United States v. Perry

• Decision Date: 01 June 1971
• Docket Number: No. 22469.,22469.
• Citation: 449 F.2d 1026
• Parties: UNITED STATES of America v. Franklin PERRY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

449 F.2d 1026 (1971)

UNITED STATES of America v. Franklin PERRY, Appellant.

No. 22469.

United States Court of Appeals, District of Columbia Circuit.

Argued September 25, 1969.

Decided June 1, 1971.

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Mr. Peter C. Jenkins (appointed by this court) for appellant. Mr. John A. Terry (appointed by this court at the time the brief was filed) was on the brief for appellant. Mr. William W. Greenhalgh (appointed by this court) also entered an appearance for appellant.

Mr. Allan C. Fork, Atty., Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., were on the brief, for appellee. Mr. David G. Bress, U. S. Atty., at the time the record was filed, also entered an appearance for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and ROBINSON, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The sole issue on this appeal, from convictions of robbery¹ and simple assault,² is whether a near-the-scene identification confrontation between a suspect without a lawyer and the victim, within an hour to an hour and a half after commission of the offenses,³ violated the suspect's Sixth Amendment right to counsel⁴ or his Fifth Amendment right to due process of law.⁵ The District Judge, after a hearing, held that no such violation was established, and permitted an in-court identification of the suspect, our appellant, and testimony as to the out-of-court identification at the trial. After careful study of the problem — one residing in a difficult and gray area of the law — we reach the same conclusion, and accordingly affirm appellant's convictions.

I

The offenses in suit occurred on a Sunday morning between 11:30 o'clock and 12:00 noon as William Cook was returning home from a grocery store.⁶ Two men approached him from behind; one man put his arm around Cook's neck, and the other came around in front to face him with a knife. The first, whom Cook later identified as appellant,⁷ then threw Cook to the ground and the other rifled his pockets, removing approximately three dollars. At this point, a car stopped nearby and an occupant inquired as to whether a robbery was in progress, whereupon the two men fled. Cook then returned home and called the police.

In reporting the robbery, Cook gave full descriptions of both men, including such details as ages, heights, weights and the fact that one wore a blue zippered waist-length jacket and blue trousers. The descriptions were flashed over the police radio network, and about 12:20 p. m. were noted by Officer Willie L. Polk while on duty in the robbery area. Officer Polk recalled that earlier that day he had seen a man — appellant, as it turned out — matching one of the descriptions. The officer then began a cruise of the area, and shortly thereafter spotted appellant and another man fitting the other description standing among a group only a half-block from the robbery scene. Appellant was wearing a blue jacket and blue trousers, and his physical features approximate those of the man described in the broadcast as having been so attired.

Officer Polk took the two men into custody⁸ about 12:45 p. m. and immediately transported them to Cook's house, a distance of about four blocks. Cook was asked to look at the men, the officer stating that they matched the descriptions Cook had given; aside from this statement, there was no suggestion to Cook that the police suspected either man. Cook came outside, viewed both men, and identified appellant as one of the robbers.⁹ It was then about 1:00 p. m., no lawyer was present, and the record is fuzzy as to the extent to which appellant may have been advised of a right to counsel.¹⁰

It is this confrontation that appellant attacks and, since it occurred after the Supreme Court's Wade-Gilbert-Stovall pronouncements,¹¹ the principles delineated in those decisions were fully operative.¹² Upon a defense motion to suppress, the District Judge conducted a hearing, at which Cook and Officer Polk both testified, and thereafter rejected appellant's Wade-Gilbert and Stovall approaches.¹³ This ruling opened the door to Cook's in-trial identification of appellant as one of the robbers, and testimony by Cook and Officer Polk as to the identification at Cook's home.

Appellant's defense rested on his testimony that, while walking along the street, he came upon Cook arising from the ground, a bag of groceries lying nearby. Cook, appellant testified, then said "you are the one" and admonished appellant to "wait until I get back." Appellant testified further that he continued to walk on for another half-block to a corner where he stayed until he was arrested, and denied any connection whatever with the robbery. As we have mentioned, however, the jury thought otherwise and convicted.

