United States v. Johnson

• Decision Date: 20 October 1971
• Docket Number: No. 23375,23376.,23375
• Citation: 452 F.2d 1363,147 US App. DC 31
• Parties: UNITED STATES of America v. Henry B. JOHNSON, Appellant. UNITED STATES of America v. Clifford L. ESTES, a/k/a Clifford Allen, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

147 US App. DC 31, 452 F.2d 1363 (1971)

UNITED STATES of America v. Henry B. JOHNSON, Appellant.

UNITED STATES of America v. Clifford L. ESTES, a/k/a Clifford Allen, Appellant.

Nos. 23375, 23376.

United States Court of Appeals, District of Columbia Circuit.

Argued March 12, 1971.

Decided October 20, 1971.

COPYRIGHT MATERIAL OMITTED

Mr. Alan Y. Naftalin, Washington, D.C. (appointed by this court), with whom Mrs. Margot S. Humphrey was on the brief, for appellant in No. 23,375.

Mr. Robert J. Corber, Washington, D.C. (appointed by this court) for appellant in No. 23,376.

Mr. Michael J. Madigan, Asst. U.S. Atty., with whom Messrs. Thomas A. Flannery, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for appellee. Mr. John R. Dugan, Asst. U.S. Atty., and Mr. James R. Phelps, Asst. U.S. Atty., at the time the record was filed, also entered appearances for appellee.

Before BAZELON, Chief Judge, and WRIGHT and TAMM, Circuit Judges.

BAZELON, Chief Judge:

These appeals from convictions on several counts for armed robbery and assault with a dangerous weapon raise questions concerning the validity of the procedures employed by the Government to obtain photographic, line-up and in-court identifications of both appellants. As the record shows, the Government's case against the appellants rested substantially on identification testimony of several eye-witnesses. Six witnesses testified for the Government at trial. Five were victims of the robbery¹ and four of these identified one or both of the defendants as participants. Only appellant Johnson took the stand and denied participating in the hold-up.

In cases such as these, the error is not likely to be harmless if constitutional rules are violated in obtaining identification testimony.²

Elimination of any of the identification evidence against`both Johnson and Estes might require reversal of their convictions and an order for a new trial. However, the record does not furnish an adequate basis for review of the trial court's decision to admit certain testimony and we therefore remand these cases to the District Court for further findings of fact and conclusions of law in regard to three specific issues.

I.

On July 1, 1968 at approximately 11:15 a. m. a Safeway store located at 218 K Street N.W. was robbed by two armed Negro males. A third lingered at the door. One of them held a gun on the store manager Mr. Gilbert Musselman, took cash from a tray in his office and then struck Mr. Musselman several times with his gun. Mr. John Gaines, the produce department manager, was told by one robber to open the store safe and ordered by the second robber to lie down on the floor. Mr. Kenneth Faunteroy, a cashier at the store, was ordered by one of the robbers to empty his cash drawer. Mr. James Richardson, Jr., another cashier, was also robbed at gunpoint. Finally Mr. Allan Lane, a customer in the store, was ordered by one robber to lie on the floor. The second later approached him and took his watch from his wrist.

Following the robbery, the police obtained photographic identifications of both Johnson and Estes from several of the eyewitnesses and arrested both suspects. In August, Musselman, Gaines and Faunteroy attended a police lineup and made further identifications of the defendants. In March of 1969 the trial court conducted a pretrial hearing to determine the admissibility of the photographic, lineup and in-court identification evidence. The trial judge excluded Mr. Gaines' photographic identification of the defendant Estes and ruled all other evidence admissible.

All five above-mentioned victims of the robbery subsequently testified at trial and the following identifications were made: Mr. Musselman testified that he recognized the defendant Estes in court as the robber who had beaten him; and that he had previously identified a photograph of Mr. Estes and picked him out of a police lineup. Mr. Gaines testified that he recognized both defendants in court and had picked them both out of the police lineup. Mr. Faunteroy made an in-court identification of Johnson and testified that he had also recognized Johnson in the lineup. Mr. Lane identified both defendants as the robbers in court, and testified that he had identified them both from photographs prior to trial.

Each appellant challenges the admission of much of this testimony for a variety of reasons. Those issues requiring further consideration by the District Court will be considered in detail.

