United States v. Hopkins

• Citation: 464 F.2d 816,150 US App. DC 307
• Decision Date: 22 June 1972
• Docket Number: No. 71-1266.,71-1266.
• Parties: UNITED STATES of America v. John Mack HOPKINS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

150 US App. DC 307, 464 F.2d 816 (1972)

UNITED STATES of America v. John Mack HOPKINS, Appellant.

No. 71-1266.

United States Court of Appeals, District of Columbia Circuit.

Argued April 14, 1972.

Decided June 22, 1972.

Rehearing Denied August 30, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. Paul M. Craig, Jr., Washington, D. C. (appointed by this court), for appellant.

Mr. Richard L. Cys, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and James L. Lyons, Asst. U. S. Attys., were on the brief, for appellee. Mr. Harold H. Titus, Jr., present U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and FRANK A. KAUFMAN,^* U. S. District Judge for the District of Maryland.

DANAHER, Senior Circuit Judge:

After a jury trial this appellant and his brother, William W. Hopkins, Jr.,¹ were found guilty on January 14, 1971 of various charges arising from the holdup of the McLachlen National Bank on December 15, 1969. Appellant was sentenced to concurrent terms of 4 to 12 years for entering a bank with intent to commit robbery, 18 U.S.C. § 2113(a); 4 to 12 years for armed robbery, 22 D.C. Code § 2901, § 3202; and 3 to 10 years for assault with a dangerous weapon, 22 D.C.Code § 502. This appeal followed.

Some appreciation of the flavor of the case may be gleaned from appellant's brief where he tells us:

Appellant never denied his presence in the bank at the time of the robbery but maintains that he was not connected and did not participate in the robbery. He took no part in the robbery itself, carried no weapon, made no threatening gestures and in fact did nothing which tied him to the crime except his presence and his relationship to the other co-defendant who happened to be his brother and whose defense was mistaken identity.²

Appellant otherwise on brief, conceding that he was physically present in the lobby of the bank as the robbery progressed, nevertheless has insisted that he "did not do anything" and that he was "merely standing in the middle of the bank lobby during the robbery." But, when his brother, brandishing a revolver vaulted over the bank counter, tellers activated the bank's automatic cameras which photographed the scene. When the negatives were developed, the appellant was depicted standing before the tellers' windows with his hand in his right-hand pocket so extended as to indicate his possession of a gun.³ In his other hand he held a bag. Bank tellers and a customer were crouched down but not the appellant.⁴ One customer, Mrs. Rodwell, testified that after William Hopkins had snatched some $2,500 from the two cash drawers, she heard this appellant say to William, "That's enough, man. Let's go." Thereupon William followed by the appellant left the bank by a side door.

Without our developing yet other details in this respect, we may add that Mrs. Rodwell before entering the bank had seen the appellant and his brother conversing outside of the bank. The appellant was wearing green trousers and a black three-quarter length fur coat. A bank supervisor, one Nader, found himself confronted by William Hopkins who pointed a gun at him. Nader noticed the appellant some fifteen feet away. To the police Nader described the appellant as being some five feet, three or four inches tall, weighing some 140 pounds, and then wearing bright green trousers and a three-quarter length black coat.

It seems obvious enough that the jury fairly concluded that the two men were acting in concert, their purpose was to execute a robbery which actually occurred, and that this appellant served as a lookout, even to the point of covering their joint escape.

The evidence must be viewed in the light most favorable to the Government, both as to its truth and as to all legitimate inferences to be drawn therefrom.⁵ Here surely a jury question was presented.

Even as we thus dispose of appellant's insistence that he did "nothing," we next turn to yet other points raised by counsel appointed to prosecute this appeal.

I

Appellant has argued that his pre-trial motion for severance should have been granted, but clearly, under Rule 8, Fed.R.Crim.P., a joinder of the offenses was entirely proper, and so both accused were correctly charged in the same indictment which alleged they had participated in the same act or transaction. A ruling⁶ denying severance is not to be disturbed on appeal unless clear abuse of the judge's discretion can be shown. United States v. Wilson, 140 U.S.App.D.C. 220, 226, 434 F.2d 494, 500 (1970); Brown v. United States, 126 U. S.App.D.C. 134, 139, 375 F.2d 310, 315 (1966), cert. denied 388 U.S. 915, 87 S. Ct. 2133, 18 L.Ed.2d 1359 (1967); Rhone v. United States, 125 U.S.App.D.C. 47, 365 F.2d 980 (1966); Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954).

