Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Reargued En Banc February 26, 1971.
Bazelon, Chief Judge, and Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb and Wilkey, Circuit Judges, sitting en banc.
These are appeals from judgments of conviction of armed robbery and assault with a deadly weapon, sentencing appellants to imprisonment for concurrent terms of five to fifteen years for the robbery and three to ten years on the assault count. Appellants urge reversal on several grounds, including (1) that the trial court erred by adding certain statements to the standard "Allen" charge regarding the jury's duty to reach a verdict, and (2) that this court, in the exercise of its supervisory power, should prohibit use of the Allen charge in this circuit altogether. Whether further use of the Allen charge will be permitted is being considered in No. 22,768, United States v. Thomas, en banc, D.C.Cir., 146 U.S. App. D.C. 101, 449 F.2d 1177. As for this case we find no reversible error, since neither defendant objected to the charge as given, either initially or as part of the supplementary instructions, and the trial court's formulation did not in either instance constitute plain error. United States v. Dixon, 135 U.S.App.D.C. 401, 419 F.2d 288 (1969); Fulwood v. United States, 125 U.S.App.D.C. 183, 369 F.2d 960 (1966). Appellants' remaining claims, concerning pre-trial identification and the admission of impeachment evidence, are referred to the original panel (Circuit Judges Leventhal, Robinson and Robb) for disposition.
These are appeals from judgments of conviction of armed robbery and assault with a dangerous weapon, sentencing appellants to imprisonment for concurrent terms of five to fifteen years for the robbery and three to ten years on the assault count. This court, sitting en banc, has rejected appellants' contentions regarding the Allen charge, and has referred their remaining claims to this panel for disposition. We have examined these claims, and conclude that appellants' convictions should be affirmed.
The complainant, Mr. Alphonso Ligon testified at trial that on Sunday morning, July 28, 1968, at about 11 o'clock, he was approached by three men on Fifteenth Street, N.W., between T and U Streets. One of the men was carrying a set of golf clubs, which he offered to sell complainant. When Mr. Ligon refused, one of the men commented, "You got a good looking watch on," and started to pull the watch from Mr. Ligon's wrist. Mr. Ligon put up a fight, and someone threatened to cut his arm off. At that point, one of the men, according to Mr. Ligon, pulled a knife. After gaining possession of the watch, the group walked away. Mr. Ligon was able to identify appellant Wilson as the man who took his watch, and Whittaker as the man who pulled the knife. *fn1
A. Appellants' first contention relates to the alleged fact that shortly after the robbery, Mr. Ligon joined Officer Salvatore Petros of the Metropolitan Police Department in a search for the robbers, and, after appellants were picked up near the scene of the crime, and brought back to the squad car, Mr. Ligon identified them as his assailants. Appellants claim that this identification was tainted by the suggestive circumstances surrounding it, and that the admission of complainant's in-court identification of the appellants violated their due process rights. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).
We find this claim to be without merit. It is based on appellants' factual assumption that "Ligon's identification of appellants . . . was not made until after the officer had first pointed them out and placed them under arrest," (Tr. 37), an assumption that the record simply does not support. Mr. Ligon testified, in response to a question posed by the court, that it was he who had pointed out appellants to Officer Petros (Tr. 38); when the Officer asked whether those were the gentlemen, Ligon told him, "Yes." (Tr. 46) This occurred before the Officer ordered the men to "halt," and indeed before he got out of his patrol car to make the arrest. (Tr. 46-47).
Even if the identification had occurred immediately after the arrest, as appellants claim, we would not find that it violated principles of fundamental fairness. Mr. Ligon had given Officer Petros a detailed description of the robbers and had participated in the search for them. In such circumstances it was reasonable for the officer, upon returning to the squad car with two arrestees, to ask the complainant whether these were the men who had robbed him shortly before. Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969); Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206 (1967). Nor do we find Ligon's identification so inherently unreliable as to give rise to a problem of fairness. The robbery occurred in broad daylight, and Mr. Ligon was able to remember salient characteristics of ...