United States v. Lester Irby, United States of America v. Eric Sylvester Smith

517 F.2d 506, 1975 U.S. App. LEXIS 14396

Opinions

PER CURIAM:

We find no error in the trial and conviction of these defendants.

The showing of photographs taken during the course of the bank robbery to witnesses prior to their selecting photographs of defendants Irby and Smith from a photographic lineup was not unduly suggestive since it is not disputed that the first set of photographs accurately depicted the robbery as it occurred. Use of the first set of photographs in this manner served the useful purpose of refreshing the recollection of the witnesses to the end that their subsequent identification from the photographic lineup and an in-court identification of one defendant by one witness were rendered more accurate. Nor were the photographs used in the photographic lineup unduly suggestive.

We also conclude that the first set of photographs was properly admitted into evidence, as was testimony of the F.B.I. agent who conducted the photographic lineup that he observed one witness identify one defendant in the photographic lineup even though the witness could not' identify him in court.

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Affirmed.

The witness did testify, however, that she had identified two persons at a photographic lineup, the identity of whom she did not remember.