United States v. Gregory H. Neverson

463 F.2d 1224, 150 U.S. App. D.C. 133, 1972 U.S. App. LEXIS 9905

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 26, 1972
• Docket: 23732
• Status: Published

Opinions

McGOWAN, Circuit Judge:

Appellant was convicted by a jury of two counts of armed robbery (22 D.C. Code § 2901), two counts of assault with a dangerous weapon (22 D.C. Code § 502), and one count of carrying a dangerous weapon (22 D.C.Code § 3204). On this appeal, he raises three issues, the only substantial one of which is a Fifth Amendment due process challenge to identification evidence against him.¹ For the reasons hereinafter appearing, we affirm.

I

At approximately 8:30 P.M. on April 24, 1968, a robber entered a liquor store in the southeast section of the District of Columbia, uncovered a sawed-off shotgun from underneath his coat, and placed the barrel of the weapon in the stomach of Fred D. Washington, a private guard who was standing at the store’s entrance. Washington was ordered to turn around, and, as he obeyed the request, the assailant unbuttoned Washington's holster, removing a .38 calibre Colt revolver. The assailant then marched Washington to a cash register located at the rear of the store. Upon reaching that point, the robber handed the proprietor of the store, David Zylber, a paper bag and asked him to fill it with money. As Zylber began filling the bag with the $2,000.00 contained in the cash register, Herbert Wheeler, a store employee, returned from a stock room behind the counter. As he entered the main display area, he realized that a robbery was in progress. He stood at the counter watching the assailant while the paper bag was being filled. Once Zylber completed this act, he handed the bag to the robber, who then slowly backed out of the store, keeping his shotgun and the purloined pistol fixed on the three men at the counter. The robbery lasted no longer than two and one-half to three minutes.

Shortly after the robber had gone, Lieutenant Edward White of the Metropolitan Police Department responded to a radio run and arrived at the scene of the crime. At that time, he showed Zylber and Wheeler photographs of possible suspects, but neither was able to make an identification. Zylber professed inability to remember the robber’s features, but Wheeler informed the officer that the robber was between 5'5" and 5'$", was a Negro of dark brown complexion, had a short goatee, and wore a black waist-length coat. Washington, who apparently did not view photographs at that time, gave Officer White a similar description, except that he described the assailant as being 5'7" and wearing a waist-length coat that was either brown or black. The next day Washington was called to the police station. He viewed between 200 and 800 photographs, without result. At this point, appellant’s photograph had not been in any of the photographs shown to the eyewitnesses.

Some two weeks later, on May 6, 1968, the National Crime Information Center informed the Metropolitan Police Department that appellant and two other men had been arrested and charged with armed robbery in Prince William County, Virginia. It was also reported that at the- scene of the arrest an officer had recovered a .38 calibre Colt revolver which bore the same serial number as the pistol reported as having been taken from Washington at the liquor store. Upon receipt of this information, Lieutenant White sent a police photographer to Virginia in order that appellant, his two Virginia co-defendants, and the revolver in question might be photographed with a color camera.

Lieutenant White then assembled an array of twelve color photographs consisting of individual photographs of ten Negro males between the ages of 20 and 30 years, including appellant and his two Virginia co-defendants. White also had one photograph of the recovered revolver ; and one photograph of two revolvers which were very similar to the one taken from Washington.

On May 8, 1968, Lieutenant White visited Washington to show him these photographs. At the pretrial hearing, held to determine the admissibility of the identifications made at trial by the witnesses to the crime, Washington testified that Lieutenant White first showed him approximately eight or nine photographs from which he could make no identification. Then Officer White reached into his pocket and showed Washington three or four additional photos. Washington said that it was from this latter group that he identified appellant. Washington also testified that he had identified the photograph of the pistol recovered in Virginia as the gun taken from him.

Three days later, Lieutenant White visited Wheeler for the same purpose. At the pretrial hearing, Wheeler testified that when he was unable to make an identification from the first eight or nine photographs shown to him, Officer White handed him a second set of three to four photographs. Wheeler also made his identification of appellant from this second set of photographs, but apparently made no attempt to identify the revolver. Lieutenant White testified at the suppression hearing that, while he was uncertain about the manner in which the photographs were shown, his best recollection was that he displayed all of the pictures at one time to both Washington and Wheeler.²

On May 28, 1968, Lieutenant White and Mr. Wheeler drove to Manassas, Virginia, in order that Wheeler might view a lineup in which appellant and the two Virginia codefendants would participate. It appears that, prior to the lineup, Wheeler had seen appellant when he was being taken across the street from the county jail to the court house. This happened because White and Wheeler happened to arrive in front of the jail just as appellant was being taken to a preliminary hearing held in connection with the armed robbery charges against him in Virginia.³ Following the preliminary hearing, appellant was returned to the jail for the lineup. The room in which the lineup was held lacked the usual physical accoutrements which facilitate this type of identification. The room was small and crowded with onlookers. The five participants in the lineup were stationed in front of a row of vending machines.

