United States v. Hutto

• Decision Date: 21 March 1968
• Docket Number: No. 11791.,11791.
• Citation: 393 F.2d 783
• Parties: UNITED STATES of America, Appellee, v. Charlie Vernon HUTTO, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

393 F.2d 783 (1968)

UNITED STATES of America, Appellee, v. Charlie Vernon HUTTO, Appellant.

No. 11791.

United States Court of Appeals Fourth Circuit.

Argued March 4, 1968.

Decided March 21, 1968.

Arthur C. Ermlich, Norfolk, Va. (Court-appointed counsel) Amato, Babalas, Breit, Cohen, Rutter & Friedman, Norfolk, Va., on brief, for appellant.

Roger T. Williams, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.

Before SOBELOFF and BOREMAN, Circuit Judges, and RUSSELL, District Judge.

SOBELOFF, Circuit Judge:

On this appeal we consider the claim tendered by appellant that the police lineup procedure used in identifying him violated his constitutional rights.

Had the Supreme Court not held in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), that the rule enunciated in Wade¹ and Gilbert² requiring defendant's counsel to be present at a lineup was not to be applied retroactively, appellant's conviction for armed robbery would have to be reversed. Concededly, his lawyer was not in attendance. However, since the lawyerless lineup in this case was conducted before the specified cut-off date, June 12, 1967,³ we must examine the particular circumstances here to determine whether the procedure employed by the FBI violated defendant's Fifth Amendment right to due process of law. See Stovall v. Denno, supra at 301-302, 87 S.Ct.1967; Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966).

No element of unfairness at the lineup appears from the record before us. The uncontradicted testimony of FBI agents and eyewitnesses and uncontested pictures of the event reveal that one witness at a time was permitted to view a group of six men of the identical race and similar heights and builds. None of the persons viewed — to whom we shall refer as the "suspects" — was shown to any of the witnesses before the lineup, and none of the witnesses was permitted to communicate with the others or with the suspects. All six suspects were asked by an FBI agent to repeat phrases the particular witness remembered hearing the robber utter during the crime.⁴ No identifications were made at the viewing in the lineup room; each witness communicated his opinion to an officer outside of the room. After the men in the lineup exchanged places according to their own choices, the process was repeated, each witness thus viewing the suspects twice.

Defendant seeks to impeach this otherwise fundamentally fair procedure on the basis of two alleged pre-lineup irregularities. The first is the defendant's lack of opportunity to confer with his previously retained counsel before the showing and the absence of the attorney during the lineup, despite specific requests by the defendant and despite the FBI agents' admitted knowledge of the retention and identity of the attorney. This contention is meritless. Two FBI agents and defendant's wife testified that several times on the morning of defendant's arrest and lineup they attempted unsuccessfully to contact the attorney. In any event, as of March, 1967, defendant had no absolute right to an attorney at his lineup and without a specific showing of resulting prejudice, there is no valid ground for reversal.

More troublesome, if true, is defendant's suggestion, first made in counsel's reply argument on appeal, that immediately before the lineup federal agents showed the witnesses a group of photographs, a disproportionate number of which was of the defendant. The possibility of subconscious suggestion inherent in this approach is obvious. Cf. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). However, the record, very poorly developed on this point, indicates that the victims of the bank robbery were shown several photographs of possible suspects a week or two before the lineup to assist the FBI in solving the crime. It appears that the witnesses viewed approximately ten mugshots, two of which were of the defendant. The faces of two other suspects were also duplicated in the exhibition. Since no undue attention to the defendant seems to have been prompted by the FBI and since the viewing was for the legitimate police purpose of identifying possible suspects at large and not of bolstering its case against an already arrested suspect, we hold the lineup untainted by the exhibition of suspects' pictures to the victims a week...