United States v. Charlie James Threatt

445 F.2d 625, 1971 U.S. App. LEXIS 9092

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 7, 1971
• Docket: 31023
• Status: Published

Opinion

PER CURIAM:

The single issue in this appeal from a bank robbery conviction is whether the trial court erred in denying defendant’s motion to suppress evidence concerning a witness’ identification of defendant in a lineup and subsequently in court. There was no error. The trial judge followed the procedures which in United States v. Sutherland, 428 F.2d 1152 (5th Cir.1970), we suggested district judges employ in applying the principles of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Also a suggestion of Simmons itself was followed — i.e., that not all the eyewitnesses view the photographs prior to lineup. Here there were two eyewitnesses, only one viewed the photographs, they observed the lineup separately, and each identified defendant in the lineup.

We have examined the photographs, and we do not agree with the contention of defendant that the pictures are, in and of themselves, so impermissibly suggestive of defendant that the trial court was in error.

Affirmed.