U.S. v. Wilcox, 73-2500

• Decision Date: 17 March 1975
• Docket Number: No. 73-2500,73-2500
• Parties: UNITED STATES of America, Appellee, v. Norman Laverne WILCOX, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 364

507 F.2d 364

UNITED STATES of America, Appellee, v. Norman Laverne WILCOX, Appellant.

No. 73-2500.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 30, 1974.

Decided Dec. 3, 1974, Certiorari Denied March 17, 1975, See

95 S.Ct. 1408.

James J. Caldwell (Court-appointed counsel), Charlotte, N.C., for appellant.

Michael S. Scofield, Asst. U.S. Atty. (Keith S. Snyder, U.S. Atty., on brief), for appellee.

Before BRYAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit judges.

DONALD RUSSELL, Circuit Judge:

The defendant appeals from his conviction for bank robbery on two grounds: One is the refusal to suppress in-court identification testimony allegedly tainted by an illegal pretrial lineup; the other, the admission of the testimony of two so-called 'surprise' government witnesses. We find the contentions to be without merit and accordingly affirm the conviction.

The North Graham Street Branch of the First Union National Bank, Charlotte, North Carolina, was robbed in the afternoon of August 31, 1972 by two black individuals. A bank teller and an eyewitness to the robbery, Mrs. Edna Norwood had observed one of the robbers on two separate occasions that day prior to the robbery. The first occasion was as she returned from her lunch hour. When she drove into the bank parking lot, she found a car, driven by the person she later identified as the defendant, parked in her normal parking space. Expecting the car to depart, she waited 'for a few minutes,' all the time observing the driver of the parked car and being addressed by one of the occupants of the car until the car vacated the parking space. The driver of the car was thereafter observed by her entering the bank. As Mrs. Norwood was preparing to open her teller window, she saw him in another teller's line. He left but returned about an hour later.

On his return, the driver was accompanied by another smaller individual. The driver was wearing a hat, sun glasses, and a loud shirt which immediately drew Mrs. Norwood's attention, causing her to recognize him as 'the same guy that I had seen earlier that day.' Both individuals stood in Mrs. Norwood's teller line, slightly to the right of her window, for two to three minutes. Although Mrs. Norwood was waiting on another customer, she testified that she 'kept looking at them' because of her earlier experience with the driver. Suddenly, the smaller bank robber shouted, 'get him,' and the larger of the two, later identified by Mrs. Norwood as the defendant, forced the manager and the assistant manager out of their offices and instructed them to lie on the floor by the vault. ¹ While the bank employees and customers were lying on the floor as directed, the smaller robber cleared money from the teller drawers and the larger robber stood to the side of the teller cages, gun in hand, surveying the scene. Mrs. Norwood, forced to the floor on her knees, continued to observe these events. The robbers then fled the bank with $4,197.00 in bank funds.

On January 10, 1973 the defendant was indicted for the bank robbery and arraigned for trial on October 1, 1973. ² On October 19, 1973, six days before the trial, the district court on the government's motion, ordered the defendant to participate in a lineup. At the lineup, he was required to wear a hat and sun glasses, and to speak the words uttered by the bank robber at the time of the commission of the crime. As a result of the lineup, the defendant was positively identified by Mrs. Norwood as the man she had seen three times on the day of the robbery-- first as the driver of the car occupying her parking space and twice later in the bank, including the time of the robbery itself.

At trial, the government's case consisted primarily of the testimony of the bank manager, the testimony of Mrs. Norwood identifying the defendant as the larger of the two unmasked bank robbers, and the testimony of the two allegedly 'suprise' government witnesses connecting the defendant to the actual planning and perpetration of the crime.

I.

It is the defendant's initial contention that the court order requiring him to submit to a lineup and the manner in which it was conducted violated his Fifth Amendment privilege against compulsory self-incrimination, his Sixth Amendment right ot assistance of counsel, and his Fourteenth Amendment right to due process. ³ We examine first whether the lineup procedure violated the defendant's Fifth Amendment privilege.

