U.S. v. Dailey

• Decision Date: 10 November 1975
• Docket Number: No. 75-1213,75-1213
• Citation: 524 F.2d 911
• Parties: UNITED STATES of America, Appellee, v. Percy DAILEY, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 911

524 F.2d 911

UNITED STATES of America, Appellee, v. Percy DAILEY, Jr., Appellant.

No. 75-1213.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1975.

Decided Oct. 22, 1975.

As Revised Nov. 10, 1975.

Norman W. Pressman, St. Louis, Mo., for appellant.

Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, and BRIGHT and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This is a direct appeal from Percy Dailey Junior's conviction for attempted bank robbery with a dangerous weapon in violation of 18 U.S.C. § 2113(a) and (d). We find the cumulative effects of an impermissibly suggestive pretrial photographic display and improper final argument of government counsel deprived Dailey of a fair trial, and reverse.

Shortly before 9 a.m. on January 28, 1975, in Pine Lawn, Missouri, Mr. Lindewerth, an officer of the Pine Lawn Bank and Trust Company, was transferring cash, checks and food stamps from the bank's drive-in facility to the main bank located nearby. He was accompanied by Mr. Alphonse Geiben, a bank guard. Since it was raining heavily, the guard preceded Mr. Lindewerth to the bank and held the door open so Lindewerth could sprint across the forty feet of parking lot which separated the two buildings without getting too wet. As Mr. Lindewerth ran toward the open door with the deposits in his arms and his head down, he saw two figures approach out of the corner of his eye and

heard a man's voice demand the money. His momentum carried him on into the bank. Mr. Lindewerth could not identify or describe the would-be robbers; however, the bank guard, Mr. Geiben, who was holding the door, saw them approach and heard them demand the money. After Mr. Lindewerth ran into the bank, Mr. Geiben closed the door. The robbers fled, but no one saw in which direction. The police were called and Mr. Geiben gave a description of the two men to them. Based on the guard's report, a description of the suspects was broadcast over police radio. On the basis of this broadcast, Dailey was arrested near the bank shortly after the crime.

I. Courtroom Identification.

At trial Mr. Geiben positively identified Dailey as the gunman who had participated in the robbery attempt. Dailey was the only black man sitting before the bar when he was identified. Geiben stated this identification was based on his viewing the defendant for "no more than thirty seconds." He also testified he just got a glimpse of the two men as he stood inside the bank holding the door and the two men were outside. It was raining heavily, and part of the time his vision was obscured as Mr. Lindewerth ran past. The guard began to draw his gun, then slammed the door shut. Geiben stated that the gunman was black, about 26, five feet eight and 130 pounds. He testified that he told the police that the suspect wore a black hat, blue denim jacket, red and black shirt, and dark trousers. He went on to say he had seen Dailey being arrested as he was en route to the police station, and identified him as the gunman at that time. He said he had a clear look at Dailey's face at the scene of the arrest.

Geiben identified photographs taken of Dailey on the day he was arrested, and stated the clothing pictured was similar to that the robber had worn. On cross-examination Geiben admitted that the Assistant United States Attorney had shown him the photographs of the defendant on the morning of trial, shortly before he took the stand. No other photographs were shown to him. He had never attended a lineup in connection with this robbery attempt.

Defense counsel introduced a statement signed by the witness Geiben eight days after the attempted robbery. The statement described the gunman as wearing a black hat and denim jacket, and stated he had never identified the gunman in a face to face confrontation or photograph. The statement indicated that the man who had the gun had worn neither a beard nor a mustache. ¹

After it was called to his attention that the black hat worn by Dailey when arrested bore a conspicuous feather, Mr. Geiben stated that he had also told the police that the hat worn by the robber had a feather. He testified he could not remember whether the robber's hat had a white or black band, but stated he had told the police it had a band. He testified that the gunman had a little mustache, and could not explain why he had stated the robber did not have a mustache eight days after the crime.

