U.S. v. Jones

• Decision Date: 08 August 1975
• Docket Number: No. 73-2102,73-2102
• Citation: 517 F.2d 176,170 U.S. App. D.C. 362
• Parties: UNITED STATES of America v. James JONES, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 176

517 F.2d 176

170 U.S.App.D.C. 362

UNITED STATES of America v. James JONES, Jr., Appellant.

No. 73-2102.

United States Court of Appeals, District of Columbia Circuit.

Argued March 3, 1975.

Decided Aug. 8, 1975.

Fred Warren Bennett, Washington, D. C. (appointed by this court), for appellant.

Jeffrey T. Demerath, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Robert S. Tignor, Asst. U. S. Attys., were on the brief, for appellee.

Before RICHARD T. RIVES, ^* Senior Circuit Judge for the Fifth Circuit, and WRIGHT and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge:

Appellant stands convicted of armed robbery, 22 D.C.Code §§ 2901, 3202, and assault with a deadly weapon, 22 D.C.Code § 502. In his initial brief, appellant challenged those convictions on the grounds that (1) they are based on identification evidence derived from an improperly suggestive confrontation at the scene of the crime, (2) they are in any case based on insufficient evidence, and (3) they follow upon a prejudicial error by the district judge in giving a supplemental instruction to the jury while appellant was absent from the courtroom. In the course of oral argument, a fourth issue was identified by the court, as to which counsel was permitted to file a supplemental memorandum. That had to do with the question, then pending before the court en banc, of the applicability of 14 D.C.Code § 305, mandating impeachment by prior conviction, to trials of D.C.Code offenses in the District Court. Finding no merit in any of these matters, we affirm.

I

At approximately noon on March 3, 1972, an armed robbery occurred at the Home Federal Savings and Loan Association at Georgia and Alaska Avenues, N. W., Washington, D. C. According to one of the bank's tellers, a Mrs. Waugh, the robbery was committed by four Negro males whose faces were hidden by ski masks. She and the other occupants of the bank were forced to lie face down on the floor while the robbery was in progress. They thus had little or no opportunity to observe the intruders, and did not subsequently identify appellant as one of them.

At the time of the robbery a special police officer by the name of Mr. Furr was working in a liquor store directly adjacent to the bank. He was alerted by a customer that the robbery was in progress. Gun in hand, he left the store and approached the entrance of the bank. He saw two men outside the bank and two other men in its doorway. When he saw that one of them was also armed, he jumped back. There was an exchange of shots, in which Furr was wounded in the arm. Running back through the liquor store and out its back door, Furr caught sight of one of the robbers escaping down an alley which led from Kalmia Street (behind the bank) to Juniper Street. He later found a gun, a mask, and gloves in that alley. However, he did not positively identify appellant as one of the four men he had seen.

Chris Jackson, a 15-year old student, was sitting in his house on Kalmia Street, when he heard the gunfire. Rushing to the window at the back of his house, he observed four men running down the same alley that Furr had seen one of the robbers enter. He saw only the legs of the first man. The second and third carried what appeared to him to be money bags, from which bills were falling as the men ran. The fourth man wore a white trench coat and carried a gun. Police later found a number of bills at the spot Jackson directed them to. Jackson also was unable later to identify appellant as one of the men in the alley.

The one witness who did positively identify appellant, and around whom most of this controversy revolves, was Lucille Berg. As the robbery was taking place, she and a friend, Miriam Shuman, were on their way by car to lunch at Hofberg's Restaurant, located at Georgia and Alaska Avenues across from the bank. As she turned the car onto Kalmia Street, Mrs. Berg heard a gunshot, slowed the car, and looked over her shoulder out the rear window. She saw a man kneeling with a gun in his hand. This, it was later established, was Furr. She also saw two other men run from the direction of the bank and across Kalmia Street behind her. A few seconds later two more men ran across the street. One of the second pair was dressed in a white trench coat and carried a gun in one hand and what looked like a money sack in the other. Having crossed Kalmia Street, all four men turned down an alley on the other side.

