United States v. Brown, 24452.

• Decision Date: 15 March 1971
• Docket Number: No. 24452.,24452.
• Citation: 461 F.2d 134
• Parties: UNITED STATES, Appellant, v. Rufus BROWN et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

461 F.2d 134 (1972)

UNITED STATES, Appellant, v. Rufus BROWN et al.

No. 24452.

United States Court of Appeals, District of Columbia Circuit.

Argued March 8, 1971.

Decided March 15, 1971.

Opinions Filed March 1, 1972.

Mr. Robert J. Higgins, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and Robert A. Shuker, Asst. U. S. Attys., were on the brief, for appellant.

Mrs. Carol Garfiel Freeman, Washington, D. C., with whom Mr. James B. Blinkoff, Washington, D. C. (both appointed by the District Court) was on the brief, for appellee Brown, argued for all appellees.

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

Messrs. Ira M. Lowe and Eugene P. Hines, Washington, D. C. (both appointed by the District Court) were on the brief for appellee Proctor.

Mr. Sol Z. Rosen, Washington, D. C. (appointed by the District Court) was on the brief for appellee Williams.

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

Argued En Banc March 8, 1971.

WILKEY, Circuit Judge:

This is an appeal by the Government under 18 U.S.C. § 3731 from an order of the District Court suppressing "any photographic or in-court identification of the defendants Rufus Brown and Paul Proctor by Mrs. Barbara Edgecomb" at the trial. The case was initially argued before a three-judge panel of this court. We subsequently ordered sua sponte that the case be set down for argument and decision en banc. Finding the action of the trial court erroneous, we have vacated the order of the District Court and remanded the case for trial.

I. Facts and Proceedings Made the Basis of the District Court Order

A. The Offense

According to the evidence given at the suppression hearing, on 27 June 1969 two armed men, identified by eyewitnesses as appellees Proctor and Brown, robbed a Washington liquor store. During the course of the robbery the retired store owner, Israel Burka, arose from where he had been seated and took a few steps. Without uttering a word, Proctor allegedly shot Burka in the back. According to the Government's evidence, while Burka lay face down on the floor in a large pool of blood, Brown forced the store manager to open the safe, and Proctor herded customers and clerks behind a counter.

As Mrs. Barbara Edgecomb, a customer who was the first to file behind the counter, stopped next to the fatally wounded Burka, she bent down to help him. As she looked up, the robber (identified as Proctor) who had fired the bullet into Burka's back was "right there," only three and a half feet away. Mrs. Edgecomb had other opportunities to observe both robbers at varying distances during the seven to eight minutes the robbery consumed. One hour later Burka was dead.

B. The Lineup

By October 1969 the police had information that appellees Proctor and Brown had robbed the liquor store, and that appellee Williams had driven the getaway car. Proctor was quoted as saying that he had "shot an old man." After arrest, in a lineup on 4 November 1969 two witnesses identified Proctor and Brown as the gunmen.

At the lineup Proctor was represented by the same counsel who later appeared for him at the pre-trial hearing and on this appeal. Brown was also represented by counsel at the lineup; different counsel were subsequently appointed for him and have represented him at the pretrial hearing and on appeal.

Brown does not claim that the lineup was unfair; Proctor contends it was. At the lineup the only objection clearly made by any counsel was that the defendants were brought there by an illegal arrest, an issue which is not before us on this appeal. In argument before the three-judge panel counsel for both sides agreed that the record is unclear whether Proctor's counsel objected to the lineup on the grounds that Proctor was the only one of the nine persons who had a goatee. It is agreed that the witnesses at the lineup gave no indication that Proctor was in any way unique. In the lineup picture which we have in the record, it appears that the man next to Proctor has a mustache and goatee, as does Proctor. Six of the nine appear to have mustaches of varying density and style.

Appellees' counsel on appeal agreed that, without the lineup photo having been shown to Mrs. Edgecomb, her testimony would be admissible at trial for whatever weight the jury chose to give it.

