UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Rendered September 3, 1968.
Bazelon, Chief Judge, Fahy, Senior Circuit Judge, and Wright, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT
On January 19, 1966, the proprietor of a jewelry store, Ralph Wilcox, was robbed. After a jury trial in July 1967, appellant was convicted of the robbery (22 D.C.CODE § 2901 (1967)) and sentenced to from three to nine years imprisonment. At trial the only evidence against appellant was his identification by Wilcox as the man who robbed him. On appeal he raises three issues: (1) that the delay by the police of seven months between the time Wilcox tentatively identified him from some photographs and the time of his arrest was prejudicial under Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), and its progeny1; (2) that his identification by Wilcox at the police station violated his rights under Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); and (3) that the admission into evidence of his prior conviction of assault was prejudicial under the doctrine announced by this court in Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).2
We hold that the admission of appellant's prior conviction was prejudicial error under Luck and accordingly remand for a new trial. Further, a strong showing has been made of a possible violation of Ross and therefore a full pretrial hearing should be held on that point before a new trial is had. In addition, a hearing should also be held regarding the identification of appellant by Wilcox to determine whether that identification accorded with the requirements of Stovall. I
A defendant's rights under Ross are violated when there is an unreasonable lack of diligence on the part of the police in making an arrest which renders the defendant unable to remember and account for his whereabouts at the time of the crime. Where the delay is for a valid purpose, such as protecting the identity of an informer, that factor can be weighed against the prejudice to the defendant. Here, however, the record fails to show any such purpose.3
Briefly, there was testimony to the effect that in February 1966, one month after the crime, the complaining witness tentatively identified the appellant from some photographs. Thereupon the police and the FBI (called in because of possible interstate aspects of the robbery) both attempted to locate appellant. However, possibly thorugh lack of communication (each believing the other was acting), their total effort over a seven-month period apparently amounted to no more than a few checks at his residence and at former places of employment, plus leaving a message with his mother that the police were looking for him and leaving a telephone number for him to contact the police which, according to his testimony, he attempted to do. During this seven-month period appellant lived at his mother's apartment in the District of Columbia and, as the police were aware, for most of the period worked as a licensed barber in a shop a few blocks from his home. Appellant eventually came into custody in September 1966, not on the instant charge, but through an arrest on another charge for which he was subsequently tried and acquitted. Appellant testified that, apparently because of the delay in learning of the charge against him, he was unable to reconstruct his activities on the day of the robbery.
On remand, in order that the principles announced in Ross may be applied by the District Court, there should be a full pre-trial hearing in which the Government is given an opportunity to justify the seven-month delay in appellant's arrest and in which appellant is given the opportunity to show the extent to which the delay prejudiced him. Compare United States v. Godfrey, D.D.C., 243 F. Supp. 830 (1965), affirmed, 123 U.S.App.D.C. 219, 358 F.2d 850 (1966).4 II
The record in this case is not adequate to decide appellant's claim under Stovall v. Denno. That case held that a pre-trial identification used at trial violates due process when, considered in the "totality of the circumstances surrounding it," it is "unnecessarily suggestive and conducive to irreparable mistaken identification." 388 U.S. at 302, 87 S. Ct. at 1972. At the trial both the complaining witness and an FBI agent testified to the complaining witness' identification of Jones at the city jail, but with some contradictions. The complaining witness said that without prompting by police he picked Jones out of a room of about 40 people milling around. The FBI agent stated that he thought there were two rooms with perhaps as few as 20 people between them. On remand the pre-trial hearing on this issue should be directed to "the similarities and the differences, respecting appellant and those in the room with him, in age, height, weight, dress and other physical features." Wright v. United States, 131 U.S. App. D.C. 279, 404 F.2d 1256 (decided January 31, 1968). The court should consider, as part of the totality of circumstances, the complaining witness' prior tentative identification of Jones from photographs, and whether the police at the later identification indicated to the complaining witness that the man he had thus tentatively identified was present in the room. Instructive here is Simmons v. United States, 390 U.S. 377, 383-384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968):
". . . Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of indivdiuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. . . . Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification." (Footnotes omitted.) III
The Luck doctrine gives a trial judge, under 14 D.C.CODE § 305 (1967), discretion to rule, before a defendant takes the stand, whether his prior convictions can be introduced to impeach his credibility. The twin concerns behind the doctrine are that the cause of truth may be "helped more by letting the jury hear the defendant's story than by the defendant's foregoing that opportunity because of the fear of prejudice founded upon a prior conviction," and that the "prejudicial effect of impeachment [may] far outweigh the probative relevance of the prior conviction to the issue of credibility." 121 U.S.App.D.C. at 156, 348 F.2d at 768. Here appellant attempted to raise the Luck issue to exclude his prior conviction of assault. The judge ruled that it was admissible, and when appellant took the stand the prior conviction was introduced.5 Two issues are presented: first, whether the Luck doctrine was properly invoked before the trial judge, and second, if it was, whether the judge erred in admitting the prior conviction.
Appellant's trial counsel made three attempts to raise the Luck issue. At a bench conference at the start of trial and again during the Government's case counsel raised the issue, pointing out that his trial strategy depended upon the judge's ruling. The judge stated in both instances that the point was premature. At the end of the Government's case the defense again re-urged the issue, informing the court of the nature of appellant's prior conviction.6 The court, without questioning the defense as to the nature of appellant's proposed testimony, ruled that the prior conviction of assault was admissible. The Government contends that these defense efforts were insufficient to raise Luck. We disagree. The defense made it clear that it wanted the judge to consider the Luck issue; once the defense has brought the issue before the judge, even though the burden of persuasion remains on the defendant, there is a duty upon the judge to make sufficient inquiry to inform himself on the relevant considerations:
"The burden of persuasion in this regard is on the accused; and, once the issue is raised, the District Court should make an inquiry, allowing the accused an opportunity to show why judicial discretion should be exercised in favor of exclusion of the criminal record. ...