U.S. v. Field

• Decision Date: 01 August 1980
• Docket Number: No. 79-1533,79-1533
• Citation: 625 F.2d 862
• Parties: 6 Fed. R. Evid. Serv. 1237 UNITED STATES of America, Plaintiff-Appellee, v. Robert Edward FIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 862

625 F.2d 862

6 Fed. R. Evid. Serv. 1237

UNITED STATES of America, Plaintiff-Appellee, v. Robert Edward FIELD, Defendant-Appellant.

No. 79-1533.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 5, 1980.

Decided Aug. 1, 1980.

Rudolph A. Diaz, Los Angeles, Cal., for defendant-appellant.

Richard G. Drooyan, Asst. U.S. Atty., Los Angeles, Cal., argued for plaintiff-appellee; Andrea Sheridan Ordin, U.S. Atty., Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and SCHROEDER, Circuit Judges, and HANSON, ^* District Judge.

WALLACE, Circuit Judge:

Field was convicted of armed bank robbery pursuant to 18 U.S.C. § 2113(a), (d). On appeal he claims that certain eye witness evidence admitted by the district court violated his right to due process of law, and that certain rulings by the district court were erroneous. We agree with Field's due process claim and reverse the conviction.

I

On the morning of March 6, 1979, two men robbed a Barclay's Bank located in Woodland Hills, California. During the robbery, which lasted one and one-half to two minutes, the shorter of the two robbers brandished a pistol and took money from three of the six tellers then on duty, while his companion took money from the remaining three tellers. After taking a total of $11,470, the robbers left the bank through a rear door and escaped in a dark-colored Toronado automobile.

During trial two months later, two tellers and one customer of the bank identified Field as the shorter robber. In addition, all counsel stipulated that the car in which the robbers escaped, the license number of which was recorded by an observer outside the bank, was registered to Field's wife.

Field introduced an alibi defense. He claimed that he and his daughter spent part of the morning of March 6 at a friend's house and the remainder of the morning at a local restaurant. He also produced testimony that codefendant Harris, who pled guilty to the bank robbery charge, had access to the car used to escape from the crime. The jury deliberated for nearly two and one-half days before finding Field guilty.

The most substantial question in this appeal is whether the in-court identifications by the two tellers and the bank customer were so tainted by pretrial occurrences as to deny Field's right to due process of law. The district judge's limitation on voir dire questioning, his ruling on the admissibility of prior convictions, his refusal to give certain requested jury instructions, and his refusal to grant a mistrial are also challenged. We will consider each of these contentions in turn, setting forth relevant facts as necessary.

II

Joan Jacobson, a teller on duty at the bank during the robbery, identified Field in court as the man who had robbed her. Jacobson testified that she recognized Field because she had stared at the shorter robber as he stood two to three feet away from her for a full minute during the robbery. Cross-examination established that eight days after the robbery Jacobson had been unable to identify the robber from a photo spread of six individuals, one of whom was Field. One week before trial Jacobson was present when an FBI agent, while showing the same photo spread to other tellers at the bank, identified the picture of Field as one of the individuals arrested for the crime. Just prior to commencement of the trial Jacobson saw Field handcuffed, in the hallway outside the courtroom.

Louise Guerin, the second teller to identify Field at trial, testified that during the robbery she saw the shorter robber twice, for a few seconds, from a distance of about 20 feet. When shown the six-picture photo spread by the FBI agent, Guerin was unable to identify positively the robber, but selected two photos, including Field's, as most closely resembling him. After doing so, Guerin, like Jacobson, was present when the FBI agent identified Field's photo as one of the apprehended suspects. She also saw Field handcuffed, waiting outside the courtroom prior to trial.

Louis Kotzen, the only customer in Barclay's Bank the morning of the crime, identified Field as the shorter robber whom he had observed from 25 feet during the one to two minutes of the robbery. Two weeks before trial the FBI agent interviewed Kotzen at Kotzen's office and showed him the same photo spread shown to the tellers. When Kotzen selected a photo other than Field's the FBI agent told him that his selection was wrong. Kotzen then selected Field's photo and the agent confirmed the selection. Kotzen also admitted that prior to testifying he saw Field through the courtroom doors and supposed him to be the suspect.

