U.S. v. Russell

• Decision Date: 30 March 1976
• Docket Number: No. 75-1642,75-1642
• Citation: 532 F.2d 1063
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Harrison RUSSELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1063

532 F.2d 1063

UNITED STATES of America, Plaintiff-Appellee, v. Richard Harrison RUSSELL, Defendant-Appellant.

No. 75-1642.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 3, 1975.

Decided March 30, 1976.

William E. Jackson (Court-appointed CJA), Grand Rapids, Mich., for defendant-appellant.

Frank S. Spies, U. S. Atty., Robert C. Greene, Grand Rapids, Mich., for plaintiff-appellee.

Before EDWARDS, PECK and McCREE, Circuit Judges.

McCREE, Circuit Judge.

Appellant was convicted of armed bank robbery, 18 U.S.C. § 2113(a), (d), and sentenced to concurrent twenty year terms. The principal question on appeal is whether the district judge erred in refusing to suppress the in-court identification of appellant by three witnesses. Appellant contends that the identifications were tainted by government action that created a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968).

On June 17, 1971, two black males, one tall and one short, robbed the Burton Street Branch of the Central Bank in Grand Rapids, Michigan. Present in the bank were the manager, Robert Johnson, and two tellers, Marcia Steeby and Jacquelyn Reda. Adlean Cole entered the bank during the robbery, and Kathleen Fiorenzo, who saw a man running away from the bank building just after the police arrived, was sitting in a car parked outside the bank.

Appellant was arrested in Pontiac, Michigan, which is about 135 miles from Grand Rapids, on June 25, 1971. Preliminary examination, at which Mrs. Reda and Mr. Johnson identified appellant as one of the men who robbed the bank, was held July 16, 1971.

After appellant had been removed from the Eastern District of Michigan to Grand Rapids, in the Western District, he moved to suppress the identifications of all the witnesses. A summary of the testimony presented at the suppression hearing, held November 15, 1971, follows.

Mrs. Cole, who entered the bank while the robbery was in progress, could say only that the taller of the two men had a hat on, "But what he looked like, I couldn't tell." On the day of the robbery, all the witnesses, including Mrs. Cole, were shown a number of "mug shots" at the police station, and none of the witnesses was able to identify any of the photos. Two government agents showed her approximately ten pictures two days after the crime. Although the agents made no attempt to emphasize any particular picture, they did ask Mrs. Cole to "pick out a Russell." Mrs. Cole did not pick out any of the pictures because "I didn't see him that well," and she did not identify appellant at either the hearing or trial.

Marcia Steeby, one of the tellers, said that the man had a goatee and wore a hat, sunglasses, and a bush jacket. She saw both men approach the bank, and then the taller of the two stepped up to her teller's window (he was about four feet away at the time) and produced a gun. She was able to view the man for "probably less than a minute." She was shown "mug shots" the day of the holdup and five or six additional pictures two days later. The agents mentioned no names. She did not identify any of the pictures, nor did she identify appellant at the suppression hearing.

Mrs. Reda, the other teller, testified that one man was "extremely tall, over six feet, and muscular, and . . . had a mustache and a goatee, and . . . was wearing a hat," but she could not remember the clothes the men were wearing. Contrary to Marcia Steeby's testimony, Mrs. Reda said she saw the taller man directly in front of her teller's window. She was unable to identify any photograph at the police station immediately after the robbery, but did select one from among the approximately fifteen that were later shown to her. She did this by what she called a "process of elimination." She did not make what she called "a positive identification." After she singled out the picture, she testified that the agents said "something like, 'That is possibly the one who did it.' " Mrs. Reda identified appellant at the preliminary examination, at the suppression hearing, and at trial. After she had identified appellant at the hearing, the following dialogue occurred.

Q Now, Miss Reda, think very carefully on this. You are identifying the gentleman over there in the white shirt because you are sure in your own mind that he is the one?

A (pause) I'm sure he's the one.

Q Are you identifying because you have seen photographs of him before, or again are you sure in your own mind that he is the one?

A (pause) I am as sure as I can be.

Q By saying, "I am as sure as I can be," is that a qualifying statement, or are you just sure?

A (no response).

Q Miss Reda, let me put it this way: Are you sure beyond a reasonable doubt?

