U.S. v. Eatherton

• Decision Date: 18 July 1975
• Docket Number: No. 74-1330,74-1330
• Citation: 519 F.2d 603
• Parties: UNITED STATES of America, Appellee, v. Gilbert Joseph EATHERTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 603

519 F.2d 603

UNITED STATES of America, Appellee, v. Gilbert Joseph EATHERTON, Defendant-Appellant.

No. 74-1330.

United States Court of Appeals, First Circuit.

Argued May 7, 1975.

Decided July 18, 1975.

Daniel J. O'Connell, Boston, Mass., for appellant.

Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

At approximately 1:00 p. m. on March 25, 1974, three men entered the Suburban National Bank in Arlington, Massachusetts. The men were armed, and were similarly dressed. Each was wearing a dark (described by witnesses as black or navy blue) knit ski mask which effectively obscured his facial features. In the space of a few minutes they had robbed the bank of $10,443.81, and exited from the bank. An assistant cashier testified to seeing the men fleeing in the direction of Churchill Avenue.

Another prosecution witness testified that at approximately this same time he was driving his car up Churchill Avenue when he observed a "silver" automobile suddenly emerge from a driveway behind the bank, make an abrupt turn into the avenue, run the corner stop sign, and then disappear down Churchill Avenue traveling at a high rate of speed. A car fitting this description, subsequently ascertained to have been stolen, was discovered soon after the robbery parked on a residential street approximately four blocks from the bank.

The robbers departed the area of the crime without being apprehended. No clues were found at the scene or in the abandoned car, and because of the masks worn in the bank the eyewitnesses to the robbery were of no help in identifying the perpetrators of the crime. Police located two witnesses who were outside the bank around the time of the robbery and had seen three men who were probably the robbers. These witnesses gave the law enforcement officials information leading them to conclude that appellant, Gilbert Joseph Eatherton, was one of those men. He was subsequently arrested and on April 4, 1974, was indicted by a grand jury for the armed robbery of the Suburban National Bank in violation of 18 U.S.C. §§ 2113(a) & (d).

Identity was the principal issue at Eatherton's jury trial. He offered several alibi witnesses in an attempt to show that he could not have been in Arlington at the time of the robbery. Some doubt was cast upon their testimony, however, by cross-examination and by two rebuttal witnesses presented by the Government. The jury evidently chose to disbelieve appellant's alibi. Upon its verdict of guilty a judgment of conviction was entered, and he was sentenced to 18 years' imprisonment. In this appeal he presents four claims: that his identification was the result of impermissible police suggestion, that physical evidence introduced by the prosecution was the fruit of an unreasonable search, that the trial court abused its discretion in admitting this evidence even if it was not unconstitutionally obtained, and that the court's charge to the jury was improper.

I

Inquiry by the Arlington Police and the Federal Bureau of Investigation (FBI) at the house before which the silver vehicle was discovered led to Miss Janet Leak, a high school senior, who was the principal eye witness at appellant's trial. The officers learned that Miss Leak had observed the three men who had been in the silver gray automobile. She told the officers that while walking down Churchill Avenue at about 1:00 p. m. she had seen the large silver car traveling unusually fast and followed by a small green car. When she began walking down Lincoln street towards her home she observed that these two vehicles were parked in front of her house. As she approached her home the three occupants of these cars got out and then all three entered the silver auto. Leak passed within several feet of these three individuals and testified that she had them in her view for about a minute. She also stated that she had obtained a better view of the individual in the front passenger seat than of the two others.

At their request Leak accompanied two FBI agents to the bank to see if she could aid them in identifying the men. In the bank, approximately an hour after the robbery, Miss Leak was shown a green album containing a number of photographs of adult males. The album, which had been prepared by the FBI, bore on its front cover the small, taped-on legend, "Bank Robbery Suspect Photographs."

