United States v. Charles J. Ash, Jr.

*131 MaeKINNON, Circuit Judge.

I concur in Judge Wilkey’s dissent. As I read the Sixth Amendment, its guarantee of the “assistance of counsel in his defense” does not require that defense counsel be present when the Government attorney or investigator interviews witnesses, whether they are shown pictures of the defendant, other suspects, crime scenes, instruments of the crime, evidence of the crime or prior testimony, or there is other discussion of the relevant facts in the case. In any given case any one of these incidents might uncover evidence that would be “critical” for the defendant, but the requirement that counsel be present is restricted to legal proceedings and those instances where the defendant himself is physically present.

The Sixth Amendment

In my view the majority opinion not only misreads the Sixth Amendment but also, in attempting to make its decision appear reasonable and workable, takes a very unrealistic view of the prosecution of criminal cases. It seems to believe that the investigation of a criminal case ceases with a grand jury indictment and that the FBI report is then wrapped with a blue ribbon which is not untied until the ease comes on for trial. Far from it. An important criminal trial needs constant investigation. After a suspect is arrested, new witnesses may appear, new facts may appear and new theories may develop as additional facts become known. Such post-arrest developments may further incriminate the defendant and make his conviction more certain or they may lead to an acquittal or dismissal of the charges. The fact that an arrest has been made, or even that an indictment has been returned, is no justification for stopping the investigation. That is an ongoing thing right up until trial and frequently into the trial as the defense may then present new witnesses for the first time. The investigation may even continue after trial.

Under the majority opinion, after defendant’s arrest the defense counsel would have to be notified every time a new or old witness was shown any photographs of the defendant or other suspects. This will constitute an unreasonable interference with post-arrest investigations and would require defense counsel to be present wherever such photographs may be shown by police or FBI personnel to any witness anywhere in the country.

Such requirement is wholly unreasonable and particularly so when applied nationwide as it must be if this is, as the majority say, a constitutional requirement. Even though we have a great many local crimes in the District of Columbia where identifications are completely local matters we cannot convert the Sixth Amendment into a provincial rule. We must recognize that, if the law is as stated by the majority, whenever any FBI agent interrogates any witness anywhere in the country after a suspect is arrested and has counsel, if the agent intends to exhibit any photograph of the accused, that defense counsel must be notified, be present, etc. Such requirement is completely unworkable and, in my view, particularly with respect to federal crimes, many of which involve interstate activity and hence out of state witnesses, is not required by the Constitution.

The Identification of Ash

I also dissent from the failure of the majority opinion to recognize the full import of the identification testimony against Ash. It was not limited to “height, weight, age and build” as the majority opinion states (p. 97). In addition to the testimony as to height, tall, thin, shorter than the other, more muscular, slender, taller than the other, there was testimony that the suspects were: “not too dark complected” (Tr. 125); “light skinned negro” (Tr. 182) ; “neatly dressed” (Tr. 182); “extremely neat” (Tr. 182); [had a] “mustache” (Tr. 192); [wore] “no glasses” (Tr. 192, *132 220); wore masks. Also, the witness Betty Apple, who made a positive in-court identification of both men — she was “absolutely certain” and that there was no question in her mind (Tr. 220)— had seen the same two men ten minutes before she observed them outside the bank. At that time they were in a cream colored Pontiac convertible that was parked in front of her husband’s restaurant about a block away from the bank (Tr. 213-214). They were then unmasked and she saw them ten minutes later, again unmasked, as they fled from the bank with one carrying a large paper bag. On both occasions she was seated in a parked car at the restaurant and bank respectively and had a good opportunity to identify the men. In front of the bank they passed within five feet of where she was seated in the car and her testimony is very valuable because she recognized (suspected) at the time, from their running and carrying a paper bag, that a bank robbery had been committed (Tr. 197, 221). She was thus alert to the consequences of what she was observing.

There was also other substantial evidence that fully corroborated the finding of the jury that Ash committed the crime. This was particularly the testimony of McFarland. While he had a criminal record and could benefit from Government favors, still the story he told had the ring of truth because of a number of recounted elements that a person could only have known if he had talked to some person who was knowledgeable about the details of the crime. That he had a criminal record does not disqualify him as a witness. The Government cannot pick and choose witnesses. In a criminal trial it must take its witnesses where it finds them and it is not unusual for it to find certain witnesses with criminal records who have knowledge of the criminal activities of others. That is but a fact of life. Criminals associate with other criminals. The Government cannot be expected or required to prove criminal conduct solely through witnesses who frequent houses of worship. Where known criminals testify against criminal defendants it is sufficient for the jury to know the record of the witnesses, as they did with respect to McFarland, to be properly instructed thereon and to give such testimony such weight as they consider proper under the circumstances. The weight of the testimony is for the jury.

The Colored Photographs

Having said the foregoing, I find that the five colored photographs, which were shown to all the witnesses shortly before trial, were impermissibly suggestive. Photographs of only five individuals were shown at that time — one of each of the defendants and pictures of three other individuals. (There were three pictures of one of the other individuals.) From my personal examination of these exhibits viewed in the light of the full transcript, I find these pictures to have been impermissibly suggestive because those of the defendants Ash and Bailey were the only photographs of tall slender men, which was the prior description of the robbery suspects by all the witnesses. The other three pictures were all of men who appeared to be heavy and not tall. However, the court held a full hearing on all the identification testimony and in my opinion found that the witnesses had a sufficient independent source to make an in-eourt identification (Tr. 102-103). In support of this conclusion it is extremely significant to note that the tes-' timony of the identification witnesses with respect to Ash was substantially consistent throughout. There was a slight variation between Betty Apple’s in-court identification of Bailey and her identification in the courthouse corridor. 1 (See Appendix, which charts the various identifications by the principal witnesses.)

