On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. No. 94-cr-3).
Before: Scirica, Roth, and Sarokin, Circuit Judges.
Defendant was convicted of two counts of bank robbery in violation of 18 U.S.C. § 2113(a). He appeals on the grounds that as to the central issue, identification, the district court erred by (1) permitting in-court identification testimony by the two key witnesses, after they had observed defendant in shackles escorted by U.S. Marshals and then discussed his identity; (2) denying the defendant's motion for a line-up prior to the testimony of the two witnesses; and (3) ordering defendant to shave his moustache, put on glasses supplied by the government, and stand before the jury.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. Defendant filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
Defendant Joseph Arthur Emanuele was convicted of robbing two Integra Banks, the "Millvale Bank" and the "Waterworks Bank". Martha Hottel, a teller, observed the man who robbed the Millvale Bank standing at a writing table before he came to her window and demanded money. Five weeks later, when shown a six-photo array, she selected a photograph of the defendant but stated that she "wasn't one hundred percent sure" of her choice. Appendix ("App.") at 44. When shown a second array several weeks later, Hottel selected the photograph of someone other than defendant. The bank's security cameras malfunctioned without photographing the robber, and latent fingerprints from the writing table and bank door did not match those of defendant.
The man who robbed the Waterworks Bank demanded money from Lorraine Woessner, a teller. Woessner observed the man for several minutes at close range in the well-lit bank lobby. Shown a six-photo array that included a photograph of defendant shortly after the crime, Woessner was unable to identify the robber. App. at 44, 48. The one fingerprint taken from the Waterworks Bank did not match that of defendant, but the Waterworks Bank security cameras did photograph the robber.
The two tellers were subpoenaed by the government to testify, and after checking in at the U.S. Attorney's Office, they were directed to sit outside the courtroom. There, the tellers saw defendant led from the courtroom in manacles by U.S. Marshals. Though later Woessner could not remember for certain who had spoken first, outside the courtroom the two tellers talked to each other about defendant, telling each other "it has to be him." App. at 135.
Having learned of the encounter, defendant's attorney moved to suppress the tellers' anticipated in-court identification testimony as violative of defendant's right to due process, or in the alternative, for a court-ordered line-up. The government conceded that it had been "careless," App. at 52, but argued that because the confrontation was inadvertent no constitutional violation had occurred.
The court denied the motion as to the testimony of Hottel, the teller who had identified defendant's photograph in one photospread but selected someone else in another. App. at 73, 82. As to the testimony of Woessner, who had failed to identify defendant's photograph in the only array she was shown, the court held a hearing out of the presence of the jury and ruled that the second teller's identification testimony was admissible. The court made no specific findings of fact. Both tellers took the stand and identified defendant as the robber.
During trial, three government witnesses, who knew defendant, testified that he was the person in the Waterworks Bank surveillance photographs, and three defense witnesses, who also knew him, testified that defendant was not the person in the photographs. An expert witness, a surgeon, testified that he had compared the dimensions of defendant's face with those of the face of the robber in the Waterworks Bank photographs and determined that defendant could not be the robber in the pictures. Two government experts testified in rebuttal that the surgeon's calculations were unreliable.
Defendant also challenges the district court's order requiring him to shave his moustache and put on glasses similar to ones worn by the Waterworks robber. At trial, the court had defendant wearing the glasses stand silently before the jury, which was instructed that "these are not glasses that were found anywhere. They have been supplied by the government." App. at 338. No witness was on the stand at the time.
After his conviction, defendant moved for a new trial based on the admission of the tellers' identification testimony and the orders to shave and wear glasses. The court held another hearing, at which time two receptionists from the U.S. Attorney's Office testified that they had told the tellers to sit outside the courtroom, as is the government's custom, without any specific instruction from the prosecutor on the case. The court denied the motion for a new trial. App. at 680-83.
