WILKEY, Circuit Judge:
Appellant in this case was tried and convicted of robbery and assault with a dangerous weapon. He alleges five distinct grounds for reversal on appeal. We find that they are all without merit and that the convictions should be upheld.
1. The validity of the identification.
Appellant alleges that he was deprived of due process of law because the identification procedures used were unduly suggestive. The complaining witness confronted appellant in a situation which we shall assume for the sake of argument to have been suggestive. Even so, the in-court identification was not fatally flawed because the witness had originally identified appellant from photographs in a situation that was not unduly suggestive.
The identification in this case occurred prior to the decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and, therefore, is admissible if .the factors surrounding it indicate that it is reliable. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In this situation there are two factors that tend to show reliability: (1) The complaining witness got a very good look at the robbers at the time of the robbery. The crime occurred in broad daylight, and the detail of his description of the robbers indicates that his opportunity to [1052]*1052see them was good. (2) There was a positive identification of a recent photograph of appellant by the victim prior to the arguably unlawful encounter at the Commissioner’s when defendant Skeens was accompanied by one Reichert, an alleged co-participant in the crime. This was the witness Swindler’s first look and first identification of Reichert, but not of Skeens. In fact Reichert’s motion to suppress this identification was granted, precisely because Reichert had been first identified in a one-on-one confrontation (“a textbook Stovall,” in the words of the trial judge) accompanied by “a second man (Skeens) who has already been positively identified as a participant in the crime.” It was the validity and positiveness of the witness’ previous identification of Skeens which was a strong ground for suppressing the identification of Reichert, first displayed in the company of Skeens.
Now it is the validity of the identification of Skeens which is under attack. That identification came about in this way. The police placed a large number of slide photographs in a carousel projector, timed to display each photo a few seconds, then automatically move on to the next. Police officers were in and out of the room, not necessarily being with the witness Swindler at all times as he sat viewing the slides being flashed on the screen. Swindler uttered a remark indicating a tentative recognition when the slide of Skeens was flashed on. He had not given any hint of recognition of any other photo. The officers questioned Swindler; he was not certain at this time. One officer remembered there was a more recent photo of Skeens; this was placed in the projector in a random order with other undisplayed slides and flashed on at automatic intervals. This time the more recent photo elicited a much more positive identification from Swindler. Exactly what he said is a matter of dispute in the testimony, but it was strong enough to persuade the officers to seek an arrest warrant for Skeens, whom previously they had had no cause to suspect. And it was strong enough to persuade the District Judge ruling on the motions to suppress to say “Indeed, had the affidavit recited only the facts as defense counsel alleges them to have been at the time of the picture identification, there still would have been probable cause to issue the arrest warrant.”
It is hard to imagine a more objective police identification procedure. Yet, appellant Skeens alleges that this photographic identification was flawed because a police officer made mention of appellant’s recent release from prison prior to the positive identification. There is a dispute in the testimony regarding whether this reference was made after a tentative identification of the older photo of appellant or after the positive identification of the later one. Even if the reference occurred before the positive identification, appellant had no way of knowing that the photo he positively identified was that of appellant. The record shows that the photo the victim did identify was placed in the slide projector in a random order and that it was not called to the witness’ attention when it flashed on the screen. We believe that the factors given here are sufficient to show that the in-eourt identification was reliable.
2. The grand jury proceeding.
Appellant argues that he was unduly prejudiced by prosecution statements at the grand jury proceedings. The record reveals that most of the questioning was done in an effort to impeach certain statements made by appellant’s wife. In this context they do not appear to be as prejudicial as appellant argues. Under no circumstances could they be viewed as being as prejudicial as those attacked in Coppedge v. United States, 114 U.S.App.D.C. 79, 82-83, 311 F.2d 128, 131-132 (1962). In that case the court upheld an indictment even though it was based in part upon perjured testimony. Appellant has not shown that the grand jury was improperly constituted or that there was not sufficient evidence on the whole record [1053]*1053to support the indictment. This argument must, therefore, fail.
3. Prejudice from delay.
Appellant contends that he was unduly prejudiced by the 21-month delay between his arrest and trial. Under the decision in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we are admonished to consider four factors in evaluating such a contention: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the resulting prejudice to the defendant. In this ease appellant did not assert his right until much of the delay complained of had occurred. The record also reflects that much of the time it took to decide various defense the delay complained of was caused by motions. We also conclude that appellant was not substantially prejudiced by the delay in this case. The nine months’ incarceration following his arrest was due to appellant’s parole being revoked on another charge. Any prejudice due to the death of appellant’s wife was ameliorated, at least somewhat, by the Government’s offer to let appellant use the transcript of the wife’s testimony at the grand jury. In any case, most of the delay up to the time of the wife’s death was attributable to appellant; any prejudice on this count is a consequence of appellant’s own action.
4. Statements by prosecution during trial.
Appellant complains that three statements by the prosecution or witnesses so prejudiced appellant that we must overturn his conviction: (1) During the opening argument, the prosecution allegedly stated that it would prove more than it actually did. Admittedly, not.everything alleged was proved in the Government’s case in chief.
Free access — add to your briefcase to read the full text and ask questions with AI
WILKEY, Circuit Judge:
Appellant in this case was tried and convicted of robbery and assault with a dangerous weapon. He alleges five distinct grounds for reversal on appeal. We find that they are all without merit and that the convictions should be upheld.
1. The validity of the identification.
Appellant alleges that he was deprived of due process of law because the identification procedures used were unduly suggestive. The complaining witness confronted appellant in a situation which we shall assume for the sake of argument to have been suggestive. Even so, the in-court identification was not fatally flawed because the witness had originally identified appellant from photographs in a situation that was not unduly suggestive.
