U.S. v. Murray

Decision Date02 October 1975
Docket NumberNo. 75-1169,75-1169
Citation523 F.2d 489
PartiesUNITED STATES of America, Appellee, v. Herbert Allen MURRAY, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Douglas J. Patterson, Kansas City, Mo., for appellant.

J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before VOGEL, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

Herbert Allen Murray has taken a timely appeal from his conviction by a jury on charges of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2 and the resulting sentence of twenty years. Charles Thompson, a codefendant, has not appealed his conviction on similar charges.

Murray asserts that the trial court erred: (1) in failing to sustain objections to the use of bank surveillance photographs by Sharon Orr to identify Murray during the trial when she could not make a definite in-court identification of Murray before reviewing these photographs; (2) in requiring Murray to appear before Orr and the jury in a wig; and (3) in denying Murray's motion for acquittal or for a new trial. We affirm.

On August 15, 1974, at approximately 10:00 A.M., two men entered the Mid-Town Branch of the Home Savings Association in Kansas City, Missouri. Upon reaching the window of Sharon Orr, a teller at the bank, they handed her a paper bag and demanded, at gunpoint, that she place the bank's money in it. As she reached for the money, she tripped the surveillance camera which photographed the remainder of the robbery. Clarence Hale, a customer of the bank, also witnessed the incident.

On the basis of the surveillance photographs, Murray was arrested on September 8, 1974. He was wearing a wig at the time of his arrest.

At trial, Orr identified Charles Thompson as one of the participants in the robbery but she could not initially make a positive identification of Murray. Over objection, she was allowed to review photographs which she identified as surveillance photographs that accurately depicted the scene at the bank during the robbery of August 15, 1974. Murray was then instructed, over objection, to place a wig on his head. Orr then testified: "It looks like him. I thought he might have been a little heavier, was all." On cross-examination, she further stated:

All right. After looking at the photographs, as I said it happened quite a while now, and looking at him with the wig, without the wig he does look very much different, with the wig on, yes.

Yes, he looks like the man.

Hale positively identified Thompson, but he could not positively identify Murray as he sat in the courtroom or when wearing the wig.

Murray's principal argument is that after Orr was initially unable to make a positive identification of him, it was prejudicial error to allow her to view the surveillance photographs of the robbery while on the witness stand and to utilize them to make a positive in-court identification of Murray. He suggests that this procedure is unduly and unnecessarily suggestive and is conducive to irreparable mistaken identification in violation of the standards set forth in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and as applied in United States ex rel. Choice v. Brierley, 460 F.2d 68 (3rd Cir. 1972) and United States v. Zeiler, 447 F.2d 993 (3rd Cir. 1971).

We start with the premise that a sufficient foundation was laid for the introduction of these photographs into evidence by the testimony of Orr that they accurately reflected the robbery that took place at the Mid-Town Branch of the Home Savings Association on August 15, 1974. United States v. Wilkins, 477 F.2d 323 (8th Cir.), Cert. denied, 414 U.S. 843, 94 S.Ct. 103, 38 L.Ed.2d 81 (1973); Mikus v. United States, 433 F.2d 719 (2nd Cir. 1970); United States v. Hobbs, 403 F.2d 977 (6th Cir. 1968). This being the case, the jury was free to determine, on the basis of the photographs, whether Murray was one of the men who had been photographed participating in the robbery. While there is some ambivalence in the record, it appears that the trial court permitted Orr to use the photographs in identifying Murray. Later, the trial court expressed the view that a lay witness should not be permitted to give an opinion as to whether an individual in a photograph was or was not one of the defendants. It reasoned that to permit a lay witness to express such an opinion would invade the province of the jury. It stated, however, that it would be proper to ask a witness who knew the defendant whether the individual in the photograph had the characteristics, the facial features or the dress of the person on trial. Thus, it may have been inconsistent for the trial court to have permitted Orr to testify in the precise fashion that she did. 1 We need not determine whether it was error for the court to have...

To continue reading

Request your trial
21 cases
  • U.S. v. Williams
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 8 April 1983
    ...the issue of self-incrimination, since in both instances the jury observes the demonstration. Id. at 959. Accord: United States v. Murray, 523 F.2d 489, 492 (8th Cir.1975) (defendant compelled to wear wig before the jury). See also: United States v. Satterfield, 572 F.2d 687, 689-90 (9th Ci......
  • U.S. v. Brown
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 2 January 1991
    ...419 F.2d 166, 168 (4th Cir.1969), cert. denied, 397 U.S. 1068, 90 S.Ct. 1508, 25 L.Ed.2d 690 (1970), to wear a wig, United States v. Murray, 523 F.2d 489, 492 (8th Cir.1975), or to shave for identification purposes, United States v. Valenzuela, 722 F.2d 1431, 1433 (9th Cir.1983). We have he......
  • U.S. v. Williams, 05-4381.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 21 August 2006
    ...Cir.1983) (requiring the defendant to shave); United States v. Lamb, 575 F.2d 1310, 1316 (10th Cir.1978) (same); United States v. Murray, 523 F.2d 489, 492 (8th Cir.1975) (requiring the defendant to wear a wig); United States v. Roberts, 481 F.2d 892, 894 (5th Cir.1973) (requiring the defen......
  • U.S. v. Calhoun
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 2 November 1976
    ...as he then appeared, from the surveillance photograph which had been offered and received in evidence. See United States v. Murray, 523 F.2d 489, 491, n. 1 (8th Cir. 1975). the parole officer. We further conclude that the error affected the substantial rights of the defendant and was not ha......
  • Request a trial to view additional results
1 books & journal articles
  • Trials
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • 1 August 2022
    ...(4th Cir. 1973) (compelling defendant to wear a wig and sunglasses not 5th Amendment violation because not testimonial); U.S. v. Murray, 523 F.2d 489, 492 (8th Cir. 1975) (compelling defendant to wear wig not 5th Amendment violation because not testimonial). 1977. See Holt v. U.S., 218 U.S.......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT