U.S. v. Smith, Nos. 75-1920

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before WRIGHT, McGOWAN and TAMM; McGOWAN; FRIENDLY.; FRIENDLY. Perhaps; FRIENDLY. That; FRIENDLY.
• Citation: 551 F.2d 348,179 U.S.App.D.C. 162,39 A.L.R.Fed. 539
• Parties: , 179 U.S.App.D.C. 162, 1 Fed. R. Evid. Serv. 496 UNITED STATES of America v. Tyrone SMITH, Appellant. UNITED STATES of America v. Anthony E. GARTRELL, Appellant.
• Docket Number: Nos. 75-1920,75-1941
• Decision Date: 17 December 1976

Page 348

551 F.2d 348 39 A.L.R.Fed. 539, 179 U.S.App.D.C. 162,
1 Fed. R. Evid. Serv. 496 UNITED STATES of America
v.
Tyrone SMITH, Appellant.
UNITED STATES of America
v.
Anthony E. GARTRELL, Appellant. Nos. 75-1920, 75-1941. United States Court of Appeals,
District of Columbia Circuit. Argued March 1, 1976.
Decided Dec. 17, 1976.

Karl Fryzel ^* with whom Michael E. Geltner, Washington, D. C. (appointed by this court) and Timothy J. Hmielewski ^* were on the brief for appellants.

Alexia Morrison, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before WRIGHT, McGOWAN and TAMM, Circuit Judges.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

On November 11, 1974, the Seventh Street branch of the National Bank of Washington was robbed by two armed men who wore hats completely covering their hair, but employed no other form of disguise. The bandits disarmed the bank's private security guard immediately upon entering the bank lobby. While one stood watch, the other proceeded through the bank manager's office into the tellers' cage area, where he filled a brown paper bag with bills of various denominations. The entire incident consumed less than five minutes. A subsequent audit revealed that the robbers fled with $13,214 in cash, as well as the bank guard's revolver.

Under an indictment filed in the District Court on February 12, 1975, appellants were convicted by a jury of armed bank robbery (18 U.S.C. § 2113(a) (1970)) and armed robbery (of the gun; 22 D.C.Code §§ 2901, 3202 (1973)). On appeal both appellants claim to have been denied effective assistance of counsel. Appellant Gartrell asserts further that his conviction should be overturned because the trial judge ruled that a prior attempted robbery conviction could be used to impeach him if he chose to testify. We find appellants' contentions unpersuasive with respect to ineffective assistance of counsel, but we think that the trial court must reexamine the ruling challenged by Gartrell. Accordingly, the conviction of

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Smith is affirmed, and the case is remanded as to Gartrell for further proceedings of the nature hereinafter described. I

Appellants maintain that they were deprived of effective legal representation through trial counsel's failure to move to suppress their in-court identifications by three government witnesses. These identifications, so it is said, were constitutionally suspect because they followed in the wake of suggestive pre-trial investigation procedures. In particular, appellants object to the fact that local police and a Federal Bureau of Investigation agent displayed certain photographs to the Government's identification witnesses during the pretrial period.

On the day after the crime, and again on the day of appellants' trial, surveillance film pictures taken by bank cameras while the robbery was in progress were shown to all three identification witnesses the private security guard, the Seventh Street branch manager, and a teller. ¹ Prior to appellants' arrest, the same three individuals also viewed several arrays of photographs from police files, and identified from among them appellant Smith or appellant Gartrell or both. ²

Appellants contend that exhibition of the bank surveillance pictures was improper

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because likely to result in retention of the image observed therein, rather than recall of the persons actually seen on the day of the robbery. With respect to the police photo arrays, appellants voice at least two complaints: first, that in some instances the arrays were displayed so long after the robbery as to be inherently suggestive, and thus to cast doubt on all subsequent identifications by the viewers; and second, that in any event the arrays were unnecessary since the police had probable cause to arrest appellants even without photo identification by the government witnesses, and therefore could have resorted directly to the presumably more reliable lineup procedure. In light of this allegedly objectionable official behavior, appellants claim that trial counsel were duty-bound to move to suppress the subsequent testimony of government identification witnesses. Their failure to make such motion, in appellants' view, constitutes grounds for reversal and a new trial. We disagree.