C. The Witness Edgecomb

In the pre-trial hearing Mrs. Edgecomb described the gunmen as she saw them at the time of the killing, and was able to give a very detailed description of both men. She said the light in the liquor store was fairly good, that there was no trouble with the light at all. She saw Brown for about three minutes, at times as close as four feet.¹ Proctor she remembered specially when she was standing next to the head of the fallen Burka while Proctor hovered over Burka's feet.² Immediately after the killing she and her husband went to the police building, saw a great number of pictures, but were unable to identify either of the two gunmen; nor were they able to do so on three other occasions when shown other photographs by the police.³

After the robbery was over Mrs. Edgecomb did not talk to her husband about what the gunmen looked like, "because we wanted to forget about it at that time." While riding to the lineup on 4 November 1969, Mrs. Edgecomb told her husband that she thought she would know the robbers again. However, when she viewed the lineup, she was unable to identify anyone under the lights, which "just made people's faces look like blobs." Particularly she could not tell differing complexions. Under the lighting conditions she felt that she could not "fairly say for sure."

On the way out of the police headquarters Mrs. Edgecomb did say to one of the policemen, "I wasn't sure about a certain person in the lineup, but that I wouldn't say yes for sure, that I'd like to see the lineup pictures." On 19 May 1970, about two weeks prior to the scheduled trial, Mrs. Edgecomb came to the office of the prosecutor who was to try the case. In the course of the pretrial interview of the witness, he said, "You wanted to see the picture of the lineup, here it is." Mrs. Edgecomb, without being asked or instructed, in the presence of the prosecutor and a detective of the homicide squad (her husband was outside the office), picked up the lineup photograph and systematically went down the line, reading from left to right. Originally she focused on Procter; then she "liked" Proctor, Brown, and the man on the left end next to Proctor (with mustache and goatee); and finally she chose Proctor and then Brown as the two robbers. Originally Mrs. Edgecomb had described Proctor at the time of the killing as having "the beginnings of a mustache and a goatee-type beard." On seeing the lineup picture, she commented that the growth of his beard was different, that it was fuller in the lineup picture than at the time of the robbery.

D. The Trial Judge's Suppression Order

The trial judge ruled that the 4 November 1969 lineup was properly conducted and that two other witnesses, liquor store employees, could testify as to their lineup identification and make whatever in-court identification they could. As to Mrs. Edgecomb,

However, the Court feels that in view of the fact that she did not pick out the people at the time of the lineup, and with an abundance of caution on behalf of the defendants, the Court will deny the use of her identification of the defendants in the photograph at a later time.

The court further added,

In view of the fact that the photographic identification is excluded the Court feels that she should not make an in-court identification of the defendants at the time of her appearance here in fear it might be tainted in some way by the recent viewing of the photograph.

Although the trial court did not mention the Fifth or Sixth Amendment in making her suppression ruling, foot-noted in toto and sequentially below,⁴ nor did she make a specific finding as to any independent source, it appears that the District Judge's ruling is relevant in the following manner to the two points alleged to be at issue on this appeal:

1. Appellees' Sixth Amendment claim under the doctrine of United States v. Wade⁵ that representation by counsel was denied at a critical stage:

a. "It is felt that since this was after the lineup and close to the trial that it would have perhaps been better if counsel had been present at the time."

b. "I think that if they had been present there would have been no question about it."

c. "But there is always a question in their minds, defense counsel\'s minds, as to just exactly what did happen at that time when she had not been able to determine prior thereto."

2. Appellees' Fifth Amendment claim of denial of due process on the grounds that the procedures followed were "so unnecessarily suggestive and conducive to irreparable mistaken identification," and the existence or non-existence of any independent source for the in-court identification:

a. "It appears that Mrs. Edgecomb did have an ample opportunity to observe the two defendants while in the store."

b. "However, the Court feels that in view of the fact that she did not pick out the people at the time of the lineup, and with an abundance of caution on behalf of the defendants, the Court will deny the use of her identification of the defendants in the photograph at a later time."

c. "There is no question in the Court\'s mind that there was nothing improper insofar as her having seen the photograph in Mr. Shuker\'s office."

d. "In view of the fact that the photographic identification is excluded the Court feels that she should not make an in-court identification of the defendant at the time of her appearance here in fear it might be tainted in some way by the recent viewing of the photograph."

e. "In view of the fact that she had

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