United States v. Gornick

• Decision Date: 12 October 1971
• Docket Number: No. 18671.,18671.
• Citation: 448 F.2d 566
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James GORNICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

448 F.2d 566 (1971)

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

No. 18671.

United States Court of Appeals, Seventh Circuit.

June 9, 1971.

Certiorari Denied October 12, 1971.

Charles O. Brizius, Chicago, Ill., for defendant-appellant.

William J. Bauer, U. S. Atty., Richard J. Ciecka, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.

Before HASTINGS, Senior Circuit Judge, and KILEY and FAIRCHILD, Circuit Judges.

Certiorari Denied October 12, 1971. See 92 S.Ct. 161.

HASTINGS, Senior Circuit Judge.

Defendant James Gornick was charged in a one-count indictment¹ with the armed robbery of the First National Bank of Dundee, Illinois on August 8, 1969, in violation of Title 18, U.S.C.A. § 2113(a) and (d). He has been represented at all times by court-appointed counsel. Following a trial by jury and verdict of guilty, judgment was entered thereon and defendant was ordered committed to the custody of the Attorney General for a period of fifteen years, to run concurrently with the balance of a sentence remaining for which defendant was then on parole. Defendant appeals. We affirm.

On appeal, defendant charges a number of procedural errors relating to the alleged prejudicial denial of certain pretrial and in-trial petitions and motions as requiring reversal and remandment for a new trial.

Viewing the evidence in the light most favorable to the Government, as we must do, the basic facts of the bank robbery are simple and uncontroverted. The First National Bank of Dundee, Illinois, at East Dundee, was robbed by a lone armed bandit on Friday, August 8, 1969, at about 12:45 p. m. The bank robber fled with $8,834.00 in money from federally insured deposits belonging to the bank.

At the time of the robbery, Raymond Beu, the bank president, was seated at his desk. He felt something against his left shoulder, turned and saw a dark tan-complexioned man wearing a billed hat, sunglasses, and holding a golden-colored florist's box. This man handed Beu a white flour sack. When Beu did nothing, the robber withdrew a single-barreled shotgun from the florist's box. As Beu arose from his chair, he looked through the robber's sunglasses into his eyes, viewing him squarely in the face. The robber told Beu, "Come on, come on, I'll use it."

Beu walked to the employees' side of the bank tellers' stations. He placed money from the first three stations into the flour sack handed him by the robber, who was then standing in the lobby about 15 feet from Beu and two bank tellers. The teller at station one was in a back room and did not witness the robbery. As Beu was obtaining money from the third teller station, the robber said, "Hurry up, hurry up, throw it." Beu then threw the bag of money over the counter to the robber who fled from the bank. Beu ran to the front door of the bank and saw the robber drive away in what appeared to be a tan 1960 Chevrolet Impala, with no license plate on the rear.

Barbara McMillen and Lauren Abig, bank tellers at stations two and three, respectively, corroborated Beu's narration of the conduct of the robber while he was inside the bank. All three described the robber as approximately 5' 10" tall, about 160-180 pounds, heavily suntanned, in his middle thirties, wearing a green shirt and trousers, a brown or tan hat with a brim or bill, sunglasses, and carrying a large golden-colored florist's box. On August 8-9, 1969, following Gornick's arrest, the FBI obtained the following description of him: 5' 10", 160 pounds, ruddy complexion, suntan and 38 years of age.

The money taken from the bank was never recovered, and the shotgun, florist box or clothing used by the robber were never found.

About 3:30 p. m. on the afternoon of the bank robbery, FBI Agent Carr was in a cornfield at the southeast corner of the intersection of Healy Road and Penny Road in the Barrington Hills area, three miles from the robbed bank. He saw a 1961 brown four-door Chevrolet, which was burning. When the flames were extinguished, the inside of the car was completely gutted. He obtained the following vehicle identification number from it: 11839J88882. About thirty minutes later, Beu was taken by FBI agents to a gas-service station in East Dundee where this burned vehicle had been towed. Beu identified this vehicle as being the same car the robber used.

