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UNITED STATES AMERICA v. DOWLING (04/22/88)

argued: April 22, 1988.

UNITED STATES OF AMERICA
v.
DOWLING, REUBEN D.C. CRIMINAL NO. 85-00070-01 GOVERNMENT OF THE VIRGIN ISLANDS V. DOWLING, REUBEN (D.C. CRIMINAL NO. 87-00071-01), REUBEN DOWLING, APPELLANT



On Appeal from the District Court of the Virgin Islands (St. Croix).

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

Reuben Dowling, who was convicted by a jury of several offenses arising out of a bank robbery, appeals on various evidentiary grounds. Dowling contends that the trial court abused its discretion in refusing to suppress photo identifications, in refusing to allow testimony by Dowling's expert witness on human perception, and in disallowing defense questioning of a witness concerning a civil suit arising out of the robbery, and that the court erred in admitting into evidence testimony concerning a crime for which Dowling previously had been acquitted.

I.

Facts

On the afternoon of July 8, 1985, a man armed with a pistol and disguised by a ski mask robbed the First Pennsylvania Bank in Frederiksted, St. Croix, taking approximately seven thousand dollars from two cash drawers. The robber ran from the bank to a parking lot across the street, then returned to the middle of the street and, pointing a gun, commandeered a passing taxi van. After a struggle with the taxi driver, the robber drove away in the van and took off his mask.

Antonio Messer, who had been in the bank but had managed to slip out in the course of the robbery, observed the robber's getaway. He testified that he was approximately fifteen feet away from the robber as he drove past and got a good look at the robber's face. He identified Dowling as the robber.

About a mile outside of Frederiksted, the robber drove the van into the front yard of Hayde Pichardo. Upset because her young children were playing there, Pichardo, who was observing events from her bedroom window, shouted an obscenity at the driver, getting a good look at his face when he made a full stop and stuck out his head to see who had hurled the invective at him. Pichardo's seventeen-year-old daughter, Amada Rosario, was also in the house and was watching through the window as the driver slowed down and put his head outside. The robber subsequently abandoned the van and fled on foot. Both Pichardo and Rosario identified Dowling as the driver.

Dowling was charged by information with the federal crimes of bank robbery, 18 U.S.C. § 2113(a) (Supp. IV 1986), and armed robbery, id. § 2113(d) (1982), and, under territorial law, with two counts of first-degree robbery, V.I. Code Ann. tit. 14, § 1862(2) (Supp. 1987), two counts of third-degree assault, id. § 297(2), illegal possession of a firearm during the commission of a violent crime, id. §§ 2253(a), 2254, grand larceny, id. § 1083(1) (1964), and unauthorized use of a vehicle, id. § 1382 (Supp. 1986). He pled not guilty to all the charges.

Dowling's first trial ended in a hung jury. Dowling's conviction following a second trial was reversed on appeal.*fn1 After a third trial, Dowling was acquitted of the federal and territorial counts alleging possession of a firearm and convicted of the remaining counts. This appeal followed.

II.

The Photo Identifications

Dowling argues that the district court should have suppressed the evidence of the pre-trial identifications of Dowling by Pichardo, Rosario and Messer through several photographic arrays. He contends that the arrays were impermissibly suggestive and gave rise to a substantial likelihood of irreparable misidentification. The district court examined the photo arrays and concluded they were not suggestive.

Pichardo and Rosario were separately shown first an array consisting of five photographs, including one of Dowling that was several years old (Gov't Trial Exhibit 15). Both identified Dowling but stated that he looked younger in the photograph. Some time later they were shown an array of six photographs, none of Dowling (Gov't Trial Exhibit 11). They each said the person driving the van was not included. They were then shown an array of six color photographs containing a recent picture of Dowling (Gov't Trial Exhibit 12). Although they initially denied recognizing anyone, each identified Dowling the next day.*fn2

Messer was shown the array without Dowling (Exhibit 11) and the array with Dowling's recent picture (Exhibit 12), and picked no one out of the former and Dowling out of the latter.

Dowling complains that he is wearing a red tee-shirt in that exhibit and was pictured with individuals of noticeably different builds and skin hues. However, some of the other men also wore colored tee-shirts. In all three arrays, the photographs were virtually identical in composition and quality, and the men portrayed were reasonably comparable in dress and appearance. We agree with the district court that the photo arrays were not suggestive.

A few days after a line-up, at which Pichardo, Rosario and Messer failed to identify Dowling,*fn3 they were separately shown an array of photographs taken of the participants in the line-up and each picked out Dowling. Dowling contends that the process was impermissibly suggestive because his photograph was the only one repeated in the photo arrays that the principal witnesses saw prior to the line-up and prior to their viewing of the two arrays of photographs drawn from the line-up. The district court concluded that this repetition standing alone did not affect suggestiveness.

Under some circumstances, repetition of a photograph could be suggestive. However, a degree of suggestiveness does not in itself require exclusion of the evidence. "Reliability is the linchpin in determining the admissibility of identification testimony . . . ." Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977). If there was a suggestive identification procedure, the question becomes whether the suggestiveness "created 'a very substantial likelihood of misidentification.'" United States v. Milhollan, 599 F.2d 518, 522-23 (3d Cir.) (quoting Neil v. Biggers, 409 U.S. 188, 198, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972)), cert. denied, 444 U.S. 909, 100 S. Ct. 221, 62 L. Ed. 2d 144 (1979). This question is to be answered with reference to the "totality of the circumstances," with particular attention paid to such relevant factors as the quality of the witnesses' original opportunity to view the criminal, their degree of attention, their level of certainty when confronted with the suspect or his image, and the length of time between the crime and the confrontation. See Neil, 409 U.S. at 199-200; Manson, 432 U.S. at 114-16.

Here the witnesses all observed Dowling in good light, and had adequate, if not ample, time to form an impression. Messer, whose view was perhaps the least advantageous, made a deliberate effort to make an effective observation because, he testified, he knew he would be asked by the police for a description. Rosario and Pichardo were also more than just casual observers because Dowling was an undesirable intruder. All three witnesses were presented with photo arrays soon after the robbery, and all three identified Dowling's picture from the first array. All three picked no one from the pre-lineup array in which Dowling's photo was absent.

Against this is to be weighed the slight, and likely inadvertent, suggestiveness of the repeated use of different photographs of Dowling in succeeding photo arrays. There is no evidence that the police added in any way to the possible suggestiveness of the repetition, nor that they availed themselves of the photo arrays unnecessarily. Under these circumstances, we cannot say that there was a "very substantial likelihood of misidentification," and ...


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