U.S. v. Hodges, 74-1319

Decision Date14 May 1975
Docket NumberNo. 74-1319,74-1319
Citation515 F.2d 650
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles HODGES, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Jean Powers Kamp, Federal Defender Program, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Circuit Judge, LAY, Circuit Judge, * and GRANT, Senior District Judge. **

GRANT, Senior District Judge.

Appellant was charged in a one-count indictment with possession of a check stolen from the mail, with knowledge that it was stolen, in violation of 18 U.S.C. § 1708. After a trial by jury, he was convicted and sentenced to probation for a period of three years. The check in question was an Illinois Public Assistance check payable to the order of one Paul Watkins in the amount of $144.12. With the check, appellant first attempted to purchase a bottle of whisky at Angelo's Liquors, a store in Wilmington, Illinois. However, an employee of the store, Charles Toncrey, refused to cash the check after consulting with the owner, Angelo Aggelopoulous. Appellant then proceeded to go to a Western Auto Store in Coal City, Illinois, where he used the check to purchase a child's bicycle. Clarence A. Rolando, the owner of the store, honored the check but then alerted police after the transaction because of appellant's activities subsequent to the purchase. Shortly thereafter appellant was arrested. The government's case rested almost entirely upon the three eyewitness identifications of Toncrey, Aggelopoulous, and Rolando. Each of these persons positively identified appellant as the man who had attempted to cash the check. At appellant's trial, nevertheless, the court refused to give an identification instruction tendered by appellant's counsel because the court considered the instruction to be argumentative as well as a comment on the evidence. The sole issue in this appeal is whether the trial court erred in refusing to give to the jury appellant's requested instruction regarding eyewitness identifications.

Appellant contends that an instruction telling the jury that identification was the sole issue in the case was required in the court below because: (1) there was a 15-month delay between the crime and the in-court identifications; (2) a show-up instead of a line-up was used at the Coal City police station to identify him; and (3) two of the witnesses, Toncrey and Aggelopoulous, were not able to identify, immediately before trial, the picture which showed what appellant looked like on the day of the arrest. Under these circumstances, appellant argues that the instruction which he tendered was neither argumentative nor a comment on the evidence. Rather, it served to focus the jury's attention on the true issue before them. Further, appellant maintains that an identification instruction must be given where, as here, it is supported by the evidence and requested by the defense. Finally, appellant cites the Court to the tendency of many Circuits to give such an instruction for the reason that "testimony tending to prove identity is to be scrutinized with extreme care." It is appellant's position in this appeal, therefore, that based on the circumstances of the present case, an instruction focusing the attention of the jury on the defense of misidentification was appropriate and should have been given by the trial court. However, since the instruction was not given, appellant urges this Court to reverse his conviction and remand the cause for a new trial under proper instructions.

In response, appellee maintains that, although there are some factual situations which would compel an instruction which warns the jury to closely scrutinize identification testimony, the factual circumstances of the instant case do not require such an instruction. In this regard, appellee emphasizes that in the present case there is neither the uncorroborated testimony of a single eyewitness nor a situation where a conviction has resulted from an identification during a confusing affray of short duration involving a number of participants. Instead, in the instant case, appellee notes that there were three positive identifications made from direct observation which were, in turn, corroborated by the identification of the arresting officer, Rodney Soper. Since the witnesses here, argues appellee, had the opportunity to observe the accused, were positive in their identifications, were not weakened by prior misidentification, and remained unqualified after cross-examination, an instruction on the dangers of identification testimony was not warranted by the facts. It is appellee's position, then, that the likelihood of misidentification in the present case was virtually nonexistent.

In any event, appellee notes that many Circuits have left the matter of giving an identification instruction to the trial judge's discretion. In this regard, some courts have found such an instruction to be superfluous in light of adequate cross-examination, summation, and appropriate burden of proof and credibility instructions. In the instant case, appellee maintains that cross-examination focused on the possibility of mistaken identification and that counsel's summation plainly apprised the jury that the identification made by the witnesses was the underlying issue in the case. Therefore, appellee argues that the identification issue was fully aired and argued before the jury, and that the jury was clearly aware of its duty to find beyond a reasonable doubt that appellant was properly identified as the person who attempted to cash the check. The trial court's refusal to give appellant's tendered identification instruction, then, was not error, contends appellee. Accordingly, we are urged to affirm the judgment of conviction in the court below.

Although it has been recognized that the giving of instructions on identification is largely within the discretion of the trial judge, United States v. Sambrano, 505 F.2d 284, 286 (9th Cir. 1974); United States v. Evans, 484 F.2d 1178, 1188 (2d Cir. 1973), and that...

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