United States v. Larry E. Evans , 438 F.2d 162 ( 1971 )

McGOWAN, Circuit Judge:

Appellant was convicted by a jury of burglary, assault with a dangerous weapon, and petit larceny. His only challenge to this conviction on appeal is that his identification at trial by the victim was fatally tainted by a pretrial confrontation which transgressed the Fifth and Sixth Amendments. That issue was explored by the District Court in an evidentiary hearing before the jury was summoned, and the court ultimately decided against appellant’s constitutional claims. By reference to the precise circumstances shown by this record, we sustain that ruling.

I

The complaining witness was a housewife in Northeast Washington who testified that she first saw appellant the day before the alleged offenses occurred. On that occasion she was walking her dog in the vicinity of her home and, in her testimony, she described his appearance at that time. On the day following, she saw appellant again at about the same place as she was out walking with her little girl. After the witness returned to her home a few minutes later, appellant entered the house, threatened her with a knife, and physically dragged her about the house with him as he searched for money. The victim testified that appellant was in the house for about one hour, and she gave the police shortly thereafter a detailed description of appellant founded upon unusual opportunities to observe appellant at close range and to fix his features in her mind.

About two weeks later, so the victim testified, she saw appellant for the third time. She was walking along the street near her home with a male acquaintance in the late afternoon of October 24, 1968, when she saw appellant coming out of an alley some 20 feet away. She immediately told her companion that appel-pant was her attacker. Appellant appeared to recognize the victim and departed hastily. The companion went into a nearby building to call the police. When he had the police on the wire, he put the victim on to give a description, and left to pursue appellant.

A police radio lookout was immediately broadcast and was heard by Officer Mitchell, who was in a police car in the area, accompanied by his dog.¹ Officer Mitchell very soon saw a person walking along the street towards him who appeared to be the one referred to in the radio lookout. He stopped his car and waited for the suspect to reach him, but the suspect, when he saw Mitchell, ran through an alley. Mitchell drove around to intercept him on the other side, and took him into custody by threatening to loose the dog if the suspect did not stop. By that time another police car had arrived on the scene, and Mitchell asked it, because it had more room, to take appellant back to the place where the call to the police originated. He followed immediately behind in his car.

Mitchell’s testimony as to what he found when he got there is as follows:

A There was three of them standing there and I walked over and asked them who had called.

Q You asked what?

A I asked who had called.

* * * •* * *

Q What did you tell them on the way to the cruiser, Officer? What did you say to the three people?

A What did I say to them?

Q What did you say to them?

A I asked them if this was the subject that they were chasing.

The victim’s testimony as to this meeting was in these terms:

Q Was it Officer Mitchell you spoke with?

A Yes.

Q Do you recall what, if anything, he told you?

A He said, “What is this all about? I have a man in the car. Are you the lady who called ?” And I said, “Yes.” And he said, “Was this a burglary or what?” And I didn’t say anything, I just looked at him. And then he said to come over and see if this is the man I reported. (Emphasis supplied.)

Mitchell described his understanding to be that, while the victim was on the phone with the police, her companion was chasing appellant.² He therefore asked both the victim and this companion, who was standing with her when the police arrived with appellant, to walk over to the police car with him. This is his account of what happened:

A Well, she went up and I opened the door for her to see the defendant who was sitting in the car, and immediately almost — she was standing outside — she became very nervous, excited and upset, and she definitely said, “Yes, that’s the man.”

Q Now, did you tell her anything about the circumstances under which he was arrested or anything about the defendant, himself?

A No, sir, because I really didn’t know what it was all about. I knew he was wanted for assault but I didn’t know what it was.

Q Did you hear anyone else tell her anything about the circumstances under which he was arrested or anything about the defendant himself?

A No, sir.

Q To your knowledge, were you the first officer to communicate with her after the defendant was arrested ?

A Yes, sir, I was.

Q Were you the only officer to communicate with her from the time he was arrested until the time she came over to the vehicle to identify him?

A Yes, sir, I’m sure that I was.

