United States v. Randolph

• Decision Date: 22 December 1970
• Docket Number: No. 23222.,23222.
• Citation: 443 F.2d 729
• Parties: UNITED STATES of America v. Calvin L. RANDOLPH, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

443 F.2d 729 (1970)

UNITED STATES of America v. Calvin L. RANDOLPH, Appellant.

No. 23222.

United States Court of Appeals, District of Columbia Circuit.

Argued April 27, 1970.

Decided December 22, 1970.

Mr. Grant Stetter, Washington, D.C. (appointed by this court), for appellant.

Mr. John O'B. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and TAMM and MacKINNON, Circuit Judges.

MacKINNON, Circuit Judge:

The office of Lea's Green Meadows, Inc. (Lea's), a wholesale food enterprise, was held up and robbed at about 11 A. M. on November 8, 1968 by two men. Appellant Calvin Randolph was subsequently convicted by a jury on two counts and sentenced to a term of imprisonment for robbery and assault with a dangerous weapon. He appeals and we affirm.

I

At trial, the single contested issue was the identification of the accused and the Government presented an abundance of proof that Randolph was the robber in the dark raincoat who participated in the holdup using a sawed-off shotgun.

Otis Davis, a truck driver for Lea's, testified that he had known Randolph for about one or two years, had seen him quite a few times, had been in games with him, they had loaned each other money, and he identified Randolph as the defendant. He further testified that between 10:30 A.M. and 11 A.M. on the day of the robbery he saw Randolph with Anthony McDonald (also later identified as one of the robbers) about two blocks away from Lea's Green Meadows; that Randolph was wearing a dark green or black coat; that Randolph asked him where he was going and he told him he was going back to the plant (Lea's Green Meadows), whereupon Randolph asked if he had any money and Davis said no and they parted going in opposite directions, Davis toward the plant.

Mr. Lea, the proprietor of Lea's Green Meadows, testified he and others in his plant were held up at about 11 A.M. on November 8, 1968, that Randolph was one of the robbers, that the lighting was good in the plant at the time of the robbery, that Randolph first engaged him in conversation from a distance of about two feet before he held him up, that he had a good opportunity to view Randolph at that time and once or twice later in the holdup and that Randolph was not disguised. Later in the day of the robbery, Mr. Lea looked at several albums of pictures of possible suspects shown him by the Robbery Squad but did not identify any of the photographs and also did not identify any of the suspects he saw at Randolph's apartment that same day. Within about a week of the crime, without any assistance, Lea identified a photograph of Randolph from nine or ten photographs shown to him at that time. He also made a lineup identification of Randolph¹ and McDonald on December 10, 1968 and an in-court identification of Randolph at trial. Mr. Lea further testified that Randolph wore a (a) dark raincoat at the time of the robbery, that he held him up with a (b) sawed-off shotgun and carried away the proceeds of the robbery (over $500) in an (c) El Producto cigar box. These details assumed particular significance as the trial progressed.

Rogers, the shipping clerk at the plant, who was also held up corroborated Mr. Lea's testimony of the circumstances of the robbery, the time of the holdup, the use by one robber of the sawed-off shotgun and that one of the robbers wore a black or dark green raincoat. Rogers, also without any assistance, from about 15 or 20 photographs shown him within the week after the robbery, made a photographic identification of Randolph ("This is him.") as being the robber in the dark raincoat who used the sawed-off shotgun (about two feet long) and made an in-court identification of Randolph. However, Rogers did not attend the lineup on December 10, 1968 when Mr. Lea testified he identified Randolph and McDonald.

Further significant evidence supporting the conclusion that Randolph was one of the robbers was adduced through the testimony of Officer Charles A. Mussomele (a 7-year veteran police officer) who testified that he knew Randolph previously, that on the day of the robbery at about 10:55 A.M. he was cruising in a police car about two blocks away from Lea's Green Meadows when he saw two men walking very hurriedly on the side of the street; they appeared nervous as they kept looking around, their manner aroused his suspicions and he decided to stop them; he cruised to within about 14 feet of them and called to appellant "Calvin" Randolph by name to stop but both suspects ran away. He had observed Randolph carrying (a) something black under his arm (it looked about the way a black raincoat looks rolled up), and a (b) sawed-off shotgun under the light trench coat he was wearing at that time. Randolph was in the company of the other man who was carrying an (c) El Producto cigar box. Mussomele testified further that he chased the two men but was not able to apprehend them at that time. He made an in-court identification of Randolph and testified that the other man with him was about 21 years old, about 6 feet tall and had a mustache, goatee and light skin. The description fit that of McDonald.