Leak was asked to look through this album to determine if any of the pictures looked familiar or if she could identify any of the three men she had observed. On her first time through this book she indicated two to four "possibilities" to the agents but made no positive identification of any photograph. One of the photos which she indicated was a possibility, identified only as number 14 in the album, was that of appellant.

Two of the FBI agents then discussed the "possibles" which Leak had indicated. One of these agents, who was evidently familiar with many of the men whose photographs appeared in the album, "eliminated" all the possibles save appellant. This conversation was held approximately six feet from where Leak was sitting with another agent and an Arlington police officer, but, according to the testimony of one of the conversants, was conducted sufficiently sotto voce to prevent Leak from overhearing.

The agents requested that Leak again go through the photo album in an attempt to obtain a "suspect." On this last time through Leak selected only one picture appellant's.

On the afternoon of the robbery a young man, Michael Gookin, and his companion were walking down Churchill Avenue alongside the Suburban National Bank. Bookin's attention was attracted by three men approaching the bank wearing navy blue ski hats, and he also observed a vehicle left running in a driveway nearby. He passed within about seven yards of the men, and although their somewhat unusual headgear for such a warm day had stimulated his attention, he did not take a close look at any of them.

Later in the day Gookin learned some of the facts surrounding the robbery of the bank and contacted the Arlington Police in the belief that his observations might be of some help in solving the crime. That evening he and his companion were taken to the Massachusetts Bureau of Identification by Arlington police officers. His companion proved of no assistance in identifying the men, apparently because she had only barely observed them as they passed. Gookin, however, was able to give a general description of two of the men and had sufficient recollection of one to be able to assemble an ident-a-kit facial composite of that individual with the assistance of an officer from the Bureau of Identification.

Gookin was then requested to look through several drawers of photographs corresponding roughly to the description he had given. At some point after Gookin had looked through a substantial number of these photos ¹ the Arlington police officers present learned that appellant presumably on the basis of Leak's earlier identification had become a suspect in the crime. They obtained a color photograph from Bureau files and showed it to Gookin, inquiring whether he thought it looked like one of the men he had seen. Gookin replied that he thought it did, but that he wasn't sure.

Gookin was then shown a spread of seven to eight photos which included a black and white copy of the portrait of appellant he had just been asked about. He noted that fact to the officers. After he had completed his examination of this spread he was told that earlier in the day another witness had identified the individual in that photo. While he later indicated that this information had reassured him, he held to the opinion that he would have to see the man in person before he could make any positive identification.

The next day, March 26, both Leak and Gookin were exposed to further investigatory attempts to identify the men they had seen in the vicinity of the bank. They were separately brought to the Boston Municipal Court, Leak by Arlington police officers and Gookin by FBI agents, in the expectation that appellant would be there in regard to another matter. The law enforcement officials apparently intended to arrange some sort of opportunity for them to observe appellant in person, but when they reached the courthouse Eatherton had departed. At some point Leak and Gookin were alone together in a corridor for a short time, and, according to Gookin's testimony at trial, "probably" discussed their respective attempted identifications of the men they had seen.

Surrounding this failed attempt to effect some sort of confrontation with appellant, both witnesses were again shown photo displays and asked whether they could identify anyone. On the way to the BMC Leak was shown the composite prepared by Gookin the previous evening, as well as a seven photo spread which contained a copy of the same photo of appellant which she had seen in the green FBI album the previous day. Leak again selected this photo as one of the men she had seen.

Gookin, after the BMC visit, was taken to FBI headquarters where he was shown a spread of eight photographs. The results of that attempt at identification are not clear, ² but the jury was told only that Gookin had again been unable to identify anyone. He was also shown the green album, without result.

In the course of the continuing investigation of the robbery both Gookin and Leak were shown photographic spreads on several other occasions. On March 28, Leak was shown the same seven photo spread which had been displayed to her two days before, and she again selected appellant's picture. On March 31, she was presented a nine picture spread, but she again identified only the photo of Eatherton, which she had by that time seen at least three to five times. On April 3, prior to appearing before the grand jury, Leak...