bank robbery and in no way on the pictures which he subsequently saw.
The witness Albert Moore was cashing a check when the robbery took place. He described the man with the shotgun who stayed in the lobby as "dark complected," a Caucasian of possible Spanish extraction wearing a "Groucho Marx" disguise. He was within six feet of the man in the lobby and within four or five feet of the one who went behind the counter. He stated that he could see the mouth, chin and cheeks of the robber in the lobby, who moved back and forth during the holdup and that he got both straight-on and side views of his face. He testified that the man who went behind the counter wore a dark warmup or stocking cap which was pulled down to just cover his eyes. However, the witness said that he could see the eyes, nose, mouth, chin and long hair of the second robber because he wore no mask. He described the lighting as good and said that he had good views of both men for one and a half to two minutes. This witness made positive in-court identifications of both defendants and responded to questions by the court that he was able to do this in spite of the fact that the man in the lobby had on some disguise and the man behind the counter had a knit cap pulled down to his eye level. The witness said his identification was based entirely on what he saw at the bank, and "(t)he photographs have nothing to do with my decision."
The district court denied the motion to suppress, stating that there was no evidence that the FBI agent made any attempt to prompt the identifications and that each of the witnesses had testified that the partial disguises used by the robbers did not make identification impossible. Noting that each witness stated positively that the in-court identification was based on what occurred at the Second National Bank and was not influenced by the photographs, the court found that none of the photographs was unduly suggestive.
One other witness was shown the photographic spread. He was an automobile salesman who had sold a white Ford automobile which was identified as the getaway car. He testified that he spent about 90 minutes with the purchaser of the automobile a few days before the robbery and he identified the appellant...
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