II

The contentions made to the District Court with respect to the propriety of the in-eourt identification focused upon our decision in Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969).³ In that case we held that the prompt return by the police of an arrestee to the scene of the crime for identification by the victim or other eyewitnesses did not fall afoul of either the Fifth Amendment’s requirement of due process or the Sixth Amendment’s guarantee of the assistance of counsel. Appellant pointed out that the confrontation in Russell took place a few minutes after the offense, whereas in this instance the exhibition of appellant to the complaining witness took place nearly two weeks after the commission of the alleged crimes. Thus, so it was said, the considerations which moved this court to rule as it did in Russell are wholly without force here, and the strictures of the Wade-GilbertStovall trilogy are fully operative.2 *⁴

The Government, contrarily, urged upon the District Court the relatively unique character of this accidental encounter on the street of the victim and her assailant, the spontaneous recognition that was forthcoming from the former, and the situation that was created by the flight of the suspect, the victim’s telephone call to the police, and the ensuing radio lookout. It stressed the testimony by Officer Mitchell that his purpose was not to assure that he necessarily had the man who had committed a crime but, rather, to be certain that the man he had detained on the street in response to the radio lookout was in fact its subject. Viewed in this light, said the Government, the rationale of Russell is applicable, and Officer Mitchell is not to be faulted for not having taken the person seized by him directly to the police station.

The District Court, after remarking that it had “never seen a case with these facts,” concluded that those facts warranted an “exception to the general rule,” and ruled that the fact of the pretrial identification could be introduced into evidence by the government, as well as an in-eourt identification made by both the victim and her companion. In consequence, all these things were done at the trial.⁵

We have recently had occasion to recognize that “ [Although it is unquestionably highly suggestive to present a single suspect to a witness for identification, nevertheless in some circumstances the procedure may be justified.” United States v. Green, 141 U.S.App.D.C. 136, 436 F.2d 290 (decided November 12, 1970). This, of course, echoes the observation of Mr. Justice Douglas, dissenting in Biggers v. Tennessee, 390 U.S. 404, 408, 88 S.Ct. 979, 981, 19 L.Ed.2d 1267 (1968), that “[0]f course, due process is not always violated when the police fail to assemble a lineup but conduct a one-man showup.” In Stovall itself the Supreme Court found no due process violation in what was surely one of the most suggestive showups ever held. It concluded in that instance that the police action under the special circumstances there present was a reasonable response to the particular problem the police faced. And in the pioneer case dealing with due process in photographic identification, Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), the Court declined, “either in the exercise of our supervisory power, or, still less, as a matter of constitutional requirement,” to ban all pretrial photographic identification, as it had been pressed to do. “Instead,” said the Court, “we hold that each case must be considered on its own facts;” and from that premise the Court evolved a standard which it characterized as one that “accords with our resolution of a similar issue” in Stovall.

In our recent Green decision, which also involved an arrest made by reason of a rape victim’s chance recognition of her attacker on the street ten days after the offense, we remarked that Fifth Amendment due process is not breached by the prompt presentation of a single suspect “to a witness whose recollection of the offense is still exceedingly fresh,” nor is the Sixth Amendment’s requirement of counsel violated where “the interest in speedy identification * * * justifies the failure to arrange a formal lineup * * * ” These are the foundations upon which our Russell doctrine largely rests. The question of their appositeness to the action taken by the police under the circumstances of the case before us is, as we said of the similar situation in Green, “a difficult one.” ⁶

It is relevant to remind at this point that due process, after all, remains at bottom a matter of official action which patently “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”⁷ Similarly, as respects the counsel guarantee of the Sixth Amendment, the Supreme Court’s treatment of that matter in the 1967 Wade trial reveals unmistakably a preoccupation with the dangers inherent in a police practice which had been the rule rather than the exception.

The record before us does not present the usual pattern of litigated pretrial identifications. That pattern is mainly woven of pretrial confrontations that occur (1) well after the crime itself, and in official surroundings when the police have had the suspect under arrest for some time, or (2) at the scene of the offense when the police have captured the suspect shortly after the crime, as in Russell. We start, however, with a chance encounter on the street 13 days after the offense. The victim spontaneously asserts the fact of recognition to her companion, and the suspect flees. The victim hurriedly reports what she has seen to the police, and the chase begins in a metropolitan city. The radio lookout places each policeman in the vicinity under a duty to detain and investigate anyone who resembles the broadcast description. Officer Mitchell hears the lookout, quickly spots a figure on the street who appears to fit the radioed description, and takes him into custody when he flees.