II

The Wade-Gilbert-Stovall trilogy articulated constitutional standards governing identification procedures by which the criminally suspect may become the criminally accused. Wade and Gilbert established the suspect's Sixth Amendment right to counsel at an identification confrontation;¹⁴ Stovall established his right to freedom from a confrontation "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to amount to a deprivation of Fifth Amendment due process of law.¹⁵ Nonsatisfaction of these standards bars implicated witnesses from subsequent in-court identifications not flowing from independent sources,¹⁶ and from testimonial reference to prior illegal identifications.¹⁷

As we have indicated, appellant weaves a thesis for reversal from strands of all of these constitutional doctrines. He was without the benefit of counsel, he points out, when he was identified by Cook at the latter's home; that identification, he argues, occurred under circumstances so highly suggestive of his complicity in the robbery as to impinge upon due process. Therefore, so the argument runs, Cook's in-court identification, and Cook's and Officer Polk's testimony as to Cook's out-of-court identification, were improperly received at his trial, with the result that his conviction cannot stand. We first take up appellant's right-to-counsel contention, and then his due process claim.¹⁸

In Russell v. United States,¹⁹ we sustained, against a Wade-Gilbert argument, an on-the-scene identification confrontation between the victim and a singly-presented suspect transpiring quite shortly after the crime. We noted that "prompt on-the-scene identifications" were not precisely covered by the Wade and Gilbert holdings,²⁰ which involved post-indictment lineups;²¹ we observed that in Wade and Gilbert "the Court was evidently focusing primarily on the routine lineup and show-up procedure employed by the police to obtain evidence for use at trial."²² "In these typical cases," we continued, "where counsel has been retained and time is not a factor, the Court could find `no substantial countervailing policy considerations * * * against the requirement of the presence of counsel.'"²³ We found that in the circumstances of the case then before us "there would necessarily be a long delay in summoning appellant's counsel or a substitute counsel to observe the formal lineup;"²⁴ "such delay," we said, "may not only cause the detention of an innocent suspect; it may also diminish the reliability of any identification obtained, thus defeating a principal purpose of the counsel requirement."²⁵ We concluded:

Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations in circumstances like those of this case will "if anything promote fairness, by assuring reliability * * *." This probability, together with the desirability of expeditious release of innocent suspects, presents "substantial countervailing policy considerations," which we are reluctant to assume the Supreme Court would reject. We therefore conclude, with some hesitation, that Wade does not require exclusion of the appellant\'s identification.²⁶

III

On the right-to-counsel issue, Russell differs essentially from the instant case only with respect to the length of the time interval between the offenses and the identification confrontation.²⁷ In Russell, it was a matter of about 30 minutes;²⁸ here it was a period of an hour to an hour and a half.²⁹ The problem at hand, then, is to determine which ambit — Wade's or Russell's — the present case falls within. The Government urges us to define the scope of the Russell holding in terms of a "reasonableness" test involving the circumstances surrounding such a confrontation.³⁰ Appellant, on the other hand, would have us confine Russell within the narrowest limits of the situation there presented — a confrontation "within minutes" after the observed offense.³¹

While a fixed time limit would reduce, for police and courts alike, uncertainties in Russell implementations,³² the legal test must surely be more flexible. As Russell instructs, the redeeming virtue in on- or near-the-scene identifications is their freshness — as a factor promoting their reliability, and consequently their fairness.³³ Time is, of course, of the essence, for the trustworthiness of an eyewitness identification, dependent as it is on sharpness of memory, is apt to lessen with the passage of time.³⁴ But the pace of memory-dimming may be reflected by other circumstances — those which may either strengthen or weaken an ensuing identification³⁵ — and those circumstances vary from case to case. We can no more say that every identification within any particular fixed period is assuredly reliable than we can say that every identification beyond that period is assuredly unreliable. We reject, then, a purely artificial time approach to confrontations of the type under review, and favor instead a standard which gives other factors bearing upon the fidelity of the identification their just due.³⁶

We have recognized three distinct interests toward which prompt...