United States v. Broadhead

• Decision Date: 15 July 1969
• Docket Number: No. 16770.,16770.
• Citation: 413 F.2d 1351
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald A. BROADHEAD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

413 F.2d 1351 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Donald A. BROADHEAD, Defendant-Appellant.

No. 16770.

United States Court of Appeals Seventh Circuit.

July 15, 1969.

Bruce C. Hammerschmidt, Erle A. Kightlinger, Howard J. De Trude, Jr., Indianapolis, Ind., for defendant-appellant; Hammerschmidt, Bonewitz & Roberts, South Bend, Ind., Kightlinger, Young, Gray & Hudson, Indianapolis, Ind., of counsel.

Alfred W. Moellering, U. S. Atty., Fort Wayne, Ind., Richard L. Kieser, South Bend, Ind., for plaintiff-appellee.

Before KILEY, SWYGERT and KERNER, Circuit Judges.

KERNER, Circuit Judge.

Defendant Donald A. Broadhead was indicted for the armed robbery of the McKinley Branch of the American Bank and Trust Co. in South Bend, Indiana (a federally insured bank) on June 13, 1967, in violation of 18 U.S.C. § 2113(d). The case was tried to a jury which found defendant guilty. Defendant appeals from the judgment of conviction and sentence against him alleging pretrial and trial errors.

The evidence, as developed from the record, a pre-trial hearing on the propriety of a line up, and the trial, shows that at approximately 9:15 a.m., two men entered the bank. Both wore hats, sunglasses, sport coats and slacks and carried attache cases and were in the bank approximately ten minutes. Both men were armed with handguns and ordered the employees and customers in the bank to lie face-down on the floor. The man alleged to be Broadhead remained in the front of the bank while the second man, alleged to be William Carey Edwards, went into the back of the bank and obtained the available cash. During the robbery, Noel Knutson, the Assistant Branch Manager, was made to get up and answer a telephone call. While talking on the telephone, he was facing Broadhead for approximately one minute from a distance of about six feet. The robbers left the bank and fled through its parking lot.

At approximately 10:30 a.m., in Three Rivers, Michigan (only 46 miles from South Bend), a car, later found to be driven by Edwards in which Broadhead was a passenger, approached a roadblock, reversed direction and sped away. After a lengthy chase, the car hit a pole and the occupants fled. Shortly thereafter, Broadhead was arrested by one policeman and Edwards by another. When arrested, Edwards was in possession of a handgun, which was later admitted into evidence.

Seven hours later, a lineup was conducted at which Broadhead was identified by Noel Knutson. At no time prior to the lineup was Broadhead brought before a magistrate. The lineup was conducted without the presence of counsel and no attempt to warn Broadhead of his rights at that time appears in the record. Later that day or the next day, a photograph of Broadhead, taken while he was in custody in Three Rivers, was printed in a South Bend newspaper. Testimony at trial showed that each of the witnesses making an in-court identification had seen the published photograph.

Three issues are presented on appeal. The first is whether the admission of Noel Knutson's identification testimony was improper because it was obtained as the result of a defective lineup. Secondly, is whether a statement in closing argument by the United States Attorney violated Broadhead's right not to testify by commenting on the failure of the defense to adduce evidence. Thirdly is whether the admission of Edwards' handgun was prejudicial error. Upon careful consideration of each of these issues and through application of the harmless error rule, we affirm.

THE LINEUP AND IN-COURT IDENTIFICATION

The lineup challenged here occurred on June 13, 1967. On June 12, 1967, the Supreme Court rendered its decisions in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. These cases held that a confrontation for the purpose of identifying a suspected criminal is a critical stage in the proceedings against him at which he has the right to counsel. A very limited exception may exist where the identifying witness is believed to be in extremis as in Stovall, 388 U.S. at 302, 87 S.Ct. 1967, and a violation of due process may not be found. Generally, however, the Wade and Gilbert rules apply to "* * * all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date." Id. at 296, 87 S.Ct. at 1969.

