In-court identification testimony held unduly suggestive but error held harmless in light of permissible photographic identifications coupled with surveillance photos. Armed bank robbery (18 U.S.C. § 2113(d)) conviction in the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, affirmed.
Kaufman, Oakes, and Winter, Circuit Judges.
We have previously emphasized the importance of ensuring fairness in eyewitness identification testimony. E.g., Kampshoff v. Smith, 698 F.2d 581, 585-86 (2d Cir. 1983). Here, as in numerous other bank robbery prosecutions, the case principally turns on such testimony. The defendant argues that the photographic array presented to three eyewitnesses was unduly suggestive, an argument which we do not find persuasive. He also maintains that the in-court identification by these witnesses took place in impermissibly suggestive circumstances, an argument which we do find persuasive. The ultimate question is whether the erroneous admission of the in-court identification testimony was harmless in the light of the permissible photographic identification testimony, coupled with the clear surveillance photographs admitted in evidence. We find that it was. Accordingly, we affirm the judgment of conviction in the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge.
On October 23, 1981, at approximately 9 a.m., the West Side Federal Savings and Loan Association, at 30 East 42nd Street, New York, New York, was robbed by three black males. One of the robbers stood at the door pointing a sawed-off shotgun. Another roamed the lobby carrying a small revolver. The third robber, carrying a revolver and a duffle bag, hurdled the counter to the tellers' area and took money from each of the four tellers' stations and put it in his bag. He then vaulted back over the counter and the three robbers left with approximately $15,800 of federally insured bank money. Bank surveillance cameras recorded the incident, and a number of tellers observed the robbery in progress.
Some twenty months later, after two of the robbers had been apprehended and pleaded guilty to the bank robbery, three different tellers identified a photograph of the defendant, Robert Archibald, in an array of mugshots. Teller Carl Jenkins, who at one point was but inches away from the robber who hurdled the counter, identified Archibald from the photo spread, saying that he "looks like the man." Teller Evrit Jackson also did so, stating, "I believe this is the man that is the vaulter." Teller Dawn Krowl, who made careful observations of the robbers, said that Archibald's photograph "looks like the man that vaulted the counter." Each of the witnesses indicated that the vaulter's hair at the time of the robbery was in braids, pushed back and under a hat, and that he did not have a moustache, a description corroborated by surveillance photos. During the trial, Archibald's hair was "pushed back" in Krowl's words, but not braided, and he had a moustache.
At trial Archibald called Ricky Roberts and Wilson Sumbry, who had previously pleaded guilty to the robbery. Roberts testified that he and Sumbry had robbed the bank with a third man whom he had met only a few minutes before the robbery. Although he stated that he could not identify the man, when defense counsel presented him with the same photo array given the bank tellers, Roberts identified Archibald's picture as that of the third robber.
Sumbry testified that Archibald was not the third robber. On cross-examination, he denied that he had identified Archibald's picture in the photo array and denied further that it was his signature which appeared on the back of Archibald's mugshot confirming such identification.
Archibald raises two principal arguments on this appeal. First, he claims that the photographic array from which the tellers identified his mugshot was unduly suggestive. Although it contained photos of six black men who bore certain resemblances to one another, the mugshot of Archibald was the only one that showed that he was arrested in the Borough of Manhattan. He also objects that his was the only photograph of an individual who looked as though he had braided hair. Second, Archibald claims that the in-court identifications were tainted by unduly suggestive circumstances, namely, that throughout the trial he was the only black person in the courtroom, except for one day when a black United States Marshal was present, and that he was seated at the defense table. In addition, he raises objections to the court's charge and sentence. We discuss these contentions in turn.
This court has examined the photo spread presented to the bank tellers. Each man was wearing an identification plate showing the date and borough of his arrest, but the legends are not unduly prominent. Each is a black male who appears to be in his twenties. Each has facial hair and is about the same weight and color of skin. The district court concluded that the array was "a remarkably fair group of photographs" and we do not disagree with the conclusion. The differences between Archibald's photograph and the other mugshots would hardly suggest to an identifying witness that Archibald was more likely to be the culprit. See United States v. Magnotti, 454 F.2d 1140, 1141-42 (2d Cir. 1972).
Archibald argues that the array was unduly suggestive because the caption on his mugshot "identif[ied] him with criminality in Manhattan." This argument is without merit. Given that the caption is so insignificant, and the boroughs listed on the other mugshots are all immediately adjacent to Manhattan, it is highly improbable that the caption could have caused any of the bank tellers to choose Archibald's photo over the others. Indeed, despite the fairness of the photo spread, Archibald's mugshot looks much more like the vaulter depicted in the surveillance photos than any of the others do.*fn1 We conclude that the photo spread was not impermissibly suggestive. See United States v. Bubar, 567 F.2d 192, 198-99 (2d Cir.), cert. denied, 434 U.S. 872, 54 L. Ed. 2d 151, 98 S. Ct. 217 (1977).
If not impermissibly suggestive, however, the photo array was certainly unnecessarily so. It would have been a simple matter to cut out the identifying captions before displaying the photos to the witnesses; indeed, this is precisely what was done before submitting the photos to the jury. Thus, although we conclude that the use of captioned ...