Jesse Eugene Dearinger v. United States ( 1972 )

HAMLIN, Circuit Judge.

Petitioner, Jesse Eugene Dearinger, appeals from an order dismissing, without hearing, his application for relief under 28 U.S.C. § 2255. We summarize the testimony.

On November 21, 1962, three men participated in a bank robbery in Pierce County, Washington. One of them, Weinreieh,¹ stayed with the auto, while Shannon² and Dearinger entered the bank.

Once inside, Shannon pulled a gun and announced that a holdup was in progress. While he stood guard in the lobby, Dearinger went behind the tellers’ cages and collected the money from the drawers.

In the meantime, a customer who was entering the bank saw the holdup in' progress. He immediately notified deputy sheriff Durham, who arrived as the two robbers were headed toward the car. When they disregarded his command to halt, Durham opened fire. Shannon fled, with deputy Durham in pursuit. While deputy Durham was engaged in a fruitless pursuit of Shannon, the other two robbers also escaped. The money was subsequently recovered from a nearby field.

On June 14, 1963, Dearinger was arrested. Shannon and Weinreieh were also in custody. On the following day, photographs of all three men were published on the front page of a local newspaper in connection with an article which outlined the details of the robbery and identified them as suspects.

Dearinger participated in lineups following the publication of the photographs in the local newspaper. The witnesses who identified Dearinger at this lineup and later in court had all seen the photos and story in the newspaper.

Dearinger was indicted on August 21, 1963. He was tried and convicted of violating 18 U.S.C. § 2113(a) and (d), and sentenced to 16 years imprisonment.

This conviction was reversed on appeal for error in refusing to allow him to call certain alibi witnesses. Dearinger v. United States, 344 F.2d 309 (9th Cir. 1965).³

He was retried in the United States District Court in Tacoma in June, 1965. The jury again returned a guilty verdict. The court then sentenced Dearinger to 25 years imprisonment, an increase of nine years over the sentence imposed at the first trial.

Dearinger again appealed, challenging the giving of the Allen charge and the legality of his arrest, and contending that an excessive bail requirement had prejudiced him by preventing him from adequately preparing his case. We rejected his contentions and affirmed. Dearinger v. United States, 378 F.2d 346 (9th Cir. 1967), cert. denied, 389 U.S. 885, 88 S.Ct. 156, 19 L.Ed.2d 183 (1967).

Over five years after his second trial, Dearinger filed his present petition on September 29, 1970. The district judge, after issuing an order to show cause, and after there having been filed a return thereto, denied the petition without hearing.⁴ He also in writing denied a petition for reconsideration. This appeal followed.

On appeal, Dearinger raises three broad contentions: (1) It was error for the trial judge to deny him a continuance and thereby force him to trial without the benefit of his alibi witnesses; (2) publication of the photographs in the newspaper prior to the lineup and in court identifications was so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law; and (3) there was no basis for increasing his sentence from the original 16 years to 25 years on his conviction following retrial.

I. Denial of the continuance

Following the reversal of Dearinger’s first conviction, petitioner contends that considerable effort was expended to find certain alibi witnesses and one Wall who owned a gun which was used in the robbery. Wall was subpoenaed, but did not appear.⁵ Dearinger, just prior to trial, requested, but was refused, a continuance to search for these missing witnesses.⁶

He contends that denial of the continuance was prejudicial error.

However, “ordinarily a conviction [will not] be reversed solely because an accused could not find a material witness.” United States v. Walton, 411 F.2d 283, 288 (9th Cir. 1969). When it is claimed that an error was made in denying a continuance to find such witnesses, the crucial question is whether the defendant was denied a fair trial because, had the witness testified, the defendant would not have been convicted. Id.

The grant or denial of a continuance is a matter of the trial court’s discretion. Leino v. United States, 338 F.2d 154 (10th Cir. 1964); Smith v. United States, 413 F.2d 975 (10th Cir.), cert. denied, 396 U.S. 932, 90 S.Ct. 273, 24 L.Ed.2d 231 (1969). Cf. Dearinger v. United States, 344 F.2d 309 (9th Cir. 1965). To establish that a trial court abused its discretion in denying a continuance there must be some showing as to who was to be called, what he would have testified to, and that such testimony would have been material and relevant. Smith, supra; Leino, supra.

An examination of the record before us fails to reveal that Dearinger attempted any such showing. Indeed, during the second trial, when the trial court requested such a showing, appellant’s counsel admitted that he was himself unsure as to what these witnesses would testify to.

Furthermore, it seems that there was some doubt as to the ultimate availability of these witnesses. Wall, for one, had apparently absconded to avoid testifying. In such circumstances, where witnesses are unavailable, the request for a continuance presents a far different situation than where witnesses can be obtained with little delay. Dearinger v. United States, 344 F.2d 309, 312 n. 5 (9th Cir. 1965).

We find no error in denying the request for continuance.

II. Effect of the newspaper publication

Dearinger concedes that, inasmuch as the lineup and in court identification antedated the Wade and Gilbert cases,⁷ he can claim no benefit from those holdings. We also note that the lineups occurred in June, 1963, but that Dearinger was not indicted until August, 1963. Thus, the Wade-mandated right to counsel at the pretrial lineups would not have applied in any case. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

But Dearinger, both in his 2255 petition and on appeal, advances the argument, recognized in Wade and other cases, that under certain circumstances a pretrial confrontation may be so unduly suggestive and conducive to irreparable mistaken identification as to deny the accused due process of law under the Fifth Amendment.

