United States v. Antonio Mitchell

540 F.2d 1163, 1976 U.S. App. LEXIS 7572
CourtCourt of Appeals for the Third Circuit
DecidedAugust 13, 1976
Docket75-2226
StatusPublished
Cited by29 cases

This text of 540 F.2d 1163 (United States v. Antonio Mitchell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Antonio Mitchell, 540 F.2d 1163, 1976 U.S. App. LEXIS 7572 (3d Cir. 1976).

Opinions

OPINION OF THE COURT

PER CURIAM:

Antonio Mitchell appeals from a judgment of conviction entered after jury trial on an indictment charging him with three counts of bank robbery. We affirm, but take the opportunity to comment on certain aspects of the discovery procedure followed below.

The evidence at trial may be briefly summarized. A lone gunman robbed a Harrisburg branch office of the Pennsylvania National Bank at about 1:00 P.M. on February 12, 1975. The gunman approached the counter, requested change for a hundred dollar bill, laid a gun on the countertop and [1165]*1165demanded the teller’s money. More than $6,000.00 was handed to him by the teller. The robber placed the money in a green plastic bag. He left the bank on foot. Alerted by the nod of the teller, the bank manager set out in pursuit. When the robber reached a parked car several blocks from the bank, he turned and fired a single shot at the manager. The robber then got into the car and sped away. The manager had a clear view of the car. He was later able to make a positive identification of the vehicle. Bank surveillance cameras recorded portions of the robbery, and the photographs were admitted into evidence at trial. The teller who was robbed, Milford White, testified that he observed the gunman at close range for more than a minute. He identified Mitchell as the robber before the jury.

The prosecution introduced evidence which linked the appellant to the getaway car. It was stipulated that the car belonged to appellant’s fiancee. Mrs. Alice Capp, a school crossing guard, was on duty about three blocks from the bank on the afternoon of the robbery. She testified that she saw appellant abandon the car in heavy snow near her post at the time just after the robbery occurred. She recalled that when he left the car to cut between some buildings, he was carrying a green plastic bag. Thomas Matthews and Rose Kemrer lived one block from the street where Mrs. Capp saw appellant abandon his car. They saw appellant moments after he was observed by Mrs. Capp. Both testified that appellant passed close to their house on foot, carrying a green plastic bag. When Matthews followed appellant’s footsteps in the snow, he found several knitted caps. One of these hats was admitted into evidence through the testimony of Milford White, who testified that the robber had worn a similar hat.

There are only two major contentions of defendant which we find it necessary to discuss.1 :

1. ALLEGED ERROR IN FAILURE TO DISCLOSE EVIDENCE PRIOR TO TRIAL

We will first consider the defendant’s contention that he was denied the effective assistance of counsel by the failure of the Government to identify its identification witnesses “when requested” (page 17 of defendant-appellant’s brief).2

Prior to trial, defendant attempted to ascertain whether any identification procedures had been employed by th¿ Government in the course of its investigation through a Demand for a Bill of Particulars:

“[Demand] 7. Information as to how, and the procedure used, in any witnesses identifying the Defendant, from line-up or from group of pictures, or just how. [sic]”

The Government responded as follows:

“[Response] 7. The defendant refused the Government request to participate in an identification procedure by line-up, and, therefore no line-up identification procedure was effected.”

A Demand for a Bill of Particulars is not normally the appropriate means to secure the information about pretrial identifications of a defendant made by Government witnesses. United States v. Conway, 415 F.2d 158, 161-62 (3d Cir. 1969), cert. [1166]*1166denied, 397 U.S. 994, 90 S.Ct. 1131, 25 L.Ed.2d 401 (1970); 1 C. Wright, Federal Practice and Procedure, § 129 (1969). Such information falls rather within the scope of Rule 16, F.R.Crim.P. Simmons v. United States, 390 U.S. 377, 388-89, 88 S.Ct. 967,19 L.Ed.2d 1247 (1968); United States v. Cranson, 453 F.2d 123, 126 (4th Cir. 1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1607, 31 L.Ed.2d 821 (1972). Within the limitations imposed by the wording of Rule 16 and by the Jencks Act (18 U.S.C. § 3500), such information is discoverable.

Despite the inappropriate procedural vehicle used in the instant case, the Government chose to meet the request for information.

Although the answer to Demand 7 was not complete, the defense attorney should have realized that such answer was equivocal as soon as he received it. He was free to press for a more complete answer, but did not do so. Moreover, the inadequacy of the answer was not prejudicial to the defendant. Even if the Government had said that a photographic spread had been used with one of the witnesses and that three of the witnesses had been present at the preliminary hearing, it was not bound to disclose any names. The discovery rules do not permit the defense to get the names of witnesses. See F.R.Crim.P. 16 and United States v. Addonizio, 451 F.2d 49, 62 (3d Cir.), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972).3 If the answer to Demand 7 had been complete, defense counsel would have known in advance of trial only that one of the witnesses had used a photographic spread and that three witnesses had been present at the preliminary hearing. The identities of such witnesses could have been discovered only on cross-examination, which was exactly what happened at the trial. At that point the defense was in the same situation that it would have been had the Government fully answered Demand 7.

Milford White, who was involved in the eight-picture photographic spread identification, was not at the preliminary hearing. Witnesses Capp, Matthews and Kemrer readily admitted on cross-examination that they saw the defendant at the time of the preliminary hearing4 but they did not see the photographic spread. All of the witnesses gave strong testimony in favor of the prosecution on cross-examination, as well as on direct, as noted below.

II. ALLEGED TAINTED IN-COURT IDENTIFICATION

The defense contends on appeal that the in-court identification of the above mentioned four witnesses was tainted by impermissibly suggestive pretrial identification procedures. As noted above, the defense attorney learned on cross-examination of (a) the photographic spread seen by Milford White, and (b) the identification of the other three witnesses mentioned above at the time of the preliminary hearing. He could have requested a hearing outside the presence of the jury in accordance with Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), Simmons v. United States, supra, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), 18 U.S.C.

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Bluebook (online)
540 F.2d 1163, 1976 U.S. App. LEXIS 7572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-antonio-mitchell-ca3-1976.