The identification in this case occurred prior to the decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and, therefore, is admissible if .the factors surrounding it indicate that it is reliable. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In this situation there are two factors that tend to show reliability: (1) The complaining witness got a very good look at the robbers at the time of the robbery. The crime occurred in broad daylight, and the detail of his description of the robbers indicates that his opportunity to [1052]*1052see them was good. (2) There was a positive identification of a recent photograph of appellant by the victim prior to the arguably unlawful encounter at the Commissioner’s when defendant Skeens was accompanied by one Reichert, an alleged co-participant in the crime. This was the witness Swindler’s first look and first identification of Reichert, but not of Skeens. In fact Reichert’s motion to suppress this identification was granted, precisely because Reichert had been first identified in a one-on-one confrontation (“a textbook Stovall,” in the words of the trial judge) accompanied by “a second man (Skeens) who has already been positively identified as a participant in the crime.” It was the validity and positiveness of the witness’ previous identification of Skeens which was a strong ground for suppressing the identification of Reichert, first displayed in the company of Skeens.
Now it is the validity of the identification of Skeens which is under attack. That identification came about in this way. The police placed a large number of slide photographs in a carousel projector, timed to display each photo a few seconds, then automatically move on to the next. Police officers were in and out of the room, not necessarily being with the witness Swindler at all times as he sat viewing the slides being flashed on the screen. Swindler uttered a remark indicating a tentative recognition when the slide of Skeens was flashed on. He had not given any hint of recognition of any other photo. The officers questioned Swindler; he was not certain at this time. One officer remembered there was a more recent photo of Skeens; this was placed in the projector in a random order with other undisplayed slides and flashed on at automatic intervals. This time the more recent photo elicited a much more positive identification from Swindler. Exactly what he said is a matter of dispute in the testimony, but it was strong enough to persuade the officers to seek an arrest warrant for Skeens, whom previously they had had no cause to suspect. And it was strong enough to persuade the District Judge ruling on the motions to suppress to say “Indeed, had the affidavit recited only the facts as defense counsel alleges them to have been at the time of the picture identification, there still would have been probable cause to issue the arrest warrant.”
It is hard to imagine a more objective police identification procedure. Yet, appellant Skeens alleges that this photographic identification was flawed because a police officer made mention of appellant’s recent release from prison prior to the positive identification. There is a dispute in the testimony regarding whether this reference was made after a tentative identification of the older photo of appellant or after the positive identification of the later one. Even if the reference occurred before the positive identification, appellant had no way of knowing that the photo he positively identified was that of appellant. The record shows that the photo the victim did identify was placed in the slide projector in a random order and that it was not called to the witness’ attention when it flashed on the screen. We believe that the factors given here are sufficient to show that the in-eourt identification was reliable.
2. The grand jury proceeding.
Appellant argues that he was unduly prejudiced by prosecution statements at the grand jury proceedings. The record reveals that most of the questioning was done in an effort to impeach certain statements made by appellant’s wife. In this context they do not appear to be as prejudicial as appellant argues. Under no circumstances could they be viewed as being as prejudicial as those attacked in Coppedge v. United States, 114 U.S.App.D.C. 79, 82-83, 311 F.2d 128, 131-132 (1962). In that case the court upheld an indictment even though it was based in part upon perjured testimony. Appellant has not shown that the grand jury was improperly constituted or that there was not sufficient evidence on the whole record [1053]*1053to support the indictment. This argument must, therefore, fail.
3. Prejudice from delay.
Appellant contends that he was unduly prejudiced by the 21-month delay between his arrest and trial. Under the decision in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we are admonished to consider four factors in evaluating such a contention: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the resulting prejudice to the defendant. In this ease appellant did not assert his right until much of the delay complained of had occurred. The record also reflects that much of the time it took to decide various defense the delay complained of was caused by motions. We also conclude that appellant was not substantially prejudiced by the delay in this case. The nine months’ incarceration following his arrest was due to appellant’s parole being revoked on another charge. Any prejudice due to the death of appellant’s wife was ameliorated, at least somewhat, by the Government’s offer to let appellant use the transcript of the wife’s testimony at the grand jury. In any case, most of the delay up to the time of the wife’s death was attributable to appellant; any prejudice on this count is a consequence of appellant’s own action.
4. Statements by prosecution during trial.
Appellant complains that three statements by the prosecution or witnesses so prejudiced appellant that we must overturn his conviction: (1) During the opening argument, the prosecution allegedly stated that it would prove more than it actually did. Admittedly, not.everything alleged was proved in the Government’s case in chief. It appears, however, that a police officer called as a hostile witness by the defense did testify to everything which had not already been shown; thus it is impossible to see how appellant could have been prejudiced by these allegations. (2) Appellant contends that mention by a police officer, who testified for the defense as a hostile witness, of an alleged attempt by the appellant to have the complaining witness murdered is grounds for reversal. Appellant’s counsel had not admonished the witness not to mention this subject. More significantly, appellant’s trial counsel rejected an offer of a mistrial. Under these circumstances, this mention is not reversible error. (3) The final comment was made by the same police officer who had been called as an adverse witness by the defense. The officer mentioned a fact that the trial judge had specifically ordered the attorneys not to mention during the trial. This revelation was inadvertent. In addition, the witness had never been instructed not to mention the matter by the defense counsel who called him.
5. Admissibility of polygraph examination.
Appellant argues that the trial court erred in failing to conduct an evidentiary hearing on the admissibility of a polygraph test that allegedly supported his innocence. The leading ease in this Circuit is Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), which holds such tests inadmissible. This case has been followed uniformly in this and other Circuits and there has never been any successful challenge to it in any federal court.
The conviction is
Affirmed.