United States v. Ash, 22340.

• Decision Date: 12 June 1972
• Docket Number: No. 22340.,22340.
• Citation: 149 US App. DC 1,461 F.2d 92
• Parties: UNITED STATES of America v. Charles J. ASH, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

149 US App. DC 1, 461 F.2d 92 (1972)

UNITED STATES of America v. Charles J. ASH, Jr., Appellant.

No. 22340.

United States Court of Appeals, District of Columbia Circuit.

March 1, 1972.

Certiorari Granted June 12, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. Charles J. Ash, Jr. filed a brief pro se.

Mr. Jerome J. Dick, Washington, D.C. (appointed by this court) filed a brief as amicus curiae.

Messrs. Thomas A. Flannery, U.S. Atty., at the time the brief was filed, John A. Terry and William S. Block, Asst. U.S. Attys., were on the brief for appellee. Messrs. Roger E. Zuckerman, Harvey S. Price, and Robert C. Crimmins, Asst. U.S. Attys., also entered appearances for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

Certiorari Granted June 12, 1972. See 92 S.Ct. 2436.

LEVENTHAL, Circuit Judge:

On April 1, 1966, appellant Charles J. Ash, Jr., and a co-defendant, John L. Bailey, were indicted on five counts relating to an armed robbery of the American Security and Trust Company, East Capitol Street Branch.¹ Ash was convicted by a jury on May 13, 1968, and in due course was sentenced to an effective term of five to fifteen years. The principal question presented by his appeal is whether his constitutional rights were violated by the introduction of certain pretrial photographic identifications obtained after arrest, and indeed after indictment, without notice to or presence of his counsel. It is fortunate for appellant that the issues concerning identification were raised in the brief filed by his appointed counsel before appellant sought and was granted leave to continue pro se. The points raised by appellant pro se have no merit.² But we find merit in the issues as to identification raised in the brief filed by counsel, continued by this court on an amicus curiae basis. We reverse the conviction and remand for further proceedings not inconsistent with this opinion.

I. FACTUAL BACKGROUND

On August 26, 1965, a gunman entered the bank, waved his gun in the air, and ordered everyone in the bank not to move. A few seconds later another man dashed through the lobby of the bank to the tellers' cages, scooped up some money and ran out again, followed by the gunman. The robbery took place in about three or four minutes. At trial Ash was identified as the gunman. A bank teller, Mrs. Ruby Paugh, said Ash looked similar to the gunman, but she could not be certain because she could not see his face in view of the stocking mask. Another teller, Mrs. Jean Major, who likewise was unable to see the gunman's face, said she believed Ash was the gunman, but was not absolutely certain. A bank customer, Joseph Taylor, said Ash "looks sort of like" the gunman but he could not be certain. This witness had observed the gunman for a few seconds as he entered the bank, before he donned his mask. There was also an identification of Ash by Betty Apple, who was seated in an automobile outside, and said that outside the bank neither man wore a mask. She admitted she only got a "fleeting glimpse" of them and was not able to see their full faces.

It may be interjected that although Bailey was also identified in court by Mrs. Apple, there was a hung jury as to him. The trial judge granted his motion for acquittal.

Since the only other proof against Ash was the testimony of an informer who was under indictment for other offenses, it becomes material to consider carefully issues pertaining to the identification testimony.

The trial began May 8, 1968.³ In the morning the court held a pre-trial hearing to determine whether the showing of photographs to the witnesses rendered their testimony inadmissible.

At this hearing it developed that at the time of the crime none of the four identification witnesses was able to give the police a description of the gunman's facial characteristics. The description given to police at the time of the robbery was not in terms of facial features but rather, e. g., by height and weight — that the gunman was tall and slim. The police call for the gunman described him only as Negro male, 19 years old, six feet tall, 165 pounds, thin build.