Officer Mitchell’s testimony as to his purpose in taking appellant to the recognition scene rather than to the police station appears to be credible, and no one, either in the trial court or here, has suggested that it was not. He said that he knew nothing about the crime for which appellant was wanted. Accordingly, it was not, nor could it have been, his purpose to link appellant to it. His immediate job, as he conceived it, was simply to be sure that he had picked up the man who was the subject of the radio lookout. Since the person who initiated that lookout was a short distance away, it seemed reasonable to him to ask her then and there if appellant was the man about whom she had just telephoned the police.

It seems reasonable to us, too. And we find in this record no trace of a deliberate police purpose to circumvent the commands of the Fifth and Sixth Amendments as those have been defined by the Supreme Court in the pretrial identification context. Neither do we see in the totality of this record any unacceptable degree of probability that Officer Mitchell’s action gave rise, in the Supreme Court’s Simmons formulation, “to a very substantial likelihood of irreparable misidentification.” The testimony simply does not lend itself to any ponderable apprehension that the victim in this case would, in looking at appellant pursuant to Officer Mitchell’s request, confirm only the image she had formed of appellant in the street encounter a few moments before. Rather, the evidence speaks eloquently to the effect that that image was firmly etched in her mind by the hour she spent in close contact with appellant when he was a marauder in her home. What was confirmed was that Officer Mitchell had not blundered in his response to the radio lookout.

It is undoubtedly true, as appellant urges upon us, that Officer Mitchell was, on the facts shown, legally empowered to have taken appellant directly to the police station and to have booked him there for whatever specific crime the officer would then have found him to be connected. That would have enabled the next pretrial confrontation to take the shape of formal lineup, with all the values that patently characterize that manner of proceeding. But, in the special circumstances of this record, that would not have been, as is so often the case, the only encounter between the victim and the suspect in the interim between the offense and the trial. In this case the first such meeting was the spontaneous recognition in the unexpected meeting on the street. Had appellant made good his flight on that occasion and eventually been arrested in another context, the victim could certainly have included that recognition in her identification testimony, thereby adding to its weight. All that Officer Mitchell did, or sought to do, was to seek reasonable assurance that he had not, in response to the victim’s report of that encounter, picked up the wrong man.⁸

In Russell we stressed the virtues of identification by the victim of a crime while the recollection is fresh, and, to a lesser degree, concern for not arresting the wrong man. The former consideration, in the special circumstances of this record, strikes us as not particularly relevant. When there is a chance encounter provoking spontaneous recognition of the credible character here involved, the problem is not essentially one of fresh recollection. The second consideration appears, by his testimony, to have been very much on Officer Mitchell’s mind and, we think, properly and understandably so. An important public interest comprehended within this second foundation of Russell, distinct from the inconvenience and indignity suffered by the innocent arrestee, relates to the effective utilization of police resources. If Officer Mitchell had the wrong man, it was essential under the circumstances that he return to searching the vicinity for the right one as promptly as possible. It is tricky business to effectuate radio lookouts in a city area on a late afternoon, and, even though the correspondence of appellant’s appearance to the lookout description may arguably have afforded Officer Mitchell with little cause to worry,⁹ we see nothing unreasonable about the extra precautions he decided to take against possible error. We are not persuaded that his discharge of his duty, as he saw it under the exact facts before us, took him palpably outside the confines of the Constitution.

It would, we think, be delusive to regard our affirmance of this conviction as a wholesale and sweeping extension of Russell, thereby opening up wholesale possibilities of showups remote from the offense in point of time.¹⁰ Given what this record shows with respect to the chance street encounter of this victim and this appellant, and the circumstances in which Officer Mitchell entered into this picture, we do not consider that Russell really has much to do with the result we reach. Put another way, this record would, in our judgment, have supported affirmance even if Russell had gone the other way.

Affirmed.

1 . Officer Mitchell’s car was designated as Cruiser 654. The radio lookout was as follows:

“Disp: Scout 91, complainant at 318 A-Adam N.E. says the subject that broke into her house last week is now on 3rd Street toward East Capitol. Described as a Negro male. He’s got a blue jacket, grey pants and white tennis shoes. She’s at 318 A-Adam. 5:34

“Set. 91: 91-10-99.

“Disp: Any other unit in 9 can assist 91?

