United States v. Kemper

• Decision Date: 10 July 1970
• Docket Number: 22559.,No. 22558,22558
• Citation: 140 US App. DC 47,433 F.2d 1153
• Parties: UNITED STATES of America v. Edward KEMPER, a/k/a Elwood Kemper, Appellant. UNITED STATES of America v. Joseph N. RICHARDSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

140 US App. DC 47, 433 F.2d 1153 (1970)

UNITED STATES of America v. Edward KEMPER, a/k/a Elwood Kemper, Appellant.

UNITED STATES of America v. Joseph N. RICHARDSON, Appellant.

Nos. 22558, 22559.

United States Court of Appeals, District of Columbia Circuit.

Argued June 13, 1969.

Decided July 10, 1970.

Mr. Richard R. Sigmon, Washington, D. C. (appointed by this court) for appellants.

Mr. Sandor Frankel, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, and Nicholas S. Nunzio, Asst. U. S. Atty., were on the brief, for appellee. Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., also entered appearances for appellee.

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

PER CURIAM:

These are appeals from convictions, after trial by a jury, of two of five alleged participants in the holdup of a grocery store. Appellant Kemper was found guilty of robbery,¹ and appellant Richardson of armed robbery,² robbery,³ and assault with a dangerous weapon.⁴ Richardson seeks reversal on the ground that the trial judge erred in permitting his in-trial identification by a witness with whom there had been a pretrial confrontation lacking in due process.⁵ Kemper contends that his conviction — for aiding and abetting the commission of the holdup — falls with that of Richardson, an alleged principal, because the latter's in-court identification served as an evidentiary link tying Kemper to the crime. We affirm the convictions on all counts.

I

On a cold January morning, two men entered a Safeway store and, after a short period, one approached the manager, Dennis R. Bailey, at a cash register. The man asked for cigarettes and, as Bailey handed him the cigarettes, the second man approached with a drawn gun. The men took the money in the cash register and ordered Bailey to open a safe; after he complied, they helped themselves to the money inside. They then escorted Bailey toward an exit, but he managed to break away, and the two men ran from the store.

Bailey fetched the assistant manager, Keith D. Soltes, from the rear of the store in time for him to see the robbers approach a Ford parked across the street. Evidently realizing that they were being observed, they did not enter the car, but continued away on foot. The Ford also departed, chased by Soltes and a customer who wrote down its license number and was stopped a few minutes later by a police cruiser. The vehicle was owned by its then driver, Earl Brooks,⁶ and Kemper was the only other occupant. Another man, Jerry Burke, was arrested a short distance from the store, and still another, Clifton Bullock, was apprehended somewhat later.⁷

Within ten minutes after the holdup, police officers arrived at the store, and Bailey gave them descriptions of the men who had accosted him. He could not describe anyone else, and Soltes was unable to describe anyone at all. Two suspects were presented to Bailey at the store, but he stated that he did not recognize either.

At about the same time, another police officer, responding to a complaint of a housebreaking, came across Richardson in an apartment building located near the store. He was wearing only a sleeveless shirt and slacks, although it was a cold day, and the party he claimed to be looking for did not live in the building. Richardson accompanied the officer to a stationhouse,⁸ and there Brooks identified him as one of the participants in the holdup.⁹

The police then returned to the apartment building where Richardson had been found and recovered from an incinerator a hat and a raincoat fitting the description of apparel worn by one of the bandits. In a pocket of the raincoat was $92, including part of a torn dollar bill which matched another part Soltes found in the store's cash register. In the pocket was also a package of cigarettes, of the brand requested in the store, on which Safeway's special identifying number was stamped.

About an hour after the holdup, Bailey and Soltes came to the stationhouse, and Bailey again described his assailants. They were ushered into a room, wherein Richardson and the other three arrestees were, to ascertain whether Bailey could make an identification. All four wore the clothing in which they had been arrested, which included coats for all but Richardson, who remained in the sleeveless shirt and slacks. Bailey looked at the four but did not identify anyone;¹⁰ he stepped out of the room and returned shortly to look at them again. Richardson then wore the hat and raincoat which had been retrieved from the incinerator at the apartment building. This time Bailey identified Richardson as the first of the two men who had converged upon him in the store.

