APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Seitz, Chief Judge, and Gibbons and Weis, Circuit Judges.
Joseph C. Milhollan appeals from his conviction on two counts of transporting stolen money orders in interstate commerce in violation of 18 U.S.C. § 2314.
On September 22, 1977, a man entered the Security People's Trust Company in Girard, Pennsylvania, and cashed two money orders drawn on the Travelers Express Company, Inc., in the amount of two hundred dollars each. The man had presented identification in the name of John J. Leehy, Jr., the designated payee of the checks. Travelers later refused payment on the checks, which had been stolen.
The day after the incident in Girard, Milhollan aroused suspicions at the Warren National Bank in Warren, Pennsylvania, as he attempted to cash two Travelers' money orders made out to John J. Leehy, Jr. When a summoned police officer asked to see some identification, Milhollan fled on foot. He was apprehended a short distance from the bank. During the brief scuffle, a brown wig fell from Milhollan's head. The Warren police later conducted a warrantless search of Milhollan's automobile and discovered various items introduced at his trial on charges stemming out of the earlier incident in Girard. It is Milhollan's conviction on those charges that forms the basis of this appeal.
Milhollan challenges several aspects of his conviction. He contends: (1) that the district court should have excluded testimony about various identifications made of him by employees of the bank in Girard; (2) that evidence of his activities in Warren should not have been admitted at his trial for the incident in Girard; (3) that evidence discovered in his automobile was inadmissible as the fruits of an illegal search; (4) that he was removed from state custody in violation of the Interstate Agreement on Detainers Act; and (5) that the sentencing judge improperly considered a prior conviction reversed on appeal.
At trial, three employees of the Security People's Trust Company identified Milhollan as the man who had presented the stolen checks in Girard. Colleen Cochran, the teller who cashed the two checks, had sought approval from Douglas Nagle, a branch manager. Both Cochran and Nagle had observed the man for several minutes. Debbie Smalley, another teller, had observed the man for about one minute. Nagle was sufficiently suspicious to have Cochran record the license number of the man's car.
Within a few weeks of the incident, the Chief of Police in Girard showed Nagle a single black-and-white photograph of Milhollan taken upon his arrest in Warren. When the Chief of Police asked Nagle if he knew who it was, Nagle replied that the man looked familiar. Nagle further stated that the picture looked like the man who had passed the stolen checks, but that the man's hair had been different. The Chief of Police then confirmed that the man in the picture was a suspect. When the Chief of Police showed the picture to Smalley, she too thought it resembled the man sought for cashing the stolen checks. Although testimony conflicts, the Chief of Police apparently did not show the photograph to Cochran.
On October 25, 1977, Agent Kim Kelly of the Federal Bureau of Investigation showed Nagle, Smalley, and Cochran a photographic spread of eight persons, including the picture of Milhollan previously seen by Nagle and Smalley. Each of the three witnesses picked Milhollan's picture from the display; each commented on the difference in his hair.
On March 29, the FBI conducted a line-up for Nagle, Cochran, and Smalley. Milhollan appeared with four other men similar in height, weight, age, hair color, and eye color. The incident in Girard aside, the witnesses' only prior exposure to Milhollan had been the two photographic displays five months earlier. Nagle identified Milhollan as "awfully close" to the man in the bank, again noting the difference in hair style. Cochran selected another participant as having "much resemblance" to the man in the bank. Smalley initially identified no one in the line-up, but then said that she believed Milhollan to be the man who was in the bank.
The district court denied pretrial motions to suppress all identification testimony. At trial all three witnesses identified Milhollan in front of the jury. Cochran testified that she had chosen Milhollan's picture from the photographic spread shown to her by Agent Kelly. She admitted that she had chosen the wrong man at the line-up, but asserted that she was confused by the hair styles and that Milhollan was her second choice. Nagle testified that he had identified Milhollan on three prior occasions: when he was shown the single photograph, when he was shown the photographic spread, and when he viewed the line-up. Nagle admitted that his selection from the photographic spread may have been influenced by his prior exposure to Milhollan's picture, but he insisted that his initial identification of the photograph as well as his identifications at the line-up and in court were based on independent recollection. Smalley testified to her identification of Milhollan at the line-up. She too insisted that her identifications of Milhollan at the line-up and at trial were based on independent recollection and not on pictures she had seen.