“Cr. 654: Cruiser 654, wliat was that address again?

“Dist: She’s at 318 A-Adam N.E. The subject is on 3rd. going towards East Capitol from A. Did you copy the lookout?

“Cr. 654: 10-4, I got that.

% * Jit * 1n

“Cr. 654: (unreadable). 654, I have that subject at Terrace Court and A St. Would you have a car meet me around here?”

2 . The companion was an employee of a museum two doors from the victim’s home, and was acquainted with the victim. It was to the museum that the victim came in a hysterical condition to report the assault upon her at the time of that offense. Thirteen days later this employee was standing on the sidewalk in front of the museum with the victim and another friend when the victim saw appellant and identified him as her assailant. The museum employee testified that, when appellant fled, he first went into the building to call the police and, after turning the phone over to the victim, went outside again to give chase to appellant.

3 . See also Wise v. United States, 127 U.S. App.D.C. 279, 383 F.2d 206, cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968); Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104 (1968); Jackson v. United States, 134 U.S.App.D.C. 18, 412 F.2d 149, 153-154 (1969); and United States v. Miller, (No. 22,-332, decided March 23, 1970). For a state ease in accord with Russell, see Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343 (1968), cert. denied, 393 U.S. 1034, 89 S.Ct. 651, 21 L.Ed.2d 579 (1969).

4 . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 D.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

5 . Although this trial took place after our en Tiano decision in Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969), the trial court did not avail itself of our suggestion that efficient judicial administration would be furthered by the court’s always ruling on independent source, whatever its decision on the alleged violation might prove to be. This record seems especially strong on the likelihood of an independent source, since the victim testified both as to her observation of appellant twice before she was attacked, and during the attack itself, which lasted one hour. The prosecution, by not pressing for an independent source finding, and further by not limiting its evidence to an in-eourt identification, foreclosed itself from a most promising basis for an unexceptionable affirmance or, at worst, a remand for a supplementary finding on independent source.

6 . Our formulation of the problem in Green was in these terms:

It might be argued that similar considerations obtain in this case, that there is a strong interest in a prompt identification to determine whether the police officers have arrested the man who was seen on the street by the victim. On the other hand, it may be argued that the important question is whether the officers have arrested the offender, and not whether they have arrested the man recently seen on the street; therefore a suggestive confrontation cannot be held to confirm the street identification when it might taint the witness’s recollection of the actual offense.

The state of the record in Gi-een was not such as to require a resolution of the matter.

7 . Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1963)). The Supreme Court’s various formulations, ranging from conduct that “shocks the conscience,” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1951), to that which impinges upon rights “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), all appear to contemplate ascertainable gradations between that official action which does, and that which does not, exceed civilized limits. The hazards of using the metaphor of a fixed line of demarcation are, however, lyrically illuminated in Field, Frankfurter, X, Concurring * * *, 71 Harv.L.Rev. 77 (1957).

8 . One may wonder, indeed, why the prosecution thought it important to enlarge its direct ease by testimony going beyond the victim’s recognition of appellant on the street and his prompt arrest in consequence thereof. The weight of the Government’s case would not appear to have been materially increased by an explicit showing that no mistake had been made in the arrest of the man who was the subject of the radio lookout. The defense would, of course, have been free to bring out this confrontation on cross-examination, but the perils of doing so are obvious.

9 . Officer Mitchell’s testimony was that there were not many people in the block where he first saw appellant, but “there were some.” In response to a question as to whether he saw “anyone else in the general area that matched the description” contained in the radio lookout, he replied in the negative. lie said that ten minutes at the outside elapsed between his first sight of ajjpellant and the viewing of him in the police car by the victim.

10 . We note in this regard, without comment or intimation of opinion, that the police are apparently currently operating under a self-imposed time limitation in the return of suspects to the scene of the crime for identification. Memorandum Order No. 16 (Series 1970) of the Metropolitan Police Department, dated May 15, 1970, provides, among other things, that

“If a suspect is arrested within 60 minutes of an alleged offense and within an area reasonably proximate to the scene of the crime, he shall be returned to the scene of the offense, or the eyewitnesses shall be transported to the scene of the arrest, for identification of the suspect.”

The only exceptions contemplated to this 60-minute rule are where either the suspect or the victim has been admitted to the hospital in a critical condition as a consequence of the crime.