At some point prior to this identification — the record leaves uncertain just when — Bailey was shown the raincoat found in the apartment building,¹¹ and he acknowledged that it was similar to that worn by the robber who first approached him. He was also shown the torn dollar bill found in the pocket of the raincoat, and in his presence Soltes connected it with the remnant left in the cash register. So it was that when the last confrontation occurred, Bailey could have believed that the police had in custody the person from whom those items had been removed. Moreover, the identification was made when Richardson, initially the only coatless member of the group, was garbed in the incriminating raincoat.

Richardson, Kemper and Burke were tried jointly.¹² Burke was acquitted on all counts.¹³ As the offenses occurred after the decisions in United States v. Wade¹⁴ and Gilbert v. California,¹⁵ the requirement that the criminally accused be afforded the right to counsel at line-ups was fully applicable. Since Richardson was without benefit of counsel when the stationhouse confrontation occurred, the trial judge conducted a hearing, in the absence of the jury, at which its legality was comprehensively explored. The judge ruled that Richardson had knowingly waived his right to counsel,¹⁶ but that the confrontation was so unduly suggestive as to amount, under the doctrine enunciated in Stovall v. Denno,¹⁷ to a denial of due process of law.

This ruling, of course, precluded the Government from presenting evidence of Bailey's identification of Richardson at the stationhouse.¹⁸ It was, however, accompanied by a finding "that Mr. Bailley's identification had sufficient independent origin as to permit his present in-court identification of Richardson." With the jury recalled, Bailey was permitted to identify Richardson from the witness stand as a member of the robbery team and, as we have stated, it is this that both appellants now question. Thereafter, defense counsel, on cross-examination, went into the details of the stationhouse confrontation,¹⁹ including Bailey's failure to identify Richardson the first time he saw him there. As we have said, the jury convicted.

II

Stovall recognized that an identification confrontation may be "so unnecessarily suggestive and conducive to irreparable mistaken identification that the accused is denied due process of law."²⁰ The trial judge felt that the two-stage confrontation between Bailey and Richardson at the stationhouse was of that character, barring testimonial reference to the identification ensuing there,²¹ and we have no reason to doubt the correctness of those conclusions.²² Nonetheless, Bailey's in-trial identification of Richardson was not foreclosed thereby if the Government "established by clear and convincing evidence that the in-court identification would be based upon observations of the supect other than the stationhouse identification."²³ The trial judge so held,²⁴ and we think the record, analyzed for factors that might meet that requirement,²⁵ adequately supports the judge's determination.

During the course of the holdup, Bailey had a good opportunity to scrutinize the two men who partook of the contents of the cash register and safe.²⁶ He confronted them under excellent lighting conditions²⁷ over a period of approximately ten minutes,²⁸ and at times was no more than two feet from them. Equally important, the circumstances of record indicate strongly that Bailey was receptive to the stimuli that opportunity provided. Speaking of the man who first approached him in the store, later identified as Richardson, Bailey stated that he saw "all of" the suspect's facial anatomy "at one time or the other," and subsequent events tend to bear him out. When the police arrived at the store, Bailey gave them a description of the man, which he later reiterated at the stationhouse, including approximations of his age, height and weight, and details as to the clothing he was wearing.²⁹ The description of the clothes matched closely those later found at the apartment building wherein Richardson was apprehended, and in its other aspects was a reasonably accurate portrayal of Richardson.³⁰

So also were the descriptive details Bailey supplied at the trial, which included additionally a reference to "some type of scars on his face" ³¹— a reference subsequently validated by exhibition to the jury of a scar Richardson indeed does have on the side of his face.³² Since the record discloses that Bailey was some ten to fifteen feet from Richardson during the illegal stationhouse confrontation, it seems likely that this testimony had to proceed from his impressions at the time of the holdup.³³

Quite obviously, the trial judge's ruling on independent source was tantamount to a general affirmation of Bailey's credibility, and again the record lends support. At the hearing on suppression of the identification, Bailey maintained firmly, despite rigorous cross-examination, that Richardson was one of the two robbers in the store.³⁴ Bailey had already demonstrated an ability and willingness to distinguish between suspects, having declined to identify the two...