United States v. Ballard

• Decision Date: 25 February 1970
• Docket Number: No. 27202,27367.,27202
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Erwin Edward BALLARD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Henry BRYAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 127 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Erwin Edward BALLARD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard Henry BRYAN, Defendant-Appellant.

Nos. 27202, 27367.

United States Court of Appeals, Fifth Circuit.

February 25, 1970.

John B. Clark (court appointed), Jackson, Miss., Armis E. Hawkins (court appointed), Houston, Miss., for defendants-appellants.

H. M. Ray, U. S. Atty., J. Murray Akers, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.

Before WISDOM, SIMPSON and CLARK, Circuit Judges.

CLARK, Circuit Judge.

These appeals come from the Northern District of Mississippi where Erwin Edward Ballard and Richard Henry Bryan, in a joint trial, were both convicted of armed robbery of a federally insured bank.¹ No motion for severance was made in the district court and because of common questions of law and fact, these appeals have been consolidated before us. There are three issues presented by each appeal, two of which are common. (1) Both appellants contend that in-court identifications by witnesses who had previously identified appellants from groups of photographs presented them by F.B.I. agents constituted violations of appellants' Fifth and Sixth Amendment rights. (2) Both appellants claim that evidence of escape from jail should not have been admitted against them. (3) Ballard contends that he should be granted a new trial because one of the chief prosecution witnesses was accused of perjury at the time of the trial and the charge was dropped after Ballard's conviction. (4) Bryan asserts that his court appointed counsel did not effectively represent him. We affirm.

I. GENERAL BACKGROUND.²

On June 11, 1967, the Slayden, Mississippi branch of the Bank of Holly Springs was robbed of approximately $21,000 by three armed men wearing straw hats, dark glasses and gloves. Following the robbery a car answering the description of the get-away car was found hidden near Slayden. Also found hidden near the car were dark glasses, hats and certain other paraphernalia identified with the holdup. Fingerprints on the car lead F.B.I. agents to Plant City, Florida in search of the appellant Bryan. Bryan was arrested in Plant City on June 15, 1968, along with James Edward Neal. Neal implicated appellant Ballard, who voluntarily surrendered to the F.B.I.

Appellants were removed to Mississippi in due course and were subsequently indicted, tried and found guilty as charged in the indictment. Neal was separately tried and convicted. Ballard was sentenced to fifteen years and Bryan was sentenced to twenty-two years. This consolidated appeal ensued.

II. IN-COURT IDENTIFICATION.

On July 1, 1968, after Bryan and Ballard both had been taken into custody, Special Agent Richard T. Rabideau of the Federal Bureau of Investigation interviewed Thomas Wilson and Billy Bing at the Collierville, Tennessee service station where they worked. Wilson and Bing were interviewed separately and out of the presence of each other. Rabideau handed both witnesses a stack of twenty-two photographs and asked if any of the persons pictured had been in the service station on June 10, 1968. Rabideau did not suggest that any of the people pictured had in fact been in the service station. Both Wilson and Bing had observed three men in the station on June 10, 1968 in a two-tone 1955 Chevrolet sedan with Florida license plates. They were asked if any of the men pictured had been in that group. Wilson identified Bryan and Neal, and Bing identified Bryan, Ballard and Neal, all three, as having been in that group. In the twenty-two pictures used, twenty-one individuals were pictured — Bryan appeared twice. All pictures had the subject's name on the reverse side. The word "Florida" appeared on the front of the pictures of Bryan, Ballard and Neal.

Subsequently, on July 8, 1968, Special Agent Ralph Liewer of the F.B.I. also interviewed Wilson and Bing in Collierville. He did not know of the earlier visit by Rabideau.³ Liewer showed eight pictures to Wilson and Bing, separately. Except for pictures of Ballard, Neal and one picture of Bryan, the pictures shown by Liewer were completely different from those shown by Rabideau. Liewer covered all identifying data on each picture, laid them on the back seat of his car (he did not permit either witness to handle the pictures), and asked Wilson and Bing if they had seen any of the persons pictured before. Liewer did not suggest that any of those pictured should have actually been seen by Wilson and Bing, nor did he mention any names to them. Wilson positively identified Ballard, Bryan and Neal. Bing identified Bryan and Neal positively, and Ballard tentatively.

