U.S. v. Jackson, 72--1777

• Decision Date: 12 December 1974
• Docket Number: No. 72--1777,72--1777
• Citation: U.S. v. Jackson, 509 F.2d 499, 166 U.S. App. D.C. 166 (D.C. Cir. 1974)
• Parties: UNITED STATES of America v. James E. JACKSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 499

509 F.2d 499

166 U.S.App.D.C. 166

UNITED STATES of America v.James E. JACKSON, Appellant.

No. 72--1777.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 10, 1973.

Decided Dec. 12, 1974.

Helen W. Nies, Arlington, Va. (appointed by this Court), for appellant.

William D. Pease, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, John A. Terry, and William S. Block, Asst. U.S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Appellant was convicted by a jury of armed robbery ¹ and assault on the robbery victim with a dangerous weapon.²This appeal focuses upon the victim's pretrial and in-trial identifications of appellant, and evidentiary emanations assertedly indicative of his involvement in other criminality.We vacate the conviction on the assault count ³ and affirm on the robbery count.

I.THE FACTUAL BACKGROUND

Late one night, Alfreda Lillian Butler entered her apartment building and noticed two men in the basement.As she walked toward her apartment on the second floor, the men approached from the rear.They followed her into the apartment and announced that their purpose was a holdup.One stood in front of Ms. Butler holding a sawed-off shotgun while the other stayed behind her.She was told to empty her purse on the living room floor, which she did.The man with the shotgun cursorily checked two other rooms in the apartment and subsequently took Ms. Butler into her bedroom, while the second man searched more thoroughly.When the search ended they left taking among other things, a stereo set.

Fifteen to twenty minutes elapsed from the men's entry to their departure.During that period, Ms. Butler was face to face with the gunman on several occasions.Lights were on over the front door, in the living room and in a bedroom in which her son was asleep, although her own bedroom may have been unlighted.⁴Ms. Butler could not observe the second man sufficiently to enable a later identification.⁵

Ms. Butler gave the police a description of her armed assailant.⁶A few weeks later, Officer Joseph T. Kaclik received word from an informant that appellant was a participant in the robbery.⁷From that point onward, the investigation implicated appellant more and more.Officer Kaclik selected black-and-white photographs of eight persons, including appellant, of the same age group and general description, ⁸ and presented them to Ms. Butler, who immediately and positively identified appellant as the man who held the shotgun during the robbery.⁹A search warrant executed at appellant's apartment netted a sawed-off single-barreled shotgun.¹⁰Ms. Butler identified a stereo set recovered by the police ¹¹ as the one taken from her apartment during the robbery.From an eleven-man lineup at police headquarters, ¹² Ms. Butler again made a positive identification of appellant.¹³These and other events ¹⁴ culminated in an indictment.

Shortly prior to trial, appellant moved to suppress the photographic and lineup identifications, and any in-trial identification to be undertaken.After an evidentiary hearing, the judge denied the motion.¹⁵At trial, Ms. Butler described the robbery, identified her stereo set, and said that the shotgun found in appellant's apartment was similar to the one used in the robbery.¹⁶Ms. Butler also testified to her previous photographic ¹⁷ and lineup ¹⁸ identifications of appellant, and once again identified him in the courtroom.Officer Kaclik confirmed her pretrial identifications of appellant and the stereo set.

A key witness for the Government was Roland Carey, appellant's roommate, whose testimony we may profitably pause to summarize.¹⁹On the night of the robbery, appellant, Wendell Hiett and Carey talked in appellant's apartment about a 'hustle'--a robbery.Carey spurned the plan, so appellant and Hiett left to execute it on their own.Appellant took along the sawed-off shotgun, which he kept in the apartment.

Hiett, carrying Ms. Butler's stereo set, returned to appellant's apartment later, but Carey refused to let him come in.Hiett then went to his own apartment located in an adjacent building.²⁰Still later, Carey saw appellant run into Hiett's apartment house.Carey joined them, and both appellant and Hiett told him about the robbery of Ms. Butler.²¹

Appellant's defense was alibi and mistaken identity.He and two witnesses testified that they were playing and watching television in the witnesses apartment when the robbery was in progress.²²Appellant also testified that the shotgun did not belong to him but to Carey.The jury persuaded instead by the Government's evidence, convicted.

