U.S. v. Williams
| Decision Date | 10 April 1979 |
| Docket Number | No. 78-5290,78-5290 |
| Citation | 592 F.2d 1277 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel Lewis WILLIAMS, a/k/a Nate Williams, and Lewis Albert Watson, Jr., a/k/a Curtis Williams, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Douglas J. Titus, Jr., Asst. U. S. Atty., John L. Briggs, U. S. Atty., Tampa, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Florida.
Before GEWIN, HILL and FAY, Circuit Judges.
Appellant Nathaniel Lewis Williams was found guilty under a two count indictment charging that on or about January 18, 1978
he and two others, Lewis Albert Watson and Oscar English, Jr., robbed the Sun First National Bank, Eustis, Florida in violation of 18 U.S.C. §§ 2113(a) and 2113(d). Watson was found guilty only on count one of the indictment. English pled guilty to count one of the indictment and was sentenced to ten years pursuant to a plea agreement. Williams received a sentence of twenty-five years incarceration and Watson received a sentence of ten years. Both Williams and Watson appeal their convictions.
On January 18, 1978 at approximately 1:00 p. m., the Sun First National Bank of Leesburg, Eustis Plaza Office was robbed by a black man wearing a dark stocking cap with a white band around it and dark sunglasses. When the robber first approached the teller, Cynthia Braswell, and announced that he was robbing the bank, Braswell panicked, screamed and ran to a nearby storage room where she locked herself. Another teller, Marie Franks, approached the robber who showed her the revolver and instructed her to give him the money. On his way out of the bank the robber passed a customer, Theron Howard. The bank surveillance cameras took several photographs of the robber.
Charles Adcock, the bank's manager and Paul Weicherz, another teller, sat talking approximately twenty feet from where the robbery took place. Adcock realized what was taking place and was able to switch on the cameras which photographed the robber. An audit conducted immediately after the robbery revealed that $5687.78 was taken during the robbery.
Outside the bank, two automobile salesmen observed a 1967 to 1969 light blue, four-door Buick Skylark or Oldsmobile parked near the bank with two black males inside. They observed another male run up to and enter the car. One of the three males then got out of the car and pushed it away from the sand where it had gotten stuck.
Catherine Smith testified that she was a friend of Williams and that on January 18, 1978 she loaned Williams her car, a 1969 blue Oldsmobile. Smith further testified that Williams returned her car around 4:30 or 5:00 that evening.
Oscar English testified that on the day of the robbery he was picked up by Williams at Diane Ingram's apartment. Ingram testified that English was picked up by Williams at her apartment early one morning around the middle of January. Ingram and her cousin, Charlene Brown, testified that on that same day English came back to Ingram's apartment where they helped him count about $1,500 in cash.
English testified that after Williams picked him up on January 18, 1978 in Smith's blue Oldsmobile, they picked up Lewis Watson and drove to Eustis, Florida looking for a Flagship Bank which they planned to rob. When they were unable to find the Flagship Bank they instead decided to rob the Sun First National Bank. English stated at trial that the three of them purchased some lemons to "throw the camera off" and they left Williams off at the bank. English said that after the robbery he pushed the automobile away from the soft sand and that he lost a pack of Benson and Hedges (later found by police) while pushing the car. English stated that the three men returned to Watson's girlfriend's apartment to divide the money. Janice Hamilton, Watson's girlfriend, testified that around the middle of January, 1978, Williams, Watson and a third individual came by her apartment, went into the bedroom and closed the door. Hamilton stated that the next night she saw Watson counting $500. When shown a photograph of English she identified him as the third person who had accompanied Williams and Watson into her apartment.
At trial, tellers Franks and Braswell, bank manager Adcock and witness Howard identified Williams as the robber. English identified both Williams and Watson as his accomplices.
Before the trial, an FBI agent, Donald Dowd, displayed individually to the four Williams argued to the trial court that the photographic identification procedure was suggestive and filed a motion to suppress. The trial court held at the suppression hearing that there was nothing suggestive about the identification procedure used by the FBI agent. The trial court did not allow any testimony at the suppression hearing other than that of the FBI agent who conducted the identification procedure.
bank employees two photographic spreads containing six photographs each. Williams' picture was the fourth photograph in each spread. Franks identified Williams as the robber in the first group of photographs but was unable to select anyone from the second group. Adcock selected the fourth photograph from both groups. Braswell selected the fourth photograph from each group as most resembling the bank robber. Weicherz was not able to select any photograph as depicting the bank robber. Witness Howard was shown a different photographic spread from the one shown to the bank employees. Howard selected Williams' picture as that of the bank robber.
Following a court-ordered lineup, Howard and Adcock selected Williams as the bank robber. Franks and Braswell selected someone other than Williams. Counsel for Williams was not permitted by the government to interview the witnesses after the lineup although the witnesses were taken away after each identification to be interviewed by the FBI agents.
Both Williams and Watson denied any involvement in the bank robbery. Appellants testified at trial establishing an alibi for each other.
Appellant Williams complains that the photographic identification procedure used by the government was impermissibly suggestive. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970) this Court enumerated a procedure which trial courts could follow to avoid irreparable misidentification in court.
Prior to offering the in-court identification before the jury, the trial judge should be accorded an opportunity out of the presence of the jury to determine if the picture spread in the particular case was impermissibly suggestive either in the photographs used or the number of times they are displayed.
428 F.2d at 1155. If the trial judge determines that the photographic spread is impermissibly suggestive then he must consider the second prong whether this suggestiveness gives rise to a likelihood of in-court misidentification. However, if the judge does not find both that the photographic spread was impermissibly suggestive and that there is a substantial likelihood of irreparable misidentification in court, the in-court identification may be put to the jury. See United States v. Henderson, 489 F.2d 802, 805 (5th Cir. 1973).
In the case before us appellant filed a motion to suppress alleging the photographic spread was suggestive. At the suppression hearing, the trial judge did not permit appellant to present witnesses to support his allegations. Rather, the trial judge based his finding that the photographic spread was not suggestive on the sole testimony of the FBI agent, the government's witness. After hearing some evidence at trial regarding the suggestiveness of the photographic spread, namely that Williams was the only person common to both sets of photoghraphic spreads shown identification witnesses and that his picture was different from that of the other subjects, the trial judge did not...
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