United States v. Toney, 20509
| Decision Date | 14 April 1971 |
| Docket Number | 20510.,No. 20509,20509 |
| Citation | 440 F.2d 590 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank Arthur TONEY and Ronnie Allen Smitherman, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William F. Bavinger, III, Detroit, Mich. (Court appointed), for Frank Arthur Toney.
Robert A. Canner, Detroit, Mich. (Court appointed), for Ronnie Allen Smitherman.
Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., for plaintiff-appellee.
Before McCREE and MILLER, Circuit Judges, and McALLISTER, Senior Circuit Judge.
On March 6, 1969, at approximately 1:30 P. M., a branch bank of the Bank of the Commonwealth, located at Grand River and Virginia Park in the City of Detroit, was robbed by three Negro males. None of the robbers had their faces covered; they were dressed in street clothes; and they made no effort to disguise their identity. They had been in the bank for a period of three to five minutes before the robbery. The bank was equipped with surveillance cameras which took moving pictures of the robbery in progress. The two defendants were identified by Frankie Gerard, a teller in the bank at the time of the robbery. She was three to four feet away from one of the robbers, and fifteen to twenty-five feet away from another. She said one had a gun and said: "This is a hold-up." The other was passing out paper bags, ordering each teller to fill them. Cecilia Perrin, another teller in the bank, made an in-court identification of Smitherman. A customer of the bank, who was there at the time of the robbery, made an in-court identification of both Toney and Smitherman. Rowena Lewis, a teller, testified that she remembered the man who came to her window on the day of the hold-up, and described him as having worn a gray felt dress hat, gym shoes, a jacket, and khakis; that she would recognize him if she saw him again; that she saw him, during the trial, in the courtroom, wearing a blue sports jacket, that he was sitting behind Mr. Canner, and that the man she saw in court was appellant Smitherman.
As to appellant Toney, the witness stated that, in the showup, she wasn't positive that the man she saw at the manager's desk was Toney; but she recognized him in the courtroom as the man wearing a green sweater. However, she was not positive that a photograph of Toney, which she was shown in court, was really a photograph of Toney. When the pictures of the surveillance camera were shown in court, the witness testified that she recognized appellant Smitherman "in the jacket with the gray felt hat on," and that "He was passing out paper bags and collecting the money." At the conclusion of the Government's proofs, the defense made a motion for a directed verdict of acquittal, which was denied.
The proofs of the defense consisted largely of an alibi, the witnesses for Toney being himself, and his mother. The witnesses of an alibi for Smitherman consisted of his mother, his grandmother, his girl-friend, an elderly gentleman who lived with the grandmother, and a next-door neighbor.
There was Government rebuttal going to evidence of certain claimed inconsistencies of the testimony of the alibi witnesses.
At the conclusion of their proofs, the appellants not having moved for a directed verdict, the case was submitted to the jury after agreed-upon instructions, and the jury returned a verdict of guilty against both appellants. After the verdict, appellants moved for a new trial and the court took testimony from two witnesses relating to new evidence proffered; but the motion was denied and the defendants were sentenced.
The evidence of the Government relating to the identification of the two appellants as robbers of the bank is attacked by appellants who claim that, while the Government witnesses made "in-court identification" of appellants, certain of these witnesses could not identify appellants in a line-up, or others could not identify them from photographs. The fact that a witness cannot identify an accused from a photograph is no reason for excluding his testimony identifying the accused in court. When a man is actually seen in court, his expression, the glance from his eyes, the movement of his facial features may be, to a witness, much more convincing that he has seen that man before than observations of a photograph taken of the accused, or views of him at a "line-up" or police "show-up." United States v. Black, 412 F.2d 687 (C.A. 6).
The fact that some witnesses could not identify one or the other of appellants from photographs, or...
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