United States v. Robinson

• Decision Date: 14 October 1970
• Docket Number: No. 22876.,22876.
• Citation: 139 US App. DC 286,432 F.2d 1348
• Parties: UNITED STATES of America v. Daniel L. ROBINSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

139 US App. DC 286, 432 F.2d 1348 (1970)

UNITED STATES of America v. Daniel L. ROBINSON, Appellant.

No. 22876.

United States Court of Appeals, District of Columbia Circuit.

October 14, 1970.

Mr. Robert W. Coll, Washington, D. C. (appointed by this court) was on the briefs for appellant.

Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, Nicholas S. Nunzio, and Terry Philip Segal, Asst. U. S. Attys., were on the brief for appellee. Messrs. David G. Bress, U. S. Atty., at the time the record was filed, and Frank Q. Nebeker, Asst. U. S. Atty., at the time the record was filed, also filed appearances for appellee.

Before BAZELON, Chief Judge, and McGOWAN and ROBINSON, Circuit Judges, in Chambers.

PER CURIAM:

Appellant was convicted by a jury of five criminal offenses growing out of an armed robbery of a federally insured building association, and presents two issues on this appeal.

One claim is that the in-court identification made by a bank teller at trial was fatally tainted by a pretrial photographic identification. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). After a pretrial evidentiary hearing, the court found that there was no violation of due process.¹ There is, we think, adequate support in the record for the court's finding.

On the same day that the robbery was committed, the police arrested six suspects, including appellant. Individual photographs were taken of each of these persons arrested. Two group photographs were also taken, but not all of the suspects were included in these pictures. Appellant and two of the remaining five suspects, Garnett and Palmer, comprised the first group photograph. Only Garnett and Palmer were pictured in the second grouping. Hence, in the eight pictures taken by the police on the day of the robbery, appellant appeared twice (once individually and once in a group photograph), while suspects Garnett and Palmer appeared three times (once individually and once in each group photograph). Four days after the arrest, detectives visited the two tellers in the bank and asked them to look at an array of fourteen pictures. This array included the eight pictures mentioned above, and six individual photographs of other persons. One teller made no identification, but the second positively identified three of the suspects, including appellant.²

It is urged by appellant that this showing was suggestive in two respects. First, all six suspects had the date the photograph was taken (which also happened to be the date of the arrest and the date of the crime) displayed on their photographs. Second, three of the six were the only ones photographed in the group pictures. Hence, appellant claims that the identifying teller's attention was improperly drawn to him. While the inclusion of group photographs in a showing perhaps injects a doubtful element, we note that in Simmons the defendant was pictured several times in six-photograph group array. In our case, appellant appeared only twice in a fourteen-photograph array while another suspect who appeared three times was not identified by either eyewitness. Furthermore, it may be true that in certain instances a date placed on the picture will be overly suggestive. In the case at hand, however, the witness testified that she did not realize the significance of the numbers.³

Finally, Simmons indicates that there are general circumstances that may support the validity of a photographic identification. These include the conduct of the police in displaying the photographs, the length of time the witness viewed the participants at the time of the crime, and the positiveness with which the witness adheres to the identification. The record in this case makes clear that (1) the police officers engaged in no improper or suggestive activities, (2) the teller had an excellent opportunity to observe appellant in good lighting conditions for a four to five minute period, and (3) the teller was positive in her identifications. The District Court did not, we think, err in its finding that the photographic identification did not violate the due process clause.⁴

Appellant's other basis for reversal is that the trial court assertedly abused its discretion by refusing to sever his trial from that of a co-defendant. The co-defendant, Coles, had not been positively identified by the bank teller. Appellant asserts that Coles should have been tried separately, since his interest would be served by stressing the bank teller's credibility as an eyewitness by reference to her inability to make a positive identification in his case. On the other hand, appellant and the remaining co-defendant had an interest in attacking the teller's credibility.⁵

Since the three defendants were charged with the commission of the same crime, joinder of their cases at trial was authorized by Rule 8(b) of the Federal Rules of Criminal Procedure. Whereas Rule 14 recognizes that severance may be required where joinder tends to prejudice one or both of the co-defendants, the trial judge has been given wide latitude in...