United States v. Cook, LR-71-CR-114.

• Decision Date: 24 November 1971
• Docket Number: No. LR-71-CR-114.,LR-71-CR-114.
• Citation: 334 F. Supp. 771
• Parties: UNITED STATES of America, Plaintiff, v. Roscoe COOK, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

334 F. Supp. 771

UNITED STATES of America, Plaintiff, v. Roscoe COOK, Defendant.

No. LR-71-CR-114.

United States District Court, E. D. Arkansas, W. D.

November 24, 1971.

Richard M. Pence, Jr., Asst. U. S. Atty., Little Rock, Ark., for plaintiff.

Robert D. Smith III, Purcell & Smith, Little Rock, Ark., for defendant.

MEMORANDUM OPINION

EISELE, District Judge.

This is a criminal case in which the defendant Roscoe Cook was charged with possessing, uttering and publishing a stolen and forged Social Security check. The defendant, having waived a jury, was tried by the Court on October 28, 1971.

At the trial, two of the government's witnesses, Mr. K. Krikor and Mr. F. B. Hollis, made in-court identifications of the defendant. Mr. Krikor, the owner of the store where the stolen check was cashed, identified the defendant as the person who cashed the check. Mr. Hollis, a co-endorser on the check, identified the defendant as the person who requested his assistance in cashing the check. The defendant objected to the admissibility of these in-court identifications on the grounds that the pre-trial photographic identification procedure utilized by the government was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" tainting the in-court identification and requiring its exclusion. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1967). The Court reserved its ruling on the objection and indicated at the close of the trial that, should the Court rule that the in-court identifications were admissible, judgment of conviction would be entered. If, however, it concluded that it was necessary to exclude the identifications, the government would have failed to establish beyond a reasonable doubt the guilt of the defendant, and judgment of acquittal would be entered.

The facts concerning the pre-trial photographic identifications are relatively uncontradicted. On or about May 3, 1971, a stolen Social Security check was cashed at Krikor's Grocery Store. An investigation was initiated and approximately one month later Mr. Krikor and Mr. Hollis, then a possible suspect, were interviewed; however, no photographs were shown them at that time. Approximately four and one-half months after the cashing of the check, Mr. Krikor and Mr. Hollis were again interviewed separately, and this time two pictures of the defendant were shown to each of them and they both identified the pictures as being photographs of the person who cashed the check. No other pictures were shown the witnesses.

Mr. Krikor testified that he made a habit of carefully observing people who cashed checks in his store and that, independent of the pre-trial photographic identification, the defendant stood out in his mind because he had long, noticeably dyed, black hair at the time he cashed his check and because he was the only white man to cash a Social Security check at his store in several years. Mr. Krikor made, without hesitation, a positive in-court identification and never hedged on his position even under lengthy cross-examination. It should be noted that Mr. Krikor asserted that he was able to make the identification even though the person who cashed the check had long hair, dyed black, while the pictures represented a person with relatively short gray hair, and the defendant, at the time of the trial, had long gray hair.

Mr. Hollis also...