Appeal from the United States District Court for the Eastern District of Wisconsin - No. 73 CR 102 Myron L. Gordon, Judge.
Cummings and Pell, Circuit Judges, and Campbell, Senior District Judge.*fn* Campbell, Senior District Judge, dissenting.
In April 1973, a two-count indictment was returned against Paul Bowie, Carl Higgans and Houston Watkins concerning the robbery of the University National Bank in Milwaukee, Wisconsin, on October 31, 1972. The first count alleged that these three individuals took $15,845 from the bank "by force and violence and by intimidation" in violation of 18 U.S.C. § 2113(a). The second count charged them with obtaining that sum by putting in jeopardy the lives of bank employees by using a revolver and sawed-off shotgun in violation of 18 U.S.C. § 2113(d). The trial court granted severance to all defendants. In Bowie's trial a jury returned a verdict of guilty as to Count II after the court had instructed the jurors that "If the Government has met its burden as to Count No. II, then you don't have to consider Count No. I." Thereafter the court granted the Government's motion to dismiss Count I of the indictment. Subject to 18 U.S.C. § 4208(a)(2), Bowie received an eight-year prison term.
The evidence showed that three black males spent approximately five minutes robbing the bank of some $15,000 at 11 A.M. on October 31, 1972. They were wearing masks and were respectively described as tall, medium and short. The Government's theory was that Bowie was the shortest of the robbers, wore a mask only over the lower portion of his face and carried a gun when he went behind the tellers' cages to collect the money. When he reached down to pick up some of the money, his mask slipped somewhat from its original position just below his nose. The testimony does not make clear how much of his face was then visible, except that his moustache was exposed, while a small beard would not have been.
On November 2, 1972, Exhibit 25, consisting of five black and white photos, was displayed to bank employees George Dearborn and Cindy Spoerl. Both of them selected photo 25.4, a picture of Bowie, as one of the bank robbers.
On January 11, 1973, the same witnesses were shown Exhibit 13, consisting of six color photos. They selected picture 13.1A, a later photograph of the defendant, as being the photograph most closely resembling one of the bank robbers.
On September 5, 1973, bank customer Cornell Westmoreland also selected photo 13.1A from the six photographs in Exhibit 13 as most closely resembling one of the robbers.
In September 1973, at the trial of co-defendant Carl Higgans, each of the foregoing bank employees was again shown the same photographic displays as before and testified as to their selections. A physical lineup of Bowie was never conducted.
Pretrial and In-court Identification of Bowie
Bowie first asserts that all testimony regarding pretrial photographic selection and all subsequent in-court identification should have been suppressed, claiming that the photographic identification procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967. This issue is to be resolved only after an examination of the "totality of the circumstances" in the case. Simmons v. United States, supra at 383; United States ex rel. Pierce v. Cannon, 508 F.2d 197 (7th Cir. 1974).
As to the November 2, 1972, showing of five black and white photographs (Exhibit 25) to eyewitnesses Dearborn and Spoerl, Bowie complains that it was impermissibly suggestive because four of the persons portrayed were standing next to a height chart and only two of them were close in height to the shortest man involved in the robbery.*fn1 Actually, two of the photographs pictured subjects who were 5 feet 8-1/2 inch tall, one was of undeterminable height (no chart appeared in that photograph), another was 5 feet 10-1/2inch and the last was 6 feet 2 inch. Only one of the photographs pictured a subject significantly taller than the defendant, and all five photographs depicted men of the same race, approximate age and basic body shape. Defendant does not assert that the investigating agents allowed multiple witnesses to view simultaneously a display which included defendant's photo, so that the first to choose might influence the others,*fn2 nor does he contend the agents indicated to the witnesses that defendant's photo pictured the person the agents suspected was most likely to be the bank robber. Furthermore, under the circumstances of this display, where all persons pictured were of the same race, approximate age and body type, it was not necessary to include more than five photos in the display. See United States v. Gornick, 448 F.2d 566 (7th Cir. 1971), certiorari denied, 404 U.S. 861, 30 L. Ed. 2d 103, 92 S. Ct. 161; United States v. Zeiler, 447 F.2d 993 (3d Cir. 1971); and United States v. Bennett, 409 F.2d 888 (2d Cir. 1969), certiorari denied, 396 U.S. 852, 90 S. Ct. 113, 24 L. Ed. 2d 101, all of which involved spreads of six photos. Consequently, the initial showings to Spoerl and Dearborn were not suggestive.
