United States v. Sanders, 72-1534.
| Decision Date | 17 May 1973 |
| Docket Number | No. 72-1534.,72-1534. |
| Citation | 156 US App. DC 210,479 F.2d 1193 |
| Parties | UNITED STATES of America v. Haywood SANDERS, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
George F. Bason, Jr., Washington, D. C. (appointed by this Court), for appellant.
William A. White, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Vincent R. Alto and Warren L. Miller, Asst. U. S. Attys., were on the brief for appellee.
Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBB, Circuit Judges.
A man entered a Hot Shoppe in this City around midnight on June 5, 1970, and inquired of the cashier, Miss Samuels, aged eighteen at the time, when the restaurant closed. She answered that they were closing. The man then went to the food counter and gave Mr. Johnson, the manager, a note which read: "This is a holdup; I have a gun under this coat draped over his right arm; I don't want to hurt anybody." Under this threat the two men went into the manager's office. There, money was taken from the safe and that in the cash register was also required to be given him.1 In all approximately $500.00 was put in a paper bag the robber had. He then fled with the bag.
Appellant was convicted of the robbery, 22 D.C.Code § 2901 (Supp. V, 1972), and is serving a sentence of two to seven years. His appeal questions the admission at trial of the identifications by Miss Samuels and Mr. Johnson, without whose testimony he could not have been convicted. The jury's own uncertainty as to the reliability of their identifications is indicated by what appears to have been a compromise verdict: convicted of robbery, appellant was acquitted of both armed robbery and assault with a dangerous weapon though there was no dispute a gun was used in the robbery. It is also significant that the judge who conducted the pretrial hearing on appellant's motion to suppress the identification testimony, although denying the motion, expressed concern about the identification by Miss Samuels.
We find in the totality of the circumstances that there was "a very substantial likelihood of irreparable misidentification," Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L. Ed.2d 1247 (1968), by Miss Samuels and Mr. Johnson, due to suggestive identification procedures, considered with the discrepancies and uncertainties in their testimony. We accordingly hold that their in-court identifications were inadmissible at this trial, requiring reversal. In developing the subject we refer first to the descriptions of the robber given by Miss Samuels and Mr. Johnson to the police shortly after the robbery. We then address the photographic and lineup identifications by these witnesses, after which we outline their trial testimony. We then draw our conclusions.
Miss Samuels testified at the suppression hearing that she had an opportunity to view the robber twice. The first was at the register when he asked if the restaurant was closed. The lighting there was "not very good"—because of the "orange lights." The second was after the robber went into the manager's office. When Miss Samuels came over to the doorway of the office Mr. Johnson told her to return to the cash register. The robber looked around and for a moment she saw him again. At the suppression hearing she testified as follows with regard to her initial description to the police, on her examination by defense counsel:
Thus her description was uncertain and vague: stout man with some sort of facial hair and a dark jacket over his arm. During the redirect examination the Court asked if she would have been able to recognize the robber if she saw him on the street later on the day of the robbery. She replied, "No."
At the same hearing Mr. Johnson's initial description, which, as he put it, was "not very positive," was as follows:
Well, as best I can recall, I think I said he was about five foot six or seven, heavy structure, you know, around the neck line, and I think it was a slight beard . . . .
He had the better opportunity to observe the man during the robbery, which he said lasted "more or less . . . for about ten minutes—indirectly for about ten minutes."2
The initial description of the robber recorded by the police, without an indication which witness gave it, was more reflective of Mr. Johnson's recollection:
Negro male—about 25, five feet six inches, tall, about 175 pounds, bush hair, dark complected . . . .3
On June 5, 1970, the day of the robbery, eight photographs of the head and shoulders of black males were shown to Miss Samuels and Mr. Johnson. The photographs gave no indication of height. Only two of the eight had any facial hair. One had a mustache, very short sideburns, and a slight goatee; he was not dark in complexion. The other had a heavy mustache, and sideburns down to his goatee or beard, which was full; he was also definitely dark in complexion, and heavier in build than the others. This was a photograph of appellant.
When shown the eight photographs, Miss Samuels testified that the detective told her "that one of these men might be the robber and if I looked through them and see if I could see the man there." She picked out the photograph of appellant. The following at the hands of the court occurred:
Six days later, on June 11, 1970, she attended a lineup of nine men. Appellant was the only man in the lineup whose picture had been shown to the witness. He was the tallest man, and the only heavy-set, stout person, who had a full mustache and full goatee. Miss Samuels identified him because "he was tall and stout and the man just looked like the man that robbed us and that is the best that I can do." Contrary to the initial descriptions of the robber as five feet six or seven inches, appellant was over six feet tall.
At the suppression hearing she admitted being better able to identify appellant because of the identification procedures:
Mr. Johnson was also shown the eight photographs on June 5, 1970. The investigating officer testified he told Mr. Johnson that among the eight was the photograph of a man an informer had named as the robber. After going through the photographs twice Mr. Johnson selected appellant's and explained why as follows:
At the lineup, Mr. Johnson also identified appellant as the man who looked more like the robber than anyone else in the lineup, again because of appellant's shoulders and neck. When asked at the suppression hearing if he could identify the robber if he met him on the street now, Mr. Johnson said he was uncertain.
At trial Miss Samuels described the robber as "stout, short bush, brown-skinned, goatee," and that he was wearing a green sweater. On cross examination she now said she would have been able to recognize the robber on the street if she saw him on the day of the trial and on the day or day after the robbery, in the latter respect contradicting her testimony at the suppression hearing a year earlier. She could not explain why she answered differently at trial.
Mr. Johnson described the robber as tall, close to six feet, although originally he had described him as being five feet six or seven inches. In identifying the photograph on June 5, 1970, he stated he could not be positive the man in the photograph was the robber. Similarly with respect to the lineup, Mr. Johnson said he was not positive, "not one hundred percent sure," meaning:
. . . if I am to determine whether or...
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