II.THE PHOTOGRAPHIC IDENTIFICATION

The challenge to Ms. Butler's photographic identification of appellant is predicated upon three distinct grounds, the first of which may at once be discarded.That ground is that, because appellant was already in custody on another charge, ²³ the police could not, in the absence of counsel on his behalf, utilize a photographic identification to link him to the robbery.The Supreme Court's recent holding in United States v. Ash, ²⁴ that no Sixth Amendment right to counsel attaches at photo-identification sessions, plainly forecloses acceptance of that argument.

A second ground urged is that, with appellant in custody and assertedly available for a corporeal lineup, ²⁵ a photo-identification procedure in lieu of the normally more reliable lineup procedure ²⁶ was constitutionally impermissible because unnecessary.²⁷We are unable to characterize the resort to photographs as a gratuitous undertaking here.²⁸Photo-identification is an established investigative technique which the Supreme Court has refused to outlaw ²⁹ and which, as Ash and other decisions demonstrate, may properly serve law enforcement needs other than apprehension of criminals at large.³⁰Ms. Butler's examination of the photographs was designed to test unverified information from a paid informant that appellant was one of her assailants.We are less confident than appellant that his presence in a robbery lineup was then compellable, ³¹ but in any event we perceive no impediment to an effort to fortify the basis for moving in that direction.There is neither claim nor evidence that the methodology of the photographic display in question was in any way suggestive.³²

Appellant's remaining ground is that testimonial reference to the photographic identification unfairly embarrassed his ability to persuade the jury that Ms. Butler had misidentified him.The argument is that appellant could best defend against the identification by exhibition of the photographs to the jury for its appraisal of the accuracy of the identification, a course fraught with danger because the photographs were, in the vernacular, mug shots.In support of this argument, appellant relies on our holding in Barnes v. United States ³³ that since an accused's mug shots intimate a prior criminal record, the Government may not ordinarily present them for the jury's inspection.³⁴

We think appellant presses Barnes much too far.The photographs themselves were not placed in evidence, ³⁵ nor were they ever referred to in the jury's presence as mug shots; the question is whether the identification they promoted was outlawed simply by their character.We have consistently honored the Government's prerogative to show testimonially pretrial photographic identifications, which may well be 'more meaningful to the jury than the more ritualized in-court identification.'³⁶Our decisions make clear that that prerogative extends to testimony of identifications based on photographs not typically mug shots, ³⁷ and we see no sound reason for concluding differently when a mug shot is utilized, ³⁸ for the accused need not face the Hobson's choice appellant imagines.The problem to which appellant points may be avoided simply by eliminating the objectionable features of the mug shots, ³⁹ a course trial courts, in exercise of their powers to safeguard the fairness of trials, may insist upon.At appellant's trial, the District Court's discretion to that end was never invoked, ⁴⁰ if indeed appellant wished to test the identification against the photograph.We cannot find just cause for the present complaint.

III.THE LINEUP IDENTIFICATION

Appellant next complains of the lineup at which, following the photographic presentation, he was again identified by Ms. Butler before trial.The contention is that the lineup was impermissibly suggestive because he was the only one in the lineup with a bush hairstyle.The initial inquiry here is whether the lineup 'was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.'⁴¹If suggestive but not unconstitutionally so, ⁴² the further inquiry is 'whether under 'the totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive.'⁴³Our answers to both questions are in the negative.

Shortly after the robbery, Ms. Butler described the armed robber as 'a Negro male, late 20's, five-foot-ten stocky build, medium complexion, bush haircut dark clothing.'⁴⁴In the challenged lineup were eleven black males who, though generally of similar appearance, nonetheless presented the viewer with some range of variation.Between the shortest and the tallest was a difference of about eight inches; eight in the line-up, including appellant, were within approximately four inches of equal height.None was unusually slender or abnormally stout, but there were differences in build.None seemed particularly young or particularly old, but it was manifest that they were not all of the same age.None had a distinctly heavy beard, but some had facial hair and some did not, and haircuts diverged considerably.In this...