There was thus ample evidence, both direct and circumstantial, that Randolph committed the offenses of which he stands convicted.

II

The principal issue on this appeal concerns the introduction in evidence of Lea's identification of appellant at the lineup held on December 10, 1968. Specifically, appellant argues that he was not represented by counsel at the lineup and that the introduction of the identification at trial therefore violates the rules enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

On December 10, Lillian Havenner, a bookkeeper at Lea's Green Meadows, and Lea viewed a lineup in which both appellant and McDonald appeared.² At the time of the lineup, appellant had not been arrested for the instant robbery and consequently did not have counsel in this case. However, he had been arrested previously on another robbery charge and counsel had been appointed to represent him on that charge. Appellant had been ordered to appear in the December 10 lineup in connection with the second robbery charge and his counsel on the other charge had been notified of the lineup and invited to attend.³ This he did not do. A lawyer for the Legal Aid Agency, Mr. Christensen, was present at the lineup, however, and testified that he

was a general representative lawyer there to represent those defendants who were unrepresented by counsel for purposes of that line-up.⁴

Appellant does not contest the fact that Mr. Christensen was present at the lineup but argues instead that Christensen was not representing him for purposes of the lineup. On this issue, the evidence was somewhat ambiguous. Christensen testified twice on the matter, first, at the pretrial hearing held on appellant's motion to suppress Lea's lineup identification and, secondly, at the trial which followed. At the pretrial hearing, his testimony was that he attended a great many lineups, that he had no independent recollection of the instant one and that such testimony as he could give was based exclusively on the notes he had contemporaneously written on the separate cards he used to record the circumstances surrounding each lineup.⁵ He further testified that he had attended 14 lineups on the night of December 10,⁶ that his notes reflected that appellant was present on the stage but that he interpreted his notes to indicate that he "did not conduct a line-up" with appellant and that he "never had appellant particularly in mind as the defendant he represented." He did, however, represent other persons suspected of participation in the same robbery who were present in the lineup, and made no objection to the lineup itself.⁷

At trial the next day, Christensen modified his pretrial suppression hearing testimony somewhat to indicate that, although his attention was focused on another person in the lineup, he was representing appellant in a "general" way. On his cross-examination, it was also elicited that among the notes he made of the lineups he attended on December 10th was one which had appellant's name at the top of the card relating to lineup 19. He further testified that it was his general practice to place the name of the person whom he was representing at the top of the card on which he wrote his notes concerning the lineup in which that person was involved.

Both at the pretrial hearing and at trial, Christensen testified that his lineup notes indicated that Lea did identify McDonald at the lineup. There was no indication on his notes that Lea had identified appellant, however, and from the absence of such indication, Christensen concluded that Lea had not identified appellant. However, Lea and two detectives who were present at the lineup testified that Lea did identify appellant and the police records of the lineup, which were admitted in evidence, indicated that he had.

Based on the foregoing, we are of the opinion that it was not erroneous for the trial court to conclude that appellant was represented by counsel at the lineup and therefore it was not error for testimony to be admitted concerning Lea's lineup identification of appellant. Since Christensen had no independent recollection of the circumstances surrounding the lineup, great weight must be placed on his contemporaneous notes which recorded certain facts. See generally Zassenhaus v. Evening Star Newspaper Co., 131 U.S.App.D.C. 384, 387 n.18, 404 F.2d 1361, 1364 n.18 (1968); United States v. Riccardi, 174 F.2d 883 (3d Cir.), cert. denied, 337 U. S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746 (1949). The notes themselves were admitted into evidence without objection and, when Christensen's testimony concerning his...