U.S. v. Thody, 92-7013

• Decision Date: 30 October 1992
• Docket Number: No. 92-7013,92-7013
• Citation: 978 F.2d 625
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter Eliyah THODY, also known as Ralph Owen Baker, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 625

978 F.2d 625

UNITED STATES of America, Plaintiff-Appellee, v. Walter Eliyah THODY, also known as Ralph Owen Baker Defendant-Appellant.

No. 92-7013.

United States Court of Appeals Tenth Circuit.

Oct. 30, 1992.

Submitted on the Briefs: ^*

Mike Kelly of Kelly, Potts & McClure, Muskogee, Okl., for defendant-appellant.

John Raley, U.S. Atty., and Sheldon J. Sperling, Asst. U.S. Atty., Muskogee, Okl., for plaintiff-appellee.

Before SEYMOUR, ANDERSON, and BALDOCK, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Walter Thody appeals his conviction, after a jury trial, on two counts of bank robbery in violation of 18 U.S.C. § 2113(a), one count of possession of a firearm moved interstate after a felony conviction in violation of 18 U.S.C. § 922(g) and § 924(a)(2), two counts of use of a firearm during commission of a crime in violation of 18 U.S.C. § 924(c)(1), and one count of conspiracy in violation of 18 U.S.C. § 371.

Thody contends that: (1) there was insufficient evidence to support his conviction on one of the counts charging use of a firearm; (2) his Fifth Amendment right to due process was violated when the court allowed certain witnesses to identify him at trial when those witnesses had previously identified him in a lineup that the parties concede was unconstitutional; and (3) there was insufficient evidence that the gun found in his possession had been moved in interstate commerce. We affirm.

I. BACKGROUND

On July 12, 1991, Cimarron Federal Savings Association in Muskogee, Oklahoma, was robbed of more than $50,000. Two men entered the building, one carrying a briefcase and the other holding an earpiece to his ear. The man (identified later as Thody) with the briefcase approached a teller, Doris Harshfield, opened the briefcase and revealed a police scanner. He then informed Harshfield that he was robbing Cimarron Federal and instructed her not to call the police because his companion would be monitoring the scanner. He showed Harshfield a gun tucked into his waistband, and informed her that he would use it should the scanner detect that an alarm had been activated. During the robbery both Harshfield and Stacie Dillard, another Cimarron Federal employee, complied with the robbers' demands. Harshfield and Dillard testified that they had unobstructed views of the robbers, and were in close contact with them for several minutes. Dillard also testified that she had been trained to remember the robbers' appearances. A third employee, Hadee Louise Woods, also observed the robbery and was able to observe the robbers at close enough range to give a description of their facial features and clothing.

On August 29, 1991, Cimarron Federal was again robbed by two men. They proceeded in the same manner as before, demanding money and using a police scanner. Harshfield and Woods recognized the two men from the prior robbery. Harshfield exclaimed "It's him!" when she saw one of the two men approaching her teller window. On this occasion Woods was the employee that complied with the robbers' demands and was in close enough proximity to them to give a detailed description of their facial features. One of the men showed Woods a police scanner. His only instruction to Woods when he showed her the scanner was, "This is a police scanner," to which she responded, "I know." Then he said, "Now remember, no bait money or dye packed money." Upon receiving back the briefcase filled with money, the same man said, "Now, remember, don't pull any alarm for five minutes." Similar instructions had been given to Harshfield during the July robbery. Neither man displayed a gun or otherwise indicated that he was armed.

Two other employees, Shelli Jiles and Eileen Stinson, also had clear views of the robbers from about 30 feet away. Jiles and Stinson noted that an "old blue Cutlass" with Texas tags was parked outside Cimarron Federal, and wrote down its description and license number. Woods and Harshfield also noticed the same car during the second robbery, and Woods saw the men get into it. Harshfield wrote down its license number. Harshfield's and Woods' description of the car corroborated that of Jiles and Stinson.

