United States v. Hines

• Citation: 455 F.2d 1317,147 US App. DC 249
• Decision Date: 01 November 1971
• Docket Number: No. 23281,23391.,23281
• Parties: UNITED STATES of America v. William A. HINES, Appellant. UNITED STATES of America v. Theodore M. WARE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

147 US App. DC 249, 455 F.2d 1317 (1972)

UNITED STATES of America v. William A. HINES, Appellant.

UNITED STATES of America v. Theodore M. WARE, Appellant.

Nos. 23281, 23391.

United States Court of Appeals, District of Columbia Circuit.

Argued September 21, 1970.

Decided November 1, 1971.

As Amended February 3, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mr. Michael J. Valder (appointed by this court) for appellant in No. 23,281.

Mr. William A. Jackson (appointed by this court) for appellant in No. 23,391.

Mr. John O. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Thomas C. Green, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

Convicted by a jury of two counts of robbery (22 D.C.Code § 2901), on this appeal appellants each raise a series of claims dealing with their apprehensions by the police, the identification procedures used by the police, and the conduct of their trial. We have carefully examined each of these claims and find them without merit.

I

On December 18, 1967, at approximately 2:20 P.M., two armed men entered the office of a realty company in the downtown area of the District of Columbia. Present in the office at that time were the president of the company, Mr. Walshe; three employees, Mrs. Ricketson, Mrs. Boggs, and Mrs. Heelen; and a contractor for the company, Mr. Gateau. When the gunmen entered, the three employees were located at desks in the front of the main office area behind a counter which separated that area from the office's entrance. Mr. Walshe and Mr. Gateau had just finished a conversation in the rear office of the company and were entering the main office area. The first gunman walked around the counter into the main office area, pushing Mrs. Ricketson aside in order to approach Mr. Walshe and Mr. Gateau. He asked the two men where the company's money was kept, and, without waiting for an answer, ordered everyone to lie on the floor. When all five complied, he entered the rear office.

The second assailant ordered Mrs. Boggs to get off the floor and to open the safe. The first intruder then reentered the main office area, and pulled Mrs. Ricketson from the floor by her arm, instructing her to open a cash drawer which he had spotted under the counter. Mrs. Ricketson complied, placing the money located in the drawer in a paper bag which the robber had given her. The second gunman, who had been overseeing Mrs. Boggs' progress in opening the safe, left her side to force Mrs. Heelen from the floor in order that she might assist Mrs. Boggs. Apparently when Mrs. Boggs was left unattended at the safe, she had managed to trip a silent alarm. After a few more minutes, the safe was opened, and, as the two men were transferring money from the safe to a paper bag, a third man entered and announced the arrival of the police. All three men raced to the rear office where, through a rear window, they made a hasty exit to an alley, leaving behind the bags of money, a pistol, and several fingerprints. The robbery lasted approximately ten minutes.

Officer McFarland, the first policeman to arrive on the scene, entered the main office and was informed of the three men's exodus. He raced to the window in the rear office, viewed the three running down the alley, and climbed through the window in order to give chase. He was joined by Officer Frye. Both officers soon realized that the chase was futile and they returned to the scene of the crime, where investigation activities had been commenced by other officers.

A radio run was immediately sent out reporting the robbery. Officer Wilson first heard the report when he was traveling in his scout car approximately four blocks from the robbery scene. He immediately headed toward that location, and had traveled no further than two blocks when he observed two men running away from the robbery location and continuously glancing over their shoulders in that direction. At an intersection Officer Wilson managed to block the path of one of the men with his car, but the other continued his flight, eventually turning up a nearby alley. Before Wilson could say anything, the first man opened the front door of the scout car and entered it, closing the door behind him. When asked by Officer Wilson why he had voluntarily entered the car, he responded that "he was tired of running." When asked what he was running from, no answer was forthcoming.

With the assistance of a fellow officer who had arrived in his own scout car, the man was removed from the car, patted down, handcuffed, and returned to the car. Officer Wilson then drove to the realty company where, by this time, police officers had assembled.¹ Officer Wilson brought the handcuffed suspect into the main office area where four of the five witnesses, all standing behind the counter, immediately and simultaneously identified him as one of the robbers.² Approximately ten minutes had passed since the three robbers had fled the office.

