U.S. v. Rundell

• Citation: 858 F.2d 425
• Decision Date: 03 October 1988
• Docket Number: No. 88-1444,88-1444
• Parties: UNITED STATES of America, Appellee, v. Marvin Allen RUNDELL, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 425

858 F.2d 425

UNITED STATES of America, Appellee, v. Marvin Allen RUNDELL, Appellant.

No. 88-1444.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 14, 1988.

Decided Oct. 3, 1988.

Leslie R. Ablondi, Little Rock, Ark., for appellant.

Robert L. Neighbors, Asst. U.S. Atty., Little Rock, Ark., for appellee.

Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.

PER CURIAM.

Marvin Allen Rundell appeals from a final judgment entered in the District Court ¹ for the Eastern District of Arkansas upon a jury verdict finding him guilty of bank robbery in violation of 18 U.S.C. Sec. 2113(a). The district court sentenced appellant to twenty years imprisonment. For reversal appellant argues the district court erred in admitting the in-court identification testimony of two eyewitnesses. For the reasons discussed below, we affirm the judgment of the district court.

On July 9, 1987, two tellers at the First State Bank of Sherwood, Arkansas, were counting and bundling currency. A man wearing a baseball cap and sunglasses approached the tellers, pointed a gun at them, demanded and obtained the money, and left the building. A bank vice-president observed a 1985 to 1987 black Chrysler LeBaron pull away from the bank at high speed. Soon afterward, the tellers gave their descriptions of the man to the police. Each description resulted in a composite drawing from an "Identikit." In addition, police learned that a 1986 black Chrysler LeBaron belonging to Helen Rundell had recently been reported as stolen.

On the day of the robbery, appellant was arrested in a motel parking lot as he was about to enter a black Chrysler LeBaron bearing license plates registered to him on a 1980 brown Renault. He had $2,240 in bills in his pocket. An inventory search of the car's trunk revealed a toy pistol, a baseball cap, a pair of sunglasses, and a bundle of bills totalling $1,676 with the initials "CH" on the wrapper.

Neither bank teller participated in any pretrial identification procedure. At trial on March 15, 1988, teller Cathy Henderson described the robber as a white male, 5'8"-5'10", 160-170 pounds; wearing sunglasses, a khaki-colored shirt, dark pants, and a baseball cap; and holding a black gun. She identified by her initials the bundle of currency found in the trunk of the car, and identified other government exhibits as being similar to the gun, cap, and sunglasses used by the robber. Henderson testified she had a clear view of the robber for thirty seconds to a minute. She then identified appellant, sitting at the counsel table, as the robber.

During Henderson's cross-examination, appellant stood at his attorney's request and said, "Give me the money." Henderson testified she believed that that was the voice she heard at the time of the robbery and that appellant was the man who came into the bank. She further testified she had not seen him since July 9, had not viewed any photograph of him, and had seen only a single composite drawing based on her description to the police shortly after the robbery.

The other teller, Shelley Rowland, identified money retrieved from appellant's pocket as a bundle of currency she had marked in red ink just before the robbery. She testified she saw and identified that same currency later on July 9 at the police station. Rowland described the robber as a white male, about 5'8", 160-165 pounds, with collar-length sandy blond hair; wearing sunglasses, a baseball-type cap, and a brown short-sleeved shirt; and holding a gun. She identified government exhibits as the robber's gun, cap, and sunglasses, and then identified appellant as the robber.

The only issue on appeal is whether the in-court confrontation and identifications were so suggestive and unreliable as to violate appellant's right to due process.

In the context of eyewitness identification testimony, "[i]t is the likelihood of misidentification which violates a defendant's right to due process." Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). A due process challenge to an in-court identification therefore requires a two-step determination: whether the challenged confrontation was impermissibly suggestive and, if so, whether the identification was nonetheless reliable under the totality of the circumstances. Graham v. Solem, 728 F.2d 1533, 1541 (8th Cir.) (banc), cert. denied, 469 U.S. 842, 105 S.Ct. 148, 83 L.Ed.2d 86 (1984).

In evaluating reliability, the court must consider the following factors:

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382. Against this assessment, the court should weigh "the corrupting effect" of the suggestive identification procedure to determine whether there was "such a substantial likelihood of irreparable misidentification that the testimony should not be heard by the jury." Graham v. Solem, 728 F.2d at 1542, 1547 (citing Manson v. Brathwaite, 432 U.S. 98, 114, 116, 97 S.Ct....