United States v. Williams

• Decision Date: 29 December 1970
• Docket Number: No. 25395.,25395.
• Citation: 436 F.2d 1166
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Earl WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

436 F.2d 1166 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Richard Earl WILLIAMS, Defendant-Appellant.

No. 25395.

United States Court of Appeals, Ninth Circuit.

December 29, 1970.

Michael P. Balaban (argued), Beverly Hills, Cal., for defendant-appellant.

J. Kent Steele (argued), Asst. U. S. Atty., Robert L. Meyer, David R. Nissen, Chief, Criminal Div., Los Angeles, Cal., for plaintiff-appellee.

Before BARNES, DUNIWAY and TRASK, Circuit Judges.

DUNIWAY, Circuit Judge:

Williams was found guilty by a jury under a one-count indictment charging him with bank robbery, 18 U.S.C. § 2113(a). We affirm. Williams argues that: (1) The evidence is insufficient to sustain the conviction; (2) the court erred in denying his pretrial request for an in-court lineup; (3) the court erred in admitting the testimony of two eye-witnesses, because that testimony was the product of illegal pretrial identification procedure; and (4) the court erred in not granting his pretrial motion to suppress that same testimony on the ground that it was the tainted fruit of an illegal search.

1. Sufficiency of the evidence.

On December 2, 1968, a man with shoulder-length hair and a full beard, wearing a bright shirt and a headband, entered the Citizens Commercial Bank in Pasadena, California. He approached a table facing the window of teller Hedy Renfro and remained there for three or four minutes while he wrote something. He then walked past teller Renfro's window toward the window of teller Judy Kelley. Teller Renfro had no line before her window, and asked him if she could help him. He looked at her, mumbled something that she could not clearly understand, and joined the line at teller Kelley's window. He stood in that line for something under two minutes. When he reached the window, he placed a note on the counter; the note read, "Hand me your money. I am not kidding. I have a bottle of nitroglycerin." He handed teller Kelley a paper sack, in which she placed approximately $308. He took the paper sack and left the bank.

At trial, tellers Kelley and Renfro testified to the foregoing facts, and both identified Williams as the robber. A third witness, one Miller, a neighbor of Williams, testified that before December 2, 1968, Williams had asked Miller if Miller had robbed the Citizens Commercial Bank. Miller said he had. Williams asked if it had been hard to do, and Miller told him it was easy.

While recognizing the hazards of untrustworthiness inherent in eyewitness identifications, see United States v. Wade, 1967, 388 U.S. 218, 228-229, 87 S. Ct. 1926, 18 L.Ed.2d 1149, we think that the jury could reasonably rely on the two tellers' in-court identifications of Williams as the robber. Teller Kelley said she was "ninety per cent sure that Williams is the person that robbed the bank." After approaching Williams during the trial and looking closely at him, teller Kelley said she was "very, very, very sure, but not a hundred per cent" sure that he was the robber. Teller Renfro also identified Williams, saying that he "looks very close to the bank robber. There are a few differences."

The fact that each teller voiced some reservations in her identification does not make these identifications legally insufficient. Each teller specified the particular characteristics shared by Williams and the robber that led her to conclude that the two were one and the same man. Teller Kelley said it was "his physique, his face, his eyes," and "the shape of his face." Teller Renfro testified that Williams had "the same height, built sic, his eyes and his nose, the way he looks, you know, the way he's looking, exactly the same way." Each teller had ample opportunity to observe the robber at the time of the robbery. Their reservations reflected the fact that the robber had a beard and long hair while Williams, at trial, had short hair and was beardless, and also the fact that teller Kelley had been understandably nervous during the robbery. The reservations are compatible with a candid and conscientious approach toward their duties as witnesses in a felony trial, and the jury could have so found.

Williams' invocation of Alexander v. United States, 5 Cir., 1965, 354 F.2d 59, is unpersuasive. In that case, the identifications of the defendant were so uncertain as to be valueless.

The evidence was sufficient.

2. Williams' request for an in-court lineup.

Before the start of trial, defense counsel requested an "in-court lineup," which the trial judge denied. In cases such as this, where the question of guilt or innocence hangs entirely on the reliability and accuracy of an in-court identification, the identification procedure should be as lacking in inherent suggestiveness as possible. Yet that is often not the case. When asked to point to the robber, an identification witness — particularly if he has some familiarity with courtroom procedure — is quite likely to look immediately at the counsel table, where the defendant is conspicuously seated in relative isolation. Thus the usual physical setting of a trial may itself provide a suggestive setting for an eyewitness identification.

Because of such potential suggestiveness, some trial judges have granted defense requests to place the defendant in an in-court lineup, or to seat the defendant in the courtroom audience, before and during the testimony of the prosecution's identification witnesses. See, e. g., Allen v. Rhay, 9 Cir., 1970, 431 F.2d 1160; United States v. Moss, 3 Cir., 1969, 410 F.2d 386, 387. Such arrangements are desirable efforts to ensure fair trials. But we cannot find any support for the assertion that a defendant has a right to such an arrangement whenever he requests it. Like the seating arrangements for prospective witnesses, Allen v. Rhay, supra (at 1164), the procedure for in-court eyewitness identification is left to the trial judge's discretion. Absent abuse of that discretion resulting in procedure "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to amount to a denial of due process of law, Stovall v. Denno, 1967, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, we should not question the trial judge's ruling. Williams has failed to show any such abuse of the judge's discretion in this case.

3. The legality of the pretrial identifications.

Williams argues that the pretrial identification procedures used by the government have denied him both his Sixth Amendment right to counsel and his right to due process of law.

On April 1, 1970, a lineup was held in which Williams was viewed by tellers Kelley and Renfro. Williams was represented by counsel at the lineup. Each teller identified Williams as the person in the lineup who most resembled the robber. The two tellers were also shown, on various occasions between the time of Williams' being taken into custody and his trial, a group of photographs one of which was of Williams. Williams was the only person common to the lineup and the group of photographs.

a. Right to counsel.

Williams first argues that, on the authority of United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 1967, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, he was entitled to have his counsel present when the prosecution, as part of its preparation for trial and after Williams was in custody, showed the photographs to the two eyewitnesses. We have rejected this contention in Allen v. Rhay, supra (at p. 1167), thus aligning ourselves with the Second, Fifth, Seventh and Tenth Circuits. See also United States v. Edwards, 9 Cir., 1970, 433 F.2d 357; United States v. Goetluck, 9 Cir., 1970, 433 F.2d 971; United States v. Roustio, 9 Cir., 1970, 435 F.2d 923. The contrary decision of the Third Circuit in United States v. Zeiler, 3 Cir., 1970, 427 F.2d 1305, does not persuade us to change our views.

b. Due process of law.

Williams contends that the lineup, taken in conjunction with the photographic identification, violated his right to due process of law. He bases his contention upon the fact that only Williams appeared as a subject in both the lineup and the photographic identification.

We are required to set aside the conviction only if the pretrial identification procedure, taken as a whole, "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377 at 384, 88 S.Ct. 967 at 971, 19 L.Ed.2d 1247. Accord, Stovall v. Denno, 1967, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L. Ed.2d 1199; Allen v. Rhay, supra; Davis v. United States, 9 Cir., 1970, 425 F. 2d 673, 674; Borchert v. United States, 9 Cir., 1968, 405 F.2d 735, 737. In the application of this test, "each case must be considered on its own facts." Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971. Here we find no basis for concluding that the lineup and the photographic spread were conducive to "irreparable misidentification." It is true that teller Renfro had been shown the photographic spread a second time the morning before trial. She stated, however, that she could have identified Williams in court as the robber without the benefit of having seen the...