The record does not suggest that there was any significant discrepancy in the stature, age, or dress of the participants. It is certain that Officer White, at some point prior to an identification of appellant, invited appellant to shift positions in the lineup, which he did. Wheeler, when he confronted the lineup, identified appellant, who is 6'2%" tall.

Further details concerning the lineup are not well established. Each witness at the suppression hearing who was present at that confrontation gave extended testimony as to the events surrounding it, but there were differences in their recollections.

Wheeler stated that, upon entering the jail, he was taken to a room where he sipped coffee while waiting for the lineup to be held. He said that he was in due course asked to wait in a nearby room while preparations for the lineup were made. He was then requested to reenter the original room, where he viewed the lineup and immediately identified appellant as the robber of the liquor store. Wheeler also stated that he had talked to no one prior to the lineup, and that he had never noticed any suggestive activity on the part of the officials conducting it, thereby indicating that he had not heard White’s invitation to appellant to choose his own position in the lineup.

Lieutenant White also testified that Wheeler was in another room when the lineup was being arranged, and that, while he (White) might have suggested to appellant that the latter would be free to move to a different position in the lineup, he did not offer such advice while Wheeler was in the room. Lieutenant White also asserted that Wheeler had talked to no one prior to the commencement of the lineup.

Appellant’s father testified that he and appellant’s mother had come to Manassas that day in order to attend the preliminary hearing. He further testified that he had been walking with his son from the jail to the court house when he noticed Wheeler and Lieutenant White approaching the general area in their car. Following the preliminary hearing, he and his wife again accompanied appellant back to the jail and into the room where the lineup was conducted. He said that, as his son entered the room, he overheard Lieutenant White mention appellant’s name to Wheeler. The father then claimed that he approached Wheeler and asked him “if he [knew] Gregory Neverson,” 'to which Wheeler responded in the negative. Appellant’s father also claimed that he and Wheeler stood side-by-side in a hallway outside of the room in which the confrontation was eventually held, and they observed Lieutenant White arranging the five lineup participants. Appellant’s father also testified that he believed Wheeler to have been intoxicated at the time.

James P. Davenport, a Manassas lawyer whose office was across the street from the jail, testified that he received a call from a local police official asking him to attend the lineup in order to represent appellant.⁴ When he entered the room in the jail, he noted that it was crowded, and that the participants in the lineup were already assembled on the side of the room which contained vending machines. Wheeler, who was never identified to him as the eyewitness, was also present. Moreover, he stated that, as he began to question Lieutenant White about the wisdom of conducting the lineup under these conditions, Wheeler identified appellant. Finally, Davenport testified that Lieutenant White had indicated to appellant that he was free to shift positions in- the lineup, which appellant did, but Davenport was uncertain whether the police officer called appellant by name. On cross-examination, Davenport conceded that, while he believed Wheeler was present when he initially entered the room, it was possible that the eyewitness was removed to a nearby room at the time Lieutenant White addressed appellant about his position in the lineup. On redirect, Davenport stated that he returned to his office approximately five to eight minutes after he had received the phone call requesting his assistance.

Appellant testified at the suppression hearing that Wheeler and White were both present during his preliminary hearing, which was conducted in the court house prior to the lineup. He also claimed that White and Wheeler observed him as he was being led handcuffed into the lineup, and that Wheeler was present at all times when the lineup was being arranged by White. In addition, appellant stated that Lieutenant White called him by name when suggesting that he might change positions.

The trial judge, at the conclusion of the suppression hearing, denied appellant’s motion to suppress both the photographic and the lineup identifications without making any specific findings either orally or by memorandum.⁵ At trial, the photographic identifications of both eyewitnesses, and Wheeler’s lineup identification, were introduced into evidence by the Government. Wheeler and Washington both made in-eourt identifications of appellant as well. The proprietor, Mr. Zylber, recounted the events of the robbery, but made no identification.