As to the January 11, 1973, showing of the six color photographs (Exhibit 13) to these same two eyewitnesses, Bowie contends that their selection of his photograph was tainted because he was the only person pictured there who was also pictured in the earlier display (Exhibit 25). Bowie claims, in effect, that the witnesses selected his photograph (13.1A) from the second display only because they had previously seen his image in Exhibit 25. It is not sufficient to render a photographic identification invalid to show simply that defendant appeared in each of two displays. If the displays had been viewed by the witnesses at the same time and they had been able to make an identification only after they had compared the displays and realized that only one man appeared in both, there would be good cause to suspect the reliability of the identifications. In this case the appearance of defendant's picture in the prior display does not invalidate the identification from the second set of photographs. United States v. Cooper, 472 F.2d 64, 66 (5th Cir. 1973), certiorari denied, 414 U.S. 840, 38 L. Ed. 2d 77, 94 S. Ct. 96. In addition, the photographs in the second display were in color and of better quality than Exhibit 25 and Bowie's photograph therein was more recent than 25.4. The agents might have questioned whether the better quality, more recent color photographs would strengthen or weaken the witnesses' earlier identifications.
Bowie assails both the January 11th showing of Exhibit 13 to Dearborn and Spoerl and its September 3rd showing to Westmoreland, stating that these displays did not fulfill any investigative need because Bowie had already been arrested and indicted when they took place. A prosecutor need not forego a presentation of a better quality and more recent display to witnesses who have already identified a defendant, nor a presentation of such a display to other witnesses, who have not yet identified anyone, simply because an indictment has been returned. Cf. United States v. Ash, 413 U.S. 300, 37 L. Ed. 2d 619, 93 S. Ct. 2568. Defendant has shown no improper motivation on the part of the prosecution in offering the color display to the witnesses after the indictment. The initial showing of the color display to Westmoreland was in all other respects, as well, proper.
Bowie's contention that the pretrial displays were unfair because they were not coupled with a lineup must be rejected. The failure to conduct a lineup does not invalidate such pretrial photographic identification. United States v. Evans, 484 F.2d 1178, 1186 (2d Cir. 1973).
Under the rationale of Simmons, upon which defendant relies so heavily, the initial identification by each witness is the crucial point. The risk described by Justice Harlan in Simmons is that an initial photographic misidentification, which was the product of improper suggestions, might be perpetuated in any subsequent identification, including that made in court. This is so because a witness might tend to identify the defendant based on his memory of the photograph selected from the first, suggestive display, rather than from actual memory of the event.*fn3 If, however, the initial display is not improper and the witnesses make subsequent selections in some part from memory of the first photograph that they selected, the risk of misidentification is reduced, for the original selection was not a product of impermissible suggestion. See Simmons v. United States, supra at 384; United States v. Evans, 484 F.2d 1178, 1184 (2d Cir. 1973); United States v. Hines, 147 U.S. App. D.C. 249, 455 F.2d 1317, 1330-1331 (1972), certiorari denied, 406 U.S. 969, 92 S. Ct. 2427, 32 L. Ed. 2d 669. Because there was nothing improperly suggestive in the initial showings to the three witnesses in this case, defendant's attacks on their later photographic and in-court identifications are not persuasive. Since we find all the photographic identifications to be without the taint of impermissible suggestion, any in-court identification was not the product of a pretrial procedure "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." See Simmons v. United States, supra at 384; United States v. Evans, supra at 1184. We recently rejected somewhat similar attacks on photographic identification in the appeal of one of Bowie's co-defendants, Carl Higgans (United States v. Higgans, 507 F.2d 808 (7th Cir. 1974)), and are not persuaded to depart from that holding here.
It is also noteworthy that defendant's counsel fully explored the identification procedures before the jury while cross-examining the witnesses who had identified defendant. With each witness he explored all of the circumstances surrounding the prior photographic identification and specifically inquired whether the witnesses were able to identify defendant in court from memory of the actual robbery or from pictures which they had selected prior to trial. We realize that a verdict of guilty after wide-ranging cross-examination of identifying witnesses does not automatically dispose of a defendant's claim of impermissible suggestion in pretrial photographic displays. Where, however, defendant's counsel has on cross-examination explored and attacked each witness' basis for identifying the defendant, irreparable prejudice from pretrial photographic identification is not likely. In light of the "totality of the circumstances" involved in this case, the district court correctly admitted both the earlier photographic and the in-court identifications.
Bowie also submits that he had a constitutional right to assistance of counsel at the post-indictment displays on January 11, 1973, to Dearborn and Spoerl and September 5, 1974, to Westmoreland. This point is without merit. United States v. Ash, 413 U.S. 300, 37 L. Ed. 2d 619, 93 S. Ct. 2568; United States v. Robinson, 406 F.2d 64, 67 (7th Cir. 1969), certiorari denied, 395 U.S. 926, 23 L. Ed. 2d 243, 89 S. Ct. 1783.
