United States v. Henderson

• Decision Date: 17 December 1973
• Docket Number: No. 72-2363 Summary Calendar.,72-2363 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John C. HENDERSON and Terry Harry Nelson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 802 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. John C. HENDERSON and Terry Harry Nelson, Defendants-Appellants.

No. 72-2363 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

December 17, 1973.

Ian F. Gaston, Mobile, Ala., (Court-Appointed) for Henderson.

Donald M. Briskman, Mobile, Ala., (Court-Appointed), for Nelson.

Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

WISDOM, Circuit Judge:

John C. Henderson and Terry H. Nelson bring separate appeals from their convictions at a joint trial of robbing a federally insured bank, in violation of 18 U.S.C. § 2113(d). Henderson advances four grounds for the reversal of his conviction; Nelson asserts two. We affirm both convictions.

The Bank of Brewton in Brewton, Alabama, was robbed on June 8, 1971. At the time of the robbery, the only persons in the bank were Mrs. Bernie May Benton, the Acting Manager of the Bank, and Mrs. Verdi Adkisson, a teller. According to the testimony of both women, two men armed with pistols entered the bank at about 12:13 p. m. on June 8. One of the men stood guard by a big window near the front door, underneath the bank camera; the other went to the teller's cages behind the counter, going first to the one where Mrs. Benton stood, then to the one between that cage and the cage where Mrs. Adkisson stood, and then to Mrs. Adkisson's cage. At each cage this man either took the cash in the drawers himself, or forced the women in the cages to take the money out of the drawers and to stuff it into a bag he was carrying. When Mrs. Adkisson was taking money out of one of the drawers at her cage, she activated the bank camera, which then took a short movie of the remaining moments of the robbery. After he had finished collecting the money, the robber behind the counter forced the two women into the vault of the bank, where he told them to remain until three minutes had elapsed. The entire robbery, according to the testimony of both women, lasted only four to six minutes. An audit of the bank revealed that the robbers had taken about $20,000 from the Bank.

After the robbery, thhe FBI and the Brewton police used photographic identification procedures to identify the robbers. On the day of the robbery, FBI agents showed both Mrs. Benton and Mrs. Adkisson about one hundred photographs of persons suspected of bank robbery by the FBI. The photographs did not include a picture of either defendant, and neither Mrs. Benton nor Mrs. Adkisson identified either defendant from those photographs. Shortly after the robbery, both women were shown the movie taken by the bank camera. The film was of extremely poor quality, however, and did not aid the women or the law enforcement officers in identifying the criminals. Within a week after the robbery, the Brewton police showed both Mrs. Adkisson and Mrs. Benton a second photographic spread. This spread consisted of about 10 photographs. Again, pictures of the defendants were not included in this spread, and neither of the women identified the robbers from the spread.

On June 19 Mrs. Benton and Mrs. Adkisson identified the defendants from a third photographic spread. On that day, both women were asked to come to police headquarters in Brewton, where FBI agents showed each of them two stacks consisting of six or seven photographs each. Pictures of Nelson and of Henderson were included in these stacks; and both women identified the two as the men who had robbed the bank on June 8. The FBI agents did not tell Mrs. Benton that they had any suspects, and did not indicate to her in any way that they thought the spread included pictures of men they suspected. Mrs. Adkisson apparently had been told that the police had suspects in the case; she was not, however, told when she was shown the spread that it included pictures of the men the police suspected.

At a preliminary hearing held June 25, 1971, the two women identified the two men in person. In the time since the women had first identified the men, photographs of Nelson and Henderson had appeared in the local paper and in the Mobile Press Register identifying them as the men suspected of the Brewton robbery. Both women admitted at trial that they had seen those pictures before the June 25 hearing. At the hearing, both Henderson and Nelson were wearing T-shirts. They were the only two men in the room so attired; all the other men were wearing coats and ties. Mrs. Benton positively identified both Nelson and Henderson as the two bank robbers. Mrs. Adkisson positively identified Nelson. She was not positive about Henderson, but thought that he was one of the two.

At trial both women positively identified both Henderson and Nelson as the bank robbers. The trial judge held a hearing out of the presence of the jury to inquire into the circumstances of Mrs. Adkisson's identification of the defendants. At that hearing, and later before the jury, Mrs. Adkisson testified that her failure to identify Henderson positively at the hearing had been the result of the fact that the defendant's hair had been darker on the day of the preliminary hearing than it had been on the day of the robbery; she said that by the time of the trial its color had been changed back to the color it had been at the robbery. Neither defendant requested an in camera hearing to inquire into the circumstances of Mrs. Benton's identification of the defendants, and therefore no such hearing was held.

The principal point raised by both appellants concerns the propriety of the identification procedures followed by the FBI and the Brewton police. Under Simmons v. United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, and the cases following Simmons decided by this Court, e. g., United States v. Sutherland, 5 Cir. 1970, 428 F.2d 1152; United States v. Hughes, 5 Cir. 1969, 418 F.2d 1222; United States v. Rogers, 5 Cir. 1972, 455 F.2d 407, the standard for determining whether identification evidence is admissible is whether the police procedures used in obtaining the identification were "so impermissibly suggestive as to create a substantial risk of misidentification". Both defendants argue that that standard was met in this case.

We cannot agree. Under our ...