United States v. Gholston

• Decision Date: 06 January 1971
• Docket Number: No. 20329.,20329.
• Citation: 437 F.2d 260
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James GHOLSTON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

437 F.2d 260 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. James GHOLSTON, Jr., Defendant-Appellant.

No. 20329.

United States Court of Appeals, Sixth Circuit.

January 6, 1971.

George E. Lee, Detroit, Mich., for defendant-appellant.

Frederick S. Van Tiem, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee; James H. Brickley, U. S. Atty., Detroit, Mich., on brief.

Before CELEBREZZE, PECK and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

This appeal is from the United States District Court for the Eastern District of Michigan, Southern Division. Appellant was convicted by a jury of armed robberies of two branches of federally-insured banks in the vicinity of Detroit, Michigan. 18 U.S.C. § 2113(a) and (d) (1964). The principal issue on appeal is whether the District Court committed error in excluding testimony of the Appellant's defense counsel to the effect that he was present at a pre-trial line-up where Appellant was positively identified by four eyewitnesses to the robberies, but that other persons present at the line-up did not positively identify Appellant.

The Government established the Appellant's guilt by overwhelming evidence: five eyewitnesses, two employees of one bank branch and three of the other, positively identified a photograph of the Appellant out of a stack of six photographs of six persons that was shown to them during the preliminary police investigation of the case; four of the five subsequently positively identified Appellant in a line-up of six individuals, the fifth eyewitness giving a "possible but not positive" identification; each of the five eyewitnesses made an in court identification of Appellant. A sixth witness called by the Government testified that he did not have an opportunity to notice the facial features of the robber before he was forced to lie, face down, on the floor.

Appellant was not called to testify, and presented no direct proof. The record reveals that the theory of the defense initially was to attack the police procedures employed in the process of adducing the eyewitness identifications, see, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); then, the first device failing, attempting, before the jury, to impeach the testimony of the five eyewitnesses who positively identified the Appellant as the robber.

Upon an intensive study of the entire transcript of testimony before the District Court, including an exhaustive in camera, voir dire examination by the Court and counsel of all eyewitnesses who were called to testify, we find no evidence that at any stage of the police investigation the Appellant was "suggested," either directly or indirectly to any of the witnesses as the one who committed the act. There is no evidence that the Appellant's features differed, in a significant way, from the physical characteristics of other persons whose photographs were shown to the witnesses, or from the other five persons who appeared in the police line-up with him. Nor is there evidence that the timing between the showing of the photographs and the line-up, or between the line-up and the positive identifications in court "impermissibly suggested" to the witnesses that the Appellant was the robber.

On the contrary, although approximately one year elapsed between the time of the robberies and the time the identifications were made, and although the Appellant's features were partially concealed in each of the robberies, once with charcoal or some other black substance, and once with a "whitish" substance, each of the five eyewitnesses testified that enough of the Appellant's physical features were visible so that he or she was absolutely positive of the identification made.

Upon review of the record in its entirety, we are unable to find anything to substantiate the Appellant's argument that the police procedures used were "impermissibly suggestive" of the Appellant, and we hold that the credibility of the identifications made by the eyewitnesses was properly placed, as a question of fact, before the jury, whose judgment was supported by sufficient, indeed overwhelming, evidence. See Simmons v. United States, 390 U.S. 377, 382-383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

The Appellant's third witness was one of his attorneys, who withdrew as counsel immediately preceding his offer of testimony, who had been present at the police line-up where the Appellant was identified. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). He offered testimony to the effect that although five eyewitnesses identified the Appellant at the line-up, other persons present at the line-up did not identify the Appellant. Upon objection, the District Court ordered this testimony excluded. The Government argues that testimony to the effect that certain witnesses at the line-up stated that they did not recognize the Appellant is inadmissible hearsay testimony; the Appellant argues that such testimony would not be offered to prove the truth or falsity of the non-identifying witnesses' out-of-court statements, but rather solely for the purpose of impeaching the credibility of the identifying witnesses' testimony. Thus, he argues, it would not be hearsay. Furthermore, the Appellant argues that United States v. Wade, supra, which requires presence of counsel at pre-trial line-ups, by implication requires that a lawyer who was present be...