United States v. Neverson

• Decision Date: 26 April 1972
• Docket Number: No. 23732.,23732.
• Citation: 463 F.2d 1224,150 US App. DC 133
• Parties: UNITED STATES of America v. Gregory H. NEVERSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

150 US App. DC 133, 463 F.2d 1224 (1972)

UNITED STATES of America v. Gregory H. NEVERSON, Appellant.

No. 23732.

United States Court of Appeals, District of Columbia Circuit.

Argued December 15, 1970.

Decided April 26, 1972.

Mr. Charles S. Warren (appointed by this court), for appellant.

Mr. Broughton M. Earnest, Asst. U.S. Atty., with whom Messrs. Thomas A. Flannery, U.S. Atty. at the time the brief was filed, John A. Terry and Edwin A. Williams, Asst. U.S. Attys., were on the brief, for appellee.

Before FAHY, Senior Circuit Judge, and McGOWAN and ROBINSON, Circuit Judges.

McGOWAN, Circuit Judge:

Appellant was convicted by a jury of two counts of armed robbery (22 D.C. Code § 2901), two counts of assault with a dangerous weapon (22 D.C. Code § 502), and one count of carrying a dangerous weapon (22 D.C.Code § 3204). On this appeal, he raises three issues, the only substantial one of which is a Fifth Amendment due process challenge to identification evidence against him.¹ For the reasons hereinafter appearing, we affirm.

I

At approximately 8:30 P.M. on April 24, 1968, a robber entered a liquor store in the southeast section of the District of Columbia, uncovered a sawed-off shotgun from underneath his coat, and placed the barrel of the weapon in the stomach of Fred D. Washington, a private guard who was standing at the store's entrance. Washington was ordered to turn around, and, as he obeyed the request, the assailant unbuttoned Washington's holster, removing a .38 calibre Colt revolver. The assailant then marched Washington to a cash register located at the rear of the store. Upon reaching that point, the robber handed the proprietor of the store, David Zylber, a paper bag and asked him to fill it with money. As Zylber began filling the bag with the $2,000.00 contained in the cash register, Herbert Wheeler, a store employee, returned from a stock room behind the counter. As he entered the main display area, he realized that a robbery was in progress. He stood at the counter watching the assailant while the paper bag was being filled. Once Zylber completed this act, he handed the bag to the robber, who then slowly backed out of the store, keeping his shotgun and the purloined pistol fixed on the three men at the counter. The robbery lasted no longer than two and one-half to three minutes.

Shortly after the robber had gone, Lieutenant Edward White of the Metropolitan Police Department responded to a radio run and arrived at the scene of the crime. At that time, he showed Zylber and Wheeler photographs of possible suspects, but neither was able to make an identification. Zylber professed inability to remember the robber's features, but Wheeler informed the officer that the robber was between 5'5" and 5'9", was a Negro of dark brown complexion, had a short goatee, and wore a black waist-length coat. Washington, who apparently did not view photographs at that time, gave Officer White a similar description, except that he described the assailant as being 5'7" and wearing a waist-length coat that was either brown or black. The next day Washington was called to the police station. He viewed between 200 and 800 photographs, without result. At this point, appellant's photograph had not been in any of the photographs shown to the eyewitnesses.

Some two weeks later, on May 6, 1968, the National Crime Information Center informed the Metropolitan Police Department that appellant and two other men had been arrested and charged with armed robbery in Prince William County, Virginia. It was also reported that at the scene of the arrest an officer had recovered a .38 calibre Colt revolver which bore the same serial number as the pistol reported as having been taken from Washington at the liquor store. Upon receipt of this information, Lieutenant White sent a police photographer to Virginia in order that appellant, his two Virginia co-defendants, and the revolver in question might be photographed with a color camera.

Lieutenant White then assembled an array of twelve color photographs consisting of individual photographs of ten Negro males between the ages of 20 and 30 years, including appellant and his two Virginia co-defendants. White also had one photograph of the recovered revolver; and one photograph of two revolvers which were very similar to the one taken from Washington.

