United States v. Emanuel 'Bubbles' Daniels Appeal of Robert Battles

506 F.2d 791

• Court: Court of Appeals for the Third Circuit
• Decided: December 30, 1974
• Docket: 74-1221
• Status: Published

Opinions

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The major question in this appeal from sentence for bank robbery, 18 U.S.C. § 2113(a) and (d), is whether the trial court improperly admitted identification testimony of a police officer.

A jury found appellant Battles and two co-defendants, Emanuel Daniels and Willie Thomas, guilty of robbing the Noble Manor office of the Pittsburgh National Bank on October 2, 1973. Following the daylight robbery by three individuals wearing ski masks, a regional police alarm sounded to which Pittsburgh Police Sergeant William Armstrong responded. The search focused on a blue Cadillac occupied by three black males. Shortly after 2:00 p.m., the police observed the automobile and a vigorous chase, in which Sergeant Armstrong participated, ensued. Armstrong turned onto Fulton Street and stopped head to head with the fleeing Cadillac, effectively blocking its progress. At this time certain of the car’s occupants were shooting at pursuing police. An armed black male emerged from the passenger side of the Cadillac and ran along the sidewalk to the left of Armstrong’s police car. As the suspect came abreast, he fired a shot at Armstrong and made good his escape.

On the same day Armstrong was shown an array of police photographs, including front and side views of Battles. He made no identification from the photographs.

Police conducted a lineup on November 13, 1973, and Armstrong identified Battles as the man who emerged from the Cadillac and shot at him. At the subsequent trial, the sole identification testimony implicating Battles with the robbery was that of Sergeant Armstrong. Battles did not testify.

Appellant made a timely motion to suppress Armstrong’s identification testimony, alleging, inter alia, that the lineup procedure did not comport with the requirements of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The trial court ruled:

Now, as to Mr. Battles, the motion to suppress the identification testimony is denied. * * * I further find that Mr. Battles’ rights under the principles set forth in the Wade case were not prejudiced by the failure of his counsel to see the lineup forms on the morning of the lineup. He has had ample opportunity to have seen them since. There is nothing to indicate that they have been changed since then.

I find that the lineup conformed with the criteria set down by the Supreme Court in the Wade case, and it was free of undue suggestiveness.

I further find that the two police officers, Sergeant Armstrong and Sergeant Salerno, have an independent basis for their identification of the Defendant Battles, and that testimony will not be suppressed.¹

Appellant advances the contention that the lineup failed to meet the Wade requirements because, although his counsel was physically present in the viewing room, counsel was denied an opportunity to examine the results of the viewing by those witnesses who attended the lineup. His counsel was informed that the results would be made available to him the next day at the preliminary examination.

Appellant urges us to invoke the rule of People v. Williams, 3 Cal.3d 853, 92 Cal.Rptr. 6, 478 P.2d 942 (1971), in which a conviction was reversed because defense counsel was denied permission to accompany Gomes, an identifying witness at a lineup, outside the viewing room for the purpose of making the identification. The California court held that Williams “was entitled to have his attorney present when Gomes made his identification.” 92 Cal.Rptr. at 9, 478 P.2d at 945. Because “the prosecution made no showing that the in-court identification by Gomes had an origin independent of the lineup,” ibid., its admission into evidence was a violation of Wade. I do not reach the question whether this court would accept the Williams rule because here the trial court made a specific finding that Sergeant Armstrong had a basis for his in-court identification independent of the lineup procedure. For reasons set forth in a separate concurring opinion, Judges Adams and Rosenn find it necessary to consider the applicability of Williams.

Wade teaches that defects in lineup procedures do not result in a “per se rule of exclusion of [in-] courtroom identification,” 388 U.S. at 240, 87 S.Ct. at 1939, and instructs that the identification will be admissible if the Government “establishes] by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. See Murphy v. Waterfront Commission, 378 U.S. 52, 79 n. 18, [84 S.Ct. 1594, 12 L.Ed.2d 678].” 388 U.S. at 240, 87 S.Ct. at 1939 (footnote omitted).

Appellant has challenged the district court’s standards for finding an independent basis for Sergeant Armstrong’s identification. My independent review of the record of both the suppression hearing and the trial convinces me that the district court’s determination was not error.

At trial, describing the daylight Fulton Street incident, Sergeant Armstrong said that he “concentrated” on the person who emerged from the Cadillac; that “ . . .1 was taking particular note of his face, and that is what I did, and that is how I made an identification of the individual”; that this person was fifteen feet away when Armstrong first saw him, “two hood lengths of automobiles and probably two or three feet between us”; that he was “within six or seven feet” when he shot at Armstrong, and that Armstrong actually saw him at the point he fired and observed him for a total period of thirty seconds.²

Further, the record discloses this exchange:

Q. Was he pointing the weapon before he got parallel to your vehicle while approaching your vehicle?

A. He had it in front of him in his hand. I was interested in him, whether I could identify him.

N.T. 125.

We are instructed that “the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).

Although these factors delineate a “totality of circumstances” associated with a confrontation procedure deemed suggestive, I am persuaded that even if applied to Sergeant Armstrong’s observations made in hot pursuit of the bank robbers, his identification testimony passes this severe test. Accordingly, I find no error in Judge Teitelbaum’s conclusion that the in-court identification of Battles had a basis independent of the lineup.

We have considered the other contentions raised by appellant and find them to be without merit.³

The judgment of the district court will be affirmed.

1 . S.H. 146-47 emphasis supplied. It appears to be conceded, however, that Sergeant Armstrong was the sole officer to identify Battles. Both Sergeants identified defendant Thomas.

2 . N.T. 82, 83, 125, 84, 135. At a suppression hearing Sergeant Armstrong testified: “I saw his face before he fired the shot at me,” that he had a good look, that the lighting conditions were good, and that the gunman’s face was not covered or masked. (S.H. 50-51.)

3 . The verdict was against the weight of the evidence; the trial court erred in denying defendant’s motion for judgment of acquittal and submitting the question of identification to the jury; the lineup identification was an exploitation of an original, unlawful arrest in violation of the Fourth Amendment; FBI Agent Gleason’s gratuitous remark concerning defendant’s probation constituted grounds for a mistrial.