Field contends that the in-court identifications by these three witnesses, the only positive identifications produced at trial, were impermissibly tainted by the suggestive actions of the FBI agent during the pretrial photo spread and by pretrial views of Field in the courthouse. He argues that admission of such evidence therefore violated his right to due process.

A.

Suggestive pretrial photo spread procedures may taint in-court identifications sufficient to deny the accused due process of law. In reviewing pretrial procedures for such taint, the Supreme Court has instructed "that each case must be considered on its own facts, and that convictions based on eye witness 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." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). We have followed this articulation of the due process standard in numerous cases. E. g., Mata v. Sumner, 611 F.2d 754, 758 (9th Cir. 1979); United States v. Cook, 608 F.2d 1175, 1178 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980); United States v. Crawford, 576 F.2d 794, 797 (9th Cir.), cert. denied, 439 U.S. 851, 99 S.Ct. 157, 58 L.Ed.2d 155 (1978); United States v. Peele, 574 F.2d 489, 490 (9th Cir. 1978); United States v. Valdivia, 492 F.2d 199, 210 (9th Cir.), cert. dismissed, 414 U.S. 801, 94 S.Ct. 16, 38 L.Ed.2d 38 (1973). In doing so once again, our review must focus not only on the particular pretrial procedure in question, but also on the totality of surrounding circumstances. Manson v. Brathwaite, 432 U.S. 98, 104, 97 S.Ct. 2243, 2247, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 196, 199, 93 S.Ct. 375, 380, 382, 34 L.Ed.2d 401 (1972); Simmons v. United States, supra, 390 U.S. at 383, 88 S.Ct. at 970; United States v. Cook, supra, 608 F.2d at 1178; United States v. Crawford, supra, 576 F.2d at 797.

Our review of the district court's admission of the in-court identifications of Field focuses exclusively on their reliability. Since "(i)t is the likelihood of misidentification which violates a defendant's right to due process," Neil v. Biggers, supra, 409 U.S. at 198, 93 S.Ct. at 381-82, quoted in United States v. Barron, 575 F.2d 752, 754 (9th Cir. 1978), even "a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability." Manson v. Brathwaite, supra, 432 U.S. at 106, 97 S.Ct. at 2249. Thus, "reliability is the linchpin in determining the admissibility of identification testimony . . . ." Id. at 114, 97 S.Ct. at 2253.

While our determination of the reliability of identification testimony must be made from the totality of the circumstances, the Supreme Court has stated that our assessment should include five factors:

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, supra, 409 U.S. at 199-200, 93 S.Ct. at 382. Having examined the identification evidence for these five indicia of reliability, a reviewing court is instructed to weigh their existence and extent "(a)gainst . . . the corrupting effect of the suggestive identification itself." Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253. By doing so, the court may judge whether the identification was the product of observations at the time of the crime or impressions made during the suggestive pretrial photographic identification process.

Several of our cases have followed the five-factor analysis (hereinafter Biggers analysis) set forth by the Supreme Court. Green v. Loggins, 614 F.2d 219, 224 (9th Cir. 1980); Washington v. Cupp, 586 F.2d 134, 136 (9th Cir. 1978), cert. denied, 441 U.S. 909, 99 S.Ct. 2003, 60 L.Ed.2d 379 (1979); United States v. Barron, supra, 575 F.2d at 754. At the same time, however, several other of our cases have adopted a slightly different four-factor analysis pursuant to which the court considers

the witness's opportunity to observe the perpetrator during the commission of the crime, the similarity between the witness's prior description of the criminal and the characteristics of the defendant identified at trial, the presence and influence of other witnesses at the time of the prior identification, and the conduct on the part of the government agents tending to focus the witness's attention on the defendant.

United States v. Crawford, supra, 576 F.2d at 797 (footnote omitted). This formulation of the reliability test, which apparently originated with Parker v. Swenson, 332 F.Supp. 1225, 1230-31 (E.D.Mo.1971) (hereinafter Parker analysis), was initially utilized by our court in reviewing the admission of in-court identifications preceded by suggestive pretrial procedures. United States v. Baxter, 492 F.2d 150, 170-73 (9th Cir. 1973), ...