Another witness called by the Government was Samuel Josey, the owner of a detective agency. He testified that the serial number of the pistol issued to his employee, Washington, matched that of the pistol recovered at the time of appellant’s arrest in Virginia. In order to avoid prejudicing appellant by revealing the fact that he had been arrested for a similar offense in Virginia, the following stipulation was read to the jury:

On or about May 6, 1968, the defendant, Gregory Neverson and another man were arrested in a field in Prince William County, Virginia. The vicinity of their arrest was searched and two revolvers were found. One of the revolvers was a .38 calibre Colt blue steel revolver, serial No. 607853.

The defense put three witnesses on the stand. Charles Albritton, who had been convicted with appellant in the Virginia robbery, testified that the pistol in question belonged to him and not to appellant, and that he had bought it in a crap game only a few days prior to his arrest in Virginia. Appellant next took the stand and presented an alibi that he had spent the entire evening in question drinking at a bar in the company of a friend James Mitchell. Mitchell took the stand to support this testimony.

II

Appellant contends that the color photographs shown to each of the eyewitnesses were “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). He supports this claim by two allegations, namely, that appellant was the only individual in the array who (1) had a goatee, and (2) was wearing a white undershirt. However, our examination of the photographs reveals that the first of these assertions is not wholly accurate, and that the second is not significant. Neither, in our view, denotes undue suggestivity.⁶

With regard to the goatee, it is quite clear that at least two of the other men depicted had facial hair which included that on the chin; and therefore no undue attention could have been drawn to appellant in this regard. Appellant argues that his goatee had special significance in Washington’s case, because Washington emphasized the importance of that feature in making his identification. While it is true that the goatee did form a basis for Washington’s identification, he also testified that he chose appellant’s photograph because of “the way his face was built and everything,” rather than just the goatee.

We also attach no crucial importance to the fact that appellant was the only subject in the photographs wearing a white undershirt. Most significantly in this regard, neither of the eyewitnesses described the robber to the police at the time of the crime as wearing such a shirt. Moreover, our examination of each of the photographs reveals that all of the men portrayed were dressed differently, and there were characteristics in each of the photographs which could have attracted as much attention as appellant’s shirt, e. g., one of the men was the only one to wear a hat, another was the only one to wear a plaid shirt, while still another was the only one wearing a striped polo shirt.

Although we find no fatal suggestivity resulting from the specific factors complained of by appellant, we are mindful that Simmons, following the approach of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), directs that the determination of the suggestivity of a photographic identification must be viewed in the light of the totality of the circumstances surrounding the identification. Keeping this requirement in mind, the record reflects that both eyewitnesses had an excellent opportunity to observe the assailant during the course of the robbery. There was uneontradicted testimony, both at the suppression hearing and at trial, that the lighting conditions in the liquor store at the time of the robbery were very good. Washington testified that, although his back was to the robber for the greater part of the robbery, he had about a minute to observe the robber as he slowly left the store, and at that time he was able to get a “good look at [him].” Wheeler also had an opportunity to observe the assailant from a distance of about thirty feet for all but the first few seconds of the robbery. It is also important to point out that the robber wore no mask nor did he disguise himself in any way. Finally, we note that all the men depicted in the photographs were Negro males, roughly in the same age group, and roughly of the same stature.

In Simmons, Mr. Justice Harlan, speaking for the Court, explicitly noted that “[t]he chance of misidentification is . heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime.” 390 U.S. at 383, 88 S.Ct. at 971. See also Palmer v. Peyton, 359 F.2d 199, 201 (4th Cir. 1966). This court has also suggested that such an indication would, in the absence of any countervailing consideration, tend to demonstrate that an identification procedure is suggestive. See United States v. Terry, 137 U.S.App.D.C. 267, 273, 422 F.2d 704, 710 (1970).⁷

Appellant intimates in his brief, without amplification, that the use of the photographs of the pistols may have indicated to the eyewitnesses that one of the photographs being exhibited was the photograph of the robber. This aspect of Simmons does not, however, appear to have been pursued by appellant in the trial court, and the evidence is, accordingly, not developed with respect to it. The record does not, certainly, foreclose the possibility that the eyewitnesses were shown the pistol photographs after they had each identified appellant’s photograph. Under all the circumstances including our own viewing of the photographic array and our finding it to be unexceptionable, we do not think it necessary to disturb this conviction by reason of the exhibition of the photographs of the guns.⁸

Ill

Appellant’s principal contention on this appeal in the area of identification has been directed to the photographic showings. That point, if soundly based, would have invalidated the identification evidence given by the two eyewitnesses who identified appellant at trial. Intermingled in his argument on this score in his brief is, however, a claim that Wheeler’s identification, as distinct from Washington’s, was tainted by the circumstances of the lineup in Virginia at which Wheeler identified appellant. This claim is couched in terms of due process alone, and not the Sixth Amendment’s guarantees with respect to the assistance of counsel. It asserts that the identification evidence of Wheeler is tainted by (1) Wheeler’s sight of appellant on the street in Manassas before the lineup and (2) Wheeler’s presence at the lineup when White told Neverson that he could shift positions if he chose.

