United States v. Ervin, 30442 Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 436 F.2d 1331
• Docket Number: No. 30442 Summary Calendar.,30442 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo Edward ERVIN, Jr., Defendant-Appellant.
• Decision Date: 18 February 1971

436 F.2d 1331 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo Edward ERVIN, Jr., Defendant-Appellant.

No. 30442 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 18, 1971.

Rehearing Denied February 18, 1971.

Glenn Zell, Atlanta, Ga. (Court-appointed) for defendant-appellant.

John W. Stokes, U. S. Atty., Allen L. Chancey, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Lorenzo Edward Ervin, Jr. was convicted by a jury of aircraft piracy in violation of 49 U.S.C.A. § 1472(i) (1963), and of kidnapping in violation of 18 U.S.C.A. § 1201 (1966). He was sentenced to concurrent terms of life imprisonment on each count. On this appeal defendant mounts a two-pronged procedural attack on his convictions — first, he claims that shortly before trial the United States Attorney displayed a photograph of an airport building which also showed several individuals, including the defendant, to a group of government witnesses who later made in-court identifications of the defendant, and that the display of this photograph voided these identifications for the reason that defendant's counsel was not present at the witness interview; and second, since the United States Attorney knew the identity of counsel then representing the defendants, his actions in exhibiting the picture to such witnesses in the absence of defense counsel was such reprehensible conduct as to require a reversal. We reject both issues and affirm the convictions.

The facts follow a notorious pattern that, unfortunately, is becoming common enough to require only the barest recital for an understanding of our decision here. A youthful passenger boarded an airliner at Atlanta, Georgia which was routinely bound for Miami, Florida. Shortly after take-off he forced a stewardess at pistol point to admit him to the flight cockpit where, on threat of death to all aboard the aircraft, he forced the crew of the plane to divert the flight to Havana, Cuba. He remained, gun in hand, in the close confines of the cockpit for approximately one and one-half hours in the presence of five of the witnesses who later identified him. He was also observed by passengers in the plane, both as he compelled the stewardess to take him to the flight cockpit and again as he left the airplane after it had landed in Havana. The photograph which forms the basis of his present objection was a candid shot taken by a passenger from an aircraft window as the terrorist was walking away from the airplane in the company of Cuban authorities at the Havana airport. It depicts a young Negro male walking at an angle turned slightly away from the direction in which the camera was pointed and at a distance which approximates one hundred feet. The photograph was one of seven such shots of the Havana, Cuba airport terminal which the photographer testified were taken within minutes of the time the hijacked plane landed there.¹

Ten witnesses made positive, unequivocal in-court identifications of the defendant as the hijacker. No objection was made by counsel for the defense to any of these in-court identifications at the time the testimony was developed during the government's case-in-chief. However, on cross-examination, nine of these defendants testified that one or two days before the trial the United States Attorney had showed them a small print of the snapshot detailed above which included the defendant, during the course of his discussions with him of their knowledge of facts surrounding the crime. One other witness, who was equally positive in her identification of the defendant as the air pirate, stated that she had never seen the photograph in question. She remembered and identified the defendant because of his abnormal behavior at the ticket gate, coupled with her recollection of a uniquely sharp clump of hair on the top of his head. One other witness among the first ten testified that the photograph has nothing to do with his ability to identify the defendant as his kidnapper; none of the other witnesses were queried about the effect which the photograph might have had on their ability to make their identifications. Seven of the identifying witnesses testified that, some 15 months before the trial and shortly after the hijacking they had selected the defendant's photograph from among six or eight full face photographs, all of different Negro males which had been exhibited to them by government agents within a few days after the hijacking incident and while the defendant was still out of the country.

When the government rested its case and its identification witnesses had been excused, counsel for the defendant, for the first time, moved to exclude all identification testimony on the grounds that the in-court identifications were preceded by an unfair lineup or photographic confrontation, specifically referring to the immediate pre-trial use of the subject picture and further pointing out that the defendant was the only Negro seated at the defense table in the court-room. The motion was overruled. The defendant then made an opening statement which included the following comments.

"After conferring with him we determined that the issue in this case and the real issue to be tried by a jury would be that of insanity.

* * * * * *

"Now, you have heard the case on behalf of the Government. There is no issue involved in this case as to whether or not this boy commandeered this airplane. You are not going to be called upon to decide that. The evidence is already overwhelming.

"The issue is one of the guilt or not guilt by reason of insanity, and the standard that I have just read to you is what we say the evidence will show on behalf of the defendant."

The defendant profferred no alibi testimony but instead concentrated on proof of emotional and mental instability. In closing argument, counsel for the defendant again made the theory of his case clear with these words:

"At the outset in this case our investigation revealed to us, after being appointed by the Court, substantially what the evidence in this case has shown. The issues are very sharply defined. It is somewhat unusual in that the issue, instead of being whether or not this man committed the acts charged in the indictment, whether he is guilty of air piracy and whether he is guilty of kidnapping, are, instead, whether, because of his mental condition, the lay term being `insanity\', he is legally responsible for those acts.

"I said at the outset that this, in our opinion, would be the real issue involved in this case. After hearing all of the evidence since Tuesday morning in this case I am more certain than ever that that is the only issue in the case."

Our affirmance is based upon three grounds.

I.

For pre-trial photographic display procedures to constitute reversible error, they must violate a two-part test laid down by the Supreme Court of the United States in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). First, the photographic display itself must be impermissibly suggestive. Second, it must give rise to a very substantial likelihood of irreparable misidentification. United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970).

The photograph here involved was certainly not a typical "mug shot." It was instead a film-preserved part of the res gestae showing the Havana, Cuba airport during the actual process of the accomplishment of this criminal...