U.S. v. Watkins, 83-2583

• Decision Date: 29 August 1984
• Docket Number: No. 83-2583,83-2583
• Citation: 741 F.2d 692
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cudell WATKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 692

741 F.2d 692

UNITED STATES of America, Plaintiff-Appellee, v. Cudell WATKINS, Defendant-Appellant.

No. 83-2583.

United States Court of Appeals, Fifth Circuit.

Aug. 29, 1984.

Carolyn Garcia, Houston, Tex., for defendant-appellant.

Daniel K. Hedges, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GEE, POLITZ and RANDALL, Circuit Judges.

POLITZ, Circuit Judge:

Convicted of robbery of postal clerks and postal customers, 18 U.S.C. Secs. 2114, 2111 and 7, Cudell Watkins appeals, arguing that he was deprived of a fair trial because an in-court identification was tainted by an impermissibly suggestive showup at the crime scene. Finding the assigned error harmless, we affirm.

Facts

In the early afternoon on March 18, 1983, two postal clerks and two customers in the Weslayan Post Office, Houston, Texas, were robbed by a slender black man wearing dark pants, a maroon jacket, a stocking mask and tan headgear. The robber entered the post office with a drawn gun, vaulted over the counter, ordered the customers to lie face down on the floor with their money placed on the floor beside them, and commanded the postal clerks to deliver over cash and money orders and then join the customers on the floor. The two customers, Barbara Pollett and Lois Wallace, complied with the shouted orders and did not look up until after the robber left. The two clerks handed over approximately $1,700 in cash and six marked "bait" money orders which the robber put in a paper sack.

Immediately after the robber exited the building the clerks notified their supervisor who was in the rear of the post office. The supervisor ran to the front of the building and saw a black man on the parking lot dressed in a maroon jacket and carrying a paper bag. The customers testified that they pointed to this man as the robber. One of the postal clerks did likewise. The supervisor gave chase and the man fled. Police officers joined the chase through a residential area and a few minutes later an exhausted and winded Watkins was found hiding in a shed at the rear of a house and arrested. Watkins was not wearing a jacket or headgear when arrested; he had no gun and carried no paper bag. An officer backtracked the chase route and in a nearby yard found a paper bag containing money and postal money orders.

While the chase was in progress the customers and postal clerks were interviewed by an investigator. All agreed that the robber was a tall slender black male wearing dark pants. All recalled a stocking mask. There was no unanimity, however, as to the type of headgear, cap or hat, or the exact color of the jacket. Barbara Pollett gave only a general description and did not indicate that she could identify the culprit.

Immediately after Watkins was arrested he was handcuffed and returned in a patrol car to the post office. Each of the victims was brought to the car to see if they recognized the occupant. No one identified Watkins but all said that the person in the patrol car was built similar to the robber but wore different clothing.

During the course of the investigation, the officers collected a change of address card from the counter where the robber had placed his hand for balance when he jumped over it. This card, together with the paper bag and its contents, were sent to a crime lab for fingerprint and palmprint testing. Watkins' left index fingerprint was found on the paper bag and a partial left palm print matching Watkins' was found on the change of address card.

Several hours after the robbery three bloodhounds were brought to the post office. They were "scented" by being allowed to smell the clothing Watkins was wearing when arrested. One dog, nicknamed "Tracker," followed the chase path to the shed where Watkins was found and arrested. The other dogs took a somewhat different path but ended at the same shed. Tracker was then taken inside the front of the post office and was again scented. The bloodhound went directly to the place where the robber had vaulted over the counter. Taken behind the counter, Tracker went directly to the point where the robber stood after jumping over the counter.

Two weeks or so after the incident, a lady who lived near the arrest site found a maroon jacket in her barbeque pit. A gun identified by a pawnshop operator as having been sold to Watkins shortly before the robbery was found in a pocket of that jacket. The victims testified that that jacket was similar to the one worn by the robber.

Prior to trial the defense moved for suppression of identification evidence. The prosecutor informed the court that such was not necessary because the government had no witness who would identify Watkins as the robber. The prosecutor so advised the jury during his opening statement. However, on direct examination Pollett identified the man on the back seat of the patrol car as the robber. When pressed on cross-examination whether she could testify that Watkins was the robber, she replied: "Insofar as I remember, I would say yes." The defense objected and now urges that Pollett's testimony was tainted by a suggestive showup which violated the due process clause.

The Identification Testimony

An identification procedure violates due process when it is "unnecessarily suggestive and conducive to irreparable mistaken identification." United States v. Atkins, 698 F.2d 711, 713 (5th Cir.1983) (quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967)). One-on-one showups are inherently more suggestive than lineups and we have purposely not encouraged their use. Allen v. Estelle, 568...