United States v. King

• Decision Date: 22 December 1970
• Docket Number: Crim. No. SA70CR108.
• Parties: UNITED STATES of America v. Bobby Eugene KING.
• Court: U.S. District Court — Western District of Texas

321 F. Supp. 614

UNITED STATES of America v. Bobby Eugene KING.

Crim. No. SA70CR108.

United States District Court, W. D. Texas, San Antonio Division.

November 17, 1970.

On Motion for Reduction of Bond December 22, 1970.

Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., Wayne Speck, Asst. U. S. Atty., for plaintiff.

H. M. Bellinger, San Antonio, Tex., for defendant.

SPEARS, Chief Judge.

On the 11th day of November, 1970, came on for consideration the defendant's motion to suppress any evidence involving the identification of the defendant by two women employees of Alamo Savings and Loan Association, hereinafter referred to as "Association", on the ground that an improper picture spread was utilized by federal agents in securing the identification.

The defendant is charged with robbing the Association. He was described by the witnesses as, among other things, a negro with light complexion. On the day following the robbery each of the two witnesses was shown the photographs of six negroes, one of whom was the defendant, but neither witness was able to identify the defendant as the man they had seen rob the Association. About two days thereafter, the same employees were shown six entirely different photographs, and the defendant's photograph, which was one of the six exhibited to each witness, was identified as that of the robber. However, the face and head of the defendant in the second series of six photographs was two and one-half times larger than the face and head of any other person in the same series; the defendant's complexion appeared to be lighter than that of any other person represented by the photographs, and the photographs of all persons in the same series, except that of the defendant, were mug shots.

There would appear to have been no valid reason for the federal agents to resort to photographic identification in this case. The defendant had already been identified by name by a personal acquaintance who recognized him running from the Association's office at the time of the robbery, and observed that he matched the description of the robber. More than sufficient evidence, therefore, was present to constitute probable cause for defendant's arrest, without the corroboration of the two employees. Any further identification of defendant by the two Association employees, or anyone else, could easily have been from a line-up conducted according to law. (See United States v. Wade, 388 U.S. 218, 236-237, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), wherein the Supreme Court characterized the line-up as a "critical stage of the prosecution.") As a consequence, this case does not present a situation where it was essential for the federal agents to swiftly determine whether they were on the right track. Their investigation had already focussed on the defendant, so they knew who they were looking for. But even if some swift corroboration had been considered necessary or advisable as a part of the investigative process, it does seem that the agents would have followed the admonition of the Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and allowed only one of the two witnesses to view the photographs, with the second witness being afforded the opportunity of observing the defendant in a line-up, "thus permitting the photographic identification to be supplemented by a corporeal identification, which is normally more accurate." See footnote 6, 390 U.S. at 386, 88 S.Ct. at 972.

It is interesting to note that when one of the said witnesses was subpoenaed to testify at a removal hearing in Denver, Colorado, the defendant was handcuffed when he was exhibited to her for the first time in the courtroom. Obviously, there was no line-up used. Significant also is the fact that when the defendant was later shown to the second witness at a line-up conducted in San Antonio, with the defendant's attorney present, the wrong person was identified as the defendant.

The case of United States v. Sutherland, 5 Cir., 428 F.2d 1152 (1970), is strikingly similar to the instant case. It was tried by this Court and reversed by the Court of Appeals because the jury was not instructed to disregard entirely the in-Court identification of the defendant therein by two bank employees. Instead the question was allowed to go to the jury. Although this Court did not intend to hold as a matter of law that the photographic identification procedure utilized in that case was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, the Court of Appeals construed the Court's description of what was done to constitute such a holding. Since this Court has described the procedure used in the instant case in virtually the same terms, it considers itself bound to entirely remove the issue of an in-Court identification from...