United States v. Kinnard, Crim. No. 774-68.

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtJames W. Respess, Washington, D. C., for Darnell R. Kinnard, Jr
Citation294 F. Supp. 286
PartiesUNITED STATES of America v. #1 Darnell R. KINNARD, Jr.
Decision Date04 November 1968
Docket NumberCrim. No. 774-68.

294 F. Supp. 286

UNITED STATES of America
v.
#1 Darnell R. KINNARD, Jr.

Crim. No. 774-68.

United States District Court District of Columbia.

November 4, 1968.


294 F. Supp. 287

James A. Strazzella, Albert W. Overby, Jr., Asst. U. S. Attys., for the United States.

James W. Respess, Washington, D. C., for Darnell R. Kinnard, Jr.

MEMORANDUM OPINION

GESELL, District Judge.

Two issues are presented on this motion to suppress identification heard immediately before trial. It is claimed that the circumstances of the initial identification were unduly suggestive and that the defendant's rights under the Sixth Amendment were denied because an attorney for the defendant was not present when an on-scene identification was made by the complaining witnesses shortly after the alleged robbery.

The facts are simple and were but slightly disputed at the hearing. Miles Long Sandwich Shop was robbed at about 11:45 p.m. on March 25, 1968, by a man who entered during business hours and forced waitresses to turn over the contents of the cash register. The robber was wearing dark glasses ("shades") and a hat. The premises were brightly lighted by fluorescent lights and the waitresses, who were identifying witnesses at the scene, had had adequate opportunity to observe the man. When he left he got into a car and drove off with another man who was waiting in the car. An accurate description of the getaway car, including its exact tag number, was obtained from a taxi cab driver.

The robbery was immediately reported to the police and a lookout was broadcast at 12:05 a.m. that night. Alert police spotted the car at 12:08 a.m. The two occupants were arrested forthwith, advised of their rights and charged with the Miles Long Sandwich Shop robbery. A large sum of money was found on defendant's person and also a petty cash slip of the Miles Long Sandwich Shop when the occupants of the car were searched at the point of arrest. When the defendant was arrested he denied any participation. The driver of the car, however, admitted being in the parking lot of the Miles Long Sandwich Shop about the time of the robbery. The police had probable cause to make the arrest, although the officers, of course, had no way of then knowing the complete reliability of the lookout which had caused the arrest. Two police wagons immediately responded to the arrest scene by 12:13 a.m., along with other officers. The car, which fitted the lookout description, was impounded. In the meantime, other police, including detectives, had responded to the Miles Long Sandwich Shop and were there when the two police wagons, each containing one of the suspects, arrived at the robbery scene at about 12:25 or 12:30 a.m. The place of arrest was 10 or 15 minutes from the scene of the offense and the wagons went directly to the scene. The defendant had not been booked or taken before a Commissioner when taken to the scene.

294 F. Supp. 288

The waitresses were brought out individually and separately and asked whether they could identify either of the two suspects. The identifying witnesses and the suspects were Negro. Defendant was seated in one of the wagons. The interior light of the wagon was on and it does not appear that defendant was then wearing his dark glasses. The defendant was immediately and positively then identified by at least two of the waitresses. None of the identifying witnesses had ever seen the defendant on any prior occasion. Mrs. Best, one of the waitresses and a witness at the identification hearing, was a candid and direct witness who had no doubt as to her identification but she acknowledged she was frightened at the time. Nothing was said or done by the police at the scene to trigger the identification except as that which may have been to some extent implicit in the over-all situation. The police acted with complete restraint and in a responsible manner at the scene.

After considering the evidence as a whole, the Court is persuaded that the impromptu identification at the scene was not so unduly suggestive as to violate the standards of due process under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), as interpreted by the Court of Appeals in Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206 (1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968). The witnesses made positive identification, uninfluenced by the police or the atmosphere at the time. The Court feels that this is clear beyond a reasonable doubt considering the demeanor of the identifying witnesses and all the surrounding facts and circumstances. No grounds for suppressing the identification therefore exist under Stovall. The identification resulted from conscientious police work carried out with no improper motive and in a responsible, non-suggestive manner. It was confirmatory in character and gave greater assurance that a citizen who denied involvement was not being unjustly accused. Unless it must now be said that the defendant was nonetheless entitled under the Sixth Amendment of the Constitution to have counsel present at the scene on this occasion, it is clear that the identification was fair and proper and should not be suppressed because limits set by the demands of due process were exceeded.

