U.S. v. Barron
| Decision Date | 24 May 1978 |
| Docket Number | No. 77-1375,77-1375 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dennis Leon BARRON, Defendant-Appellant. C.A. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Karen Ree Smith, Deputy Federal Public Defender (argued), Los Angeles, Cal., for defendant-appellant.
Mark E. Beck, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
On Appeal from the United States District Court for the Central District of California.
Before TUTTLE, * GOODWIN, and SNEED, Circuit Judges.
The La Habra branch of the Bank of America was robbed by two armed men on the afternoon of May 14, 1976. The first man entered the bank through the rear door and ordered the employees and customers to get on one side of the bank. Almost immediately another man entered the front door, leaped over the counter, grabbed some money, and jumped back over the counter. The robbers left the bank approximately two minutes after their entry, taking with them $17,255. The bank's automatic surveillance cameras photographed the robbery.
The appellant Barron, identified at trial as the front door robber, was convicted of armed bank robbery in the United States District Court for the Central District of California. On appeal Barron urges that his conviction must be reversed because of impermissibly suggestive pretrial identification procedures, exclusion of his alibi witnesses, and unwarranted restrictions on defense counsel's closing arguments. We have considered all of the arguments raised by the appellant, and we affirm.
Seven eye-witnesses to the robbery testified for the prosecution and identified Barron at trial as the front door robber. Their participation in various pretrial identification procedures was elicited on cross-examination. These procedures included a preindictment lineup, 1 a 25-photo spread of surveillance pictures, a six-photo spread, and pictures of the lineup. Only two of the prosecution witnesses had attended the lineup, and both identified Barron at that time as well as at the trial. Most of the photographic identifications occurred within a few weeks after the lineup, with two exceptions. One of the lineup viewers was shown the six-picture spread a week before trial, and one witness made his identification before the lineup. The seven prosecution witnesses based their in-court identifications of Barron on their recollections of the robbery. During extensive cross-examination the defense counsel brought out some inconsistencies in the witnesses' testimony, but he was unable to diminish the certainty with which they made their identifications. Four other eye-witnesses testified for Barron. Despite the suggestiveness which the appellant claims tainted the lineup, these four witnesses had been unable to identify Barron at the lineup. However, one of them made a positive identification of Barron at trial, where she was able to see him better.
Barron points to several ways in which the pretrial identifications were suggestive: 1) he was the only participant in the lineup with a big nose; 2) only one of the 25 surveillance pictures displayed the victim bank in the background; 3) some witnesses viewed the allegedly suggestive surveillance photo-spread before viewing the pictures of the lineup, thus tainting their selections; 4) some witnesses who made identifications from the lineup pictures were aware that other witnesses had made a positive identification at the lineup; 5) one witness received non-verbal approval after his identification and another was told that she had made the correct selection.
In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), the Supreme Court stated:
(W)e 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 identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
Subsequent cases have made it clear that unnecessary suggestibility alone does not require exclusion of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). "It is the likelihood of misidentification which violates a defendant's right to due process . . . ." Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). Hence, the focus is on the reliability of the witnesses' identification rather than on the flaws in the pretrial identification procedures. Although the Simmons test speaks in terms of a pretrial identification from photographs, the same standard applies to identifications which have been preceded by attendance at a lineup. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).
Even if it is conceded that elements of unnecessary suggestibility exist, certain factors must be examined to determine the likelihood of misidentification. As set out in Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. 375, these factors include the opportunity of the witness to view the criminal during the crime, the witness' degree of attention, the accuracy of the witness' prior description of the suspect, the witness' level of certainty at the prior confrontation, and the length of time between the crime and the pretrial identification. Application of these criteria to the facts of this case convinces us that the identifications at trial were reliable. The witnesses had approximately two minutes in which to observe the robbers in a well-lighted bank in daytime, and they testified that they had an excellent opportunity to see Barron during the course of the robbery. Three witnesses had seen him before he entered the bank, two of them as he stood outside immediately before the robbery and one of them a week earlier in the bank. Although the two minutes were tense, the witnesses stated that they looked directly at Barron. One witness said that he had been trained to observe closely in such a situation. Although some witnesses referred to their prior descriptions of Barron during the pretrial motion to suppress the identifications, Barron does not elaborate on this factor in his briefs. Although some inconsistencies occurred in the testimony, it does not appear that any of the prior descriptions were wholly inconsistent with Barron's appearance. Each witness expressed a high level of certainty about his or her identification. Although two months had elapsed between the robbery and the pretrial identifications, the Supreme Court has approved longer delays when other factors assured reliability. In Neil v. Biggers, supra, for example, seven months had elapsed, but the witness, a rape victim, had made no intervening identifications of any other suspect. There is no indication here that any witness has ever selected any other suspect. See also Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (two months).
Barron finds some support for his argument that the lineup was unfair because of his large nose in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), where the Supreme Court held that the lineup was unfair in part because the defendant was much taller than the other participants and was wearing a jacket similar to one worn during the crime. However, in addition to these suggestive elements, the Foster Court also relied upon the fact that the witness had been unable to identify the defendant at two of three confrontations and the suggestive elements appeared to have induced the identification. The same cannot be said here. Nor are we convinced that the size of a nose must be treated the same as height in a lineup. Participants in lineups are obviously going to differ in facial characteristics, and it would be unduly burdensome to require police officials to find five or six very similar individuals for a lineup. The difficulty becomes readily apparent when it is noted that some of the witnesses also emphasized Barron's beady eyes and oddly shaped lips as two other distinguishing characteristics.
As for Barron's other allegations of suggestiveness, we do not find any of them serious enough to undermine the reliability of the eight positive in-court identifications. There is no indication that any of the witnesses received prompting prior to their selections. The witnesses who identified Barron in the surveillance picture testified that it was Barron and not the bank in the background which induced their identifications. Whatever flaws inhered in the pretrial identification procedures, we are convinced that the procedures were not so impermissibly and unnecessarily suggestive as to have created a substantial likelihood of misidentification. United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976); United States v. Baxter, 492 F.2d 150 (9th Cir. 1973).
Although a public defender was appointed for Barron and represented him at his bail reduction hearing (July 22, 1976) and arraignment (August 9), Barron attempted to retain private counsel up until the day set for trial to begin. When the case was called for trial on September 7, the public defender moved for substitution of counsel and a continuance and stated that he was not prepared to proceed because Barron refused to confide in a government-paid attorney and would not disclose certain witnesses and his alibi defense to the public defender. Noting the lateness of the request, the court denied the motions. After the jury was impanelled, court was adjourned until the morning of September 9. Meanwhile, Barron confided his alibi defense to his attorney, who then responded on September 8 to the government's August 27 request for notice of alibi witnesses under Fed.R.Crim.P. 12.1. 2
On September 9, after the court had again denied renewed motions for...
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