Appellants have not demonstrated that their representation by trial counsel was inadequate. In U. S. v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1202 (D.C.Cir. 1973), this court held that "a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate." ³ This court thus departed from the older, more restrictive standard under which parties claiming ineffective assistance of counsel were required to show that counsel's performance had reduced the proceedings to a "farce and a mockery of justice." ⁴ Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, 670 (1945). See also Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945). However, even under the more recent approach, with its correspondingly higher standards of acceptable advocacy, the conduct of the defense attorneys in this case was unobjectionable.

Both defense attorneys were aware from the outset that the Government had obtained pretrial photographic identifications from witnesses who were expected to identify defendants in court and to recount the circumstances of their earlier identifications of the same individuals. The trial transcript strongly suggests that the prosecutor allowed both defense lawyers and appellant

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Smith to view all the photographs previously displayed to the various witnesses. ⁵ Appellants do not now claim that defense counsel were denied such an opportunity. Appellant Gartrell, while apparently not shown all of the "mug shots" exhibited by police, did see a number of these photos which were supplied to his attorney by the prosecutor.

Not only do the defense trial attorneys in this case appear to have been fully apprised of the photo array details, but they were also familiar with the applicable law concerning such pretrial identification techniques. Both expressed satisfaction that, while the weight and credibility of the identification evidence might be subject to dispute, the constitutionality of the procedures followed in obtaining such evidence was beyond question. The fact that a pretrial photo "spread" can be appropriate under recent controlling Supreme Court decisions was explicitly acknowledged by defense counsel. Appellant Gartrell's attorney stated that he knew of "no improprieties . . . which would necessitate a suppression hearing," and appellant Smith's attorney concurred. ⁶

Counsel's failure to move to suppress was thus the product of deliberate and informed decision, not oversight or inadvertence. ⁷ As an appellate court, remote

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from the trial arena, we are reluctant to second-guess the considered judgments of experienced trial counsel. Particularly is this so when such judgments appear sound, even after evaluation by a tribunal enjoying the benefits of hindsight and time for reflection. Here, nothing in the record convinces us that the pretrial photo identifications violated the due process standard elaborated by the Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). ⁸ Under these circumstances, we perceive no reason why conscientious advocacy should require the futile formality of a suppression hearing.

In Simmons, the Court recognized the widespread use of photo exhibits in criminal law enforcement, and declined the opportunity to promulgate general rules governing such identification techniques. Rather, the Court held that "each case must be considered on its own facts," and that pretrial photographic displays would not warrant reversal of a criminal conviction unless the procedures employed were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S.Ct. at 971. ⁹ If anything, the photo identifications upheld under the newly-announced standard in Simmons were more suggestive than those criticized by appellants here.

The underlying events in Simmons were very similar to those in the case currently before us. Two armed men robbed a savings and loan association in midafternoon on a business day. They wore no masks. In the course of their investigation of this incident, FBI agents obtained a series of at least six snapshots from a sister of the man suspected of having driven the robbers' getaway car. The set of snapshots consisted primarily of group photographs. Petitioner Simmons appeared in several, if not all, ¹⁰ of the photos. Five bank employees, each of whom had had ample occasion to observe the bandits, viewed the series of snapshots on the day after the crime. Each witness was alone when he or she examined the photographs, and each witness independently identified Simmons as one of the

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robbers. ¹¹ At trial the Government solicited only in-court identifications from these witnesses, and made no direct reference to the pretrial snapshot displays. Despite the small number of photos shown to the witnesses, and despite the recurring appearance of Simmons in those photos, the Supreme Court found neither a due process violation nor a need to reverse as an exercise of its supervisory authority over the lower federal courts. ¹²

In light of the Simmons result, we are unable to discern any fatal flaw in the identification procedures followed in the matter now at hand and made known to defense counsel in advance of trial. ¹³ The

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photographic representation of the lineup conducted in this case convinces us that that procedure was eminently fair; and indeed appellants do not contend otherwise. While one photo array shown to Mary Roach, a teller...