United States v. Collins

• Decision Date: 15 September 1969
• Docket Number: No. 12748.,12748.
• Citation: 416 F.2d 696
• Parties: UNITED STATES of America, Appellee, v. William Francis COLLINS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

416 F.2d 696 (1969)

UNITED STATES of America, Appellee, v. William Francis COLLINS, Appellant.

No. 12748.

United States Court of Appeals Fourth Circuit.

Argued May 6, 1969.

Decided September 15, 1969.

Certiorari Denied January 12, 1970.

Denis K. Lane, Alexandria, Va., Court-appointed counsel, for appellant.

Alan I. Baron, Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.

Certiorari Denied January 12, 1970. See 90 S.Ct. 601.

ALBERT V. BRYAN, Circuit Judge:

Guilt on three counts of bank robbery, 18 U.S.C. § 2113, was found against William Francis Collins by a jury, April 18, 1968, in the District Court of Maryland, and he now appeals the judgment and sentence upon the verdict. Failure in his identification is the salient of the attack.

Nobody who took the witness stand could say that the appellant, then in the courtroom, was recognizable as the one who at gunpoint, about two o'clock in the afternoon of December 8, 1965, robbed the Lincoln Federal Savings and Loan Association in Hyattsville, Maryland. Reliance for identification was rested on the evidence of three eyewitnesses — two employees and a repairman in the bank at the time — who testified by reference to photographs of a lineup that included Collins. The pictures were taken June 28, 1967, the day of Collins' arrest. One of these three witnesses was present at the lineup. The other two witnesses were not at the lineup but had picked out Collins from these photographs. There was another eyewitness to the holdup who was also at the lineup, but she was called by the defense. Between the date of the photographs and the trial in April 1968, Collins had lost about 75 pounds in weight, dropping from 250 to 175.

Referring to the pictures, the witness to the lineup showed to the jury the person whom he had there indicated to be the robber. The two witnesses who had not been at the lineup pointed out for the jury the person whom they had previously named in the pictures. Thereafter it was proved that each of the three witnesses' selections was Collins. Failure of the courtroom identification, the prosecution maintained and apparently the jury believed, was due to Collins' loss of almost one-third of his prior weight.

Appellant bears down on both the composition of the array and all use of the pictures as wronging him in his Fifth and Sixth Amendment privileges. Due process was refused, he says, because as arranged the lineup was unfair. Want of counsel at the lineup and at the private pretrial exhibition of the pictures was the asserted Sixth Amendment infringement. See United States v. Wade, 388 U.S. 218, 232-234, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

The arrest of Collins for this Maryland offense and the lineup occurred in the District of Columbia, June 28, 1967, more than 18 months after the crime. The lineup was constituted of Collins and five others, who were ununiformed policemen. The confrontation of Collins and his viewers is branded as unfair because his features and dress told on him. All of the group were Caucasians but the tattling characteristics alleged were these: the accused had a ruddy complexion with broken red and purple veins with large skin pores, while the others were dark completed; several of the company were plainly older than he; all of his counterparts had what could be well described as "the usual" in dress and manner of police officers; Collins wore a light blue shirt and "shiny or silky black pants" as contrasted with the "conventional white shirts and trousers" of the rest. The lineup was conducted by a police officer and an FBI agent.

On defendant's objection to the pretrial and proposed identifications, the trial judge, before the evidence of any witness was received and in the absence of the jury, went into the circumstances of each witness' first and present determination, whether by the lineup or the photographs, or both. This process was applied separately with all three of the prosecution's identity witnesses. Unsparing scrutiny was pressed for discovery of any coaching. Opportunity was accorded the defendant to adduce evidence of infirmity in the lineup, or in the original or current production of the photographs before the absent witnesses. His counsel freely cross-examined. Only after the court was satisfied of the legality of the lineup and of the complete spontaneity in a witness' decision, either at the lineup or upon the pictures, was his evidence permitted to go to the jury. There was no wholesale inquisition, only a simple one-by-one examination.

