V. ADMISSION INTO EVIDENCE AND SUBSEQUENT DISPLAY TO THE JURY OF RE-ENACTED LINE-UP PHOTOGRAPHS.
At the hearing on defendant's motion to suppress, re-enacted photographs (G-4, 5) of the police line-up were taken at defense counsel's insistence for the purpose of making the record complete. (S.H. 172). At the trial, these photographs were admitted into evidence and given to the jury, both over the objections of defendant's counsel. (Notes of Trial Testimony, hereafter "N.T.", 829, 1285-86).
It is the defendant's contention that, at the suppression hearing, he waived his Fifth Amendment right against self-incrimination for the limited purpose of testifying to the substantial accuracy of the re-enacted line-up photos in the belief that the photos were to be used only for the purpose of making the record complete in the event of appellate review. The defendant asserts that the further use of the photos -- their admission into evidence at the trial -- was, due to the limited waiver, a violation of his Fifth Amendment privilege because the introduction of the photographs at trial was based entirely upon defendant's communications to the Court of his consent to the taking of the photographs and his testifying to their substantial accuracy. On this basis, the defendant urges that a new trial be granted.
The defendant is gravely mistaken in his assertion that the sole basis for the court's allowing the re-enacted line-up photos into evidence at the trial was due to the defendant's testimony at the suppression hearing. At the suppression hearing the defendant merely stated that the only difference between the original line-up and the re-enactment was that in the original line-up he had a crew cut, wore brown shoes, and his complexion had a more pale cast. (S.H. 412-13). However, testimony as to his hair style and color of his shoes had been introduced through other witnesses. (See, e.g., S.H. 382, 409-10). Thus, the testimony of the defendant was not necessary for this Court's determination of both the fairness of the original line-up and the accuracy of the re-enactment, as there was available to the Court testimony from other witnesses upon which we could, and did, rely, as well as our own independent evaluation. Accordingly, the defendant's motion for a new trial on this ground must be denied.
VI. POST -- CUSTODIAL PHOTOGRAPHIC IDENTIFICATION OF DEFENDANT IN ABSENCE OF COUNSEL.
As we have noted in Section IV, supra, there were two kinds of post-custodial photographic identification of the defendant. First, some time after the defendant's line-up, the identification witnesses were shown the black and white photo of defendant (Exhibit G-2A) from which they identified him before his arrest. Second, two identification witnesses saw recent color photos of the defendant in the office of the U.S. Attorney due to his carelessness in leaving the photos on his desk when witnesses were in his office. The question that confronts us is the effect of the recent Third Circuit decision in United States v. Zeiler, 427 F.2d 1305 (3rd Cir. 1970), concerning post-custodial photographic viewings.
In Zeiler the Court held that post-custodial pre-trial photographic identifications of an accused by identification witnesses requires the presence of the accused's counsel. If counsel is not present, evidence of such photographic identification is inadmissible. For the reasons set out below, we believe Zeiler has no effect on the case at bar.
First, the photographic viewings involved in the trial of this case and our denial of pre-trial suppression motions with respect to photographic identifications all occurred substantially before the Zeiler case was decided. In order for Zeiler to apply it must apply retroactively and we do not think it should be so applied.
Second, even if it did apply, the case at bar is clearly distinguishable on its facts from Zeiler. As to the black and white photo in our case, unlike in Zeiler, the witnesses identified the man pictured in the photo as the bank robber prior to defendant's arrest,
as well as after his arrest, and the testimony at trial was limited to the witnesses prearrest photographic identification. As to the color photos, there was no real photographic identification in the sense of the Zeiler case, but merely a casual viewing of the photos which were carelessly left on the prosecutor's desk.
For these reasons, then, defendant's motions, insofar as they are based on Zeiler, must be denied.
VII. ADMISSIBILITY OF EXHIBIT G-2A.
The black and white photo (Exhibit G-2A) we have been referring to was introduced into evidence and shown to the jury. (N.T. 267). Defendant contends that this photo was admitted without proper foundation and is grounds for a new trial.
Defendant argues that before Exhibit G-2A could be admitted it was necessary for there to be testimony that the man pictured in the photo was the defendant, otherwise the jury could convict the defendant on the basis that he looks like the man pictured. We do not agree. We believe that the photo was admissible and, even if it were not, its admission was not reversible error. It was clear that the defendant was Michael John Sanders and that the photo purported on its face to be one of Michael John Sanders. The jury was free to conclude that the defendant and the man in the photo were one and the same. Moreover, even if this photo were not admissible, there was such other overwhelming evidence identifying the defendant as the bank robber that the jury could have convicted defendant without any evidence of the identification of photo G-2A by the identification witnesses.