At the trial, with defendant Gornick present in the courtroom, Beu, McMillen and Abig each made a positive identification of Gornick as the man who robbed the bank in their presence on August 8, 1969.

The trial court denied a number of pretrial motions to suppress evidence and for certain affirmative relief.

I

The first question presented was whether defendant was denied due process by allowing witnesses to make incourt identifications of him following certain pretrial photographic identifications. In the hearing on the motion to suppress, the following was established.

In 1957, defendant Gornick was sentenced to fifteen years in prison for robbing the same bank in East Dundee. When the August 8, 1969 robbery occurred, twelve years later, Beu was under the impression that Gornick was still in prison and did not know he had been released in the spring of 1969. On Saturday morning, August 9, 1969, the day after the bank robbery, Beu was listening to an early radio newscast and learned for the first time that a man named Gornick had been arrested as a suspect in the bank robbery.

Earlier that Saturday morning, about 1:00 a. m., after the robbery, the two tellers McMillen and Abig, were shown a series of photographs at the Dundee police station by FBI Agent Lang, including a photograph of Gornick taken on April 2, 1969 prior to Gornick's release from prison. Neither witness was able to identify the bank robber from among these photographs. A later comparison between that pre-release photograph and one taken of Gornick the night of his arrest revealed substantial changes in his facial characteristics.

At 9:00 a. m. that Saturday morning, Beu displayed a 1957 newspaper photograph of Gornick to McMillen and Abig about two minutes before the bank opened and while they were getting their cages ready. He said this was a photograph of the man who robbed the bank yesterday and that his name was Gornick. Neither teller recognized the bank robber from that photograph nor did they read the accompanying newspaper article.

Between 10:30 and 11:00 a. m. that morning, FBI Agent Kaszmarek displayed a spread of six photographs to McMillen and Abig separately. The spread included a photograph of Gornick taken after his arrest some hours before. The two tellers had not then seen any newspaper accounts of the bank robbery or photographs taken of Gornick after the 1969 robbery, only the 1957 newspaper photograph exhibited to them earlier by Beu. After viewing the spread of six photos, McMillen said the picture of Gornick "strongly resembled the bank robber," and Abig said of the photo of Gornick: "This man is the man that was in the bank that held the bank up yesterday."

Three days later, August 12, 1969, FBI Agent Hall exhibited a spread of six photographs to Beu from which he selected the photograph of Gornick, taken after his arrest, as being a photo of the bank robber. He had already seen newspaper photos of Gornick but said he was not influenced by them.

Defendant's counsel was allowed a wide latitude of cross-examination of Beu, McMillen and Abig at the hearing on the motion to suppress, as well as of the FBI agents who testified.

In determining the propriety of these pretrial photographic identification practices, the Supreme Court gave its approval and laid down the appropriate guidelines in Simmons v. United States, 390 U.S. 377 at page 384, 88 S.Ct. 967 at page 971, 19 L.Ed.2d 1247 (1968), where it said:

"We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302. 87 S.Ct. 1967, 1972-1973, 18 L.Ed.2d 1199. * * *"

We have fully examined the transcript of the testimony relative to the validity of the pretrial photographic identification before us here. Without belaboring this opinion with a further detailed evidentiary recital or comparison, we find the factual situation present here to be stronger in support of the trial court's ruling than in Simmons. Likewise, we have examined the photographs introduced and made a part of the record.

The defendant had denied committing the robbery but was unable to satisfactorily account for his activities the day of the crime. None of the fruits of the crime had been found. Other items of circumstantial evidence which strongly pointed to defendant had not been developed at the time the FBI exhibited the spread of photographs. Under all the attendant circumstances we conclude that the photographic identification was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification as determined by Simmons, supra. There was no denial of due process to defendant in the resulting in-court identification by the witnesses at trial. United State v. Cox, 7 Cir., 428 F.2d 683, 686-687 (1970), cert. denied, 400 U.S. 881, 91 S.Ct. 127, 27 L.Ed.2d 120. Cf., United States v. Broadhead, 7 Cir., 413 F.2d 1351, 1359 (1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 581, 24 L.Ed.2d 508.

In light of our conclusion that defendant's in-c...