The opinion of the court was delivered by: LACEY
Prior to trial the defendant Mauchlin challenged any testimony that would be offered by the United States regarding the in-court identification or identification prior to trial of Mauchlin by certain employees of the bank allegedly robbed by him. I held a Simmons hearing [ see 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)] following which I advised counsel that I had determined that there had been no taint and that I would allow testimony regarding the in-court identification. This opinion relates to that ruling.
The following sets forth my findings of fact and conclusions of law on the matter of identification testimony of Mrs. Hemphill and Mr. Liekefett.
On March 1, 1973, the Meadowlands National Bank in North Bergen, New Jersey, was robbed. At approximately 11:00 a.m. on that date an armed robber came to the teller window behind which stood Mr. Liekefett. To Mr. Liekefett's left stood Mrs. Hemphill. The robber warned them that "This is a holdup," and further admonished them that if they gave any warning and failed to obey his instructions they would be shot. Instinctively, Mrs. Hempel moved her leg slightly and the robber turned the gun partially toward her and warned her that if she moved again she would be shot.
Thereafter, following the directions of the robber, Mr. Liekefett reached down to his drawer and pulled out cash and put it up on the counter in front of the robber. Each time he did so he would look at the gun and at the face of the robber.
Mrs. Hemphill during the entire course of the robbery never took her eyes off the face of the robber. Mrs. Hemphill testified that the incident lasted for approximately two minutes. Mr. Liekefett estimated that it was closer to three minutes.
The lighting was excellent and the view of both of the bank employees of the robber's face was unobstructed.
At all times during the robbery the robber held his gun on the employees, pointing it in Mr. Liekefett's direction other than the one movement toward Mrs. Hemphill to which reference has already been made.
Apparently because a door to the bank makes a squeaky noise and a customer had entered, the robber terminated the holdup, put his gun inside of his coat and coolly turned and walked out of the bank.
Within a few hours the Federal Bureau of Investigation had exhibited a photographic spread (Exhibits G-8-A through G-8-G) to Mrs. Hemphill and Mr. Liekefett. Both they and the agent who presented the spread testified as to the procedures utilized. It is plain that there was no suggestiveness either in what was said or done by the agent when he presented the photographs to the witnesses. It is equally plain, based upon my own observation of the spread, that there was no suggestiveness in the photographs utilized. The photograph of the defendant Mauchlin was included because Special Agent Gerrity, who made the photograph presentation, was very familiar with Mauchlin and based upon events that had transpired over the preceding several weeks, the physical description furnished by Mrs. Hempel, and the modus operandi, suspected strongly that Mauchlin might be the robber. There are others whose photographs also appeared in the spread who to a greater or lesser degree resembled Mauchlin.
Under all the circumstances, therefore, I find that the spread was fairly composed by the agent.
Both Mrs. Hemphill and Mr. Liekefett selected Mauchlin's photograph (Exhibit G-8-A) as the one which resembled the bank robber.
Later on the day of the robbery Mrs. Hemphill went to the North Bergen Police Headquarters where she was shown further photographs contained in a "mug shot" book. There was no evidence offered relating to what was thus exhibited to her.
During the course of these proceedings a photograph containing two frames of film of a camera maintained by the bank and depicting the robbery in progress were shown to Mrs. Hemphill. She, of course, identified the man in the photograph and the entire scene as representing the one who had robbed ...