Milhollan argues that the photographic identifications were so suggestive as to violate due process. Furthermore, he contends, those photographic incidents tainted the subsequent line-up and in-court identifications. We will consider the latter contention first.
All three witnesses testified to their participation in the line-up. All three also identified Milhollan in court. Such identifications are admissible, even in the face of earlier, tainted procedures, if the prosecution establishes by clear and convincing evidence that the later identifications were based upon independent observations of the defendant at the scene of the crime and not upon the earlier procedures. See, e.g., United States ex rel. Carey v. Johnson, 462 F.2d 592, 593 (3d Cir. 1972). The inquiry in the case of an out-of-court identification is whether the taint created "a very substantial likelihood of misidentification." See Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381, 34 L. Ed. 2d 401 (1972). For an in-court identification, we must determine whether the challenged procedures created "a very substantial likelihood of Irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968) (emphasis added).
Under these standards we agree with the district court that the line-up and the in-court identifications were sufficiently independent of the photographic displays to render them admissible regardless of the validity of those displays. All the witnesses had adequate opportunities to observe the man in the bank. When shown the photographs, all commented on the difference in hair style. More than five months elapsed between the second photographic display and the line-up. In the intervening months, the witnesses saw no pictures of Milhollan. Aside from their observations in Girard, none had ever confronted him in person before the line-up. Finally, all the witnesses testified at trial that they based their identifications of Milhollan on their view at the scene of the crime and not on any intervening events. Under these circumstances the district court did not err in allowing either testimony about the line-up or in-court identification of Milhollan. See United States v. Higgins, 458 F.2d 461, 465 (3d Cir. 1972).
Turning to the photographic displays, we note initially that Debbie Smalley never testified at trial to any identification of Milhollan prior to the line-up. Only Cochran and Nagle mentioned their prior photographic identifications. Cochran's testimony is similarly unassailable: the Chief of Police did not show her the lone photograph. Without this prior taint Milhollan has no basis for challenging her response to Agent Kelly's photographic spread.
Thus we must focus on Nagle's testimony. As noted earlier, he did testify that he had twice identified Milhollan from photographs. The first procedure, whereby the Chief of Police showed Nagle a single photograph, undoubtedly was suggestive. We must determine, however, whether it was so suggestive as to create a very substantial likelihood of misidentification. See Neil v. Biggers, supra, 409 U.S. at 198, 93 S. Ct. 375. In Government of the Virgin Islands v. Petersen, 553 F.2d 324, 327 (3d Cir. 1977), this court noted that an identification based on a single photograph, although suspect, may be admissible in some cases. We cited the frequent necessity for police to zero in quickly on a suspect in a crime. Furthermore, we noted that circumstances might indicate a substantial independent basis for the witness's identification.
In Petersen, the defendant was not at large at the time of the photographic display, but rather had been picked up for questioning. Similarly, in this case Milhollan was being held in Warren pursuant to his activities there. The police sought to establish a preliminary link between Milhollan and the incident in Girard. More importantly, Nagle, the most confident of the three identification witnesses, demonstrated a solid independent basis for his identification. He accurately described Milhollan as being about six feet tall, weighing 160 to 170 pounds, and having blue eyes. None of this data could have been determined from the black-and-white, chest-up photograph shown to Nagle by the Chief of Police. He also noted the difference in hair style when he saw the picture. We conclude that the initial photographic display did not, in Nagle's case, create a very substantial likelihood of misidentification. The district court did not err in allowing the jury to evaluate its credibility.
Agent Kelly's photographic spread, on the other hand, may not merit similar approbation. When Nagle viewed the second display he saw the same picture shown to him a short time earlier by the Chief of Police. By that time he also knew that the man in that picture was a suspect and was in custody. Nagle himself admitted that his choice in the second display may have been influenced by his prior exposure to Milhollan's picture. Under these circumstances, we find objectionable any references at trial to Nagle's selection in the second display.
We need not find, however, that these references merit a new trial. Even if the display was unconstitutionally suggestive, testimony about the incident at trial was, at worst, harmless error. Nagle's direct testimony about the second display was brief and cumulative:
Q. Now have there been any identification procedures that you have undergone?
A. Yes. I've had three different occasions to identify the person involved.
Q. Could you explain what those occasions were, sir?
A. Yes. The first time the chief of police in Girard brought a photograph of the person involved into the bank, the second time the FBI showed us a photographic spread, and the third time was in a line-up situation here in Erie.
Q. Have you always to your knowledge identified the ...