On May 8, 1968, Lieutenant White visited Washington to show him these photographs. At the pretrial hearing, held to determine the admissibility of the identifications made at trial by the witnesses to the crime, Washington testified that Lieutenant White first showed him approximately eight or nine photographs from which he could make no identification. Then Officer White reached into his pocket and showed Washington three or four additional photos. Washington said that it was from this latter group that he identified appellant. Washington also testified that he had identified the photograph of the pistol recovered in Virginia as the gun taken from him.

Three days later, Lieutenant White visited Wheeler for the same purpose. At the pretrial hearing, Wheeler testified that when he was unable to make an identification from the first eight or nine photographs shown to him, Officer White handed him a second set of three to four photographs. Wheeler also made his identification of appellant from this second set of photographs, but apparently made no attempt to identify the revolver. Lieutenant White testified at the suppression hearing that, while he was uncertain about the manner in which the photographs were shown, his best recollection was that he displayed all of the pictures at one time to both Washington and Wheeler.²

On May 28, 1968, Lieutenant White and Mr. Wheeler drove to Manassas, Virginia, in order that Wheeler might view a lineup in which appellant and the two Virginia codefendants would participate. It appears that, prior to the lineup, Wheeler had seen appellant when he was being taken across the street from the county jail to the court house. This happened because White and Wheeler happened to arrive in front of the jail just as appellant was being taken to a preliminary hearing held in connection with the armed robbery charges against him in Virginia.³ Following the preliminary hearing, appellant was returned to the jail for the lineup. The room in which the lineup was held lacked the usual physical accoutrements which facilitate this type of identification. The room was small and crowded with onlookers. The five participants in the lineup were stationed in front of a row of vending machines.

The record does not suggest that there was any significant discrepancy in the stature, age, or dress of the participants. It is certain that Officer White, at some point prior to an identification of appellant, invited appellant to shift positions in the lineup, which he did. Wheeler, when he confronted the lineup, identified appellant, who is 6'2½" tall.

Further details concerning the lineup are not well established. Each witness at the suppression hearing who was present at that confrontation gave extended testimony as to the events surrounding it, but there were differences in their recollections.

Wheeler stated that, upon entering the jail, he was taken to a room where he sipped coffee while waiting for the lineup to be held. He said that he was in due course asked to wait in a nearby room while preparations for the lineup were made. He was then requested to reenter the original room, where he viewed the lineup and immediately identified appellant as the robber of the liquor store. Wheeler also stated that he had talked to no one prior to the lineup, and that he had never noticed any suggestive activity on the part of the officials conducting it, thereby indicating that he had not heard White's invitation to appellant to choose his own position in the lineup.

Lieutenant White also testified that Wheeler was in another room when the lineup was being arranged, and that, while he (White) might have suggested to appellant that the latter would be free to move to a different position in the lineup, he did not offer such advice while Wheeler was in the room. Lieutenant White also asserted that Wheeler had talked to no one prior to the commencement of the lineup.

Appellant's father testified that he and appellant's mother had come to Manassas that day in order to attend the preliminary hearing. He further testified that he had been walking with his son from the jail to the court house when he noticed Wheeler and Lieutenant White approaching the general area in their car. Following the preliminary hearing, he and his wife again accompanied appellant back to the jail and into the room where the lineup was conducted. He said that, as his son entered the room, he overheard Lieutenant White mention appellant's name to Wheeler. The father then claimed that he approached Wheeler and asked him "if he knew Gregory Neverson," to which Wheeler responded in the negative. Appellant's father also claimed that he and Wheeler stood side-by-side in a hallway outside of the room in which the confrontation was eventually held, and they observed Lieutenant White arranging the five lineup participants. Appellant's father also testified that he believed Wheeler to have been intoxicated at the time.

James P. Davenport, a Manassas lawyer whose office was across the street from the jail, testified that he received a call from a local police official asking him to attend the lineup in order to represent appellant.⁴ When he entered the room in the jail, he noted that it was crowded, and that the participants in the lineup were already assembled on the side of the room which contained vending machines. Wheeler, who was never identified to him as the eyewitness, was also present. Moreover, he stated that, as he began to question Lieutenant White about the wisdom of conducting the lineup under these conditions, Wheeler identified appellant. Finally, Davenport...