United States v. Allen

• Decision Date: 19 July 1974
• Docket Number: No. 73-3396.,73-3396.
• Citation: 497 F.2d 160
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barry Jerome ALLEN and John Murray, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 160 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Barry Jerome ALLEN and John Murray, Defendants-Appellants.

No. 73-3396.

United States Court of Appeals, Fifth Circuit.

July 19, 1974.

Alton S. Beasley, F. Shields McManus, Stuart, Fla. (Court-appointed), for Allen.

John T. Brennan, Fort Pierce, Fla. (Court-appointed), for Murray.

Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before BELL, GOLDBERG and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Fortified with 8 or 10 beers, John Gorman, a Camden, New Jersey truck driver, was cruising south on Camden's Broadway Street in his brown 1971 Plymouth Fury at 2:30 A.M. on a Saturday morning in June 1972 when three unescorted black females indicated that they needed a ride. Gorman obliged and let them out in front of a house at 247 Mechanic Street. After two of his passengers left the scene, Gorman accepted the invitation of the third, who claimed nobody was home, to come inside. As he followed her through an unlighted hallway, he was struck over the head with a frying pan. When his senses returned, he perceived he was in a dining room that was dimly illuminated by light from an adjacent room. The stunned Gorman realized his three former passengers were present together with a black male of medium height wearing a red, green and black beanie hat and glasses. Gorman also caught a glimpse of a second black male with an Afro hair style, whom the others referred to as "Tony," but stated he did not then get a good look at this man's face. The two men searched and robbed their victim of his personal effects before binding his arms and gagging him. The five confederates then marched Gorman outside and placed him in the back seat of his Plymouth, before all six departed with Tony at the wheel. The beanied black was seated next to Gorman, who accepted a cigarette from his captor during the ensuing journey. The car stopped at a secluded stretch of the Turkey Hill Road. Tony opened the door and allowed his captive to step outside. Gorman hit the pavement running, but was caught, knocked down and stabbed before his abductors drove off in the Fury when another automobile approached the scene. Approximately 30 minutes had transpired since Gorman was first struck.

On July 9 Gorman's automobile was recovered in front of the house in which defendants John Murray and Barry Jerome Allen were arrested in Fort Pierce, Florida. The defendants were tried jointly before a jury and found guilty of interstate transportation of a stolen motor vehicle in violation of the Dyer Act, 18 U.S.C. §§ 2, 2312. They appeal from their convictions and four-year sentences, contending that the district court erred (1) in admitting Gorman's testimony identifying them as his assailants; (2) in admitting Edward Mayner's testimony that he observed both defendants getting out of a 1971 gold Plymouth at his house in Fort Pierce; (3) in admitting photostatic copies of the New Jersey registration and title to Gorman's Plymouth Fury; (4) in instructing the jury about the inferences permitted to be drawn from unexplained possession of recently stolen property; and (5) in denying defendants' motions for judgments of acquittal. Finding no error in the proceedings below, we affirm.

When Gorman reported his car stolen New Jersey law enforcement officers showed him photographic displays on two separate occasions in an attempt to identify his assailants. At the first display, Gorman viewed several hundred photographs without recognizing his captors. The second spread, consisting of approximately 50 photographs in groups of between 6 to 10 each, was held after the defendants' arrest. Prior to this display, police officers told Gorman that two black males who had been apprehended with his automobile in Florida, had asserted they won the vehicle in a Philadelphia crap game. Gorman then positively identified defendants Murray, who had worn the beanie, and Allen, whom he recognized as Tony, in a group of 6 photographs, each of which bore an identification number and the inscription of the Philadelphia Police Department. In addition to the youthful defendants, the other photographs in this group depicted two older, bearded black men and two white males. After the defendants' criminal identity had been thus established, the New Jersey officers tape recorded a statement from Gorman in which he repeated his previous identification.

At the close of a pre-trial hearing to suppress Gorman's identification evidence, the district judge ruled that the Philadelphia Police Department photographs were not impermissibly suggestive, that the display procedure as a whole met the test of fundamental fairness, and that Gorman's in-court identification of the defendants rested independently on his recollections from the 30-minute encounter with his abductors. Murray and Allen contend to the contrary that Gorman's courtroom identification was invalid because of the suggestive post-arrest, pre-trial photo display and that the judge's determination that the identification had a source independent of such display was unfounded. To bolster their argument, the defendants urge that Gorman's opportunities to observe his attackers were compromised by the poor lighting conditions and his diminished capacity — resulting from the influence of alcohol and the blow to his skull. In this same vein they point to his post-assault statement to the police that he did not get a good look at "Tony's" face, whom he was unable to describe beyond the Afro, the disparity between his description of the beanied and spectacled Murray and the photograph he selected which showed Murray hatless and without glasses, the lack of resemblance between the defendants and the other men pictured in this particular segment of the photo display, the suggestive pre-identification statements by the police to Gorman connecting the defendants to Philadelphia in conjunction with the group of photographs clearly marked "Philadelphia Police Department," the absence of counsel during the second post-arrest display or a verifying lineup and the fact that the photographic identification was made over a month after the incident had occurred.

The identification procedure employed here is at, if not over, the line of suggestiveness. See Simmons v. United States, 390 U.S. 377, 383-384, 386 n. 6, 88 S.Ct. 967, 971, 972 n. 6, 19 L.Ed.2d 1247 (1968). Pre-display statements by the police to the identifying witness that they have persons under suspicion hazard the integrity of the process. See United States v. Henderson, 489 F.2d 802 (5th Cir. 1973). Simmons teaches that, judging each case on its own particular facts, "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S.Ct. at 971; United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970), cert. denied, 409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668 (1972), explicated the following two-step analysis under the Simmons standard:

"The district courts are to determine separately (1) whether the procedures followed `were impermissibly suggestive\', and then (2) whether, being so, they created `a substantial risk of misidentification\'."

United States v. Henderson, supra, 489 F.2d at 805; see also United States v. Evans, 484 F.2d 1178 (2d Cir. 1973).

Assuming, arguendo, that the display procedures utilized by the Camden police officers were impermissibly suggestive, the district court still had the task of deciding whether such procedures created a substantial risk of misidentification. In personal courtroom confrontations, Gorman twice positively reaffirmed his belief that the defendants were the persons who assaulted him and stole his automobile. He testified unequivocally that his identification was based on his recollection of the incident divorced...