Counsel was not present, of course, and under the circumstances there was no attempt at waiver nor could a meaningful waiver have been made. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and cases that have followed have established the right of defendant to counsel at any critical confrontation arranged by the prosecution at pretrial proceedings. This general rule, however, was specifically made prospective by Stovall and its meaning, scope and effect is now just coming into sharper focus as post-Wade cases reach the active trial docket of the courts. Wade itself involved a lineup held after indictment and appointment of counsel for defendant but without the presence of counsel. In contrast, defendant here had been arrested and charged before the...

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11 practice notes
  • Perryman v. State, No. 43681
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 16 Septiembre 1971
    ...'regardless of when the identification occurs, in time or place * * *.' 5 and the decision in United States v. Kinnard, D.C., 294 F.Supp. 286, excluding an on the scene identification occurring forty-five minutes after a robbery, the Court 'While the language of Wade would thus seem to enco......
  • State v. Hamblin, No. 54231
    • United States
    • United States State Supreme Court of Missouri
    • 12 Enero 1970
    ...at the time of the commission of the crime. Following this, the District Court for the District of Columbia in United States v. Kinnard, 294 F.Supp. 286, felt compelled by reason of the Rivers case to exclude an on-the-scene identification occurring approximately forty-five minutes after a ......
  • United States v. Cranson, No. 71-1411.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 29 Diciembre 1971
    ...F.2d at p. 1155). 8 Simmons v. United States (390 U.S. at p. 384, 88 S.Ct. at p. 971). 9 See United States v. Kinnard (D.C.Ct. 1968) 294 F.Supp. 286, 289-290. In this case Judge Gesell urges that all the facts surrounding an identification be submitted to the jury without "blinders&quo......
  • United States v. Charamella, Crim. A. No. 1885.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 19 Noviembre 1968
    ...federal income tax liabilities may have reached an accusatory or adversary stage and focused on the defendant as one suspected 294 F. Supp. 286 of having violated the federal income tax laws. Since the production of documents which the defendant seeks from the Government is solely to establ......
  • Request a trial to view additional results
11 cases
  • Perryman v. State, No. 43681
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 16 Septiembre 1971
    ...'regardless of when the identification occurs, in time or place * * *.' 5 and the decision in United States v. Kinnard, D.C., 294 F.Supp. 286, excluding an on the scene identification occurring forty-five minutes after a robbery, the Court 'While the language of Wade would thus seem to enco......
  • State v. Hamblin, No. 54231
    • United States
    • United States State Supreme Court of Missouri
    • 12 Enero 1970
    ...at the time of the commission of the crime. Following this, the District Court for the District of Columbia in United States v. Kinnard, 294 F.Supp. 286, felt compelled by reason of the Rivers case to exclude an on-the-scene identification occurring approximately forty-five minutes after a ......
  • United States v. Cranson, No. 71-1411.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 29 Diciembre 1971
    ...F.2d at p. 1155). 8 Simmons v. United States (390 U.S. at p. 384, 88 S.Ct. at p. 971). 9 See United States v. Kinnard (D.C.Ct. 1968) 294 F.Supp. 286, 289-290. In this case Judge Gesell urges that all the facts surrounding an identification be submitted to the jury without "blinders&quo......
  • United States v. Charamella, Crim. A. No. 1885.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 19 Noviembre 1968
    ...federal income tax liabilities may have reached an accusatory or adversary stage and focused on the defendant as one suspected 294 F. Supp. 286 of having violated the federal income tax laws. Since the production of documents which the defendant seeks from the Government is solely to establ......
  • Request a trial to view additional results

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