Williams v. United States

• Decision Date: 23 October 1969
• Docket Number: No. 21269,21270.,21269
• Citation: 419 F.2d 740,136 US App. DC 158
• Parties: Robert Earl WILLIAMS, Appellant, v. UNITED STATES of America, Appellee. Gerald COLEMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

136 US App. DC 158, 419 F.2d 740 (1969)

Robert Earl WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

Gerald COLEMAN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 21269, 21270.

United States Court of Appeals District of Columbia Circuit.

Reargued June 20, 1969.

Decided October 23, 1969.

Mr. Philip B. Brown, Washington, D. C. (appointed by this Court), for appellants.

Mr. Roger E. Zuckerman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, and William H. Collins, Jr., Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON and ROBB, Circuit Judges, sitting en banc.

LEVENTHAL, Circuit Judge:

On a June afternoon in 1965, two men armed with pistols shot and killed the proprietor of a liquor store while attempting to rob him. They escaped in a car driven by a third man. An informer's statement led to the arrest of appellant Williams as one of the gunmen. Williams was arrested without a warrant at his brother's house. Before presentment to a commissioner, Williams was held overnight and then placed in a lineup and shown to eyewitnesses, one of whom (Mrs. Neal) identified him. Mrs. Neal then picked Coleman's picture out of a group of four photographs, and subsequently identified Coleman at a lineup as the other gunman.

In July 1966 Williams, Coleman, and the alleged driver of the escape vehicle, Bland, were brought to trial on charges of attempted robbery and felony murder. After long deliberation the jury could not agree and a mistrial was declared. In May 1967 the defendants were tried again. The Government's case against Williams and Coleman consisted chiefly of Mrs. Neal's identification of them — both her in-court identification and her testimony about the lineups. Mrs. Neal, who was in the store at the time of the robbery, was positive about her identification and stated that she got a good look at the robbers when they entered. She also watched them for a few minutes until they pulled their guns and began struggling with the proprietor. In addition, two other witnesses, one a 12-year-old boy, identified Williams and Coleman at the trial although neither had been able to identify Williams at a lineup and neither had seen the Coleman lineup.

Williams and Coleman presented alibi defenses. Williams' girl friend and two other friends testified that Williams was picking up the girl friend's children at the time of the robbery. Coleman and another man testified that they were in Baltimore on the day in question, working as a two-man confidence game team. After three days of deliberation the jury returned guilty verdicts against Williams and Coleman for attempted robbery and felony murder. Each was given a life sentence on the murder count and a concurrent one-to-three-year sentence on the robbery count. Bland was acquitted.

After decision by a three-judge panel on appeal, these cases were set for hearing en banc because of the importance of issues raised.¹

I. Applicability of the Mallory Rule to Lineups

1. Appellant Williams relies on the Mallory rule, Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L. Ed.2d 1479 (1957), which implements Rule 5(a) of the Federal Rules of Criminal Procedure by making confessions obtained by police interrogation before presentment to a commissioner inadmissible at trial. He contends the Mallory rule requires that the court hold inadmissible the results of a lineup held prior to presentment to a commissioner. We disagree.

Prior to the advent of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967), this court on several occasions declined to extend the holding of Mallory to lineups held prior to preliminary hearing.²

Williams says a contrary result is mandated by Wade. His syllogism runs: Mallory is intended to assure that the defendant is promptly and judicially advised of his right to counsel for any "critical" stage of the prosecution. Wade established that the lineup is a "critical" stage of the prosecution. Therefore, lineups held prior to presentment to a commissioner are inadmissible. The syllogism seems neat, but misapprehends the Mallory doctrine and the Wade ruling. In Wade the Supreme Court established the right to assistance of counsel at a lineup because the lineup is a "critical" stage of the criminal prosecution. Yet in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Supreme Court determined that pre-Wade cases in which the right to counsel at the "critical" lineup stage had not been extended would not be overturned unless the lineup "was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law." 388 U.S. at 302, 87 S.Ct. at 1972.

The Supreme Court denied retroactive effect to Wade, as to confrontations on or before June 12, 1967, stating (388 U.S. at 297, 87 S.Ct. at 1970):

Wade and Gilbert fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel.

The Court's ruling that the deterrent purpose of Wade was satisfied by a prospective application plainly drew a distinction between different "critical stages" of the prosecution, a distinction between trials (and certain arraignments) where presence of counsel had been made a retroactive requirement, and lineups, as to which the right of counsel had only prospective application. The Court concluded that the post-indictment lineup without counsel did not fall within the precept that requires retroactive application "to correct serious flaws in the fact-finding process." (388 U.S. at 298, 87 S.Ct. at 1970). The Court held that although some danger of unfairness is inherent in confrontations for identification, and the "possibility of unfairness at that point is great," the delineation of rights of the accused requires an assessment of a "question of probabilities." "Such probabilities must in turn be weighed against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice." 388 U.S. at 298, 87 S.Ct. at 1970.

The considerations examined by the Supreme Court in Stovall lead to the conclusion that we should not characterize what the police did here in 1965 as contrary to Rule 5(a) and Mallory. Different considerations apply to identifications after Wade, for then police were fairly on notice that the right to counsel was a generally necessary ingredient in lineups.³

The Supreme Court's conclusion that there is no categorical imperative that required the condemnation of a pre-Wade lineup held in the absence of counsel also means that there is no imperative requiring condemnation of a pre-Wade lineup held in the absence of a commissioner's advice to the suspect that he had a right to counsel. He had no such universal right prior to Wade, and Rule 5(a) should not be re-read in the light of such a supposed right.⁴

2. While the case at bar does not require decision concerning the application of Mallory to post-Wade identifications, it is appropriate to comment on certain aspects of this problem, particularly in view of discussion by counsel as to the import of Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968). In one aspect Adams reiterates that a detention without probable cause cannot be justified on the ground that the police wish to arrange a lineup, and establishes the inadmissibility of any product of such lineup. That ruling has been fortified by the subsequent decision in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The other side of the Adams coin dispels any concern of the police that, assuming detention consistent with the Fourth Amendment, they must hasten to arrange lineups prior to preliminary hearing lest the opportunity for lineup be lost once the suspect is released on bail or recognizance.

The commissioner may assure that the suspect will be available for a lineup in any of several ways: by making it a condition of release, by suspending the order of release, or by continuing the preliminary hearing until the lineup is completed.

In a case in which the arrest was made on probable cause but further investigation clouds the issue, the commissioner's power to provide for a lineup can be justified, without regard to other reasons that may be found, as part of a process of obtaining the fullest information possible before making his ruling on the issue of further detention.

Since the police and prosecutors may implement identification procedures with the aid of judicial authority, as noted above, it may be hoped that the courts will not have to grapple with a claim that law enforcement officials are authorized even without such authority to extend a detention in order to obtain a post-Wade identification confrontation.

If any such claim is made it will be assessed in the light of all the circumstances — the situs, method, length, and purpose of detention,⁵ and whether the delay promotes, rather than hampers, fairness to the individual and effective and intelligent law enforcement.⁶ If the lineup or other identification procedure is made in the presence of counsel for the suspect, there would be no basis for a claim the identification was excludible as a fruit of illegal delay in presentment. The question might arise in a case where the confrontation was made in the absence of counsel, on a claim that counsel was not required under Wade,⁷ or that counsel had been waived, and if it arises the post-Wade relationship of Mallory and Wade may require further exploration.

II. The Polling of the Jury

Appellant Coleman attacks the procedure by which a poll of the jury was taken by the clerk, pursuant to request of defense counsel after the foreman announced the verdict.

Mrs. Lillian...