U.S. v. Williams

• Decision Date: 09 April 1979
• Docket Number: No. 78-2515,78-2515
• Citation: 594 F.2d 1258
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rufus WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1258

594 F.2d 1258

UNITED STATES of America, Plaintiff-Appellee, v. Rufus WILLIAMS, Defendant-Appellant.

No. 78-2515.

United States Court of Appeals Ninth Circuit.

April 9, 1979.

David P. Curnow (also argued), San Diego, Cal., for defendant-appellant.

Stephen W. Peterson, Asst. U. S. Atty. (on the brief), Michael H. Walsh, U. S. Atty., Stephen W. Peterson, U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before HUFSTEDLER and TRASK, Circuit Judges, and McNICHOLS, ^* District Judge.

PER CURIAM:

This is an appeal from a judgment of conviction, after jury trial, of a single count of bank robbery in violation of 18 U.S.C. § 2113(a).

We reverse.

A branch of the Bank of America in San Diego, California, was robbed on February 16, 1978, by a lone black man. A grand jury from the Southern District of California charged the appellant, Rufus Williams, with the offense.

Investigation of the crime led the F.B.I. agent in charge of the case to conclude that the robber wore a wig during the robbery. On March 4, 1978, a United States Magistrate ordered appellant to participate in a line-up. The order required the accused to speak certain phrases and don a wig during the procedure. Because appellant indicated his intent to refuse to comply with the order of the magistrate, a hearing was held before the district judge assigned to the trial of the case. The Court affirmed the order requiring defendant to submit to the line-up, speak the phrases indicated, and to wear the wig. The line-up was thereafter conducted. Each participant in the line-up, in sequence, donned the wig and spoke the required words.

The bank teller, approached by the robber at the time of the robbery, gave a positive identification when called as a witness at the trial. She testified that she recognized the appellant at the line-up as being the person who robbed her, even before he put on the wig. From the evidence, it is clear that she had an excellent opportunity to observe the robber after he entered the bank and demanded the money. They were face-to-face. She heard his voice during a conversation between them in which he threatened an injury to her family if she did not immediately comply with his demands.

Appellant concedes, as he must, that he could properly be required to participate in a line-up. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). However, he argues that the requirement that he put on a wig at the line-up was somehow so suggestive as to constitute reversible error. ¹ He argues that the procedure transgressed the limits set by Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968) (in-court identification cannot be "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification") and Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972) (out-of-court identification cannot be admitted if there is "a very substantial likelihood of . . . misidentification").

It is not necessary, under the facts presented in this record, to reach the issue of suggestive identification by way of the use of the wig, in that the witness identified the appellant prior to his donning the wig. As indicated above, she had an excellent opportunity to observe and hear the voice of the robber, and her identification was without equivocation. Assuming, arguendo, that the use of the wig at the line-up might be considered suggestive, we are nonetheless left with a firm conviction that, based on the "totality of the circumstances", the out-of-court identification was sufficiently reliable to go to the jury for ultimate determination of weight and reliability. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

We conclude that no error is demonstrated in the record so far as the line-up identification procedure is concerned.

A much more troublesome issue is raised by the second claim of error presented in this appeal. Appellant contends that the denial of his Motion for Substitution of Appointed Counsel deprived him of the effective assistance of counsel at trial. Approximately a month prior to the trial, Williams, with appointed counsel, Mr. McCutcheon, appeared in open court and moved the Court for the appointment of a different attorney, stating as grounds for the motion that he and the counsel were totally incompatible so far as preparation for trial was concerned. It is clear from the transcript that client and attorney were at serious odds and had been for some time. ² Appellant made a prima facie showing of an irreconcilable conflict between himself and his appointed attorney. These contentions were not disputed, yet the Court summarily denied the motion.

A month later, and a week before the ultimate commencement of the trial, appellant and the same counsel again appeared in open court where Williams renewed his motion. On this occasion he presented a more formal oral recitation of the state of disagreement, bad relationship, and lack of communication he claimed existed between himself and his lawyer in regard to the preparation of a defense of the bank robbery charge.

These claims were not only not refuted by counsel, but the response of counsel tended to confirm that the course of the client-attorney relationship had been a stormy one with quarrels, bad language, threats, and counter-threats.

The renewal of the motion was denied. The trial judge advised appellant that he had a choice between being represented by attorney McCutcheon or representing himself. With admirable patience, the Court pointed out to Williams the pitfalls and perils of a pro se defense in a criminal trial before a jury. The appellant was strenuously urged to accept the services of the appointed counsel.

On each of the two...