Robert Earl Williams v. United States of America, Gerald Coleman v. United States

419 F.2d 740, 136 U.S. App. D.C. 158, 1969 U.S. App. LEXIS 10331

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 23, 1969
• Docket: 21269, 21270
• Status: Published

Opinions

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 Sto-vall 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.” “S.uch 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 pr e-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 coneerri 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 Ansher was the first to be polled. The transcript shows the following :

THE DEPUTY CLERK: Lillian An-sher, what say you as to the defendant Frederick D. Bland on Count 1 ?

MR. SHORTER: Your Honor—

THE COURT: On this with respect to the defendant Robert Williams.

THE DEPUTY CLERK: Oh, just as to him only ?

THE COURT: At the request of his counsel.

THE DEPUTY CLERK: Lillian

Ansher, what say you as to the defendant Robert E. Williams on Count 1? MRS. ANSHER: Guilty.

THE DEPUTY CLERK: What is the punishment?

MRS. ANSHER: Death — no. Life. [The poll as to Williams continued.]

******

THE COURT: Let the jury be polled as to Gerald Coleman.

THE DEPUTY CLERK: Lillian

Ansher, what say you as to the defendant Gerald Coleman on Count 1 ?

MRS. ANSHER: Innocent.

THE DEPUTY CLERK: I didn’t hear what you said. Mrs. Lillian An-sher — .

MRS. ANSHER: Not guilty.

THE DEPUTY CLERK: What was that?

MRS. ANSHER: Not guilty.

THE COURT: Repeat the question to the juror.

THE DEPUTY CLERK: Mrs. An-sher, what say you as to the defendant Gerald Coleman on Count 1 ?

MRS. ANSHER: Guilty.

THE DEPUTY CLERK: What is the recommendation for punishment?

MRS. ANSHER: Prison.

THE DEPUTY CLERK: What was that?

THE COURT: Did you hear the question ?

MRS. ANSHER: No.

THE COURT: Repeat the question, Mr. Clerk.

THE DEPUTY CLERK: What is your recommendation for punishment as to Gerald Coleman on Count 1?

MRS. ANSHER: Guilty.

The DEPUTY CLERK: I say what is your recommendation for punishment?

******

MRS. ANSHER: I am confused

right now.

******

THE DEPUTY CLERK: Mrs. An-sher, what is your recommendation—

THE COURT: I don’t think she can hear you because I can’t hear.

THE DEPUTY CLERK: Mrs. An-sher, Lillian Ansher, what is your recommendation for punishment as to the defendant Gerald Coleman on Count 1 ?

MRS. ANSHER: To be convicted, I guess.

THE COURT: I can’t hear you.

THE DEPUTY MARSHAL: Can you understand the Clerk?

MRS. ANSHER: Yes, I can.

THE DEPUTY CLERK: What is your recommendation for punishment of Gerald Coleman on Count 1?

MRS. ANSHER: Guilty.

THE COURT: You may step back.

(Juror No. 1 returns to place in line of jurors.)

******

THE COURT: Continue the poll.

THE DEPUTY CLERK: Richard B. Sladen—

THE COURT: No. With respect to Count 3 [robbery count].

THE DEPUTY CLERK: Mrs. Lilian Ansher, what say you as to the defendant Gerald Coleman on Count 3 ?

MRS. ANSHER: Robbery and killing.

After the other jurors were polled, defense counsel moved for a mistrial on the ground that Mrs. Ansher was incompetent. The court sent the jury back to the jury room and told it to “determine what is in fact their unanimous verdict. * * ” Twenty-two minutes later the jury returned and the foreman announced a unanimous verdict as to each defendant, Williams and Coleman, of guilty on both the murder and robbery counts. The defense did not request a further poll and none was conducted. The court accepted the verdict.

There is no doubt that as the polling of the jury proceeded Mrs. Ansher became confused. The trial court concluded that she became confused but was not incompetent, and the record supports that conclusion. Defense counsel contends in the alternative that the juror was coerced into finding Coleman guilty. This leads us into a review of the record as to how it came about that the juror became confused.

The poll began with a question as to defendant Bland, and questioning was then switched to defendant Williams. Mrs. Ansher might well have concluded that the questioning at the end of the Williams poll was reverting to Bland, whose poll had been interrupted. Her reply of “Innocent” corresponded in fact to the verdict for Bland on the first count.

The confusion from the switching of defendants was compounded by the obvious fact that both judge and jurors were having a hard time hearing the deputy clerk. Further confusion was provided by the necessity — because the clerk could not hear the juror’s answer — for repeating the question on the Coleman verdict on Count 1.

The trial judge properly tried to clarify the confused verdict of Mrs. Ansher. In our view these efforts were essentially neutral and are not objectionable as having been intended or calculated to affect her judgment.

