United States v. Smith, 71-1185
| Decision Date | 20 October 1971 |
| Docket Number | 71-1186.,No. 71-1185,71-1185 |
| Parties | UNITED STATES of America v. Laddie SMITH, Appellant in No. 71-1185, Clark Lumpkin. Appeal of Clark LUMPKIN, in No. 71-1186. |
| Court | U.S. Court of Appeals — Third Circuit |
Donald Rossetti, Martin, Finnegan & Rossetti, Monroeville, Pa., argued for appellant in No. 71-1185.
George E. Schumacher, Schumacher & White, Pittsburgh, Pa., for appellant in No. 71-1186.
W. Wendell Stanton, Asst. U. S. Atty., (Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.
Before STALEY, ADAMS and ROSENN, Circuit Judges.
:
Defendants, Smith and Lumpkin, were convicted by a jury of interstate transportation of a stolen motor vehicle and kidnapping.
On August 30, 1969, a car was stolen in Steubenville, Ohio and driven to Carnegie, Pennsylvania, where the ride was ended by a collision between the car and a truck. During the trip, Paul Settles, a hitchhiker, was picked up in Weirton, West Virginia and forced by the occupants to ramain in the car for the balance of the journey.
After the accident with the truck, Smith, Lumpkin, and a juvenile not involved in the present prosecution, were found wandering down the road by a local policeman and were taken to the Carnegie State Police Barracks. The hitchhiker, Settles, was also transported to the Barracks. Settles was then taken to a room in the Barracks where Smith, Lumpkin and their companion were the only Negroes present. Settles was asked if these were the men who picked him up, and he identified the three at this time and again at the trial.
The confrontation at the Barracks without counsel was a violation of the principles enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967). This Court has held that a pre-indictment line-up is a critical stage requiring the presence of counsel. Government of Virgin Islands v. Callwood, 440 F.2d 1206 (3d Cir. 1971). No exigent circumstances were present here to justify the actual procedure. Id.
In arguing for a new trial, however, Smith and Lumpkin have ignored the fact that their identity was not an issue at their trial, and therefore, even though admission into evidence of Settle's identification testimony might have been error, it certainly was harmless beyond a reasonable doubt. Chapman v. California, 388 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Both defendants gave statements to the State Police which, while not admitting their active participation in the theft of the car and the kidnapping of Settles, clearly tended to place them in the car in question. At trial,...
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