U.S. v. Hill

• Decision Date: 25 June 1992
• Docket Number: No. 91-5905,91-5905
• Citation: 967 F.2d 226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell E. HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 226

967 F.2d 226

UNITED STATES of America, Plaintiff-Appellee, v. Russell E. HILL, Defendant-Appellant.

No. 91-5905.

United States Court of Appeals, Sixth Circuit.

Argued March 26, 1992.

Decided June 25, 1992.

Joseph M. Whittle, U.S. Atty., Stephen G. Frye, Asst. U.S. Atty. (argued and briefed), Louisville, Ky., for plaintiff-appellee.

Kenneth C. Plotnik (argued and briefed), Louisville, Ky., for defendant-appellant.

Before: NELSON and BOGGS, Circuit Judges; and WELLFORD, Senior Circuit Judge.

BOGGS, Circuit Judge.

Russell Hill appeals his convictions for bank robbery and armed bank robbery. For the reasons that follow, we affirm.

I

On February 4, 1991, a grand jury charged Stanley R. Mercer and Hill, in a two-count indictment, with violating both 18 U.S.C. § 2113(a) and 2113(d). On April 17, 1991, the jury found both men guilty of both charges. The district court sentenced Hill to twenty years' imprisonment (count one merging with count two), to run consecutively to the sentence that Hill was then serving for state drug and battery convictions in Indiana.

Prior to the trial, Hill made a motion to suppress any in-court identification of him by any bank teller. The district court took the motion under advisement and the trial began. Before the United States called the first bank teller to testify, the court held a suppression hearing on the identification issue. All four tellers testified at the suppression hearing. At the conclusion of the hearing, Hill renewed his motion to suppress any in-court identification by the tellers. In the alternative, Hill asked the court to require the tellers to pick him out of a line-up before allowing them to identify him at trial. The court denied the motions.

At trial, the prosecution presented five principal witnesses: Ann Hill and the four tellers who were present in the bank when the robbery took place. Ann Hill is the estranged wife of Russell Hill. She received immunity from prosecution for her testimony. Ann Hill testified that she, Russell Hill, and Mercer had planned and committed a robbery of the Great Financial Federal Savings and Loan in downtown Louisville on June 13, 1986.

Ann Hill testified to the following facts. A week before the robbery, she, Russell Hill, and Mercer drove to Louisville and, after considering other targets, decided to rob the Great Financial Federal. On June 12, 1986, the three rented a U-Haul truck in Indianapolis and drove to Louisville. In Louisville, they stole a car out of a parking lot in order to use it as their getaway vehicle. That evening, they drove the truck and the stolen car back to Indianapolis.

On June 13, 1986, the three returned to Louisville with both vehicles. They left the U-Haul truck at an apartment complex approximately one block from the Bank. Using the stolen car, Ann Hill drove her husband and Mercer to a nearby Pic-Pac supermarket to get some bags. Around 11:00 or 11:30, Ann Hill drove to the bank and dropped off the two men. Ann testified that she watched them enter the bank and then drove to the drive-up window and observed the two men robbing the bank. She stated that both Russell Hill and Mercer brandished .357 Magnums while they robbed the bank.

Following the robbery, both men fled the bank carrying grocery bags filled with money. Approximately half a block from the bank, dye packs that the tellers had placed in the bags with the money exploded. The robbers then threw the grocery bags containing the money and dye packs from the car. The trio raced to the apartment complex, where they abandoned the stolen car and drove the truck back to Indianapolis.

At trial, Ann Hill identified Russell Hill and Mercer as the two men who robbed the bank. She explained precisely what the two were wearing when they robbed the bank. She further identified pictures of the bank and pictures of the abandoned car, which were taken by police immediately after the robbery. She also identified what remained of the Pic-Pac grocery bags in which the dye exploded.

Russell Hill attacks the credibility of Ann Hill's testimony by emphasizing that, in return for her testimony, Ann Hill received immunity from prosecution for the bank robbery as well as for three other robberies that she had committed. Further, Ann is a convicted felon. Most importantly, says Russell Hill, his marriage to Hill was quite stormy. In fact, on several occasions Ann told third parties that she would do whatever she could to see that Russell Hill would stay in jail for the rest of his life. Witnesses called by Russell at trial who had known the couple for many years all testified that Ann had threatened to keep her husband locked up and away from her.