The evidence showed that, at the time he was arrested, Dailey was wearing a We have no trouble concluding that showing Dailey's photographs to the witness on the day he was to testify was impermissibly suggestive. By showing only Dailey's photograph to the witness, government counsel in effect said " This is the man." Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Our court has previously noted that showing only a single suspect to the witness is "the most suggestive and, therefore, the most objectionable method of pretrial identification." United States v. Cook, 464 F.2d 251, 253 (8th Cir.), cert. denied, 409 U.S. 1011, 93 S.Ct. 457, 34 L.Ed.2d 305 (1972). The witness also knew that the person pictured was awaiting trial for the robbery attempt. United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148, 1153 (1971). The suggestiveness was exacerbated because the photographic display was a month and a half after the crime, and on the day of trial. Therefore the danger was great that the witness would remember the person in the photograph more readily than the appearance of the person who committed the crime. United States v. Cook, supra, 464 F.2d at 254. Nor was there any necessity that the photograph of Dailey be shown to the witness before trial. See Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

black, red and green shirt, a blue suede jacket, blue jeans and a broad-brimmed black hat with black band and a feather. He had a conspicuous mustache and sideburns.

Even though the photographic display was impermissibly suggestive, it does not follow that the in-court identification was tainted by the invalid display. United States v. Monteer, 512 F.2d 1047, 1050 (8th Cir. 1975); Cannon v. Sigler, 460 F.2d 311, 312 (8th Cir. 1972). At trial Mr. Geiben stated that he was certain that Dailey was the gunman who had committed the crime. If the identification in court was based on the witness' recollection of the gunman's appearance at the time of the attempted robbery, it would be admissible, because independent of the pretrial photographic display. Evans v. Janing, 489 F.2d 470, 474 (8th Cir. 1973). However, the witness' statement that his identification was based on observations made at the scene of the crime is not necessarily conclusive. Marshall v. Rose, 499 F.2d 1163, 1166-1167 (6th Cir. 1974). This is not so because of any ascription of bad faith to the witness; it is because "the witness (after misidentification due to an impermissibly suggestive photographic display) is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent . . . courtroom identification." Simmons v. United States, 390 U.S. 377, 383-384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

There was no testimony by Mr. Geiben which would indicate any physical characteristics that enabled him to identify Dailey as the criminal. United States v. Gambrill, supra, 449 F.2d at 1155. The only distinctive aspect of the defendant's physical appearance which was discussed at trial was his mustache. Eight days after the crime Mr. Geiben signed a statement to the effect that the criminal did not have a mustache, yet the photographs of Dailey taken on the day of his arrest, which was also the day of the crime, show that he had a prominent mustache. At trial the witness inexplicably changed his story and recalled that the gunman at the crime did have a mustache. The opportunity for Geiben to view the gunman at the crime was not substantial. The door to the bank opened inward and he was standing inside. Outside it was raining heavily, and he just caught a glimpse of the two men. ² "(T)he dangers for the suspect We have mentioned Geiben's confusion concerning whether the suspect had a mustache. He also indicated the gunman wore a denim jacket, while the defendant had a leather jacket when arrested. The guard originally testified that he told the police simply that the man with the gun wore a black hat; on cross-examination he added that he had reported the hat had a feather; still later he claimed to have told the police that the hat also had a band, but he could not remember whether it was a white or a black band.

are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest." United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967).

Mr. Geiben testified that he had reported that the gunman had worn a red and black shirt. He explained he did not see the green on Dailey's shirt because of the jacket he wore, although he stated that the jacket was open. However, we note that he also testified that the gunman's shirt had black sleeves. ³ We are unable to see how the guard could have viewed the shirt sleeves of the criminal while he had his jacket on. The conclusion is inescapable that the witness' description of the gunman's shirt was based not on what he remembered from the crime, but was based instead on the photographs of Dailey, taken at the police station with his jacket removed, which he had seen two hours earlier in the prosecutor's office.

The discrepancies between the defendant's appearance when arrested and the description given by Geiben to the police, and the inconsistencies in the witness' testimony on the stand tend to indicate that the courtroom identification was tainted by the...