There is a distinction in law and in fact between actions of the trial judge to obtain clarity in place of confusion, and actions that produce a likelihood that a juror has been coerced. It is basic to our system of justice that a verdict of guilty in a criminal case may stand only if freely given and unanimous. Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948). The Supreme Court has condemned, as coercive in its tendency, a judge’s action in asking a jury reporting inability to agree to reveal its division and then sending the jury back. Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345 (1926). However the fact that there is some uncertainty in the first instance concerning the verdict does not require setting the trial at naught. The polling of the jury can serve to clear up apparent confusion on the part of the jury. United States v. Grosso, 358 F.2d 154 (3d Cir. 1966), revd. on other grounds, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).

The judge’s conduct has been held improper where there were strong indications that a jury was not unanimous and the repeated efforts of the judge to obtain a unanimous verdict had a coercive effect. Bruce v. Chestnut Farms-Chevy Chase Dairy, 75 U.S.App.D.C. 192, 126 F.2d 224 (1942). It is not the law, however, that impermissible coerciveness is demonstrated by the mere fact that the announcement by one juror seems to differ from the judgment of the other jurors. On the contrary, Rule 31(d) of the Federal Rules of Criminal Procedure provides: “If upon the poll there is not a unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.” The discussion in the jury room may clear up that whatever seemed to suggest a division in the courtroom was merely a mistake in hearing, or understanding, and that in fact there was unanimity.⁸

We think the trial court acted within its discretion when it asked the jury “to retire back to the jury room and notify the court when they are ready to give a unanimous verdict.” No time limits were set. Twenty-two minutes later the jury returned, the foreman again announced appellants guilty of counts 1 and 2, with recommendation of life imprisonment. The foreman’s advice that the verdicts were unanimous was not challenged. Defense counsel did not claim at the time that juror Ansher was being coerced into final agreement on the unanimous verdict. We see no abuse of discretion warranting reversal by this court. (Van Dyke) Jackson v. United States, 128 U.S. App.D.C. 214, 386 F.2d 641 (1967).⁹

We turn to another matter that may well have contributed to the confusion of the juror in this case: the archaic and confusing form in which the courtroom clerk intones the polling of the jury. Why should a clerk ask: “What say you as to the defendant * * * ?” Why not, simply and directly: “What is your verdict as to the defendant * * * ?” And when the foreman announced the verdict, the clerk asked: “And that is your verdict, so say you each and all ?” Why not, again more simply and directly: “Is that the verdict of each and every one of the jurors?” There is a role for ceremony in public life, and perhaps some of the archaic forms of the law serve to impress on us the long reach back into history of the rule of law. But ritual must be harmonized with clarity, and it certainly may not be permitted to override clarity with regard to a matter like a jury poll, where the need for clarity is at zenith. This is a matter that might well merit the attention of the District Judges.

III. The Stovall Issue

Appellate counsel for both defendants raise questions as to whether the lineups and in-court testimony on identification constitute the kind of unfairness that taints a conviction under Stovall v. Denno. These claims are not frivolous, but neither are they appropriate for disposition by this court, at least in the first instance. We remand on this issue for Stovall hearings and appropriate determinations concerning the identification of appellants. Cf. Wright v. United States, 131 U.S.App.D.C. 279, 404 F.2d 1256 (1968).

So ordered.

1 . Appellants raise contentions in addition to those treated in detail in this opinion:

As to Williams it is claimed:

(a) That there was no probable cause for his arrest. We find that there was probable cause. An informer, stated to be reliable in the past, gave a statement implicating Williams. The statement was corroborated by several known facts about the robbery.

(b) That bis arrest was illegal because the police officers who arrested him failed to obtain a warrant for his arrest. This is a claim that requires an evidentiary predicate. Since this point was not raised at trial, it is not being considered on this appeal.

(c) That there was improper advocacy by the prosecutor in summation. We have examined the record and do not find reversible error.

As to Coleman there are additional claims:

(a) That the failure to present him to a magistrate resulted in bis unknowing waiver of a preliminary hearing. There was no timely objection to the lack of a preliminary hearing, and in any case there was no prejudice because the entire Government case was known to Coleman after the first trial ended in a mistrial.

(b) That his lineup in Baltimore was held in violation of Mallory. Apart from the discussion in the opinion on the claim made by Williams, Coleman has a disability in making a Mallory claim, in view of the fact that he was in custody in Baltimore, on a state charge, when Mrs. Neal was taken to view him in a lineup. Only afterward was he arrested on the federal charge and then promptly arraigned.

2 . Kennedy v. United States, 122 U.S.App. D.C. 291, 353 F.2d 462 (1965); Williams v. United States, 120 U.S.App.D.C. 244, 247, 345 F.2d 733, 736 (1965) (concurring opinion of Judge Burger), cert. denied, 386 U.S. 1010, 87 S.Ct. 1354, 18 L.Ed.2d 438 (1967); Copeland v. United States, 120 U.S.App.D.C. 5, 343 F.2d 287 (1964); Mitchell v. United States, 114 U.S.App.D.C. 353, 357 n. 9, 316 F.2d 354, 358 n. 9 (1963); Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959).