As to the first of these, Wheeler testified forthrightly that he did see a group of men crossing the street in Manassas just as he and White arrived from Washington and were parking their car; and that he instantly recognized appellant among them as the man who had held up the liquor store. This recognition appears to have been the spontaneous result of an accidental encounter, and not the product of the fact that White happened to tell Wheeler almost coincidentally that the lineup might be delayed. White’s testimony as to this matter confirms that of Wheeler, except that White’s recollection did not extend to his saying anything to Wheeler about the delay. In any event, there is nothing to suggest that this confrontation between Wheeler and appellant was anything other than a matter of chance. This is supported even by the testimony of appellant’s father for the defense, who said that he saw White and Wheeler approaching in their car as he was walking with appellant from the jail to the court house. It is obvious that the judge did not credit the testimony of appellant himself that both Wheeler and White were at the preliminary hearing.

Under the circumstances revealed in this record, we do not view the street confrontation as wanting in due process, and testimony as to that identification was validly admitted into evidence. Long v. United States, 137 U.S.App.D.C. 311, 315-316, 424 F.2d 799, 803-804 (1969).

The second matter relied upon by appellant also is characterized by some conflict in the testimony. Lieutenant White testified that, while arranging the lineup, he did invite appellant to move to any position he preferred, but that this was not done while Wheeler was in the room. Wheeler himself testified that he was not taken into the room until the lineup had been arranged for his viewing, and that he recognized appellant instantly upon seeing the lineup. Davenport, the substitute counsel, first said that Wheeler was in the room when he (Davenport) arrived, but later modified his testimony to embrace the possibility that Wheeler had been sent to a nearby room while the lineup arrangements were made, including the shifting of position by appellant. Appellant’s father said that Wheeler was not in the room itself during the arrangement of the lineup, but was standing with him out in the hallway. Appellant contradicts this testimony by saying that Wheeler was present in the room throughout the arrangement of the lineup by White.

We think that inescapably implicit in the court’s denial of the motion to suppress was the acceptance by it of the testimony of Wheeler and White that Wheeler was not in the room during the arranging of the lineup; and the conclusion that Wheeler did not hear White address appellant in connection with the changed position. There is ample support in the record for such a resolution of these factual questions; and, so resolved, there is no basis for holding Wheeler’s identification evidence to be tainted by the lineup viewing.

It is, of course, true that the lineup itself appears not to have been held under ideal conditions, such as those as presumably would have obtained if the lineup had been held at police headquarters in Washington. But appellant was in the custody of the Virginia police for a Virginia crime, and Lieutenant White was in Manassas on an investigating mission. That mission was to see if an eyewitness to the crime — Wheeler-—• could identify appellant; and it was thought that a lineup was, as this court has so often said, the best and fairest means to this end. The record suggests to us that Lieutenant White made a sincere effort to hold the best lineup he could under the circumstances, including the provision of substitute counsel.

That counsel was a reputable attorney in Manassas and his testimony fulfilled one of the functions which, in the view of the Supreme Court, the presence of counsel at a lineup is conceived of as assuring, namely, the accurate reconstruction at trial of the circumstances of the lineup. Davenport’s testimony suggests that he did not have as much opportunity as he would have liked to make representations about the circumstances of the lineup, but his testimony shows that he was in the room when White invited appellant to take any position he chose as part of the arrangement of the lineup, and presumably appellant’s selection met with Davenport’s approval. Davenport’s reservations about the lineup seem, from his testimony, to have derived mainly from the small and crowded character of the room, and not to the constitution of the lineup itself.

We do not find in all this any purpose on the part of Lieutenant White to rig the lineup against appellant, nor do we find that on this record the circumstances of the lineup failed to meet the requirements of due process of law. Although appellant has not taken exception on this appeal to the effectiveness of the assistance rendered him by Davenport, we note that we see nothing in the record which compels that characterization.⁹

The judgment of conviction is affirmed.