As with many evidentiary rulings, we review a decision to admit identification testimony over an objection for abuse of discretion. Government of Virgin Islands v. Riley, 973 F.2d 224, 226 (3d Cir. 1992). Where a motion to suppress has been denied, we review the order "for clear error as to the underlying facts, but exercise plenary review as to its legality in the light of the court's properly found facts." United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991). If the admission of identification testimony violated the due process clause, as defendant contends, then we will consider whether this constitutional error was harmless. Foster v. California, 394 U.S. 440, 444, 22 L. Ed. 2d 402, 89 S. Ct. 1127 (1969).
A. Admissibility of identification testimony
A government identification procedure violates due process when it is "unnecessarily suggestive" and creates a "substantial risk of misidentification." Riley, 973 F.2d at 228. See United States v. Stevens, 935 F.2d 1380, 1391-92 (3d Cir. 1991); United States v. Dowling, 855 F.2d 114, 117 (3d Cir. 1988), aff'd, 493 U.S. 342, 107 L. Ed. 2d 708, 110 S. Ct. 668 (1990); Neil v. Biggers, 409 U.S. 188, 198-99, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). But see Reese v. Fulcomer, 946 F.2d 247, 258 (3d Cir. 1991) (standard is "'very substantial likelihood of irreparable misidentification'")(quoting Manson v. Brathwaite, 432 U.S. 98, 116, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977) and Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968)), cert. denied, 112 S. Ct. 1679 (1992). A "suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability," for reliability is the "linchpin in determining the admissibility of identification testimony." Brathwaite, 432 U.S. at 106, 114. See also Reese, 946 F.2d at 258 (suggestive interaction that creates no risk of misidentification does not violate due process).
To determine reliability, we examine the identification procedure in light of the "totality of the circumstances." Riley, 973 F.2d at 228. These circumstances may include the witness' original opportunity to observe a defendant and the degree of attention during that observation; the accuracy of the initial description; the witness' degree of certainty when viewing a defendant or his image; and the length of time between the crime and the identification procedure. Biggers, 409 U.S. at 199-200; Brathwaite, 432 U.S. at 114; Riley, 973 F.2d at 228; Reese, 946 F.2d at 258; Dowling, 855 F.2d at 117.
Several aspects of the reliability inquiry deserve comment. First, this court suggested in Reese that to determine reliability we may also consider other evidence of the defendant's guilt, Reese, 946 F.2d at 259, n.7, a principle we applied in Riley as well. 973 F.2d at 228. The suggestion is contrary to the Supreme Court's guidance in Brathwaite that other evidence indicating a defendant's guilt "plays no part in our analysis" of reliability. Brathwaite, 432 U.S. at 116. Justice Stevens emphasized the point in his Brathwaite concurrence, applauding the majority opinion which "carefully avoids this pitfall and correctly relies only on appropriate indicia of the reliability of the identification itself." Brathwaite, 432 U.S. at 118 and note (Stevens, J., Concurring). We caution, therefore, that only factors relating to the reliability of the identification will be relevant to a due process analysis. Independent evidence of culpability will not cure a tainted identification procedure, nor will exculpatory information bar admission of reliable identification testimony. We will consider other evidence only to determine whether an error, if present, was harmless. Brathwaite, 432 U.S. at 118, note (Stevens, J. Concurring).
Second, we note that the standard enunciated for reliability in Riley differs from that applied in Reese. Compare Riley, 973 F.2d at 228 ("substantial risk of misidentification") with Reese, 946 F.2d at 258, 262 ("very substantial likelihood of irreparable misidentification"). As in Riley, our phrasing of the standard in Stevens and Dowling omitted the requirement of irreparability. Stevens, 935 F.2d at 1391-92; Dowling, 855 F.2d at 117. We conclude that our most recent statement of the standard, that of Riley, like our phrasings in Stevens and Dowling, most accurately reflects Supreme Court precedent. Thus, we must decide whether there exists a "substantial risk of misidentification."
