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UNITED STATES v. MCNAIR

August 11, 1977

UNITED STATES OF AMERICA
v.
NOAH CARL McNAIR



The opinion of the court was delivered by: DITTER

 The defendant was convicted of bank robbery. In his post trial motions, he alleges that surveillance photographs of the robbery were not properly authenticated, prejudicial identification procedures were followed, he was improperly denied a suppression hearing, and members of the jury may have known of a prior conviction. I conclude that there were no trial or pre-trial errors and that defendant's motions must be denied. *fn1"

 On March 23, 1977, a branch office of the Philadelphia National Bank was robbed by a Negro male who presented a note demanding money to a teller, Mrs. Mary Ann Morell. Also present in the bank were Miss Sheri Webster, the teller whose window was next to that of Mrs. Morell, and Roy M. Freas, Jr., the bank manager. As soon as Mrs. Morell handed him the money, the bank robber ordered her to turn around, facing away from him. She did so and he left the bank. However, while taking the bills from the drawer in which they were kept, Mrs. Morell had caused a bank surveillance camera to be activated.

 The next day, having the pictures from this camera, Mrs. Morell and Miss Webster were individually shown photographs of approximately 800 suspects but did not identify the robber as being among the group. Two weeks later, April 7, 1977, this time in a conference room at the bank, they were once again separately shown the surveillance photograph *fn2" and then presented with an array of eight sets of photographs of Negro males. Both Mrs. Morell and Miss Webster, as well as Mr. Freas, selected a picture of the defendant as being that of the individual who had robbed the bank. During the trial, all three witnesses identified the defendant as being the robber, related the circumstances under which they had identified his picture, and authenticated numerous bank surveillance photographs which were then received in evidence.

 Mrs. Morell and Miss Webster both testified that these photographs were accurate representations of the robbery scene and participants. Mrs. Morell identified her teller's station, herself, the drive-in window and teller behind her, and the robber. The defendant's argument that she could not say the pictures were accurate because her back is turned in some of them is fatuous. Miss Webster testified she and her station, a customer on whom she was waiting, the drive-in teller, Mrs. Morell, and the man who robbed the bank were all shown in the various photographs.

 I am satisfied the bank surveillance photographs were sufficiently authenticated.

 Defendant next asserts the identification process was tainted because Mrs. Morell and Miss Webster were shown one of the bank surveillance pictures taken while the robbery was in process before they saw the spread which included defendant's photograph. This procedure, however, was specifically approved in United States v. Irby, 517 F.2d 506, 507 (4th Cir. 1975), cert. denied, sub nom. Smith v. U.S., 424 U.S. 973 (1976) where it is said,

 
The showing of photographs taken during the course of the bank robbery to witnesses prior to their selecting photographs of defendants Irby and Smith from a photographic lineup was not unduly suggestive since it is not disputed that the first set of photographs accurately depicted the robbery as it occurred. Use of the first set of photographs in this manner served the useful purpose of refreshing the recollection of the witnesses to the end that their subsequent identification from the photographic lineup and an in-court identification of one defendant by one witness were rendered more accurate. Nor were the photographs used in the photographic lineup unduly suggestive.

 The Supreme Court has not criticized the showing of photographs per se to potential identification witnesses, but only those which might lead to misidentification. *fn3" As the Court recently said in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), one who is challenging identification procedures must establish that, under the totality of the circumstances, "the confrontation conducted was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." Stovall v. Denno, 388 U.S. 293, 301-02, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1968). In this regard, "reliability is the linchpin in determining the admissibility of identification testimony" and those factors set out in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), are the ones to be considered in determining reliability. Manson v. Brathwaite, supra, 432 U.S. at 114.

 When these standards are applied, defendant's contention must fail. In the first place, the witnesses had ample opportunity to view the robber at the time of the crime. Mrs. Morell was no more than a foot or two away and looked at him, albeit not continuously, for a period of 90 seconds. Miss Webster, who occupied the teller's window adjacent to that of Mrs. Morell, was approximately three to four feet away and watched the robber for about one minute. Mr. Freas, who was approximately 30 or 40 feet away from Mrs. Morell's window, observed the robber for 20 seconds. The robbery took place on a bright, clear morning in a well-lighted bank. The robber wore no mask, and although he donned a hat and sunglasses, neither hid his facial features. Secondly, I find that the witnesses paid sufficient attention to the matter at hand. Mrs. Morell and Miss Webster were experienced tellers, and they testified that they attempted to observe the robber for as long as they could without appearing to stare at him. Mr. Freas also looked closely at the robber although his testimony must be accorded a lesser degree of importance because of the much greater distance between him and the robber and his shorter period of observation. Thirdly, there was no prior misidentification. Both Mrs. Morell and Miss Webster had seen 800 photographs the day after the robbery and made no identification, yet they quickly picked out the defendant's photograph two weeks later. Fourth, notwithstanding vigorous and searching cross-examination, none of the witnesses displayed any doubt about their respective identification of the defendant. In addition, there was nothing suggestive about the photo spread presented to the witnesses on April 7, 1977. Each of the eight photographs showed a Negro male in his 20's or 30's who, like the defendant, had no facial hair or scars. The three witnesses viewed these photographs individually, along with the FBI case agent, and made their identification from their own views and recollections and not from conversations with each other. The FBI agent said nothing to suggest which person in the pictures was under suspicion and made no comment when the defendant's picture was selected.

 At oral argument defendant asserted that if he was in custody when the bank personnel were looking at the photographs, he was entitled to have counsel present in order to insure that the spread was not suggestive. The short answer to this is that the Supreme Court and the Third Circuit have extensively examined this argument and specifically ruled that a pretrial photographic identification is not a critical stage to which the right to counsel attaches. United States v. Ash, 413 U.S. 300, 317, 93 S. Ct. 2568, 2577-2579, 37 L. Ed. 2d 619 (1973); United States ex rel. Reed v. Anderson, 461 F.2d 739, 745 (3d Cir. 1972). *fn4"

 Taken together, all these circumstances indicate there was little chance that the procedures here would lead to misidentification. The use of the bank surveillance photograph, if anything, led to accuracy and supports the conclusion that there was no violation of defendant's due process rights.

 Defendant's next argument is that it was error to refuse his motion to suppress without affording him a hearing. Mr. McNair's application was concerned with events that took place when he was arrested in Baltimore, Maryland, on March 28, 1977. On that day, McNair had gone to a jewelry store and was negotiating the purchase of a watch. He proffered the clerk certain dye-stained currency which attracted the attention of a policeman who was also in the store. As a result, McNair was taken to police headquarters where among other things there was taken from his ...


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