United States v. Antonio Mitchell , 540 F.2d 1163 ( 1976 )

OPINION OF THE COURT

PER CURIAM:

Antonio Mitchell appeals from a judgment of conviction entered after jury trial on an indictment charging him with three counts of bank robbery. We affirm, but take the opportunity to comment on certain aspects of the discovery procedure followed below.

The evidence at trial may be briefly summarized. A lone gunman robbed a Harrisburg branch office of the Pennsylvania National Bank at about 1:00 P.M. on February 12, 1975. The gunman approached the counter, requested change for a hundred dollar bill, laid a gun on the countertop and demanded the teller’s money. More than $6,000.00 was handed to him by the teller. The robber placed the money in a green plastic bag. He left the bank on foot. Alerted by the nod of the teller, the bank manager set out in pursuit. When the robber reached a parked car several blocks from the bank, he turned and fired a single shot at the manager. The robber then got into the car and sped away. The manager had a clear view of the car. He was later able to make a positive identification of the vehicle. Bank surveillance cameras recorded portions of the robbery, and the photographs were admitted into evidence at trial. The teller who was robbed, Milford White, testified that he observed the gunman at close range for more than a minute. He identified Mitchell as the robber before the jury.

The prosecution introduced evidence which linked the appellant to the getaway car. It was stipulated that the car belonged to appellant’s fiancee. Mrs. Alice Capp, a school crossing guard, was on duty about three blocks from the bank on the afternoon of the robbery. She testified that she saw appellant abandon the car in heavy snow near her post at the time just after the robbery occurred. She recalled that when he left the car to cut between some buildings, he was carrying a green plastic bag. Thomas Matthews and Rose Kemrer lived one block from the street where Mrs. Capp saw appellant abandon his car. They saw appellant moments after he was observed by Mrs. Capp. Both testified that appellant passed close to their house on foot, carrying a green plastic bag. When Matthews followed appellant’s footsteps in the snow, he found several knitted caps. One of these hats was admitted into evidence through the testimony of Milford White, who testified that the robber had worn a similar hat.

There are only two major contentions of defendant which we find it necessary to discuss.¹ :

1. ALLEGED ERROR IN FAILURE TO DISCLOSE EVIDENCE PRIOR TO TRIAL

We will first consider the defendant’s contention that he was denied the effective assistance of counsel by the failure of the Government to identify its identification witnesses “when requested” (page 17 of defendant-appellant’s brief).²

Prior to trial, defendant attempted to ascertain whether any identification procedures had been employed by th¿ Government in the course of its investigation through a Demand for a Bill of Particulars:

“[Demand] 7. Information as to how, and the procedure used, in any witnesses identifying the Defendant, from line-up or from group of pictures, or just how. [sic]”

The Government responded as follows:

“[Response] 7. The defendant refused the Government request to participate in an identification procedure by line-up, and, therefore no line-up identification procedure was effected.”

A Demand for a Bill of Particulars is not normally the appropriate means to secure the information about pretrial identifications of a defendant made by Government witnesses. United States v. Conway, 415 F.2d 158, 161-62 (3d Cir. 1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1131, 25 L.Ed.2d 401 (1970); 1 C. Wright, Federal Practice and Procedure, § 129 (1969). Such information falls rather within the scope of Rule 16, F.R.Crim.P. Simmons v. United States, 390 U.S. 377, 388-89, 88 S.Ct. 967,19 L.Ed.2d 1247 (1968); United States v. Cranson, 453 F.2d 123, 126 (4th Cir. 1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1607, 31 L.Ed.2d 821 (1972). Within the limitations imposed by the wording of Rule 16 and by the Jencks Act (18 U.S.C. § 3500), such information is discoverable.

Despite the inappropriate procedural vehicle used in the instant case, the Government chose to meet the request for information.

