UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, and McGowan and Leventhal, Circuit Judges. Bazelon, Chief Judge (concurring in part and dissenting in part).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
In this appeal from a conviction for robbery and assault with a deadly weapon, appellant contends that it was error to permit in-court identifications by the victim and his son, in view of a previous squad room identification that took place in the absence of counsel. We agree that this confrontation reflected a violation of appellant's rights under Wade v. United States, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), but affirm since there is an "independent source" for the identification by the victim, William Hayden, and in the context of the Government's case the identification by his son Jerry Hayden, is a matter properly governed by the rule precluding reversal for harmless error. I
These are the facts, as developed by the testimony of William and Jerry Hayden: On December 23, 1967, around 3:50 p.m., William Hayden was sitting in his delivery truck waiting for his son to return from a call at a nearby house. Two young men approached Mr. Hayden. Both were armed with pistols. One youth, identified at trial as appellant, thrust his gun at Mr. Hayden's head and threatened to blow his brains out. The assailants frisked Mr. Hayden and demanded his money, which he turned over to the boys, who then fled. Mr. Hayden testified that it was not yet dark, that neither robber wore a mask, and that he had a good opportunity to observe their faces, especially that of appellant whom he had looked at "most of the time the robbery was going on."
When the robbers fled, Mr. Hayden called to his son Jerry who observed a man fleeing down the alley away from his father's truck. Jerry Hayden gave chase, and lost the attacker when he entered a car and drove away. During the chase, however, the robber turned around. Jerry Hayden had a chance to look at the robber's face. At trial he identified appellant. Jerry Hayden also related that he was able to get the first three numbers of the license plate and identify the year and model of the get- away car. *fn1 It was stipulated that appellant's mother, Mrs. Roberta Long, was the owner of a car of the same year and model, with a license tag bearing the same first three numbers as that spotted by Hayden on the get-away vehicle. II
Turning to the circumstances of the pre-trial encounter which, it is contended, renders inadmissible the in-court identification, the pre-trial hearing reveals the following. Detective Hannon of the Robbery squad, who was handling the complaint, contacted both Haydens and the appellant's mother, Mrs. Long, and asked them if they could come to the Robbery Squad Headquarters at 3:00 p.m. on January 13, 1968. Detective Hannon requested that Mrs. Long bring her son, appellant, with her. Detective Hannon's purpose in arranging this meeting was to have the appellant "wait in the outer office" (apparently of the Robbery Squad room) and "to try to have an impromptu line-up to eliminate him as a suspect." Detective Hannon testified that he had informed Mrs. Long by telephone that he was asking the complainant to come to the robbery squad headquarters and that "she had a right to bring a lawyer with her."
Jerry Hayden arrived first and was conducted to the robbery squad room where he was seated at a table at the far end and asked to leaf through a book of mug shots. *fn2 William Hayden arrived some minutes thereafter, about 3:10 or 3:15 p.m. Detective Hannon took Mr. Hayden to the table where Jerry Hayden was looking at pictures. Almost immediately thereafter appellant arrived in the squad room, with his mother and stepfather, and was joined by Detective Hannon. Jerry Hayden happened to look up from the mug book and saw appellant at the front of the room, about 45-50 feet away. He said, "There is the man that robbed you." William Hayden looked up and said, "Yes, that's the man." One of the detectives standing by the table asked Jerry Hayden if he had spotted the robber's photo in the book. Jerry Hayden pointed to appellant across the room, and identified him as the robber. Appellant was then placed under arrest and advised of his rights, and his lawyer was contacted. William Hayden testified at the pre-trial hearing that he had observed appellant in the station house lobby, recognized him immediately and he rode up in the elevator with appellant. *fn3 He did not tell anyone at the time of having seen appellant. Detective Hannon said he "rushed" William Hayden to the back of the room as soon as he arrived. III
The squad room confrontation between the Haydens and the appellant took place after the decision of the Supreme Court in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Wade established that the identification line-up is a critical stage of the prosecution requiring the presence of accused's counsel in order to insure a fair trial. The decision represented an effort to implement the constitutional protection established by Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967), which held that an identification confrontation may be "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to constitute a denial of due process of law. The Court recognized the difficulty of determining at the date of trial, with any reasonable degree of certainty, whether the identification confrontation had in face been suggestive. By affording the right to counsel at an identification confrontation, the Wade decision provided a means whereby improperly suggestive procedures could be called to the attention of the police for preventive correction, and if necessary, to the attention of the court for a ruling on suggestiveness. Thus, although the presence of counsel does not preclude a later challenge for suggestiveness, the fulfillment of this right to counsel or its intelligent waiver is after Wade a pre-condition to the legality of an identification confrontation. It is appropriate, then, that we treat the right to counsel as a threshold question and not reach the issue of suggestiveness unless we find that appellant was not deprived of that right.