Third, previous courts, as the district court here, have wrestled with the degree of government complicity in a suggestive procedure that is necessary to implicate the due process clause. Where the alleged taint concerns the composition of a line-up or photospread, the government's involvement is clear; where the challenge concerns an encounter between witness and defendant on the street, in the courthouse, or at a prison, some courts have held that the government cannot be held responsible. See, e.g., Reese, 946 F.2d at 261 (procedure proper where no evidence that courthouse encounters "were deliberately arranged by the government"); Stevens, 935 F.2d at 1390 n.11 (quoting Wilson v. Commonwealth, 695 S.W.2d 854, 857 (Ky. 1985)(defendant must "show that the government's agents arranged the confrontation or took some action during the confrontation which singled out the defendant")).
We hold that the government's intent may be one factor in determining the risk of misidentification, but it is not an essential element of defendant's burden of proof. A series of events that is suggestive and creates a substantial risk of misidentification is no less a due process violation, even absent evil intent on the part of the government. Stated differently, governmental intent is one of many factors in the totality of circumstances, but we expressly do not require defendant to establish the government's state of mind. On the other hand, evidence that the government intended and arranged such an encounter would be a substantial factor in the court's analysis.
At the suppression hearing the district court determined neither whether the courthouse encounter was unnecessarily suggestive nor whether there was a substantial risk of misidentification. To the extent it considered the courthouse encounter, the court focussed on the government's intent. See App. at 72, 87-88.*fn1 Regarding the risk of misidentification, the court made no findings as to the Biggers factors and in fact instructed counsel that Woessner should "testify only on the issue of what happened yesterday." App. at 90. At the close of the hearing the court held:
Okay. I'm going to allow Miss Woessner to testify and I'm going to deny the request for the lineup at this point, based on this witness' testimony that she has an independent basis of her identification of the defendant.
In essence, the district court relied on Woessner's testimony that notwithstanding the suggestive circumstances, she recognized the defendant.*fn2 That testimony alone, even if believed by the trial court, would not be dispositive. Indeed, if Woessner did not so testify, the issue would not even arise. All of these instances are predicated upon a witness' insistence that an identification can be made notwithstanding suggestive circumstances, and there is frequently a good faith belief by the witness in such ability. However, the sincerity or truthfulness of the witness must be considered along with the other Biggers factors in order to determine whether the risk of misidentification still exists, notwithstanding a witness' testimony to the contrary. The trial court failed to consider the "totality of the circumstances," such as in this case the inability of the witness to recognize defendant in a photospread despite a sufficient opportunity to observe the robber at close range. The court thus failed to apply the correct legal standard. Because the factual record is complete and uncontroverted, however, we need not remand for further fact-finding. We will apply the appropriate standard to the undisputed facts.
We evaluate first whether the interaction was unnecessarily suggestive. It is undisputed that the two tellers were sitting outside the courtroom because the U.S. Attorney's receptionists had told them to be there, and that defendant was walked past them in handcuffs with a U.S. Marshal on each shoulder. Defendant had not asked to leave the courtroom -- he was ordered out when the court granted the government's motion to have defendant shave.
In the face of these events, the government directs our attention to Reese, where we concluded that it was not impermissibly suggestive for a victim to glimpse defendant three times in and around a courthouse. 946 F.2d at 261-62. Our analysis in Reese cited to and relied on United States v. Domina, 784 F.2d 1361, 1369-70 (9th Cir. 1986), cert. denied, 479 U.S. 1038, 93 L. Ed. 2d 845, 107 S. Ct. 893 (1987), a decision which held that it was not unduly suggestive for a victim to view a defendant leaving the courtroom during recess, because the defendant was not handcuffed, not escorted by marshals, and not otherwise singled out. The circumstances here fit cleanly within the Domina exceptions cited in Reese, 946 F.2d at 261.