In this case, petitioner contends that the newspaper publication of his photograph in conjunction with a story on the robbery identifying him as an arrested suspect caused the subsequent lineup to be conducted under circumstances so prejudicial as to taint the later in court identifications.⁸ Our appraisal of this contention calls for a review of the “totality of the circumstances” under which these identifications were made. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

The robbery occurred in the middle of the afternoon in a well-lighted modern bank. Although the robbers had made some cursory attempts at disguise, it was obvious to the witnesses that these were merely painted-on imitation sideburns and moustaches. The robbers were inside the bank for at least five minutes. Three witnesses identified Dearinger. They were in close proximity to the robbers. The one identified as Dearinger was so close to one of the witnesses that, at the first trial, he testified that he “could see the bullets” in the cylinder of the gun which Dearinger held. Thus, it seems clear that the witnesses had ample opportunity to obtain a clear impression of the physical characteristics and facial features of the robbers.

In addition to the three eye witnesses in the bank, there was a fourth witness who identified Dearinger as being in the vicinity of the bank just after the robbery.

Moreover, it seems that the photos that were published in the paper did not provide a clear impression of the robbers. One of the bank eye witnesses, a Mrs. Colegate, testified at both trials that these photos were confusing, and that it was not until the lineup was conducted that she became certain of her identification. Another witness, a Mr. Johnson, at the first trial explicitly stated that the newspaper photos did not influence his later lineup identification. During the second trial, a third witness, Mr. Matilla, was asked what recollection he relied upon for his in court identification of Dearinger. He replied, “[f]rom the time he came into the bank until he left, I watched him and I wasn’t going to forget his face.”

The identification witnesses were thoroughly cross-examined at the two trials as to what occurred at the time of the robbery and at any lineup which they attended. A picture of the lineup was introduced in evidence. No facts were developed that indicated that the lineup procedure was in any way unfair.

At the lineup no reference was made to the men by name. Although the newspaper article identified the men by name, they were not so designated at the lineup. Moreover, there was no indication given that any of the men in the lineup were those whose photos appeared in the paper. Thus, there was no substantial basis for the witnesses to infer that the men in the lineup were those men identified as suspects in the newspaper.

After consideration of all the circumstances which were extensively developed by direct and cross-examination in the two trials, we hold that the record discloses no basis to indicate that the prior newspaper publication had any impermissible effect on the later lineups and the in court identifications.

Aside from this, there was independent testimony from one Richard Pierson in which he stated that Dearinger had admitted his participation in the robbery to him.⁹ This was sufficient to sustain the submission of the case to the jury, even without the eye witness testimony.

III. Propriety of increased sentence

We now turn to petitioner’s last contention that it was error to increase his sentence from 16 years to 25 years after his second conviction.

In North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656, the Supreme Court stated:

“ . . . whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

The record before us contains no showing of “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” which would justify the increased sentence.

The Pearce case was decided in 1969. Five circuits have held it to be retroactive.¹⁰ Following the holding of these cases and the rationale of Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), wherein the Supreme Court enunciated the relevant criteria for determining retroactivity, we hold that the interests of justice in this case require that Pearce be held retroactive.

The judgment of the district court is affirmed in all respects except that the case is remanded to the district court for resentencing in the light of North Carolina v. Pearce, supra.

1 . Weinreieh was convicted of the bank robbery in a trial separate from Dearinger’s.

2 . Shannon pleaded guilty to the bank robbery before Dearinger was first tried.

3 . The record shows the following proceedings at the trial:

“ . . . Dearinger’s counsel . . . stated, T think the record should show that the defendant Dearinger has requested various and several witnesses to be called on his behalf. I have advised against it, your Honor. It is my considered opinion that none of the witnesses that he has requested will add anything to his case or benefit him in any way whatsoever. I want that made a matter of record, your Honor.’ ”

The District Court refused to permit the witnesses to be called without the consent of the attorney.

4 . This ruling was made by the same district judge (Honorable George H. Boldt, Jr.) who presided at Dearinger’s second trial.

All contentions made by Dearinger in this petition were based upon evidence which had been presented in the two previous trials and the appeals therefrom.

5 . A bench warrant was issued and, following trial, Wall was cited for contempt.

6 . “The motion for continuance was based on his supporting affidavit, stating ‘Defendant believes he could produce other witnesses whose whereabouts are presently unknown and who if located would be beneficial to the defense . . . . ’”

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

8 . There also appears to be some question as to whether Dearinger can advance this argument. No effective objection to this testimony was made at the second trial, nor was the issue raised on this appeal from his second trial. However, as we conclude that no taint resulted from the newspaper publication, we do not reach this question.

9 . Pierson was a somewhat unsavory character who had a record of drug use. However, he had no interest in the outcome of the trial, thus there was no reason for him to falsely incriminate Dearinger. The jury could have, and apparently did, believe him.

10 . James v. Copinger, 441 F.2d 23 (4th Cir. 1971); Barnes v. United States, 136 U.S.App.D.C. 171, 419 F.2d 753 (D.C.Cir. 1969); United States v. Gross, 416 F.2d 1205 (8th Cir. 1969); United States v. King, 415 F.2d 737 (6th Cir. 1969); and United States v. Wood, 413 F.2d 437 (5th Cir. 1969).