Although Wade arose in the context of a formal post-indictment line-up, we find its requirement of counsel equally applicable to the informal, pre-arrest confrontation of appellant which took place in the squad room. The Supreme Court expressly held its ruling applicable to the informal "show-up" in which witnesses are confronted by a single suspect. Indeed, the more informal the confrontation procedure the greater is the danger of suggestiveness, and the greater the difficulty of ascertaining at trial the facts of the "confrontation." In Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176 (June 30, 1969), it was held that no exception from the Wade requirement was established by the fact that a preindictment eyewitness confrontation occurred at a preliminary hearing in the General Sessions Courtroom. There would be even less basis for an exemption from Wade for an identification occurring in a police squad room. The sources of suggestiveness in an eyewitness identification are subtle, and the suspect is less likely to be alert to the need for safeguards when no formal process has issued against him. No such alert was provided here either by the bare request that the defendant appear at the squad room in connection with a robbery complaint, or by the advice that the complainant would also be present and that there was a right to come with counsel.
Our conclusion that the appellant was entitled to counsel or substitute counsel at the squad room does not mean in any way that we suppose or assume that the police were purposefully attempting to circumvent the requirements of Wade. *fn4 It may be that Detective Hannon refrained from arrest prior to confrontation because he doubted the existence of probable cause against appellant. It may also be that Detective Hannon's relatively informal approach reflected his wish to proceed in a way that would permit establishing an identification yet would also be fair to appellant in the event he were not directly involved. Either of these objectives would have been proper, yet neither justified the use of an approach that failed to safeguard the right to counsel at any confrontation arranged by the police. IV
Because we hold that the Wade right to counsel was available to appellant at the time of the squad room identification, we must ask whether the absence of counsel at that identification is justified by an intelligent waiver. Although appellant's mother was informed that she had a right to bring counsel to the police station, appellant was never informed of this right. *fn5 Nor were either appellant or his mother told that a lawyer would be provided if they could not afford their own. When appellant appeared at the squad room without counsel, he was not informed that substitute counsel could be arranged. *fn6 Though we need not decide whether any one of these infirmities alone would preclude an effective waiver, in the aggregate they compel the conclusion that appellant was never adequately informed of his right and hence there was no effective waiver of the right to counsel. V
Wade gives to the Government "the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the line up identification." 388 U.S. at 240, 87 S. Ct. at 1939. We believe that this test is satisfied if it is shown that prior to the tainted confrontation the witness was capable of making a spontaneous identification of the suspect based upon his observations at the time of the offense. At the time of the holdup, William Hayden had a good opportunity to observe the robber at close quarters and in daylight. At trial the court responded to defense counsel's objection to the squad room identification by referring to the circumstances surrounding Mr. Hayden's identification of the appellant in the lobby and elevator of the Municipal Building.
He [Mr. Hayden] comes into the Municipal Center which has hundreds of people in it, and in the elevator on the first floor he sees this defendant under circumstances that are in no wise suggestive or prejudicial, ...