Refreshing Witness Dearborn's Testimony
Next Bowie contends that the trial court abused its discretion in allowing George Dearborn to refresh his recollection as to which robber went behind the tellers' cages. He initially testified that the man who went behind the tellers' cages was the middle-sized robber. The next day he testified that he was uneasy as to whether that was a correct statement. On redirect examination, Dearborn was permitted to review Government Exhibit 28, a summary of an FBI interview with him on the day of the bank robbery over a year before the trial. Thereafter Dearborn testified that the smallest of the three men went behind the tellers' cages and scooped the money out of the tellers' counters. This was a permissible trial tactic, and the district court did not err in allowing Dearborn to view Exhibit 28. Kirschbaum v. United States, 407 F.2d 562, 566 (8th Cir. 1969); McCormick on Evidence, § 9, p. 19 (1954); 3A Wigmore on Evidence, § 904, p. 675 (Chadbourn rev. 1970).
Cross-examination of Witness Serazio
Bowie also asserts that he was denied effective cross-examination of government witness Charlotte Serazio. She testified that her prior photographic and in-court identification of co-defendant Higgans was based on his eyes. Since Higgans was not present in court due to the successful severance motion, Bowie claims that he was denied a meaningful opportunity to cross-examine Serazio. However, Higgans' photograph (Government Exhibit 10) was available for the jury to compare with her description of Higgans, and Bowie could have subpoenaed that co-defendant to appear if he wished to challenge the accuracy of her description. Therefore, Serazio's testimony was properly admitted.
Receipt of Stipulations 2, 3 and 5 into Evidence
Bowie argues that stipulations 2, 3 and 5 were irrelevant and should not have been received in evidence.
Stipulation 3 states that on the night of October 31, 1972, Lamont Butts, Michael Johnson and Curtis Jones registered as Milwaukeeans at the Sherman House Motel in Chicago and that the fingerprints of "Michael Johnson" were those of co-defendant Higgans.
Stipulation 2 states that on the following day, these three persons flew from Chicago to Los Angeles, paying individual fares of $378 each.
Stipulation 5 states that in November 1972 Lohman Brooks, a resident of a suburb of Los Angeles, California, was visited in El Segundo, California, by co-defendant Higgans, another individual called "Mr. Bowie," and a third person. The stipulation also shows that the three individuals bought a 1971 Cadillac in Brooks' name with a $1500 cash down payment, and that co-defendant Higgans counted out that payment.
These stipulations were received in evidence following testimony of Robert Walrath, a Milwaukee roommate of Bowie's brother Donald. Walrath testified that appellant Paul Bowie came into their apartment to talk to Donald Bowie between 2:30 and 4:30 a.m. on October 31, 1972. On November 4th, the following Saturday, Walrath received a long-distance collect telephone call from Paul Bowie. In that conversation Walrath was asked to tell Donald Bowie to call his brother Paul at a certain telephone number with a 312 area code*fn4 and to ask for Lamont Butts. From Walrath's testimony, the jury could infer that Lamont Butts was Paul Bowie. The stipulations were admissible as evidence of flight and use of an alias and could be considered to support an inference of guilt. United States v. Pate, 342 F.2d 646 (7th Cir. 1965), reversed on other grounds, 386 U.S. 1, 17 L. Ed. 2d 690, 87 S. Ct. 785. The stipulations were also properly received as evidence of defendant's wealth, showing that he was one of the persons paying $378 for an airline ticket to California and also one of the three purchasing a 1971 Cadillac under another's name. No showing of Paul Bowie's prior impecuniousness was required. United States v. Higgans, 507 F.2d 808 (7th Cir. 1974); United States v. Crisp, 435 F.2d 354, 360 (7th Cir. 1970), certiorari denied, 402 U.S. 947, 29 L. Ed. 2d 116, 91 S. Ct. 1640.
Aiding and Abetting Instructions
Finally, Bowie asserts that the court's instructions 8 and 9 regarding multiple defendants were prejudicial to him. These instructions provided as follows:
"In the case where two or more persons are charged with the commission of a crime, the guilt of any defendant may be established without proof that the accused personally did every act constituting the offense charged."
"You of course may not find any defendant guilty unless you find beyond reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant participated in its commission."
Bowie claims that by the use of the phrase "any defendant" in these instructions, the jury was permitted to determine the guilt of co-defendant Higgans and could use that determination to Bowie's prejudice. Since defendant did not make such an objection to these instructions, any error in this respect has been waived. United States v. Kurfess, 426 F.2d 1017, 1020 (7th Cir. 1970), certiorari denied, 400 U.S. 830, 27 L. Ed. 2d 60, 91 S. Ct. 60; Rule 30, F.R. Crim. P. Furthermore, other portions of the charge told the jury that it must address itself to the guilt or innocence only of Bowie, and that the jury could not consider him an aider and abetter unless it found that he "was a participant and not merely a knowing spectator." Thus taking the ...