A Yes.

Q One last question. Are you identifying this gentleman today because you observed him at the preliminary exam in Detroit or because you are sure in your own mind?

A Because I am sure.

Mr. Johnson, the manager, described the robber as quite tall, in his early thirties, with "sort of a goatee, a beard-type thing" and wearing a western-type outfit and a hat "like a priest." Although the taller robber stood twelve to fifteen feet from him, he never saw the robber's full face and could not remember if he wore sunglasses. (The other witnesses testified, and the photographs from the bank's surveillance camera show, that the men did wear sunglasses.) Mr. Johnson initially told the police that at the time of the robbery he was so upset he didn't remember "too much of anything." He did not positively identify any of the photographs shown to him either at the police station or later, although he stated that he selected some that resembled the robber, and the agents made no comments regarding either the suspect's name or the pictures. Mr. Johnson saw the appellant in manacles outside the courtroom before the preliminary hearing and identified appellant at that hearing, at the suppression hearing, and at trial.

Mrs. Fiorenzo testified that she was sitting in the back seat of a car parked in front and to the side of the bank; that she saw a police car drive up; and that after the officer got out of the car and went around the corner of the building, she saw a man running away from the bank. She described the man as lanky and bald, with a mustache and a goatee. From a distance of thirty to thirty-five feet she saw the man only in profile and as he ran a few strides. She did testify that she had a vivid recollection of the encounter. On the day of the robbery, she was shown "mug shots" at the station with the other witnesses, and at least ten additional photographs on the following Monday. She narrowed her choice to two of the few pictures, finally picking one of them "although it was hard to tell." The agent then cautioned Mrs. Fiorenzo that the "man's appearance could have been changed since these pictures have been taken." She said she still believed it to be the one she picked, although she had testified that she had "looked at and stared at (the other picture) for the longest time . . . ." The agent then said "we don't believe that (the one Mrs. Fiorenzo picked) is the one" but that "We possibly think it could be this one here," indicating the other photograph.

There is a great potential for misidentification when a witness identifies a stranger based solely upon a single brief observation, and this risk is increased when the observation was made at a time of stress or excitement. Since this danger is inherent in every identification of this kind, courts should be especially vigilant to make certain that there is no further distortion of the possibly incomplete or mistaken perception of a well-meaning witness by suggestive or other unfair investigatory techniques. United States v. Wade, 388 U.S. 218, 228-229, 87 S.Ct. 1926, 1932-33, 18 L.Ed.2d 1149, 1158 (1967), see F. Frankfurter, The Case of Sacco and Vanzetti 30 (1927), W. Ringel, Identification and Police Lineups 10 (1968), P. Wall, Eye-Witness Identification in Criminal Cases (1965), Eisenberg & Fenstel, "Pre-Trial Identification; An Attempt to Articulate Constitutional Criteria," 58 Marquette L.Rev. 659 (1975), Grano, "Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?" 72 Mich.L.Rev. 717 (1974).

Many investigators believe that perception and memory are not purely deductive, but have substantial inductive components. See, e. g., Buckhout, "Eyewitness Testimony," 231 Scientific American 23 (Dec.1974). Witnesses focus on gross or salient characteristics of any sensory experience, and fill in the details, not according to the observed facts of the experience, but according to some previously internalized pattern they associate with the perceived gross characteristics. In addition, the construction of memory is greatly influenced by post-experience suggestion. Suggestions compatible with the witness' internalized stereotype are likely to become part of the witness' memory, not because they are in fact similar to the actual experience, but because they fit the preconceived stereotype. Buckhout, supra, at 23-24, see Ringel, supra, at 8-11.

Also, unreliability can be compounded by inaccurate perception of even the gross characteristics of the experience. Some studies have shown that even under ideal conditions, height estimates by different witnesses can vary by more than two feet. Even the estimates of experienced police officers can vary by as much as five inches, and their weight and age estimates can vary by as much as twenty pounds and fifteen years. Wall, supra, at 10-11.

This problem is important because of all the evidence that may be presented to a jury, a witness' in-court statement that "he is the one" is probably the most dramatic and persuasive. Eisenberg & Fenstel, supra, E. Borchard, Convicting the Innocent (1932).

The Supreme Court has considered the problem in a...