Russell Hill contends that the reason for Ann's animus toward him was that during part of their marriage Russell was living with another woman, Susan Cossell, with whom he eventually had a child on April 25, 1987. Several defense witnesses also testified that, contrary to Ann's claims, Russell was living with Susan Cossell and not with Ann Hill at the time of the alleged robbery. Susan Cossell was especially adamant about the fact that Russell had been living with her at the time because she claims that it was the time when her child was conceived. Russell Hill's brief describes Cossell's testimony as follows:

Susan Cossell recited a litany of facts showing the hatred, contempt and scorn Ann Hill showered on her and her son to show why she [Ann] might be motivated to testify against her [Ann's] husband, appellant. [Cossell's] testimony was especially convincing as she no longer had any intimate relationship with appellant and was at the trial obviously pregnant, and by someone other than Russell Hill.

Hill's strategy at trial then, was to attack the credibility of Ann Hill's testimony vehemently. The controversy in this appeal however, surrounds the testimony of the bank tellers who witnessed the June 13, 1986 robbery. Russell Hill had never been presented to any of these witnesses in a lineup or in a photo spread. As stated, the defense moved to suppress any in-court identification of Hill by the tellers.

The district court held a suppression hearing before the tellers were called. The jury and both defendants were removed from the courtroom. The first teller witness, Karen Summers, testified that she was in the bank when it was robbed. She had seen the bank surveillance photos of the robbery, once right after the robbery and then a second time the day before trial when she spoke to the United States Attorney. Summers stated that the two men were wearing disguises but were still recognizable. One of the two men was larger than the other. The taller one had tape over his nose and the smaller man had "a strange chin." They both wore sunglasses and hats. When asked if she could identify them, she stated: "I could do my best."

Virginia Hargrove was the next teller to testify. When asked if she could identify the men, she stated: "It's been five years. I'll do my best to identify them." She had not seen the surveillance photos since the event itself. She described the taller man as having a bandage over his nose, with a wild print shirt, very suntanned, about six feet tall, and powerfully built. She said that she had several minutes to observe the robbers.

Ann Brumleve was also a teller on the day of the robbery. She testified that she had never seen any photos of the robbery. When asked if she could identify the robbers, she stated: "I don't know. I don't know. It's been five years. It's been a long time. I may be able to. I don't know."

Ellen Bramer was the last teller to testify. She had seen the surveillance photos at the time of the robbery and the day before the trial. She said that she could identify the men from memory. She described the larger man as six feet or little taller. He had sandy blonde hair, a little bit curly, was wearing a ball cap, sunglasses and had a bandage over his nose. At the time of the initial FBI investigation, she had described the taller robber as six feet to six feet two inches tall, 200-220 pounds, large, "barrel-chested, broad shoulders, thick neck, sandy blonde curly hair, several-day beard growth, blonde stubble, hairy chest and stomach, dark tan."

After considering these witnesses, the court denied the defense motions to prevent the in-court identification and to conduct a lineup prior to any in-court identification. All of the witnesses then proceeded to testify at the trial. Ellen Bramer was the only witness to identify Russell Hill positively as the taller robber. She did so by pointing to him, seated at the defense table. The tall robber had gone to Bramer's window and robbed her. Karen Summers identified Mercer as the other robber.

After the testimony, defense counsel pointed out to the jury that Russell Hill is five feet nine inches tall and currently has very dark straight hair. Following arguments and instructions, the jury retired to deliberate. The jury sent out two notes concerning Bramer's earlier description of Russell Hill and her in-court identification of him. The next day, the jury found both defendants guilty.

Hill argues on appeal that the district court erred when it allowed the bank teller to identify him in court. He further contends that, given the significant unreliability of Ann Hill's testimony, this was not a harmless error. Specifically, Hill urges this court to find that the district court committed reversible error when it denied the motion to suppress Ellen Bramer's in-court identification, or, in the alternative, to require a line-up or some other device insuring reliability prior to her in-court identification.

II

Hill's basic argument is that allowing Bramer to identify him in court, over five years after the robbery, was a violation of his due process rights. The Supreme Court has held that due process requires exclusion of testimony of a pretrial identification when the identification procedures used were...