United States v. O'CONNOR

• Decision Date: 09 April 1968
• Docket Number: Crim. No. 382-66.
• Citation: 282 F. Supp. 963
• Parties: UNITED STATES of America v. Benjamin O'CONNOR.
• Court: U.S. District Court — District of Columbia

282 F. Supp. 963

UNITED STATES of America v. Benjamin O'CONNOR.

Crim. No. 382-66.

United States District Court District of Columbia.

April 9, 1968.

Theodore Wieseman, Asst. U. S. Atty., Washington, D. C., for the United States.

Alvin D. Edelson, Washington, D. C., for defendant.

MEMORANDUM

GASCH, District Judge.

This indictment is the result of an attempted robbery at the Argo Market, 434 Shepherd Street, N. W., in the District of Columbia on or about January 20, 1966. Defendant is charged with Assault with Intent to Commit Robbery, Assault with a Dangerous Weapon, and Carrying a Dangerous Weapon. When the case was called for trial, the Court inquired of counsel whether there were any preliminary matters that should be heard out of the presence of the jury. It appearing at that time that the complaining witness, Theodore Perper, and another eyewitness, James Johnson, had viewed the defendant for purposes of identification some 19 hours after the offense, the Court held hearings out of the presence of the jury to determine the admissibility of the proffered in-court identification of defendant by these two witnesses.

The opinion of the Supreme Court in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (June 12, 1967) directed new attention to the proposition that a pretrial confrontation between witness and defendant may be "so unnecessarily suggestive and conducive to irreparable mistaken identification"¹ as to amount to a denial of due process of law. Stovall, United States v. Wade,² and Gilbert v. California,³ all published on the same day, comprise a trilogy which indicates the concern of the Supreme Court over "line-up" and "show-up" procedures that might lead to mistaken identification of a suspect by a witness who is prejudicially amenable to the power of suggestion. Wade and Gilbert establish a right to counsel at pretrial confrontations and although the extent of this right in particular circumstances has yet to be authoritatively determined, it is clear that these two cases do not have retroactive application.⁴ There is no question of the retroactivity of Part II of Stovall, however, for the due process concept there enunciated is an integral part of our criminal jurisprudence. The impact of Stovall, therefore, has manifested itself not in the creation of new law, but rather in a re-evaluation of traditional due process concepts with a view toward contemporary law enforcement practices.

The main theme of the Stovall decision concerned the possible unfairness of a procedure by which a witness is confronted with one suspect rather than being asked to identify one individual from a number of possibilities. It is clear that this possibility of unfairness potentially amounting to a denial of due process must be examined in the context of the totality of the circumstances surrounding the challenged confrontation.⁵

Since the Stovall decision, this jurisdiction has had the benefit of two appellate opinions on the issue, Wise v. United States, 383 F.2d 206 (1967), and Wright v. United States, supra, note 4. The first of these cases, Wise, established the proposition that where the confrontation occurs proximate to the scene and time of the offense as well as the arrest, and in the absence of other aggravating factors which might increase the possibility of a mistaken identification, presentation of a single suspect to a witness for purposes of identification does not "diverge from the rudiments of fair play that govern the due balance of pertinent interests that suspects be treated fairly while the state pursues its responsibility of apprehending criminals."⁶Wright involved a confrontation between witness and suspect at a police station. Speaking for the majority, Judge Robinson refused to rule on the merits of the Stovall challenge without amplification of the record as to pertinent facts. In remanding the case, however, the majority indicated the particular nature of some of the missing data.⁷ Therefore, with these cases in mind, the Court concluded that the following factors are relevant in determining whether a pretrial confrontation between a suspect and the identifying witnesses was "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law."⁸

1. Was the defendant the only individual that could possibly be identified as the guilty party by the complaining witness, or were there others near him at the time of the confrontation so as to negate the assertion that he was shown alone to the witness?

2. Where did the confrontation take place?⁹

3. Were there any compelling reasons for a prompt confrontation so as to deprive the police of the opportunity of securing other similar individuals for the purpose of holding a line-up?¹⁰

4. Was the witness aware of any observation by another or other evidence indicating the guilt of the suspect at the time of the confrontation?

5. Were any tangible objects related to the offense placed before the witness that would encourage identification?¹¹

6. Was the witness' identification based on only part of the suspect's total personality?¹²

7. Was the identification a product of mutual reinforcement of opinion among witnesses simultaneously viewing defendant?

8. Was the emotional state of the witness such as to preclude objective identification?

9. Were any statements made to the witness prior to the confrontation indicating to him that the police were sure of the suspect's guilt?

10. Was the witness' observation of the offender so limited as to render him particularly amenable to suggestion, or was his observation and recollection of the offender so clear as to insulate him from a tendency to identify on a less than positive basis?

Other factors will also be significant in a particular case.

Before proceeding to an evaluation of these factors in the context of the present case, it might be well to note that the decision on the due process issue does not necessarily resolve the question of whether witnesses who have viewed the defendant at a pretrial confrontation should be allowed to identify the defendant in court at the trial. If the circumstances of the confrontation do not amount to a denial of due process, of course, that question is answered in the affirmative. If, on the other hand, the confrontation has been so unfair as to amount to a denial of due process, the Government has the opportunity of establishing by clear and convincing evidence that the proffered in-court identification of the defendant by the witness has an origin independent of the witness' observations during the challenged confrontation.¹³

Generally, this independent origin will be the observations of the witness during the commission of the offense itself. If the Government is able to meet this burden, then the witness should be allowed to identify the defendant in court at trial regardless of the improper confrontation following arrest. Of course, if the witness had seen the accused on prior occasions or if he were acquainted with the accused, testimony concerning identification at the time the offense was committed would be reinforced.

Factors in this latter determination include the opportunity of the witness to observe the offender at the scene of the crime and his demonstration of the reliability of that observation by giving a fairly accurate description of the offender prior to the challenged confrontation. It is difficult to probe the mind of the witness in this regard, but speculation on the issue is precluded by the "clear and convincing evidence" standard. Further, the initial decision is within the discretion of the trial court which has the unique opportunity to get the "feel" of the case and to evaluate the witnesses. Of course, the ultimate decision as to whether the Government has proved identity beyond a reasonable doubt is for the jury.

With these criteria in mind, the Court first heard the testimony of the complaining witness, Theodore Perper. Mr. Perper testified that on the morning of January 20, 1966, he was accosted by a man with a gun who jumped upon a counter in his place of business. Seeing Mr. Perper's dog, the man fled. Within a few minutes after this incident, Mr. Perper described the man to police as 5'7' to 5'9", of medium brown com-5'-7" to 5'-9", of medium build, with a plexion and medium build, with a "blotchy" skin appearance, and wearing a brown felt hat and a beige raincoat. He further testified that although his assailant wore a woman's transparent stocking over the upper part of his face, his features were visible through the mask.

At approximately 4:00 A.M. on the morning of the 21st, some 18 hours after the attempted robbery, Mr. Perper was called by the Metropolitan Police and asked to come to Headquarters to see if he could identify one of two suspects. Some time later, the defendant and his uncle, who had been arrested in a vehicle similar to one seen in suspicious circumstances near the scene and at about the time of the offense and bearing...