Appeals from the United States District Court for the Eastern District of Wisconsin; Nos. 74-Cr.-72 and 74-Cr.-84; ROBERT W. WARREN, Judge.
Hastings, Senior Circuit Judge, Swygert, Circuit Judge, and Perry, Senior District Judge.*fn*
HASTINGS, Senior Circuit Judge
In this consolidated opinion we decide three appeals from convictions for armed robbery of a federally insured savings and loan association under 18 U.S.C. § 2113(a) and (d).
Resley Grose and James Calvin Eaton were jointly tried under a one-count indictment for armed robbery of $17,000 from the Family Savings & Loan Association in Milwaukee, Wisconsin. A jury returned a verdict of guilty against each defendant. Grose was sentenced to twenty years' imprisonment, and Eaton received a fifteen year sentence. Grose appeals that conviction in No. 75-1274. Eaton appeals in 75-1275. Resley Grose was subsequently convicted after a separate jury trial of armed robbery of $1,672 from the Continental Standard Savings & Loan Association in Milwaukee. He received a twenty year sentence to run concurrently with his sentence under the prior conviction. In No. 75-1273 Grose appeals from this second conviction.
In each of his appeals, Grose challenges the trial court's denial of his motion to suppress pre-trial and in-court identification testimony. His appeal from the Family Savings & Loan conviction also challenges the jury array in that trial and certain trial court evidentiary rulings. Eaton's appeal challenges the admission into evidence of a prior statement attributed to his brother, a government witness. Both defendants challenge the sufficiency of the evidence to support their respective convictions.
We affirm the judgments of conviction entered in both proceedings against Resley Grose. We reverse the judgment of conviction against James Calvin Eaton for reasons hereinafter set forth.
I. DEFENDANT RESLEY GROSE
On March 4, 1974, a lone black male wearing a stocking mask and carrying a handgun robbed the Continental Standard Savings & Loan. On April 11, 1974, the Family Savings & Loan was robbed by a similarly described individual. Witnesses to both robberies testified that the stocking mask worn by the robber did not significantly distort the man's features. Resley Grose was arrested in Chicago on April 15, 1974, and was subsequently indicted for both robberies.
The day following Grose's arrest, Milwaukee newspapers published an automatic bank camera photograph of the Family Savings & Loan robber taken at the bank while the robbery was in progress. The photograph appeared together with accounts of the arrest of Grose and his codefendant James Calvin Eaton.
On April 30, 1974, a police line-up was conducted with Grose's attorney present at which time three eyewitnesses identified Grose as the Family Savings robber. He was identified at the same time as the Continental Standard robber by two eyewitnesses; a third witness to that robbery was unable to make a positive identification. During his two trials, four of these witnesses identified Resley Grose in open court as either the Family Savings or the Continental Standard robber. The witnesses all testified that, although they had seen the newspaper photographs, their identifications at the line-up and at trial were based solely on their observations during the robbery they witnessed.
Grose objected at both trials to the introduction of pre-trial and in-court identification testimony by these witnesses. After evidentiary hearings, outside the presence of the jury, the trial court admitted the identification testimony. Defense counsel was permitted, however, to cross-examine the identifying witnesses on their exposure to the newspaper photograph and on the circumstances surrounding their pre-trial identification of the defendant.
On appeal defendant does not challenge the manner in which the police line-up was conducted. Instead, he contends that the witnesses' pre-trial and in-court identifications were tainted by pre-trial publicity, specifically by newspaper publication of the automatic bank camera photograph of the Family Savings robber. This publicity, it is argued, created such a substantial risk of misidentification as to violate ...