Sidney L. Gross v. United States

408 F.2d 1297, 133 U.S. App. D.C. 94, 1969 U.S. App. LEXIS 8874

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 19, 1969
• Docket: 20953_1
• Status: Published

Opinions

PER CURIAM.

This appeal is from convictions of housebreaking (22 D.C.Code § 1801) and grand larceny (D.C.Code § 2201). The offenses were charged as having been committed on March 19,1966. Appellant was arrested that day and has been in confinement ever since. The indictment was returned April 25,1966. At the first trial two months later, the jury was unable to agree. The second trial, the result of which is now before us, was on December 13 and 14, 1966. In March, 1967, appellant was sentenced to concurrent terms of imprisonment of two to six years. This appeal in forma pauperis was authorized by the District Court on April 6,1967, on which day the court also ordered the preparation of a transcript of the record. Notwithstanding numerous efforts by appointed counsel to obtain the transcript earlier, it was not furnished in complete form for use on this appeal until February 7, 1968. The convictions thus remained unreviewable until appellant’s confinement had approximated the minimum period of his sentences.¹

Appellant now submits two grounds for relief. He asks that we set aside the convictions and direct dismissal of the indictment for denial of an asserted constitutional right to a speedy appeal. His other claim is that a key witness’s in-court identification of him as the person who committed the offenses was admitted in evidence in violation of due process concepts recently announced by the Supreme Court. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) ; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) . We consider this latter contention first.

At trial the prosecution called Mr. Keith Krause as a witness. He said that in the early morning hours of March 19, before daylight, he heard the burglar alarm go off at a fur store near where he lived. He went to his second story window and observed a parked car 50 to 75 feet away. He said he saw appellant stepping off the curb in front of the store, carrying a white fur stole. The car was near a street light and the night was clear. He said he got a good look at appellant and the license number of the car, which he gave to the police. He described appellant as a Negro in his late twenties, “fairly good, size,” approximately six feet two inches, wearing a “white or light colored rain coat * * * not necessarily perfectly white,” a dark broad brimmed hat, and dark slacks. The police traced the car through the license number and the stole was discovered in its back seat. The car was not appellant’s and had been driven to the scene of the crime by James Short.²

Later during the day Krause went to the police station where appellant was detained. He identified appellant in the following circumstances:

Q. Now, Mr. Krause, talking about having come down to the No. 7 Precinct at twelve o’clock Saturday, March 19; when you came to the Precinct did the officer there take you in to look at a lineup of a number of people ?

A. No, it was one person.

Q. But were there a number of people ?

A. No, there was one police officer and one nonpolice officer at the time.

Q. And was this person standing or seated?

A. He was seated. Well, I will redefine that. I believe he was standing up.

Q. When you saw this person, what did you say?

A. Nothing.

Q. You saw the person and did nothing?

A. I wasn’t supposed to talk. I was merely asked to look at him.

Q. And can you tell me what happened after that?

A. After that ?

Q. Yes.

A. I went back home.

Q. Did you talk to anybody? Anybody at the police station, before that?

A. Well, he asked me if I thought the person I saw in the room was the same person that I had seen at the scene of the crime, and my answer was yes.

Q. You didn’t say it in the room when you were in there, did you?

A. What do you mean?

Q. Well, I assume you went in there to identify this man.

A. Well, I didn’t walk right up to the man, but when we came out he asked me if it was the same person that I had seen at the scene of the crime, and I told him yes.

Q. Who did you mention this to?

A. To the police officer.

Q. Do you remember which police officer it was ?

A. Well, we were directly outside the room.

Q. What did you say ?

A. I told the officer that that was the person I saw with the fur. (Tr. 31-32)

A detective testified as to the Krause identification at the police station as follows:

Mr. Krause came down to look, and Sidney Gross was sitting there, and I told him to stand up and Mr. Gross stood up, and he said that was the man he saw getting into the car, and he identified him as the man. (Tr. 125-126)

The trial was, of course, held prior to Stovall, and the circumstances of the lineup were not developed by reference to that case. What emerges from this testimony is an apparent instance of what the Supreme Court referred to in Stovall as “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup,” and which, the Court added, “has been widely condemned.” Whether a due process violation in fact occurred here should, we think, be the subject of a specific inquiry by the District Court on remand, culminating in findings of fact and conclusions of law.³

As to appellant’s contention that we should direct dismissal of the indictment because of the delay in preparation of the transcript, we think this problem is better left for the District Court to consider in terms of the Sixth Amendment right to a speedy trial in the event appellant’s conviction is ultimately reversed and the prosecutor elects to seek a new trial despite the- degree to which appellant has already served the invalidated sentence. This was the course followed by this court en banc when it had a similar problem in Hines v. United States, 133 U.S.App.D.C. -, 408 F.2d 1230 (decided December 6, 1968).

The case is remanded for further proceedings as contemplated in this opinion.

It is so ordered.

1 . The ease was submitted for decision to a panel of this court on May 10, 1968. Not long thereafter the entire court decided to hear en, banc three cases typical of those presenting Wade-Stovall problems of identification testimony, and to delay decision of all other such cases, including this one, pending the en banc result. See Clemons v. United States, 133 U.S.App.D.C. -, 408 F.2d 1230, Dec. 6, 1968.

2 . Short, but not Krause, also testified at appellant’s first trial. His testimony in the record before us is that on the evening of March 18, 1966, he was approached at his work by appellant whom he had never seen before and who offered him $200.00 for the use of his ear that evening. They met at the car and Short drove appellant to several locations as requested, at one of which appellant returned with another man and both got in the car. After this, at appellant’s direction, Short drove to the location of the fur store where the breaking-in and theft occurred. He testified further that he drove off and left appellant and the other man at 15th and Florida Avenue, with appellant leaving the fur in the car and advising Short he ■would meet him that morning around nine o’clock at Seventh and Kennedy Streets and would give him the $200.00. After returning to his home, Short noticed lights coming across from where he was parked and, assuming that police were approaching, he ran to his cousin’s house a block and a half away. His father came there and the two went to the Seventh Precinct where he told the above story. With the police he went to the Seventh and Kennedy Street rendezvous but appellant did not appear. Later that morning the police with Short saw appellant in front of Short’s working place. The police then arrested appellant. Short was not prosecuted.

3 . The District Court will also address itself on remand to the question of whether, assuming that the pretrial confrontar tion was defective under due process, Krause’s identification testimony was properly admitted as having an independent source. See Clemons v. United States, note 1 supra, 133 U.S.App.D.C. -, 408 F.2d 1230. If that testimony should prove to be fatally tainted — and we are not to be taken as suggesting that it is — it would appear that no formulation of a harmless error standard could, on this record, dispense with the necessity of a new trial.