3 . Even this statement is subject to the possibility of exceptions if the defendant is provided “substitute counsel,” or if changes appear in underlying provisions of statutes of regulations governing lineups. United States v. Wade, 388 U.S. 218, 237, 239, 87 S.Ct. 1926 (1967).

4 . Technically Judge Burger’s concurrence in Adams, Stuckey & Roots v. United States, 130 U.S.App.D.C. 203, 399 E.2d 574 (1968), seems to emb.ody a conclusion contrary to ours. His opinion does not expressly comment on the retroactive application. So far as its reasoning is concerned, it more nearly comports with a prospective and not a retroactive application of the reconstruction of the Mallory rule in the light of Wade.

5 . Trilling v. United States, 104 U.S.App. D.C. 159, 260 F.2d 677 (1958).

6 . Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206, 24 A.L.R.3d 1255 (1967), cert. denied, 390 U.S. 964, 88 S. Ct. 1069, 19 L.Ed.2d 1164 (1968).

Wise involved sight and voice identifications at the scene of and shortly after the crime. Delays before presentment have also been held unobjectionable, in cases where the arrest was lawful, where the purpose of delay was—

(1) To fingerprint and photograph. United States v. Klapholz, 17 F.R.D. 18 (S.D.N.Y.1955) affd. 230 F.2d 494 (2d Cir.), cert. denied, 351 U.S. 924, 76 S. Ct. 781, 100 L.Ed. 1454 (1956).

(2) To verify quickly an alibi of the accused. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356 (1957).

(3) To track down an accomplice. Rogers v. United States, 330 F.2d 535 (5th Cir.), cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186 (1964).

(4) To complete an explanation of involvement stated in an interview concerning suspicious circumstances, begun prior to arrest. (William) Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199 (1967) released following issuance of (William) Fuller v. United States, 132 U.S.App.D.C. 286, 407 F.2d 1221 (1968) (en banc). Fuller involved a pre-Miranda statement.

(5) To transcribe an oral confession spontaneously given upon arrest. La-Shine v. United States, 126 U.S.App. D.C. 71, 374 F.2d 285 (1967); Bailey v. United States, 117 U.S.App.D.C. 241, 328 F.2d 542, cert. denied, 377 U.S. 972, 84 S.Ct. 1655, 12 L.Ed.2d 741 (1964); but see Cunningham v. United States, 119 U.S.App.D.C. 262, 340 F.2d 787 (1964).

(6) To search surrounding premises. Williams v. United States, 273 F.2d 781 (9th Cir.), cert. denied, 362 U.S. 951, 80 S.Ct. 862, 4 L.Ed.2d 868 (1960); compare Greenwell v. United States, 119 U.S.App.D.C. 43, 336 F.2d 962 (1964), cert. denied, 380 U.S. 923, 85 S.Ct. 921, 13 L.Ed.2d 807 (1965).

7 . The Court indicated that the need for prompt lineups might warrant their being held in the presence of “substitute counsel” (388 U.S. at 237, 87 S.Ct. 1926), or even without substitute counsel if fairness were assured by amendment of statute or regulation (388 U.S. at 239, 87 S.Ct. 1926).

8 . We need not concern ourselves now with the case in which the the announcements of the jurors make it clear that one juror differs with the others, and the return to the jury room is for the purpose of obtaining a unanimity that plainly did not exist when they first came in to announce their verdict. That kind of further deliberation is also apparently contemplated by Rule 31(d), but there may well be a problem of coerciveness under the particular facts of the case. It seems best to avoid general pronouncements on the subject and to address ourselves to particular issues as they may arise. In the case before us the proceedings in court certainly gave every indication that although one juror was confused in her answers, there had been unanimity in fact, and the return to the jury room served merely to obtain clarity in the expression of the previous fact of unanimity. It is on that basis and assumption that the case is being decided.

9 . In that case during a jury poll by the deputy clerk, a Mrs. Knight answered, “I went along with the majority — guilty.” The judge intervened to clarify what she had said, and questioned further whether “Guilty” was her response. She answered affirmatively, and defense counsel did not object that the verdict was not unanimous but a product of the stress of the exchange. In commenting on failure to object, this court said:

“A principal office of the making of objections by counsel in adversary proceedings is not only to assure justice but also to achieve efficiency and expedition in its administration. * * * Although the court’s inquiry did not perhaps exhaust the solicitude appropriate to a situation of this kind, particularly when the circumstances actually obtaining are difficult to communicate to an appellate court in a cold record, we are not prepared to say that the court erred in its appraisal at the time of the genuineness of Mrs. Knight’s verdict.”

128 U.S.App.D.C. at 216, 386 F.2d at 643.