Thus, we are faced with the necessity of requiring compliance with a new rule within one day after its promulgation. The record clearly reflects that, even in this age of modern communication, the arresting police were not aware of the new rule. They acted under the premise that there was no requirement that counsel be presented at pre-trial confrontations for identification. In its decision to make the rule prospective only, the Supreme Court expressly recognized that this premise was so understood in "all 50 states" and that it was "not foreshadowed in our cases." Id. at 299, 87 S.Ct. 1967. While much may be said for allowing a few days grace for news of novel rules to reach those bound to respect and implement them, the Supreme Court has not seen fit to do so and we, therefore, have not the freedom to do so here.

There is no doubt that the lineup in question was conducted without the presence of counsel for Broadhead and without any knowing waiver of his right to counsel. Therefore, it was conducted in violation of his Sixth Amendment right to counsel as enunciated in Wade and Gilbert.

The next question to be considered is whether Knutson's in-court identification testimony was, nevertheless, admissible. We hold that District Judge Grant held a proper pre-trial hearing and that his finding of an independent basis for Knutson's identification was supported by the evidence adduced at the hearing. Notwithstanding that the lineup was also violative of Fed.Rule Crim.Pro. 5¹, Knutson's in-court identification was proper.

The genesis of Rule 5 is mixed, depending upon early versions of the preliminary examination and constitutional concerns over voluntary confessions.² The use of such an examination before an impartial magistrate as a method of administering warnings as to rights, so as to make confessions voluntary, antedates recent concern in this area by at least two centuries. As long ago as 1897, the Supreme Court implicitly approved the practice in its discussion of English precedents dating from 1736. Bram v. United States, 168 U.S. 532, 545 et seq., 18 S.Ct. 183, 42 L.Ed. 568. The case also noted that statutes requiring such examinations to be conducted before justices of the peace could be traced back as early as 1 & 2 Ph. & M. ch. 13 (c. 1553). Id. at 549-50.³

During the period in which the Federal Rules of Criminal Procedure were being drafted (1941-44), there was great controversy over whether a rule like Rule 5 should be adopted.⁴ The controversy stemmed, in part, from the question whether any rule was necessary in view of the Supreme Court's decision of March 1, 1943, in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.⁵ McNabb relied on the Court's supervisory powers in fashioning an exclusionary rule for confessions taken from prisoners prior to their being brought before a magistrate under former 18 U.S.C. § 595. While the decision was limited to the problem before it, an improperly obtained confession, the Court used broad language to condemn the conduct of the officers who violated the statute in obtaining the evidence. The language involved was clearly broad enough to justify finding other types of evidence excludable under its rationale. The opinion held, 318 U.S. at 340-342, 63 S.Ct. at 613-14:

In the view we take of the case, however, it becomes unnecessary to reach the Constitutional issue pressed upon us. For, while the power of this Court to undo convictions in state courts is limited to the enforcement of those "fundamental principles of liberty and justice", Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 71 L. Ed. 270, which are secured by the Fourteenth Amendment, the scope of our reviewing power over convictions brought here from the federal courts is not confined to ascertainment of Constitutional validity. Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence. Such standards are not satisfied merely by observance of those minimal historic safeguards for securing trial by reason which are summarized as "due process of law" and below which we reach what is really trial by force. Moreover, review by this Court of state action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction. Considerations of large policy in making the necessary accommodations in our federal system are wholly irrelevant to the formulation and application of proper standards for the enforcement of the federal criminal law in the federal courts.

The principles governing the admissibility of evidence in federal criminal trials have not been restricted, therefore, to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts, see Nardone v. United States, 308 U.S. 338, 341-342, 60 S.Ct. 266, 267, 84 L.Ed. 307 this Court has, from the very beginning of its history, formulated rules of evidence to be applied in federal criminal prosecutions.

* * * * * *

And in formulating such rules of evidence for federal criminal trials the Court has been guided by considerations of justice not limited to the strict canons of evidentiary relevance.

Quite apart from the Constitution, therefore, we are constrained to hold that

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