The robbers departed with $26,764.00. Immediately thereafter, Cimarron Federal employees called the police, reported the robbery and gave a description of the two men and the blue Cutlass along with its license number. The police dispatcher broadcast the descriptions. Several minutes later, Muskogee Police Officer Marion Bolding saw the car parked in a shopping center parking lot and also noticed two men that matched the description of the robbers walking south of the shopping center. Officer Bolding approached the men in his police car, stopped the car and told the men that he needed to talk to them. The two men ran from Officer Bolding. The officer saw one of the men, whom he later identified as Thody, pull a gun from his waistband. He then saw the two men accost a woman in the parking lot, force her out of her car and escape in the car. A high speed chase of 15-20 minutes ensued, during which the driver fired shots at the police. The chase ended only when an officer rammed the escape vehicle with his police car.

Thody and McIntosh exited the vehicle and were arrested. Two nine millimeter pistols were found in the car, a Browning on the driver's side and a Llama on the passenger side. The Browning was chamber loaded with a full clip. The Llama was found along with a clip of bullets, and was cocked and off safety. McIntosh was identified as the driver of the car; Thody was identified as the passenger. When arrested, Thody had two $500.00 bundles of $10.00 bills sticking out of his pocket. The following items were also retrieved from the car: a tearaway shirt, a clip-on tie, a briefcase containing $25,000, two wigs and a portable police scanner with an earplug.

On September 6, 1991, before Thody was charged by federal authorities but after he was arraigned on state charges, agents of the Federal Bureau of Investigation, along with state law enforcement officials, conducted a police lineup at the Muskogee City/Federal Jail. Three of the employees of Cimarron Federal--Harshfield, Woods and Dillard--were present at the lineup. Although an attorney for Thody had already been appointed, he was not notified of the lineup, and consequently was not present. Furthermore, Thody was the only member of the lineup with facial hair.

At the lineup Dillard, Harshfield, and Wood all identified Thody as a participant in both robberies.

Before trial, Thody moved to suppress the lineup identifications and all other identifications made by the witnesses present at the lineup. The district court concluded that the lineup identifications themselves were constitutionally impermissible and should be suppressed, but that subsequent identification testimony by Cimarron Federal employees Harshfield, Woods, and Dillard would nevertheless be admissible. At trial Thody was identified by those individuals as one of the men who robbed Cimarron Federal.

II. DISCUSSION

A. Admissibility of Identification Testimony.

Thody contends that in-court identifications of him by Harshfield, Woods, and Dillard violated due process because that testimony was based on seeing him in an impermissibly suggestive lineup. See United States v. Wade, 388 U.S. 218, 240-41, 87 S.Ct. 1926, 1936, 18 L.Ed.2d 1149 (1967) (in-court testimony based on a constitutionally tainted lineup is inadmissible). The district court found, and the government does not dispute the fact, that the lineup at which Harshfield, Woods, and Dillard saw and identified Thody was improperly conducted. ¹ The court further found, however, that the improper lineup would not affect the independent reliability of in-court testimony by the witnesses, identifying Thody as one of the men who robbed Cimarron Federal.

The ultimate conclusion of whether a defendant's Fifth Amendment due process rights have been violated is subject to de novo review. See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982); see also United States v. Short, 947 F.2d 1445, 1449 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992); United States v. Buchanan, 891 F.2d 1436, 1440 (10th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); Archuleta v. Kerby, 864 F.2d 709, 710-11 (10th Cir.), cert. denied, 490 U.S. 1084, 109 S.Ct. 2108, 104 L.Ed.2d 669 (1989); United States v. Jarrad, 754 F.2d 1451, 1455 n. 2 (9th Cir.), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985). The "clearly erroneous" standard applies with respect to the trial court's factual findings "even when those findings relate to a constitutional issue." Hernandez v. New York State, --- U.S. ----, 111 S.Ct. 1859, 1870, 114 L.Ed.2d 395 (1991); United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986); see United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989); Archuleta, 864 F.2d at 711.

The mere fact that a lineup is unnecessarily suggestive is not enough to forbid admission of in-court identifications made by the lineup witnesses. The suggestiveness of the lineup must create a very substantial likelihood of irreparable misidentification; in short, the tainted lineup must so affect the witnesses' perceptions as to render their subsequent in-court testimony unreliable. "[R]eliability is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Archuleta, 864 F.2d at 711; United States v. Williams, 605 F.2d 495, 498 (10th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 189 (1979).

One must assess the "totality of the circumstances" in order to determine whether the suggestive lineup created a substantial likelihood of irreparable misidentification and thus violated due process. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct....