United States v. Lee, 72-1371.

• Decision Date: 29 June 1973
• Docket Number: No. 72-1371.,72-1371.
• Citation: 485 F.2d 1075,158 US App. DC 296
• Parties: UNITED STATES of America v. Richard J. LEE, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

158 US App. DC 296, 485 F.2d 1075 (1973)

UNITED STATES of America v. Richard J. LEE, Jr., Appellant.

No. 72-1371.

United States Court of Appeals, District of Columbia Circuit.

Argued April 2, 1973.

Decided June 29, 1973.

David R. Anderson, Washington, D.C. (appointed by this Court), for appellant.

Douglass J. McCollum, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before LEVENTHAL and MacKINNON, Circuit Judges, and WYZANSKI,^* Senior United States District Judge for the District of Massachusetts.

WYZANSKI, Senior District Judge:

The single issue is whether the trial court erred in allowing the complaining witness to testify as to her showup identification of defendant.

Edna M. Carslaw on March 17, 1970, at about 6 P.M. was held up, in the basement of an office building where she worked, by two men, one of whom, for convenience, we shall at this introductory stage call X, and the other Y. X told her, "Don't make any noise, this is a hold-up," and directed her to open the safe. Next, X came around the counter, went through the drawers, and took $18 from Mrs. Carslaw's purse. Then he put her into a locker and told her to stay there. Y stayed farther back and held a gun behind a newspaper until he came around the counter when Mrs. Carslaw was seated, and Y was 3 feet from her. After staying for some time in the locker, Mrs. Carslaw went upstairs to report the robbery to a building guard, Scott.

About 6 P.M. Scott saw enter a telephone booth a man whom at this stage we shall call A (without indicating whether he has already been given another symbol in this statement of facts). Scott testified that he recognized A as a man who had been hanging around the building at the time of an earlier robbery. About 3 minutes later Scott saw go to the telephone directory a second man whom at this stage we shall call B (without indicating whether he has already been given another symbol in this statement of facts).

A came out of the phone booth and conferred with B. When A and B started to get into the elevator the guard asked them to sign in; and they did. Then the guard summoned the police. After a policeman, Odell, arrived and had begun talking to Scott, the elevator door opened and revealed A within the elevator. Simultaneously B appeared at the door of the stairway. Scott said to Odell with respect to A and B, "Those are the two I'm talking about." Odell stopped B to escort him to a desk. B attempted to pull a gun. Odell wrestled with B, pinned him to the floor, handcuffed him, and arrested him.

Soon other police arrived. About 15 minutes after Odell arrested B, Mrs. Carslaw appeared in the lobby and told the police she had been robbed. She testified she was then excited and in a state of shock. The police did not then ask her to describe the persons who had robbed her. An officer other than Odell brought Mrs. Carslaw to where B was lying face down on...