As in Wade and Gilbert, we find that neither the lineup itself nor anything Wilcox was required to do in the lineup, violated his privilege against self-incrimination. An accused at a lineup may be required to don disguises worn, to take stances assumed, or to speak words uttered by the perpetrator of the crime. ⁴

The major thrust of defendant's argument is, however, that the exclusion of defense counsel from the interview of government counsel with the witness Norwood immediately after the actual confrontation of the defendant and the witness at the lineup amounted to a denial of his constitutional rights as declared in the Wade-Stovall-Gilbert trilogy. The factual basis for this claim is that after the confrontation in the lineup parade, the witness was interviewed in the absence of defense counsel to determine whether she could identify any one of the participants. In her initial interview-- lasting at most two minutes-- Mrs. Norwood, the identifying witness, indicated recognition and requested the opportunity to view the defendant for a second time. This second confrontation occurred in the presence of and without objection from defendant's counsel. After this second viewing, Mrs. Norwood reaffirmed her initial identification. At this point, the government conducted a second interview with the identifying witness and, after the interview was concluded, made the witness available then and there for an unlimited private interview by defendant's counsel. The interview conducted by government counsel lasted approximately fifteen minutes. It is this interview, conducted in the absence of counsel, and immediately before the interview of the same witness by defendant's counsel, that the defendant contends was violative of his constitutional rights. It should be emphasized that, other than the absence of the defendant's counsel from the interviewing of Mrs. Norwood after the actual confrontation in the lineup, the record is devoid of even the slightest indication of suggestive influence; ⁵ nor does the defendant contend that there was any. We therefore turn directly to the defendant's contention that the mere absence of counsel at the interview of Mrs. Norwood, after the formal confrontation in the lineup was concluded, called for the suppression of her in-court identification under the rationale of Wade-Gilbert-Stovall.

There is no dispute that the Wade-Gilbert-Stovall trilogy clearly mandates the presence of counsel at an identification lineup where there is a 'confrontation compelled by the State between the accused and the victim or witnesses to a crime.' ⁶ These authorities go farther and make it equally clear that in-court identification testimony will be excluded if it follows confrontation had in the absence of counsel, unless it can be shown that the in-court identification had an independent source or constituted harmless error. The rule so promulgated is generally declared to be an extension of the principle expressed initially in Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, ⁷ that presence of counsel is constitutionally required at every critical stage of the criminal prosecution; ⁸ and a 'critical stage' for Sixth Amendment purpose exists whenever 'substantial rights' of the accused may be adversely affected, Mempa v. Rhay (1967), 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336. Accordingly, '* * * the principle of Powell v. Alabama and succeeding cases requires that we (as a Court) scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.' ⁹ Based on such an analysis, Wade found that when 'the accused is exhibited to identifying witnesses', ¹⁰ or, as the majority opinion in United States v. Ash (1973), 413 U.S. 300, 314, 93 S.Ct. 2568, 37 L.Ed.2d 619, stated it, when the accused is subjected to a lineup constituting 'a trial-like confrontation', or, as Justice Stewart puts it in his concurring opinion in Ash, when 'the prosecution presents the suspect to witnesses for pretrial identification,' ¹¹ constitutes an event where such 'potential substantial prejudice' may be suffered by an accused as to qualify as a 'critical stage of the criminal prosecution.' ¹² It is this 'trial-like confrontation of the accused and the prosecutorial system' ¹³ -- this 'confrontation * * * between the accused and the victim or witnesses to a crime' ¹⁴ -- this confrontation when 'the accused is exhibited to identifying witnesses,' ¹⁵ often under conditions where he is compelled to act, talk or dress in what may be a suggestive manner creating a substantial potential for misidentification, and where, because of nervous tension or inexperience, he is unlikely to be able to correct at the time or reconstruct later at trial the improperly suggestive manner of presentation without the assistance of counsel, that make the occasion a 'critical stage in the prosecution', forcing the presence of counsel. ¹⁶ Thus in Wade, the Court, elaborating on its conclusions, referred to the possibility of 'mistaken identification' and 'miscarriage of justice' which may result from ...