II. Substitute Counsel at the Lineup

Appellant Estes contends on appeal that the substitute counsel representing him at the police lineup never provided any information about the lineup to his trial counsel, and did not participate in the trial preparations. On this point, the record is incomplete. Both Johnson and Estes, therefore, filed a motion in this court to supplement the record to include affidavits never presented to the District Court from the substitute counsel and from the appellants' trial counsel. We agreed to postpone decision on appellants' motions until the argument on the merits. We have decided that the proper course is for appellants to present their motion to supplement the record to the District Court.

The facts presented in the affidavits, if admitted into the record, raise a serious question about the adequacy of appellants' representation by counsel at the lineup under United States v. Wade³ and Gilbert v. California.⁴ The affidavits purport to prove that according to the practice established in 1968, attorneys from the Legal Aid Agency assisted on an ad hoc basis at lineups when defense counsel had not yet been appointed. A Legal Aid attorney attended the lineup as counsel for both Johnson and Estes. In the affidavits, both substitute and trial counsel state that to the best of their recollection, they never communicated about the lineup.

While we express no opinion on the merits of appellants' claims in this case, the controlling principles of law were outlined by the Supreme Court in Wade and Gilbert. In Wade, the Court left open the possibility that substitute counsel might suffice if "substitute counsel's presence * * * eliminate(s) the hazards which render the lineup a critical stage for the presence of the suspect's own counsel."⁵

The hazards which the Court had in mind were not limited to those possibilities for prejudice which the very presence of an attorney at the lineup might discourage or even eliminate. The Court was also concerned to assure a "meaningful confrontation" in the courtroom with full cross-examination into the details of the witness' lineup identification of the defendant. While the presence of substitute counsel rather than the defendant's own trial counsel does not in itself violate the defendant's Sixth Amendment rights, see United States v. Kirby, 138 U.S.App.D.C. 340, 427 F.2d 610 (1970), the Wade and Gilbert decisions may be read to presume that the substitute counsel would assist trial counsel in preparations to challenge the fairness of the lineup and to cross-examine witnesses who had been present.⁶

This court went further than assuming that substitute counsel would communicate with trial counsel and suggested in Marshall v. United States, supra, note 2, 141 U.S.App.D.C. at 6, 436 F.2d at 160 n. 18 that the Government may have to assume the burden of ensuring that the substitute counsel's observations are transmitted to trial counsel.

We note only the gravity of the issue presented.⁷ In view of the seemingly honest mistake of trial counsel in failing to raise the question at trial and the subsequent appointment of new counsel for this appeal, we think the appellants' attempt to supplement the record should not be foreclosed in this court. Since these cases will be remanded for reasons outlined in Parts III and IV of this opinion, on remand the defendants shall have the opportunity to seek leave to supplement the record in the District Court. In the interests of judicial economy, appellants' claims are better disposed of directly rather than by subsequent collateral review.

III. Testimony of Mr. Gaines

Both Johnson and Estes challenge the admission of Mr. Gaines' identification testimony on the ground that his recognition of them in the lineup and in court was tainted by the overly suggestive photographic identifications the police had earlier obtained from him. In Simmons v. United States the Supreme Court held that "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside * * * if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."⁸ Rather than banning the use of pretrial photographic identifications in all cases, the Court suggested that each case must be considered on a careful analysis of its own facts. Accordingly, this court has established a two-pronged inquiry whenever questions of suggestive photographic identifications are raised:

"(1) whether the photographic display itself was impermissibly suggestive and (2) if so, whether there is nevertheless an independent source for the in-court identification."⁹

Applying these tests to the facts of the instant appeals, we find no ground to overturn the trial court's ruling that Gaines' photographic identification of Johnson was not impermissibly suggestive but we remand Estes' claim to the District Court for a further hearing.

The circumstances surrounding the photographic identifications of both appellants are as follows: On July 2, 1968, the day after the robbery, Mr. Gaines was taken to a police station where he viewed several books of black and white police photographs. He failed to make any identification at that time. The police then informed him that several photographs were missing from the files, in fact that they had been taken to the Safeway store. Gaines admitted at the pretrial hearing...