United States v. James E. York

426 F.2d 1191, 138 U.S. App. D.C. 197, 1969 U.S. App. LEXIS 10675

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 24, 1969
• Docket: 22468_1
• Status: Published

Opinions

PER CURIAM:

Appellant was indicted in four counts of robbery¹ and seven counts of assault with a dangerous weapon ² growing out of the holdup of a shoe store staged by three men. At a trial before a jury in the District Court,³ Loren J. Seifert, an employee of the store, was permitted to identify appellant as one of the holdup men.⁴ The jury disbelieved alibi evidence offered by appellant and found him guilty on all counts. The chief complaint registered on this appeal is that Seifert’s identification at the trial was vitiated by processes previously utilized by the Government to assess the degree of Seifert’s recognition of appellant.⁵

The prosecuting authorities, after an initial photographic identification by Seifert and appellant’s later arrest, arranged for Seifert to view appellant as he sat in a courtroom of the District of Columbia Court of General Sessions.⁶ Seifert’s observation and resulting identification occurred without the knowledge of appellant or his counsel.⁷ Appellant contends that this episode contravened his Sixth Amendment right to counsel at pretrial identification confrontations.⁸ He questions also, on due process grounds, procedures incidental to efforts by the police to obtain identifications of appellant from groups of photographs shown Seifert.⁹

Early in the trial, the court ruled that the Government might properly ask Seifert to identify appellant from the witness stand. But it is clear to us, as the Government now concedes, that the viewing in the Court of General Sessions infringed appellant’s right to counsel as defined in our recent Mason opinion.¹⁰ So, with Seifert’s in-trial identification thus jeopardized, we need not, even if we could,¹¹ inquire whether that identification was further embarrassed by any impropriety accompanying the photographic displays to which Seifert was exposed. And although the Government did not bring out before the jury any of its pretrial attempts at identification, Seifert’s in-trial identification, which the Government did elicit, can be sustained only by “clear and convincing evidence”¹² establishing that it was based on observations untainted by unconstitutional techniques.¹³

On the latter point, the Government argues that the record demonstrates that Seifert’s in-trial identification proceeded from independent, legally unimpeachable sources. Appellant urges contrarily that the record shows that the identification was irredeemably infected. While we are free to resolve such a controversy when the record is adequate for the purpose,¹⁴ we must reject both positions. The record before us is deficient at too many points to enable us to proceed with confidence toward a decision as to whether there was an independent source that would vindicate the identification Seifert made at the trial. Moreover, it is evident that appellant’s claims were not given the careful evidentiary exploration they deserve, perhaps in consequence of the erroneous ruling that pretrial identification activities were rendered unimportant by the Government’s resolve not to refer to them in the testimony.¹⁵

We accordingly remand this case to the District Court for a hearing appropriate to investigation and resolution of the problem. If, on the basis of evidence now of record or introduced at the hearing, the Government discharges its burden of establishing an independent source for Seifert’s in-trial identification,¹⁶ appellant’s conviction will stand. If, on the other hand, the Government fails in that endeavor, with prejudice from the in-trial identification already apparent,¹⁷ appellant will be awarded a new trial.¹⁸

So ordered.

1 . D.C.Code § 22-2901 (1967), since amended (Supp. II 1969).

2 . D.C.Code § 22-502 (1967).

3 . The indictment charged appellant and two others jointly in each of its eleven counts. Appellant was tried jointly with one of the others. A judgment of acquittal was directed, on the Government’s motion at the close of its case, in favor of appellant’s codefendant.

4 . We think defense counsel’s objection at trial was sufficient to enable appellant to contest this identification on appeal. See note 15, infra.

5 . Appellant presents two additional contentions, which we find unacceptable. As to the first, we apply the standard by which we review trial rulings on motions challenging the legal sufficiency of the Government’s evidence, see Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947), and conclude that the Government’s evidence tendered a jury issue as to appellant’s innocence or guilt if Seifert’s in-court identification at the trial was properly to be considered. As to the second, complaining of the trial judge’s rendition of the “Allen, charge,” Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1892), it suffices to refer to our prior decisions sustaining it, e. g., Fulwood v. United States, 125 U.S.App.D.C. 183, 369 F.2d 960 (1966), cert. denied, 387 U.S. 934, 87 S.Ct. 2058, 18 L.Ed.2d 996 (1967), and to state that we are unconvinced that it was coercive in the circumstances here.

6 . The record discloses that an Assistant United States Attorney was present with Seifert at the courtroom viewing.

7 . The record is unclear as to whether appellant’s counsel was in the courtroom at the time. But even if he was, it is apparent that, without knowledge of the observation, counsel would not have been able to protect him. See Mason v. United States, 134 U.S.App.D.C. 280, 284, 414 F.2d 1176, 1180 (1969).

8 . See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

9 . See Simmons v. United States, 390 U.S. 377, 382-386, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

10 . Supra note 7.

11 . Among the subjects upon which the record is fuzzy, see the text infra following note 14, the circumstances surrounding some of the photographic identification attempts rank high.

12 . United States v. Wade, supra note 8, 388 U.S. at 240, 87 S.Ct. 1926.

13 . Id.

14 . Clemons v. United States, 133 U.S.App.D.C. 27, 46, 408 F.2d 1230, 1249 (en banc 1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969) ; Williams v. United States, 133 U.S.App.D.C. 185, 409 F.2d 471 (1969) ; Hawkins v. United States, 137 U.S.App.D.C. 103, 104, 420 F.2d 1306, 1307 (1969).

15 . At the trial, defense counsel objected to Seifert’s mentioning the identification made at the Court of General Sessions but not specifically to Seifert’s in-trial identification. Though lacking in the precision that should characterize trial objections, we think it was sufficient to put the trial court on notice of appellant’s claim that the confrontation at the Court of General Sessions was' irregular, and to require the trial court to deal with the situation accordingly. When the prosecutor advised that he did not “ * * * plan to elicit the fact that [Seifert] identified this defendant in General Sessions without the presence of his lawyer there,” the court responded that “[t]hat solves that problem.” But it did not, because the further question remained, clearly enough, whether the in-trial identification was tainted by the observation made in the Court of General Sessions. Moreover, this case was pending appeal when our Mason decision, supra note 7, was announced, and under well settled principles appellant should be indulged its benefits. E. g., In re Elmore, 127 U.S.App. D.C. 176, 178, 382 F.2d 125, 127 (1967), and authorities cited in notes 10-13 thereof.

16 . See notes 12-13, supra, and accompanying text. In conducting this inquiry, the court will, of course, consider evidence pertaining to photographic identification attempts to the extent relevant to the question of independent source.

17 . The Government’s case hung importantly upon the in-trial identification made by Seifert, the only witness able to attempt an identification. The difficulty the jury experienced in reaching a verdict, see note 5, supra, underscores the closeness of the case on that issue.

18 . Compare Mason v. United States, supra note 7, 134 U.S.App.D.C. at 286, 414 F. 2d at 1182.