United States v. King

• Citation: 149 US App. DC 61,461 F.2d 152
• Decision Date: 06 March 1972
• Docket Number: No. 24381.,24381.
• Parties: UNITED STATES of America v. Willie S. KING, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

149 US App. DC 61, 461 F.2d 152 (1972)

UNITED STATES of America v. Willie S. KING, Appellant.

No. 24381.

United States Court of Appeals, District of Columbia Circuit.

Argued May 28, 1971.

Decided March 6, 1972.

Mr. Lawrence J. Winter, Washington, D. C. (appointed by this court) for appellant.

Mr. Robert J. Higgins, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellee.

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

TAMM, Circuit Judge:

Appellant, and a co-defendant, Fred D. Smith, were convicted by a jury on three counts of armed robbery and four counts of assault with a dangerous weapon.¹ Urging defective identification procedures, appellant invokes the jurisdiction and aid of this court. Having carefully considered all the arguments made by appellant, we affirm the conviction for reasons hereinafter set forth.

In the early evening of January 4, 1969, six men,² some of whom were armed, robbed a Safeway store in Northwest Washington. Among the witnesses to the event were Norman L. Creel, Jr., the store manager, and three Safeway employees, Julius Hobson, Jr., Duane E. Wilkes and Charles Pernell. The following morning Mr. Creel and Mr. Wilkes were summoned to the police station where they were shown 200 to 300 photographs. Creel tentatively identified appellant and Fred Smith from these photographs. (Tr. 42.) Although Wilkes "had an idea" as to the identity of one of the robbers he was not "absolutely positive." (Tr. 119-20).³ Two days later, while at the Court of General Sessions (now Superior Court) on an entirely unrelated matter, Mr. Creel saw appellant and Smith. He immediately notified a detective who then ascertained their identities. A week later Creel again identified appellant and Smith from a group of about forty photographs shown to him by a police detective. Once more, on January 28, both men were identified by Mr. Creel from a nine-man corporeal counseled lineup.⁴

On the morning of the trial, March 16, 1970, the prosecutor indicated to the court that in addition to Mr. Creel, several other witnesses, namely Mr. Hobson, Mr. Wilkes and Mr. Pernell had informed him that they too could identify appellant. (Tr. 9.) The prosecutor stated that because of the lapse of time since the crime,⁵ and because these other witnesses had not previously identified appellant or attended a lineup, he felt it would be fairer to appellant if he showed these other witnesses, prior to trial, in the presence of appellant's counsel, a photograph of the lineup which Mr. Creel had attended, rather than merely limiting the identification to a face to face confrontation in court. Over appellant's objection, these witnesses were shown the photograph. Both Mr. Hobson and Mr. Wilkes positively identified appellant. Mr. Pernell said appellant "resembled" the robber, but he could not be "positive." (Tr. 28.)

Following the photographic identification, the district judge conducted a Wade-Stovall hearing wherein Mr. Hobson testified that, although he had not seen appellant since the robbery, he was "certain" that appellant was one of the robbers. In support of his conclusion, Hobson stated that he had looked at appellant from a distance of "no more than 4 feet" under "very good" lighting conditions for "a minute or a minute and a half." (Tr. 108-10.) Mr. Wilkes echoed these statements. He too was "certain" that appellant was one of the robbers. (Tr. 110.) His belief was based upon a view of appellant at a distance of no more than "eight feet" for "a minute and one-half or two minutes." (Tr. 117-18). Having heard the evidence adduced at the hearing, the learned district judge denied appellant's motion to suppress the identification testimony of Mr. Wilkes and Mr. Hobson as well as that of Mr. Creel. (Tr. 140.)⁶

At trial Mr. Creel, Mr. Hobson and Mr. Wilkes identified appellant in court. At the conclusion of the trial, both appellant and Smith, his co-defendant, were found guilty by the jury.

The sole issue presented to us on appeal is whether the exhibition, in the presence of counsel, of a photograph of a formal counseled lineup, to two witnesses on the day of the trial is a violation of due process.

The standard set forth to guide us in the resolution of this issue is found in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), where the Supreme Court stated:

We hold that each case must be considered on its own facts, and that convictions based on eye-witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photograph identification procedure was so impremissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Id. at 384, 88 S.Ct. at 971. (Emphasis supplied). The Court further indicated that any claim of suggestiveness must be "evaluated in light of the totality of the surrounding circumstances." Id. at 383, 88 S.Ct. at 970. Applying this test to the instant case we find no reason for disturbing the decision below.