VIII. THE INTRODUCTION OF EXHIBIT G-2A AS INDICATING THAT THE DEFENDANT HAD A PRIOR CRIMINAL RECORD.
Defendant argues that because Exhibit G-2A is a "typical mug shot" which contains information on its face -- "Michael Sanders, FBI No. 210, 431D" -- and on the back -- a description of Sanders, the fact that the photos were taken in 1962, and that he was sought for "Interstate Flight -- Armed Robbery" -- its admission into evidence and exhibition to the jury during the trial was tantamount to telling the jury that the defendant had a prior criminal record and, thus, constituted reversible error. We disagree.
Initially, we believe it instructive to briefly review the circumstances which occasioned the introduction of the allegedly prejudicial photo. The principal issue in this case was the reliability and credibility of the eyewitnesses' identification of the defendant as the bank robber. The Government's first identification witness, Mrs. Amoroso, testified that she had identified the defendant from a series of 36 photos shown her by the investigating authorities. The photo which she originally selected, which was marked as Exhibit G-2A, was identified again at trial by Mrs. Amoroso during her testimony on direct, but the photo was not exhibited to the jury at this time. On cross examination, defense counsel, in an apparent attempt to impugn the reliability of Mrs. Amoroso's identification testimony, questioned the witness as to whether the man pictured in Exhibit D-5 (a "mug shot" of an individual other than the defendant) had been previously selected by her as being "similar" to, but was not, the bank robber. Defense counsel then requested, and was granted, leave to show Exhibit D-5 to the jury. (See, N.T. 204-06). As we view it, the Government then had the right to offset any inference of mistaken identification that may have arisen from the showing of Exhibit D-5 to the jury by allowing them to also view Exhibit G-2A. In order to evaluate the photographic identification of the defendant by Mrs. Amoroso, it was necessary that the jury compare G-2A and D-5. Hence, since it was defense counsel that opened the door to the exhibition of G-2A to the jury, he cannot be heard to object.
We should also note that, during the course of the trial, a new exhibit (G-2A-2), one without any writing, was substituted for Exhibit G-2A. It was this exhibit, i.e. G-2A-2, that went out with the jury. Further, even if this "mug shot" should not have been introduced into evidence and shown to the jury, the error does not, in the context of the whole trial, warrant a new trial for, in our opinion, there has been no showing of substantial probability that the defendant's prior criminal record was impressed on the jury. Indeed, it can be well said that, if the impression were made, defendant's counsel initiated and contributed to it by requesting that D-5 be shown to the jury as well as insisting, over the Government's objection, that D-4 (a colored "mug shot" of the defendant taken shortly after his arrest) be admitted into evidence and go out with the jury. (See N.T. 1111).
IX. SEQUESTRATION ORDER.
During the suppression hearing, the Court ordered that no witnesses should talk to each other, and later confirmed that the sequestration of witnesses applied to the trial as well. (N.T. 109). The defendant argues that, since F.B.I. Agent Culpepper spoke to a prospective witness (F.B.I. Agent Weiner), the Court's order was violated and the defendant was denied a fair trial.
Suffice it to say that we are satisfied that Agent Culpepper did not knowingly violate the Court's sequestration order for at the time he spoke to Weiner he had no idea that Weiner would eventually be called as a witness. (See Government's Brief, pp. 25-26). Further, we do not find that this unintentional violation of the Court's order was so prejudicial to the defendant as to require a new trial.
X. "WANTED POSTER".
During the trial it was discovered that an F.B.I. "Wanted Poster" of the defendant (GD-5) was displayed on the Post Office bulletin board located on the first floor of the United States Courthouse. Printed on the poster was information that the defendant was a fugitive and wanted for armed robbery in California. It is the defendant's argument that the existence of this poster raises the "serious possibility" that the jury saw it and, thus, evidence of defendant's prior criminal record, which was otherwise inadmissible at the trial, nonetheless got before the jury. On the basis of this possibility, defendant requests a new trial.
Initially, it should be stated that upon learning of the poster's existence, the Court ordered that, before removal, pictures be taken for the record of the poster as it appeared in the Post Office.
The Court then held a hearing, out of the presence of the jury, to determine whether any Government representatives placed the wanted poster on the Post Office bulletin board for the purpose of introducing evidence of the defendant's prior criminal record. Having been satisfied that there had been no such attempt by representatives of the Government, the Court then attempted to discern whether any members of the jury had seen the poster. So as not to "flag" the problem, we addressed the following interrogatories to the jury:
THE COURT: "Now, I ask you all: Have you since taking your oath as jurors in this case, discussed it with anyone? (No response.)" (N.T. 1187).
THE COURT: "Have any of you seen anything have you heard anything on the radio, T.V., or has anybody told you anything respecting the facts of this case or the defendant in this case outside of this very court room? (No response)." (N.T. 1188).