U.S. v. Whitney

• Decision Date: 08 May 1986
• Docket Number: No. 84-2537,84-2537
• Parties: UNITED STATES of America, Appellee, v. Charles WHITNEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 457

787 F.2d 457

UNITED STATES of America, Appellee, v. Charles WHITNEY, Appellant.

No. 84-2537.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 11, 1985.

Decided April 4, 1986.

Rehearing and Rehearing En Banc Denied May 8, 1986.

Springfield Baldwin, St. Louis, Mo., for appellant.

Dean R. Hoag, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

HENLEY, Senior Circuit Judge.

Charles Whitney appeals from his conviction by a jury for the robbery of a United States Post Office in violation of 18 U.S.C. Sec. 2114. Whitney, by appointed appellate counsel and by pro se brief, argues principally the following points for reversal: (1) the district court ¹ erred in refusing to suppress tainted eyewitness identification testmony; (2) he was prejudiced by evidence of other crimes and bad acts brought out at trial; (3) he was prejudiced by improper closing argument by the government; (4) he received ineffective assistance from his appointed trial counsel; and (5) the court erred in not granting his motion for a new trial. We affirm.

Whitney and two others were arrested for the robbery on May 10, 1983 of the United States Post Office, Chouteau Branch Station, St. Louis, Missouri. Eyewitness testimony indicated that one of the robbers had held a gun on the postal employees while Whitney jumped over the counter and robbed the cash box. He was charged with robbery of a United States Post Office with the use of a deadly weapon, in violation of 18 U.S.C. Sec. 2114, and with conspiracy to rob a United States Post Office with the use of a deadly weapon. A jury trial on October 1-3, 1984 resulted in a verdict of guilty on the robbery charge and not guilty on the conspiracy charge. The court sentenced Whitney to twenty-five years imprisonment.

Alpha Rena Sanders, the postal employee whose customer service counter was robbed, identified Whitney from a photographic display. Whitney contends that the display was overly suggestive and that Sanders' identification was unreliable. He claims that he was the only light-complexioned black man in the display and that his photograph was larger than some of the others. He therefore argues that the court erred in not suppressing Sanders' identification.

In Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), the Supreme Court concluded that "reliability is the linchpin in determining the admissibility of identification testimony...." The factors to be considered in determining reliability include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Id.

United States Magistrate David Noce viewed the eight photographs used in the display and found nothing suggestive about them or the display procedure. He also carefully considered the reliability of Sanders' photographic identification under the Brathwaite factors. He concluded that even though Sanders only viewed the robber three or four seconds during the crime and the photographic display took place over eight months later, her identification was sufficiently reliable. Sanders had at all times expressed absolute certainty that Whitney was the robber and her descriptions were accurate and consistent.

We find no reason to disagree with the magistrate. Nothing in the record indicates that the photographic display was overly suggestive, much less so unnecessarily suggestive that there was " 'a very substantial likelihood of irreparable misidentification.' " Id. at 116, 97 S.Ct. at 2254 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). The court was correct in refusing to suppress Sanders' photographic identification, and any in-court identification by her was not tainted.

Whitney also challenges his identification by Alberto Garcia, a postal employee and eyewitness to the robbery. Garcia had been unable to identify anyone from photographic displays or lineups. He was present at the first of two pretrial suppression hearings attended by Whitney, but he did not testify. He was subpoenaed by Whitney to testify at the second suppression hearing, and it was during this testimony that the challenged identification took place.

Using the Brathwaite analysis the magistrate found that Garcia's confrontation with Whitney at the second suppression hearing was suggestive, but that this confrontation had occurred at the request of Whitney and not the government. The magistrate further found that Garcia's identification was reliable under Brathwaite due to his lengthy observation of the robber during the crime and his certainty in the hearing that Whitney was the robber. The court thereafter denied Whitney's motion to suppress Garcia's identification.

Whitney's main claim is that the identification was tainted because Garcia was being coached during his testimony by Postal Inspector T.J. Smith. The only evidence in the record of any coaching is defense counsel's objection to "some shaking of heads and some looking back and forth" between Garcia and Smith. The magistrate instructed Garcia to "[b]e sure and answer the questions that the attorney is asking you." This apparently occurred prior to Garcia's identification of Whitney, and the magistrate did not mention the incident in his Memorandum.

It would be pure speculation for us to conclude from this record that Garcia's identification of Whitney was coached and therefore tainted. We cannot determine that the "shaking of heads and [the] looking back and forth" was coaching, nor indeed are we persuaded that the activity related to Garcia's identification of Whitney.

Garcia's identification was sufficiently reliable and there was not " 'a very substantial likelihood of irreparable misidentification.' " Id. at 116, 97 S.Ct. at 2254. We therefore uphold the court's refusal to suppress his testimony and we find that any later in-court identification by Garcia was not tainted.

Whitney next claims that evidence of other crimes and bad acts brought out at trial by the government and Inspector Smith was highly prejudicial. He contends that the court's refusal to grant his motions for mistrial constituted error, and in fact he alleges plain error under Fed.R.Crim.P. 52(b). Since these incidents were properly brought to the attention of the trial court, we need not limit our review to plain error.

The first incident occurred during redirect examination by the government of Rhonda Hunt, Whitney's girlfriend. The Assistant United States Attorney asked the following question:

Q. Was that--your attempt to shoot out the tires of his car, was that before or after he tried to run over you with the car?

Defense counsel objected and moved for a mistrial. The court sustained the objection, had the question stricken from the record, and instructed the jury to disregard it. The motion for mistrial was denied.

The second incident occurred during redirect examination by defense counsel of Inspector Smith.

Q. Inspector Smith, did you ever make any effort to check out and determine whether Charles Whitney had, in fact, lost any weight between the two times that Witness Sanders claims she had seen him?

A. Only to the extent that I obtained the mug photo from the time he was arrested on May 12th for the tampering and stealing over a hundred and fifty--

At that point defense counsel objected and moved for a mistrial. The objection was sustained, the answer was stricken from the record, and the motion for mistrial was denied.

"The decision to grant or deny a motion for mistrial is a matter within the sound discretion of the...