At the trial of the case, both Wilson and Bing were called and both identified Bryan and Ballard in court as having been in the service station on June 10, 1968. Both also testified they could have identified the defendants without regard to the photograph display interviews of the two F.B.I. agents.

Wilson testified that he had an opportunity to talk to all three men when they were in the station. Their appearance impressed him because they were unshaven, unkempt, and looked as if they had been sleeping in the car. Two of them appeared to have dyed hair. One did not have on a shirt. All had on dark trousers. When asked by Wilson if they worked on the pipeline, they responded that they did not work anywhere. All these circumstances caused Wilson to note their license number and advise the sheriff's office that suspicious looking persons had stopped in the station.⁴ The day was bright and sunny, hence there was no question of visibility.

Bing had observed the three from inside the service station — about fifty feet from their car. One did enter the station for a drink of water and passed close to Bing. Bing also noted the clothing of the trio and the fact that one did not have on a shirt. Although he observed them from inside the station through a glass window, his view was not obstructed by advertisements, etc. on the glass, and the glass — although having some dust on it — was relatively clean, having been washed about two weeks previously. At the time these men were in the station they were the only customers, so Bing's attention was not diverted from them.

Appellants contend that the showing of pictures to Wilson and Bing renders their in-court identifications of Bryan and Ballard inadmissible on the grounds that the proceedings had reached an accusatorial stage at the time the photographs were shown and consequently appellants were entitled to counsel and second, on the grounds that the showing of photographs to Wilson and Bing was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. We shall dispose of the question of right to counsel first.⁵

Appellants ask us to extend the right to counsel at a line-up, which the Supreme Court held to exist in United States v. Wade⁶ and Gilbert v. California,⁷ to the circumstances in the case at bar involving an out-of-court identification by use of photographs. In support of their argument that they were entitled to counsel and that such counsel was entitled to be present at the time the F.B.I. agents presented the photographs to the witnesses, Wilson and Bing, the appellants direct our attention to Simmons v. United States.⁸ Appellants' reliance is misplaced, for although Simmons is undoubtedly one of the progeny sired by Wade and Gilbert, it is not a right to counsel case. The issue of right to counsel was not raised in Simmons, and Simmons clearly did not extend the right to counsel to an out-of-court photographic identification conducted out of the presence of the accused.

This Circuit has not previously expressly decided the issue presented here,^8A but the Tenth Circuit in McGee v. United States⁹ held that Wade did not apply to an out-of-court photographic identification because there was no lineup identification involved and there was no form of confrontation of the accused. The Tenth Circuit reaffirmed its holding in McGee in Rech v. United States.¹⁰

The Seventh Circuit, in United States v. Robinson,¹¹ likewise rejected a contention that the accused had the right to have counsel present under circumstances similar to those in the case at bar.

In United States v. Marson¹² the Fourth Circuit was faced with a similar contention concerning right to counsel, but since the photographic identification complained of had occurred prior to June 12, 1967, that Circuit held that Wade and Gilbert could not have applied¹³ even if it were to be accepted that photographic identification was to be equated in all respects with a line up.¹⁴

In United States v. Bennett,¹⁵ the Second Circuit came to grips with the contention that Wade should be extended to require the presence of counsel at an out-of-court photographic identification. The court, speaking through Judge Friendly, held that Simmons was distinguishable because in Simmons the accused had not been taken into custody at the time of the photographic identification, whereas in Bennett, as here, the accused had been taken into custody. After thus bringing the facts in Bennett more nearly within the ambit of Wade, Judge Friendly proceeded to explain why the Sixth Amendment did not apply to a photographic identification regardless of whether the accused was in custody, as follows:

"To require that defense counsel be allowed or appointed to attend out-of-court proceedings where the defendant himself is not present would press the Sixth Amendment beyond any previous boundary. None of the classical analyses of the assistance to be given by counsel, Justice Sutherland\'s in Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and Justice Black\'s in Johnson v. Zerbst, supra, 304 U.S. at 462-463, 58 S.Ct. 1019, 82 L.Ed. 1461 and Gideon v. Wainwright, supra, 372 U.S. at 344-345, 83 S.Ct. 792, 9 L.Ed.2d 799, suggests that coun

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