U.S. v. Sambrano, 74-1926
| Decision Date | 12 November 1974 |
| Docket Number | No. 74-1926,74-1926 |
| Citation | 505 F.2d 284 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Abel Montoya SAMBRANO and Johnnie Rodriguez Padilla, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen H. Scott (argued), of Burton, Remender, Scott & Novak, Phoenix, Ariz., for defendant-appellant Padilla.
Edward C. Rapp (argued), of Tupper, Rapp, Salcito & Schlosser, Phoenix, Ariz., for defendant-appellant Sambrano.
Joseph Keilp, Asst. U.S. Atty. (argued), Phoenix, Ariz., for plaintiff-appellee.
Before MERRILL, BROWNING and INGRAHAM, * Circuit Judges.
Appellants Abel Montoya Sambrano and Johnnie Rodriguez Padilla were convicted for the armed robbery of a federal credit union in violation of 18 U.S.C. 2113(a) and (d). On appeal Sambrano argues that the trial court improperly refused to give a requested jury instruction regarding his identification as one of the perpretrators of the alleged crime, and that, since only Padilla had been identified prior to trial, the court abused its discretion in refusing to grant his motion for a trial separate from Padilla's. While Padilla joins in Sambrano's contention that the court improperly instructed the jury on the issue of identification, he also argues that the court erroneously denied his motion to suppress the incourt identification. Concluding that these contentions are without merit, we affirmed.
Just after noon on January 16, 1974, the Phoenix City Employees' Credit Union was robbed by two Mexican-American males. Only two tellers were present in the building during the robbery, Clemence Godin and Suzanne Mefford, and one credit union member, Elias Aragon, who came in after the robbery began.
Shortly after the robbery, Godin and Mefford were shown photographs of eight persons, one of which was Sambrano, but neither teller identified him as one of the perpetrators. The day after the robbery Godin and Mefford were again shown photographs, one of which was Padilla, but Padilla's photograph was darker and clearer than the other photographs in the group. While Godin was unable to identify Padilla at this photo display, Mefford singled him out as a person with which she was familiar, stating that he resembled the man who carried the weapon during the robbery.
In a lineup conducted two days after the robbery in which both Sambrano and Padilla were included, Mefford again singled out Padilla, but voluntarily expressed the opinion that her identification might be the result of viewing the photographs the previous day. While Godin also identified Padilla at the lineup, neither Godin nor Mefford identified Sambrano. Aragon was also present at the lineup, but was unable to identify either of the appellants.
Apparently, the first time Sambrano was identified as one of the robbers was at the pre-trial hearing on the motion to suppress when he was seated beside the previously identified robber, Padilla. At trial, both Godin and Mefford positively identified the appellants, but Aragon was still unable to identify either of them as the robbers.
We turn first to Padilla's contention that his in-court identification by witnesses Godin and Mefford should have been suppressed because it violated his right to due process. More specifically, Padilla argues that his initial identification at the photo display was a result of his photograph being darker and clearer than the other photographs, suggesting to the government's witnesses Godin and Mefford that he was the perpetrator of the crime. The improper photo identification, he says, carried over to his being identified in the lineup and ultimately to the in-court identification itself.
As recently pointed out by the Supreme Court, a mere suggestion that the accused committed the crime does not constitute a due process violation. Rather, in order to make out a constitutional violation, the suggestion must be so 'unnecessary' or 'impermissible' as to create a 'substantial likelihood of irreparable misidentification' based on the 'totality of the circumstances.' Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Baker v. Hocker, 496 F.2d 615 (9th Cir. 1974).
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