The fourth or remaining eyewitness, called by the defendant, testified without such preliminary voir dire. On direct, she expressed an inability to settle on the robber at the lineup or from the picture. On cross-examination she confirmed that before trial she had put her finger on both Collins and the man next to him as looking like the robber.

With the District Judge, we see no telling variation from Collins' appearance, in the dress, age, height, weight or other features of those in the lineup, as would mark him as a nonconformist. Nor was he so positioned in the line as to disclose his part in the cast; nor was there taint by hint or other sign to the witnesses for their choices. In short, nothing about the assembly deprived the accused of due process.

The Sixth Amendment rights of the defendant, too, were scrupulously honored. Alert and astute counsel represented Collins at the lineup. He had not then been indicted, or removed to Maryland, but attorneys from the Legal Aid Society of the District of Columbia attended in his behalf. Throughout the proceeding, they were consulted by those in charge, and voiced no exception. Additionally, the United States Attorney for the District of Columbia came in person. This special solicitude doubtlessly was attributable to the recent opinions in United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926, and Gilbert v. California, supra, 388 U.S. 263, 87 S.Ct. 1951. Thus conscientious and diligent observance was paid to the Sixth Amendment as focused by those decisions. Hence, the identification by the lineup was not challengeable.

There remains the issue of fairness in the identification by the two witnesses who were not at the lineup. Under this head, the first inquiry is whether in the tender of the pictures to them, either was intentionally or inadvertently prompted to blame Collins. There is no intimation of it in the record.

The next ascertainment, then, is whether the cases just cited bar identification by the display of photographs of the lineup to the witnesses in the absence of counsel for the suspect. If this is permitted, appellant protests, the creed of Wade and Gilbert could easily be circumvented by resort to photographs in lieu of the lineup itself. Whatever its force elsewhere, in our judgment the circumstances here do not justify laying the accusation of heresy upon the tenet of the District Court.

Wade and Gilbert, supra, demand the presence of counsel for a valid lineup identification because of the inherent threats to preservation of a suspect's rights in such a congregation of persons — witnesses, members of the lineup and onlookers. The chances for suggestive imputations are unrestrained or unrestrainable. Alone, and perhaps inexperienced, he cannot comparably defend himself against the abuse or be assured of fairness. Wade, 388 U.S. at 228-232, 87 S.Ct. 1926. These potentials of danger — graphically described in the opinions — and the inability to reconstruct them at the trial in impeachment of the identification, obviously account for the classification of this kind of confrontation as a "critical stage" of the prosecution.¹ Counsel at that point was prescribed as an absolute canon of the procedure.

But presently the fears of Wade and Gilbert anent the absent or photograph-viewers are forestalled, for the most part, by the proof that the lineup was impartial. The only remaining concern is the possibility that the exhibitor clued the witness. A violation in that respect would, of course, be a denial of due process. The question, then, is whether under Wade and Gilbert the presence of counsel was mandatory — to insure against a breach of due process — when the pictures of the lineup are first laid before the lineup absentees. We think these precedents do not go so far.

These authorities do not condemn all identifications not made through a lineup. That is not the lesson of Wade and Gilbert. The Court there dealt with inescapable features of a lineup, and its demand for counsel was unconditional solely because of these unavoidably indwelling and peculiar circumstances. It did not pretend to outlaw, per se, those means of identification which are not fraught with these or like potential dangers.

Where, as here, the identification was preceded by photographs of a lineup which had been safeguarded by the surveillance of counsel, and consisted of a display of the photographs under conditions not embracing the apprehensions of a lineup, counsel was not adamantly required by Wade and Gilbert.

Although a non-lineup identification, conceivably, could in circumstances be vitiated by the absence of counsel, no imperilling circumstance is evident here. The criterion for this determination is expressed in Stovall v. Denno, supra, 388 U.S. 293, 302, 87 S.Ct. 1951, 1972, 18 L.Ed.2d 1178 where it is said:

"However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, * * *"

In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), while the accused did not assail the identification because of the lack of counsel, the Court upheld...