A photograph is a moment captured for eternity. It stands immutable against the chameleonic vicissitudes of life. Since no question is raised as to the validity of the corporeal lineup itself, the photograph of that very lineup remains unassailable unless there exists some infirmity in the exhibition of the photograph to the witnesses. See United States v. Brown, No. 24,452, 149 U.S. App.D.C. ___, 461 F.2d 134 (1971) (opinion filed March 1, 1972) ; United States v. Collins, 416 F.2d 696 (4th Cir. 1969). Clearly, the instant circumstances surrounding the showing of the photograph indicate no such unfairness. While the two witnesses had not previously participated in the counseled lineup, they were shown the photographs separately and in the presence of appellant's counsel. The entire process was devoid of any hint of suggestiveness.

However, appellant urges that the timing of the photographic exhibition was fatal. He argues that to show the photos on the morning of the trial, fourteen months after the robbery, results in an "in-court identification of the appellant which would not have been arrived at independent of the improper reinforcing photographic identification." Brief for Appellant at 6.

We do not think that the photographic showing in this case was rendered invalid as a matter of due process by the mere lapse of time between the showing and the original opportunity to observe ; and thus the District Court did not err in holding that the in-court identification was admissible. Timing, a matter which normally goes to the weight of the evidence and credibility of the witness, not the admissibility of an identification, is within the jury's province. See Foster v. California, 394 U.S. 440, 442 n.2 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) ; United States v. Brown, supra (upholding photograph exhibition to witness two weeks prior to trial) ; United States v. Roth, 430 F.2d 1137, 1140 (2nd Cir. 1970) (upholding photograph exhibition to witness during recess of trial) ; United States v. Munroe, 421 F.2d 644, 645 (5th Cir. 1970) (upholding in-court identification after time lapse) ; United States v. Baker, 419 F.2d 83, 90 (2d Cir. 1969), cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271 (1970) (upholding photograph exhibition to witness 10 days prior to trial) ; United States v. Collins, supra (upholding photograph exhibition to a witness 18 months after the crime). The jury was fully aware of the nature and timing of the photographic identification to assist it in weighing the witnesses' testimony. The jury has spoken. We must abide by its decision.

Appellant also argues that he was entitled not only to the corporeal lineup which he received before witness Creel, but also to one before witnesses Hobson and Wilkes immediately after the arrest. He asserts such a result is the necessary conclusion of our holding in Adams v. United States, 130 U.S. App.D.C. 203, 399 F.2d 574 (1968).

We first note that appellant's reliance upon Adams is misplaced. Although we pointed out in our opinion a means by which the Government might arrange prompt and efficient lineups, the holding of the case was to invalidate a lineup identification which was the fruit of delay in presentment.

Secondly, we note that no court has ever held there is an absolute constitutional right to a corporeal lineup. See United States v. Ash, 149 U.S.App.D.C. ___ at ___, 461 F.2d 92 at 113 (1972) (Wilkey, J., dissenting) ; United States v. Hamilton, 137 U.S.App.D.C. 89, 91, n. 11, 420 F.2d 1292, 1294 n.11 (1969) ; Kennedy v. United States, 122 U.S.App. D.C. 291, 295, 353 F.2d 462, 466 (1965) ; United States v. Munroe, supra; United States v. Ravich, 421 F.2d 1196, 1202-1203 (2nd Cir. 1970). Certainly in the circumstances of this case, including the photographic showing in the presence of counsel, we do not think the failure to hold a corporeal lineup transgresses the due process clause.

It is clear from the record that the purpose of the prosecutor's offer of a photographic identification prior to trial was to assist appellant. In view of the fact that there was a considerable lapse of time since the crime and because witnesses Wilkes and Hobson had not previously identified appellant or attended a lineup in which appellant was involved, the prosecutor thought it would be fairer to appellant if the witnesses were shown photographs of the lineup prior to trial rather than relying solely upon an in-court identification. His reasoning was twofold. First, he feared the inherent suggestiveness of an in-court identification where a defendant is conspicuously seated at counsel table in relative isolation. Second, should any of these witnesses have been unable to identify appellant at the photographic identification, the prosecutor stated he would have...