Detective Lanigan, one of the officers who had reported to the robbery scene, immediately recognized the detained man as appellant Hines, an individual he had encountered as a suspect in many other criminal matters. In addition, Detective Lanigan had once arrested appellant Hines's brother, Edward, for a pickpocketing offense. Realizing that appellant Hines' residence was merely three blocks from the scene of the robbery, and upon learning that all three of the robbers had initially fled in that direction, Detective Lanigan decided to visit that address in order to interrogate Edward Hines. Lieutenant Wallace accompanied him on this mission.

Upon arriving at the Hines home, approximately twenty minutes after the commission of the robbery, they were met by Officer Frye, who had been waiting in a one-man scout car across the street from the residence in question. Officer Frye explained to Detective Lanigan that, after chasing the three robbers down the alley way, he had returned to the realty office to question the eyewitnesses. After receiving a partial description of the robbers, he began to cruise the area in his scout car. Eventually his attention was drawn to a Negro male wearing a black raincoat who appeared to meet the general description of one of the robbers.³ He watched the suspect enter the front yard of a residence, engage in a conversation with an older woman, glance over his back at the scout car, and then enter the home. Officer Frye said that he was about to radio for help when Lanigan and Wallace arrived. Detective Lanigan told Frye of the arrest of appellant Hines and his suspicion that Hines was involved, and that the house into which Officer Frye had seen the suspect enter was the Hines residence.

The officers then approached the house. Appellant Hines' mother, the older woman Officer Frye had previously described, answered the door. Lieutenant Wallace identified himself to Mrs. Hines and informed her that they were interested in talking to the man who had just entered the house. Mrs. Hines allowed the police officers to enter. Detective Lanigan observed a man at the top of the staircase place a black raincoat on a bannister and then descend the staircase. Lanigan, realizing this individual was not Edward Hines, asked the suspect for his name. He refused to answer, was placed under arrest, and was later identified as appellant Ware. Mrs. Hines also informed the officers that no other person was in the house at that time.

At 6:30 P.M., that same day, a lineup was conducted at police headquarters with a lawyer from Legal Aid present. The lineup consisted of four police officers, including Officer Wilson, and appellants. Three witnesses separately viewed the lineup, which was rearranged after it had been seen by the first of the three witnesses, Mrs. Ricketson. Both Mr. Walshe and Mr. Gateau recognized appellant Hines, while Mrs. Ricketson and Mr. Gateau identified appellant Ware.⁴ Mrs. Ricketson later explained at the suppression hearing that she did not identify appellant Hines because she believed that she was only to identify the suspect who had not been returned to the scene of the crime—an explanation confirmed by Sergeant Reilly, who was in charge of the lineup, at the suppression hearing. Mrs. Heelen was seriously shaken by the robbery incident and Mrs. Boggs had stayed at the realty office to assist her. In any event, at that time the police were under the impression that neither of these women could make an identification.

Prior to the lineup, one color photograph was taken of each appellant separately, and one of the two together. A photograph was also taken of the lineup as seen by Mrs. Ricketson, the first eyewitness to view it. Subsequently the police displayed these pictures to each of the witnesses in preparation for their testimony at various pretrial hearings. Mr. Walshe viewed the individual colored photographs prior to the suppression hearing, which was held nine and onehalf months after the commission of the robbery. Mr. Gateau viewed both the individual pictures and the lineup photograph prior to the grand jury hearing, which was held less than a month after the robbery; and he saw the lineup photographs two or three times prior to his testimony at the suppression hearing. Mrs. Ricketson also viewed the individual photographs prior to her grand jury testimony and prior to the evidentiary hearing, and she testified at trial that she had viewed the photograph of the lineup approximately five or six times throughout the course of the various proceedings. Mrs. Boggs was shown individual pictures prior to testifying before the grand jury. At that time, she reported to the police that she volunteered to serve as an identifying witness before the grand jury.

At the suppression hearing appellants attacked the validity of their arrest and the...