At the hearing FBI Special Agent Patrick Markowvich testified that on February 3, 1966, some 5 months after the crime, he interviewed Mrs. Paugh, Mrs. Major, Mrs. Apple and Mr. Taylor concerning the robbery in order "to attempt to effect an identification." The agent showed each of them a group of black and white police mug shots of the faces of five Negro males, including appellant and Bailey, all of "generally the same age, height and weight as Mr. Bailey and Mr. Ash." Apparently, Mr. Ash's photograph was included because of information received from one Clarence McFarland, an informer charged with other crimes (see note 7, infra). Agent Markowvich testified that all four witnesses selected the photograph of appellant as the gunman. On cross-examination he testified "they were not positive in the identification." Asked if any of them was positive, he cited Mr. Taylor — who had seen the gunman before he donned his mask — and testified that "Mr. Taylor said that to the best of his belief" Ash was the gunman "but he could say positively if he could see him in person." (Tr. 16). Mrs. Apple said the photo "looked like" Ash but she wasn't sure. Mrs. Apple identified Bailey's photograph as that of the second robber. A few weeks later Mrs. Apple also pointed out Bailey to police in a corridor of the General Sessions Building.

Special Agent Hugh Berry of the FBI testified that on May 7, 1968, the day before trial, together with the prosecutor, he visited, and showed five color pictures to, Mrs. Paugh, Mrs. Major and Mrs. Apple. Each of these witnesses picked out appellant's picture, but none selected Bailey's. On the morning of trial agent Berry showed the same photos to Mr. Taylor, who was unable to make an identification.

Of the five color photographs, only appellant's and Bailey's were full-length; they were pictured standing next to a pole, possibly a height marker, which had attached to it a plaque bearing police identification numbers. These numbers were covered up by the exhibit sticker at trial,⁴ but apparently were uncovered when the photos were shown to the four witnesses. Of the three remaining pictures, one terminated at the subject's thigh, one at the waist, and another at the lower chest. None of these three photographs bore police identification numbers.

One of the eyewitnesses, Mrs. Paugh, also testified. She said that she could not surely identify anyone, and that all she could do, when questioned or shown photographs, was to make an identification "as to the general build of the person." She stated that the color photographs shown her the day before had not had the effect of refreshing her recollection or recreating in her mind an image of the person she saw at the time of the robbery.

The judge ruled that the four prosecution witnesses would be permitted to make an identification of appellant at trial⁵ — and they gave testimony as set forth above. None of them was questioned on direct concerning the photographs. Bailey's counsel was interested in bringing out that Mrs. Apple had not identified Bailey's color photograph. Counsel for Ash objected to any procedure that would "make the proffer to show pictures of Ash." Accordingly Bailey's counsel confined his questioning of Mrs. Apple to establishing that Mrs. Apple had been shown five color photographs. Later, Bailey's counsel elicited from FBI agent Berry that Mrs. Apple had made no identification on being shown a color photograph of Bailey.

When counsel for Bailey offered the Bailey photograph, the prosecutor insisted on admission of all five color photographs shown to Mrs. Apple. Counsel for Ash objected (Tr. 413): "I would object to Mr. Ash's picture. I don't want to see Mr. Stanford Bailey's counsel getting bad marks for my client." In view of this objection, Bailey's counsel withdrew his offer of a photographic exhibit, being content to rely on testimony that Bailey's photograph had not been identified. In due course such testimony was adduced, and he announced that he had completed his questions of the FBI agent (Tr. 413-15). But at this point the prosecutor interjected and insisted that the photographic evidence should be admitted. In due course he made a formal offer (Tr. 416), and the judge ruled it would be admitted (Tr. 416). The court's ruling on the color photographs was plainly based on an assumption contrary to our view, developed later, that the admission of the color photograph of Ash was constitutionally impermissible, and prejudicial error.⁶

The Government also presented in its direct case the testimony of Clarence McFarland, who was then serving a sentence in connection with another robbery. Mr. McFarland, whose extensive criminal record was brought out on direct examination, testified that on August 25, 1966, the day before the American Security robbery, appellant had asked him to help rob the bank, but McFarland refused to go along. McFarland stated that he next saw appellant on August 27, sitting with Bailey at Cecilia's Lounge on Seventh and T Streets. According to McFarland appellant told him that he had robbed the bank of approximately $3,100, and that he was angry with Bailey for leaving him in the bank. McFarland was cross-examined as to whether he had been promised certain "favors" in connection with several cases pending against him. The defense later called an Assistant United States Attorney who testified, inter alia, that he had indicated he would testify before the parole board in McFarland's behalf.⁷

II. PROBLEM OF SUGGESTIVENESS IN THE VIEWING OF THE COLOR PHOTOGRAPHS

Appellant claims that the pretrial photographic identifications, and the suggestive circumstances surrounding them, tainted the identification testimony of the four eyewitnesses and thus deprived appellant of...