Mrs. Berg was familiar with the area and knew where the alley came out on Juniper Street. She drove around the block onto that street and there saw the four men get into two cars, a green Volkswagen and a red car that she described to police as "foreign . . . with a slant back." The man in the white trench coat was standing by the right front fender of the red car. Mrs. Berg observed his face, which by this time was unmasked, as close as 10-15 feet. She noted that he wore a beard or goatee and a short bush haircut.

On their way back to the bank, where the two women intended to report their observations to the police, the red car pulled up behind them at a stop sign. Mrs. Berg noted the numbers 868 on the car's license plate. She also observed that the car turned right from the stop sign onto Alaska Avenue and headed toward 16th Street. All this she and Mrs. Shuman (who corroborated her testimony throughout) reported to the police and F.B.I. agents at the bank.

At 12:05 P.M. Officers Acton and Sweeney of the Metropolitan Police Department were cruising in the 3600 block of 16th Street, N.W. They received a radio lookout for two automobiles, a green VW and a second car, red in color with a "swooped type roof" and a license plate which bore the numbers 868. As they approached 16th Street and Colorado Avenue, they saw a green VW turn west onto Colorado Avenue. They then saw a red Pinto travelling south on 16th Street at an excessive rate of speed. The numbers 868 appeared on its license plate. Before they could reach the speeding car it was stopped by another officer, one Logan, driving a separate scout car. The Pinto's two occupants, one Gary Frazier, who was at the wheel, and appellant, who was in the passenger seat, were placed under arrest. Neither of the occupants wore a white trench coat, and nothing of an incriminating kind was found in the car. The suspects were taken first to the 10th Precinct for initial questioning and then to the bank where the robbery had taken place, arriving there about forty minutes after the arrest was made on 16th Street. Appellant was transported by the police. Frazier, at his own request and accompanied by Officer Acton, was permitted to drive the Pinto, first to the Precinct and then to the bank, where he parked it a short distance away.

Mrs. Berg and Mrs. Shuman had by this time belatedly settled in to lunch at Hofberg's. F.B.I. Agent Buscher, to whom they had first given their account of the fleeing robbers, now interrupted them to ask if they would return to the bank to "try to identify some suspects." They were apparently also told that a car had been taken into custody. On their way back to the bank, Mrs. Berg saw the parked Pinto and remarked (apparently spontaneously) that this was the same car in which she had seen the robbers escaping. Upon returning to the bank, Mrs. Berg and Mrs. Shuman were kept apart from the others present and were taken to the rear of the bank. The two suspects were brought into their view. In Mrs. Berg's words, "(t)hey were just standing and talking in the vice-president's area or the manager's area and we stood back and looked at them, one at a time." Tr. 74. Mrs. Berg positively identified the appellant as the man who had been wearing the white trench coat. She was unable to identify the second man, but insisted that she knew appellant by his face. Mrs. Shuman also identified appellant, but on a more tentative, "look-alike" basis.

These identifications of appellant in the bank were testified to at trial by Mrs. Berg and Mrs. Shuman themselves, and also by F.B.I. Agent Buscher. Mrs. Berg made an in-court identification as well. It is this in-court identification and testimony as to on-the-scene identifications that appellant sought unsuccessfully to suppress.

II

Appellant's suppression claim is based on the presence of the red Pinto outside the bank. Assertedly, this circumstance was "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed. 1199 (1967). If that were so, evidence of the identifications made in the bank would be inadmissible, and a hearing would be required to determine whether even the in-court identifications by the two women could be admitted as having an independent source. Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1237 (1968) (en banc ), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). But we see no due process violation in the confrontations that took place.

This court has a number of times applied the principles of Stovall and Clemons to so-called "show-ups" of the suspects of a crime near the place and time of its commission. Following the command of those cases that we look to the totality of circumstances which may justify or condemn such witness confrontations, we have held that on-the-scene confrontations are to be permitted "absent special elements of unfairness." Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, 1284 (1969), cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969); United States v. Perry, 145 U.S.App.D.C. 364, 449 F.2d 1026, 1038 (1971); United States v. Hines, 145 U.S.App.D.C. 249, 455 F.2d 1317, 1328 (1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972).

Undoubtedly, there was a degree of suggestiveness present in the confrontation in this case. Although there is contradictory testimony on the point, it...