Judge Edgerton succinctly summed up the applicable principles in Dykes v. United States, 114 U.S.App.D.C. 189, 190, 313 F.2d 580, 581 (1962), cert. denied 374 U.S. 837, 83 S.Ct. 1889, 10 L. Ed.2d 1059 (1963). That one defendant might have a better chance of acquittal if tried separately does not establish his right to a severance.

We find no error in the denial of the appellant's motion for severance, as no Rule 14 prejudice has been shown.

II

The District Court conducted a pretrial hearing concerning identification procedures, ruling thereafter that the various procedures were proper, and that in any event an independent source existed for a courtroom identification by Nader.

After one of the tellers had cried out when confronted by William Hopkins brandishing a gun, Nader came to the tellers' area and William waved the gun at him. As the two accused left the bank, Nader followed them, only to lose sight of them as they turned a street corner. Presently re-sighting this appellant as he entered a store, Nader shadowed the appellant but lost sight of him while seeking a police officer. Returning to the street, he saw the appellant for a third time, and approached him as the fugitive halted at a store window. He noted the appellant's size, build, three-quarter length black coat and bright green trousers and at times had a clear view of the appellant's face.

That same evening, at the FBI laboratory, the pictures taken by the automatic cameras in the bank were displayed. Without conversation with other witnesses or officers, Nader announced, "That's one of them" upon viewing the appellant's picture.

Nader again identified this appellant at a line-up attended by Nader and three other bank employees. At the hearing, Nader testified he could have identified the robbers at the line-up even if he never had seen the bank pictures. The appellant conceded, on brief, that only the testimony of Mrs. Rodwell and that of Nader was of "any significance to appellant's case since none of the other witnesses identified appellant or gave any testimony with respect to him."

Nader's instantaneous recognition of the appellant's photographs at the FBI laboratory was clearly related not only to the appellant's presence in the bank but to the pursuit conducted by Nader as he followed this appellant for some ten minutes in and around a local store while vainly seeking police help.

The appellant complains that the viewing of the photographs at the laboratory was improper since Nader and three other bank employees viewed the display "as a group."⁷

Under all of the circumstances the trial judge found nothing impermissibly suggestive in Nader's identification of the appellant. We find no evidence that the identification procedures here involved were so unduly prejudicial as fatally to taint this appellant's conviction. We find lacking such circumstances as might have given rise to "a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). See also United States v. Ervin, 436 F.2d 1331 (5 Cir. 1971), where, during aircraft piracy, a passenger had taken a photograph of the accused. The court said that the snapshot was not suggestive at all, it suggested no "possibilities" for it showed facts.

Here the bank's cameras were taking frames of every step involved in the perpetration of the robbery. It was stipulated by the defendant that photographic Exhibits 3A through 3L depicted this appellant. Appellant's trial counsel in argument to the jury stated, in part:

Ladies and gentlemen, let me make it clear to you and very clear to you that there is no dispute, no dispute here but that the person depicted in Government Exhibits 3A through 3L are pictures of the defendant John Hopkins.

Nader's pre-arrest identification at the laboratory coincided with the pre-arrest details supplied by Mrs. Rodwell. At trial she made no identification during direct examination. On cross-examination, defense counsel brought out that she had not identified the appellant at a line-up. Thereafter on re-direct examination, without objection, she made an in-court identification of this appellant. The argument by defense counsel makes it clear beyond peradventure that there was no semblance of irreparable misidentification.⁸ We find no error respecting the identification procedures here utilized.⁹

III

Appellant has contended that unlawfully he had been denied his right to a speedy trial. We have been over this ground so often that expansive treatment is unnecessary. Compendious reference to the record will provide appropriate background for our rejection of this claim.

This appellant was arrested on December 19, 1969; was accorded a preliminary hearing December 29, 1969; was indicted February 10, 1970 and arraigned March 4, 1970. Thereafter from time to time over the next seven months, there were filed assorted defense motions requiring attention by the District Court down to October 28, 1970, when the defense first moved for a speedy trial. With the Government announcing...