Although the answer to Demand 7 was not complete, the defense attorney should have realized that such answer was equivocal as soon as he received it. He was free to press for a more complete answer, but did not do so. Moreover, the inadequacy of the answer was not prejudicial to the defendant. Even if the Government had said that a photographic spread had been used with one of the witnesses and that three of the witnesses had been present at the preliminary hearing, it was not bound to disclose any names. The discovery rules do not permit the defense to get the names of witnesses. See F.R.Crim.P. 16 and United States v. Addonizio, 451 F.2d 49, 62 (3d Cir.), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972).³ If the answer to Demand 7 had been complete, defense counsel would have known in advance of trial only that one of the witnesses had used a photographic spread and that three witnesses had been present at the preliminary hearing. The identities of such witnesses could have been discovered only on cross-examination, which was exactly what happened at the trial. At that point the defense was in the same situation that it would have been had the Government fully answered Demand 7.

Milford White, who was involved in the eight-picture photographic spread identification, was not at the preliminary hearing. Witnesses Capp, Matthews and Kemrer readily admitted on cross-examination that they saw the defendant at the time of the preliminary hearing⁴ but they did not see the photographic spread. All of the witnesses gave strong testimony in favor of the prosecution on cross-examination, as well as on direct, as noted below.

II. ALLEGED TAINTED IN-COURT IDENTIFICATION

The defense contends on appeal that the in-court identification of the above mentioned four witnesses was tainted by impermissibly suggestive pretrial identification procedures. As noted above, the defense attorney learned on cross-examination of (a) the photographic spread seen by Milford White, and (b) the identification of the other three witnesses mentioned above at the time of the preliminary hearing. He could have requested a hearing outside the presence of the jury in accordance with Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), Simmons v. United States, supra, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), 18 U.S.C. § 3502, on the issue of impermissibly suggestive pretrial identification procedures. Defense counsel failed to ask for any such hearing at any time during the trial and only made a motion for a mistrial after all the testimony of the Government witnesses had been completed, saying:

. . [W]e believe that there is a possibility that in-court identification could be tainted by the fact that there might have been something suggested or something either done or said or the pictures might have been suggestive that this was the defendant.”

(N.T. 178). There was no demand for an evidentiary hearing. The trial judge denied the motion for a mistrial, and subsequently denied a motion for a new trial brought on similar grounds.

Because no hearing on the issue of taint was ever demanded, the question of undue suggestion was never placed before the trial court for findings of fact and conclusions of law. There is nothing beyond the record developed on cross-examination to aid us in determining whether the pretrial identification procedures were unduly suggestive. At the time of the preliminary hearing, the three eye witnesses may have sat silently in the courtroom and watched the Government present its evidence against defendant or they may have observed the defendant in the hall of the courthouse.⁵ The Grand Jury indicted the same day.⁶

All of the witnesses testified within three months of the event. They all had an opportunity to observe the defendant under good lighting conditions and were relatively close to the defendant. During the cross-examination of Matthews, defense counsel tried to secure an affirmative answer to the question “and, of course, he appeared as the defendant at that time?” (N.T. 141), but Matthews answered: “That’s what I took him to be, the defendant. ... I knew him in my mind who he was because I had seen him over in front of my house . . About 10 or 12 feet [away from me].” In other words, Matthews made clear that he knew who Mitchell was at the preliminary hearing “because I had seen him over in front of my house.”

Capp and Kemrer were not cross-examined as to their possible identification of the defendant on direct examination because he had appeared in the capacity of the defendant at the preliminary hearing. However, when Capp was asked on what ground she had based her identification, she twice testified (N.T. 97 and 102) “because he looks like the same man" she saw on February 12, 1975.⁷

While language in some opinions in other Circuits might support the contention that the trial court has a duty to inquire sua sponte into the circumstances of in-court identifications, we decline so to hold. See United States v. Wingard, 522 F.2d 796, 798 (4th Cir. 1975), and the cases cited therein. On this record, we decline to relieve the defendant of his customary burden of timely and appropriate objections to the admission of evidence at trial.

Furthermore, oh the totality of the circumstances presented by this record, the-identifications were based on the observation by the witnesses of the defendant on February 12, and 14.⁸ See Simmons, supra, 390 U.S. at 384, 88 S.Ct. 967; United States v. Wade, 388 U.S. 218, 240, 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); United States v. Hardy, 448 F.2d 423 (3d Cir. 1971).