It is so ordered.

1 . Appellant’s other two points relate to the conduct of the trial. Although the court gave the standard instruction with respect to the Government’s burden in proving identification, which instruction has been expressly approved by us, appellant claims error in that the court did not give an additional instruction requested by appellant. Considering the text of this latter instruction as submitted to the trial court, the point borders on the frivolous. Appellant further contends that the giving by the court of a standard Allen charge before the jury retired to deliberate necessitates reversal. Although we have, since this case was argued, directed certain changes in the text of that charge, United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177 (1971), that holding was prospective only. The charge as given in the circumstances of this record would not have occasioned reversal under our pre-Thomas decisions.

2 . Appellant has raised no issue, either in the trial court or here, founded upon the Washington-Wheeler testimony as to the manner - in which White exhibited the photographs. So long as there is no evidence that showing the photographs successively in a sequence of two groups had either a suggestive purpose or effect, we see no problem on this record, even if it be assumed that White’s recollection was faulty.

3 . Wheeler testified that, as he and Lieutenant White were about to park the car at Manassas, he saw appellant, two policemen, and two other men going from the county jail to the court house. Wheeler added that he did not tell Lieutenant White of his recognition of appellant, but that at the same time White explained to him that the lineup might be delayed because appellant was scheduled to appear at a preliminary hearing that morning.

Lieutenant White testified that, while he recalled observing a group of men walking from the county jail to the court house, he did not remember seeing appellant in that group. He did not recall ever telling Wheeler that appellant would

be in the lineup, or that the lineup might be delayed due to appellant’s preliminary hearing.

4 . The Supreme Court said in Wade that the representation of a defendant at a lineup by substitute counsel was compatible with the Sixth Amendment. This court has upheld the practice. See United States v. Queen, 140 U.S.App.D.C. 262, 435 F.2d 66 (1970) ; United States v. Kirby, 138 U.S.App.D.C. 340, 427 F.2d 610 (1970).

5 . As if to compound this unhelpful handling of the matter, neither did the trial judge take heed of our suggestion in Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969), that it would be “in the interest of expeditious judicial administration” for a ruling to be made as to whether there is an independant source for an in-court identification, even if the trial judge finds the challenged identification evidence to be valid.

6 . Although there were 12 photographs in the array, only 11 have been submitted to this court for examination. Apparently the twelfth photograph, which depicted one of the Negro males, has been included in the record of another case.

7 . In Terry this court endorsed a list of ten factors identified by Judge Gasch in United States v. O’Connor, 282 F.Supp. 963, 965-966 (D.D.C.1968), aff’d, 137 U.S.App.D.C. 76, 420 F.2d 644 (1969), as relevant to the issue of undue suggestiveness in a photographic identification. The fifth factor is stated in terms of the question of whether there “[w]ere any tangible objects related to the offense placed before the witness that would encourage identification ? ”

8 . Appellant has not, either at trial or on appeal, made any claim that the Sixth Amendment comprehended a right to have counsel present at the showing of the color photographs to the eye witnesses. Nonetheless, we deferred the decision of this case pending the consideration and disposition by the court en banc of United States v. Ash, 149 U.S.App.D.C.-, 461 F.2d 92 (decided March 1, 1972), in which the court explored such an issue in the case of a man in custody and awaiting trial. We held in Ash that a photographic showing can under certain circumstances be a critical stage in the prosecution calling for the presence of counsel.

That principle so recogized in Ash does not govern this case, however, because appellant was not in the custody of the D.C. police at the time the photographs were exhibited to the eyewitnesses. So far as the D.C. crime was concerned, the showing took place at a time when that matter was still in the investigative stage. It is true that appellant was physically in the custody of the Virginia police, but that was for a crime unrelated to the one in the District of Columbia. The tip to the D.C. police arising from the Virginia arrest made appellant a suspect, but only that; and it was entirely reasonable for the D.C. police to pursue that lead by obtaining photographs of appellant and exhibiting them to the eyewitnesses in the District. On these facts, this showing did not constitute a critical stage in the prosecution of appellant.

9 . The testimony about the lineup reproduced in the dissenting opinion is replete with direct conflicts; and the dissent appears unwilling to infer that the trial court’s ruling upon the motion to suppress necessarily rests upon its resolution of those conflicts in favor of the prosecution. We think, as we have said, that the denial of the motion must be taken as reflecting such a resolution, and that on this record it veas one fully within the province of the trial judge to make.