Certiorari Denied May 26, 1969. See 89 S.Ct. 1786.
BAZELON, Chief Judge:
This appeal from a conviction for housebreaking and petit larceny raises issues concerning the admissibility of identification evidence under United States v. Wade
At day-break on June 28, 1967, one George McCann investigated the sounds of a blaring radio and breaking glass at the Community Shoe Shine shop. The radio was sitting on the sidewalk outside the broken shop window. Stationing himself in a brightly-lighted gas station across the street, he saw a man emerge from the shop, look across at him, and proceed past him up the street. McCann went directly to a nearby police station and reported the incident three or four minutes after it occurred. The police broadcast a radio look-out, and officers in a responding squad car promptly encountered appellant in the vicinity. Since he matched the radioed description of the suspect and fled from the approaching police car, the officers pursued him to the porch of a house. There they discovered that he had a radio in one hand and a hatful of cigarettes and small change concealed under his coat. He also had a coat hanger and a screwdriver in his pocket, and on this particular summer night he was wearing gloves. They arrested him
At trial, a police officer described the out-of-court identification, and in addition McCann identified appellant in court. McCann also testified that the radio found in appellant's possession looked like the one he had seen on the sidewalk while appellant was in the shop. The owner of the shop established that cigarettes and change had been taken from his vending machines.
In Wade, the Supreme Court held that a post-indictment lineup is a "critical stage" in the criminal process at which the presence of counsel is required
The first court to confront this difficult question held that it does not. In Commonwealth v. Bumpus,
But some of the language in Wade implies that a suspect has a right to counsel at any pretrial confrontation arranged by the police, regardless of the circumstances. The Wade Court said it was obliged to "scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial * * *."
In all these confrontations the Court said the absence of counsel presents "serious difficulty in depicting what transpires * * *."
Accordingly, in United States v. Kinnard,
The passage in the Wade opinion which most nearly confronts the circumstances of the instant case provides uncertain guidance. The Court said:
This language leaves room for modification of the Wade rule in cases involving prompt confrontations. But it also leaves room for argument that at least "substitute counsel" would be required in any event.
While the language of Wade would thus seem to encompass prompt on-the-scene identifications, they do not fall within the holdings of Wade or its companion case, Gilbert v. California
The present case, however, involves an immediate on-the-scene confrontation at 5 o'clock in the morning when there would necessarily be a long delay in summoning appellant's counsel, or a substitute counsel, to observe a formal
Unquestionably, confrontations in which a single suspect is viewed in the custody of the police are highly suggestive
Yet, on the other hand, recognition of a person or face would seem to be as much the product of a subjective mental image as of articulable, consciously remembered characteristics. A man may see clearly in his "mind's eye" a face or a figure which he is hard put to describe adequately in words. Though the image of an "unforgettable face" may occasionally linger without any translation into words, photographic recall is most often ephemeral. Vivid in the flash of direct observation, it fades rapidly with time. And the conscious attempt to separate the ensemble impression into particular verbalized features, in order to preserve some recollection, may well distort the original accurate image so that it is the verbalized characteristics which are remembered and not the face or the man.
Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations in circumstances like those of this case will "if anything promote fairness, by assuring reliability * *."
This conclusion does not rest on a determination that McCann's identification was in fact especially reliable. It rests instead on a general rule that it is not improper for the police immediately to return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before.
There remains the question of whether the confrontation in this case "was so unnecessarily suggestive and conducive to irreparable mistaken identification that [appellant] * * * was denied due process of law."
Ordinarily, this would be the end of our inquiry. As with the right to counsel, the threshold due process question is not whether the identification was in fact reliable. Stovall v. Denno did not erect a due process barrier against all unreliable identifications;
However, in post-Wade cases the excusable absence of counsel, while not dispositive, is among the "totality of the circumstances"
The troublesome feature of McCann's identification is the fact that from his vantage point across the street at 4:30 a. m., he may not have had a good look at the culprit. McCann was, of course, watching for the purpose of aiding law enforcement and presumably was paying close attention. He testified that he saw appellant's face, that the area was well-lighted, and that daylight was breaking. He gave the police a description on the basis of which they suspected appellant. Unfortunately, however, no one inquired at trial into the details of the description. Nor did McCann say whether he saw appellant pick up the radio. A better record on these details would remove all doubt, and in the future trial judges should insist on such a record. But the facts relating to the only reason for doubt in this case — i. e., McCann's impaired opportunity for accurate observation — were exhaustively explored before the jury. For this reason, and in the light of all the evidence, we find no infringement of due process.
DANAHER, Circuit Judge (concurring):
Of course I agree that Russell's conviction must be affirmed, indeed to take any other view would be sheer travesty in my judgment.
About 4:30 A.M. on June 28, 1967,
Investigating, he saw the radio in operation on the sidewalk outside a business establishment in a well lighted area.
He saw Russell come out of the shop.
Immediately McCann reported to the police what he had heard and seen, and an officer broadcast by radio the description of Russell as supplied by McCann who was then brought right back to the store.
Officers in a police cruiser in the neighborhood picked up the broadcast and shortly thereafter saw Russell.
The latter, carrying a radio, darted into the hallway of a nearby apartment where he was presently arrested and was found to be carrying a hatful of
Following Russell's arrest, the officers brought him back to the shop, and Russell was there positively identified by McCann as the man he had seen leaving the burglarized shop. McCann so testified at trial.
At trial Russell testified that a half block ahead of him he had seen a man drop a paper bag which upon examination by Russell was found to contain the nickels, dimes and quarters and the cigarettes which Russell said he placed in his own hat.
He explained that the gloves he was wearing that June morning were used for boxing but agreed that they were not boxing gloves.
He testified that a screwdriver found in his possession was used by him to fix bicycles for little boys, but he had no special reason for carrying the screwdriver at 4:30 A.M. that day.
He entered the apartment hallway, he said, to talk over business with a man named "Tom" whose address he did not know and with whom he had been acquainted for a week.
Even to suggest that the confrontation
Apart from any other consideration I point to the Omnibus Crime Control and Safe Streets Act of 1968,
In support of the section thus quoted, Senate Report No. 1097
In light of the record and the treatment I have hereinbefore submitted, it may be gathered that I perceive no issue of constitutional dimension. I think this case like many others which are brought here nowadays, should have been disposed of summarily as utterly frivolous.
Id. at 347.
96 Daily Wash.Law Rep. 2041, 2044 (Dec. 13, 1968).
Id. n. 27.