III. OBSERVATIONS BY THE PANEL PROMPTED BY THIS RECORD

The record in this case prompts the panel to state that we think it desirable that in the future, unless the court after notice finds exceptional circumstances, the Government notify the defendant and the trial court before trial of the existence of any pretrial identification procedures, with respect to witnesses whom the Government intends to call at trial. This disclosure is necessary not only to protect the rights of the accused but also to preserve the orderly functioning of trial courts. We do not mean to require that the district court order disclosure of the names of identifying witnesses. Nor do we intend to limit the trial court in scheduling a Simmons -type hearing where the defendant demands one. The scheduling of such a hearing rests in the discretion of the trial court, and may at the court’s convenience be set for any time before the in-eourt identification itself.⁹

The simple expedient of the Government’s voluntarily giving notice would avoid surprise to defendants, delays in trial occasioned by unforeseen evidentiary hearings, and possible mistrials occasioned by the tardy surfacing of the issue.

For the foregoing reasons, the judgment of the district court will be affirmed.

1 . Defendant asserts that he was denied his right of confrontation and denied valuable discovery when hearsay testimony wak admitted into evidence at the preliminary hearing. We reject these arguments, and note that the return of an indictment by the Grand Jury may well render these issues moot. See United States v. Walker, 491 F.2d 236, 238 (9th Cir. 1974), cert. denied, 416 U.S. 99(5, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974); cf. United States v. Crutchley, 502 F.2d 1195, 1199 (3d Cir. 1975). We reject in addition defendant’s contention that the evidence in this case was insufficient to support a judgment of conviction. On appeal from a conviction, the evidence must be construed in the light most favorable to the Government. See United States v. Bradley, 447 F.2d 657, 659 (3d Cir. 1971).

2 . Page 20 of that brief contains this language: “By withholding this information as to pretrial confrontations and the availability of eyewitnesses, the government denied the Appellant of effective counsel as if he had no counsel at all.”

3 . Absent a direct confrontation between a defendant and witnesses, such as a lineup, a defendant cannot know of such pretrial identification procedures as photographic spreads and surreptitious viewings unless the Government chooses to tell him. Cf. United States v. Ash, 413 U.S. -300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

4 . Capp testified (N.T. 99-100) that she saw the defendant at the preliminary hearing. Matthews testified that he saw the defendant “when I was here for the preliminary hearing” (N.T. 141). Kemrer testified that she saw him in a room in the courthouse about a month before the trial. “It was like a preliminary hearing” (N.T. 154).

5 . Where the prospective witness observes the accused brought before a judge, he may be viewed standing alone, already the focus of the charge. The witness may hear the testimony of others. The criminal record of the accused may be aired on the issue of bail. The magistrate’s judicial determination that probable cause exists, in the presence of such a witness, may serve to suggest an identification or to reinforce a hesitant one.

6 . We were informed at oral argument that the preliminary hearing took place on the same day . that the indictment was returned in this case. While stenographic notes of testimony at the preliminary hearing were apparently taken by a private reporter at the instance of defense counsel, they were not transcribed and remain in the exclusive possession of defense counsel. Counsel is directed to keep the record safe, pending any order for its production which might issue.

7 . Also, Capp testified that “he looked like the same man as he looks' sitting there” in the courtroom at the trial (N.T. 102). Further, Capp testified that on Fébruary Í4 (two days after the bank robbery), she saw the defendant in the same Pontiac car in the morning at her place of work ás a school crossing guard (16th and Walnut Streets, Harrisburg, Pa.). Later on that date, city detectives “drove me through the city and asked me if I could pick the car out again.” She was able to identify the Pontiac car because “[tjhere was [pinkish] body filler on the . . passenger’s side [of the car]” (N.T. 99). The defendant was seated in the parked Pontiac (N.T. 101) and “he looked like the same individual” she had seen on February 12 and a second time earlier on February 14.

8 . For example, teller Milford White testified: “Like I say before, I didn’t identify him by these pictures, I just remembered his face” (N.T. 33). At N.T. 34, he testified that he was sure “Mr. Mitchell was the man there that day.” He identified the defendant from his eyes, his nose (fat) and his light complexion (N.T. 39-40).

9 . We wish to make clear that we are not adopting any requirement under our supervisory power over the administration of criminal justice in this Circuit by this expression of what we consider to be desirable conduct.