*133 Thus, there is every reason to believe the testimony of the witnesses that they were relying upon their own independent recollection of what they had previously observed. If the photographic procedures were as suggestive as the majority contend, they failed to produce any demonstrable effect upon the testimony. It is pure speculation for the majority to suggest that the identification testimony might have been less strong than it was formerly if the colored photographs had not been shown. I thus find no basis for upsetting the finding of the trial court that the evidence was admissible. 2

One factor that troubled me, on first reading the cold record, briefs and the majority opinion, was the fact that the Government showed facial pictures to two witnesses who had only observed the robbers while they were wearing stocking masks. Obviously, if a person has not seen one’s face, it is the height of impermissible suggestion to exhibit facial pictures to him of a person that the exhibitor knows is a strong suspect. Under such circumstances implicit suggestion could also lurk merely in a normal lineup that did not display various individuals with a close range of physical features similar to those that had been observed. However, after my initial doubts as to the propriety of showing facial photos, further investigation disclosed sufficient facts for me to conclude that it was proper here to exhibit facial pictures to the witnesses. I reach this conclusion because, while there was testimony that both robbers had worn masks, they had worn stocking masks and, to the extent that it was covered by testimony, the masks only came down to a point “right under his nose” (Tr. 167, 182). This left the upper lip (mustache area) and chin areas completely exposed. The facial features below the mask which were exposed could be observed and so could the color of the skin. The two appellants here had distinctive features in this area — one a mustache — and the other an unusual-type chin.

I place no great significance on the failure of the witnesses to articulate the individual facial features that they observed. Looking at a person for the first time to many people is much like looking at a sunset or a painting. Unless the viewer is a trained observer his initial impression is inclined to be stated in total rather than fragmented impressions. And for many persons it is difficult, particularly without specific questions being asked, to articulate the separate features they retain in their mind of the complete features that make up their individual recollection of the complete physiognomy of the suspect.

Moreover, while there was no specific evidence on the point, it cannot be ruled out that the masks which were used here were made of sheer stockings which one could see through. Obviously those who were wearing the masks saw through them. 3 If those wearing the stockings as masks could see through them, then other persons could see some of their features through the thin fabric of the hose. Thus, other facial features above the upper lip might have been observed to some extent, albeit in a possibly slightly distorted state. So in view of the opportunity that the witnesses did have to view the facial features of the suspects, I find that it was entirely proper to show the facial photo *134 graphs to the witnesses. In this respect, the cold record requires a close examination to find out the true situation. The majority opinion, in my view, does not reflect this.

To the extent that the majority opinion differs from the foregoing, I respectfully dissent therefrom.

Judge ROBB concurs with the views herein expressed.

APPENDIX

Observed Robbers

Witnesses to Offense of Aug. 26, 1965

With Mask

Without . Mask

Feb. 3,1966 Black & White Photos

May 7,1966 Color Photos

May 8,1968 Trial Identification

Mrs. Ruby Paugh (Teller)

X

Not positive-identified

Selected Ash photo. Was not absolutely certain. Thinks this was him (Tr. 51)

Could make no definite Identification — "looks similar" (Tr. 160)

Mrs. Jean Major (Teller)

X

Not positive— identified

Selected Ash photo. (Tr. 45) Was not absolutely certain. Thinks this was him. (Tr. 52)

Believed Ash was gunman (Tr. 177, 182) "I have no doubt in my mind but I cannot say with absolute certainty" (Tr. 183)

Mr. Joseph Taylor (Pastor, customer)

X

To best of his belief (Tr. 16) Ash was gunman, but he could say positively If he could see him In person.

Unable to Identify color photo on May 8, 1968 (Tr. 47)

Looks sort of like the man I saw coming In (Tr. 188) Not "absolutely certain ... It looks like him. I cannot be certain" (Tr. 194)

Betty Apple (Street observer)

X 1

2 "Wasn't sure, It looked like [Ash]" (Tr. 16, 200)

Selected Ash photo. Was not sure. Believe photo was of the robber (Tr. 52, 201). Did not select photo of Bailey (Tr. 201)

Identified both defendants In person In court room (Tr. 197, 198) "With absolute certainty — there Is no question In [my] mind" (Tr. 220)

. In this respect it differs from United States v. Gambrill, 146 U.S.App.D.C. 72 , 449 F.2d 1148 (1971), where the witness’ testimony at trial was substantially stronger than it had been prior to being shown single photographs of the suspects.

. While the admission of the identification testimony is a separate question, it is not without significance that defense counsel stipulated to the admission into evidence of the colored photographs (Tr. 418). They were defendant Bailey’s exhibits (Tr. 418) and hardly a basis for the majority to find constitutional error against the Government in their admission.

. One witness thought “there must have been holes for his eyes. I don’t remember that” (Tr. 167). The other witness testified, “He had a stocking cap over his face” (Tr. 181). A third witness said he did not have a mask on in the bank “when I saw him” (Tr. 192). This apparently contradictory evidence might be reconciled since the three witnesses had different views of the robbers, at varying distances and at slightly different times.

. Observed both defendants one block away from bank ten minutes before robbery and ten minutes later in front of bank.

. She had been shown photos on January 23, 1966 by policeman (Tr. 370). On February 18, 1966, she had pointed out Bailey among 50 other persons in corridor of General Sessions Court Building (Tr. 72-74, 372). She “believed” Bailey was one of the men (Tr. 82).