Nor are we persuaded by the government's invocation of two Eighth Circuit cases, United States v. Wade, 740 F.2d 625 (8th Cir. 1984), which we discussed in Reese, and United States v. Boykins, 966 F.2d 1240 (8th Cir. 1992), because each involve facts different from those here. Wade concerned a witness who, while looking into a courtroom from outside, was asked "in a nonleading fashion, shortly before she [took] the stand, whether she can identify a person." Wade, 740 F.2d at 628. The Eighth Circuit decided this was "the same question she will be asked while testifying" and was not impermissibly suggestive. Ibid. In Boykins, a witness recognized a defendant while walking to the courtroom and informed the prosecutor, who then accompanied the witness down the courthouse hallway to confirm the identification. Boykins, 966 F.2d at 1242. In Boykins the government did not single out the defendant. Furthermore, the failure of the witnesses in Wade and Boykins to identify a defendant in a previous photospread goes to the risk of misidentification, not the suggestiveness of the courthouse confrontation.
We conclude that the confrontation was caused by the government, albeit inadvertently, and that to walk a defendant -in shackles and with a U.S. Marshal at each side -- before the key identification witnesses is impermissibly suggestive.
The more difficult question is whether this impermissibly suggestive confrontation created a "substantial likelihood of misidentification," in light of the totality of circumstances. Riley, 973 F.2d at 228. First, though we will consider the reliability of each teller's testimony separately, we note several Biggers factors common to both: the two tellers (a) had several minutes to observe the robber, (b) at close range, (c) in a well-lit space. We agree with the government that the unobstructed view of both tellers during the robberies would strengthen the reliability of their testimony. But this point also supports defendant's position. The tellers' protracted and clear view of the robber highlights Woessner's failure to select defendant's photo in the array and Hottel's choice of a different photo in the second array shown her.
Second, Woessner testified that she recognized defendant immediately upon seeing him in the hallway. We will assume that her testimony was truthful and sincere.
Third, in the courthouse the two tellers observed defendant together and immediately spoke to each other about his identity, prior to their testifying. This conversation may well have overwhelmed any doubts Hottel or Woessner retained after observing defendant in the hallway, though given the indication that Hottel spoke to Woessner first, it is the reliability of Woessner's identification that is more impugned. Woessner testified:
Q Did Miss Hottel tell you that was him?
A Ah, not right away, only when he was down the hall she mentioned that. I mean, she spoke very softly and said that she, she was very upset because she didn't remember -- she didn't think she remembered what he looked like, but when she saw him she knew exactly that's who it was.
Q She didn't say that was him to you?
A I think we both looked at each other and we were kind of it's, it has to be him (witness nodding.) . . .
Finally, we consider a crucial difference between the circumstances of each teller's identification: the strength of the initial identification. As we noted in Reese, whether subsequent viewings create a substantial risk of misidentification may depend on the strength and propriety of the initial identification. 946 F.2d at 262-63. Upon viewing her first photospread, Hottel recognized defendant as the robber. Her slight qualification -- not being "one hundred percent sure" -- does not significantly diminish the import of that identification, nor does her subsequent selection of the photograph of another person in a second array. In contrast, having scrutinized an array that included his photograph, Woessner failed to identify defendant as the robber. All the photospreads were viewed close in time to the respective robberies.
Thus, we face a situation in which the one eye-witness who would be able to identify the Waterworks robber and place defendant at the scene of the crime, could not, despite her opportunity to observe, recognize him in a photo array. That failure, coupled with the highly suggestive viewing of the defendant in conditions reeking of criminality, bolstered by the comments of another witness, render the in-court identification unreliable. The reaction "it has to be him" greatly diminishes the reliability of Woessner's identification and renders manifest the impact of her viewing defendant. In effect, the viewing communicated to the witness that the defendant was the robber, and there was no reliable evidence that she would have so concluded or testified absent that viewing.
Under such suspect circumstances, there clearly was a substantial risk of misidentification.*fn3 It was thus an abuse of discretion to admit Woessner's in-court identification testimony, in violation of defendant's right to due process. As to Hottel, we conclude that her identification was reliable, and thus the admission of her testimony was not an abuse of discretion.
C. Harmless error analysis
We must determine whether the admission of Woessner's identification testimony, which we have determined to be a constitutional error, was harmless. Foster, 394 U.S. at 444. We inquire whether the government has shown "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). "To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." Yates v. Evatt, 500 U.S. 391, 403, 114 L. Ed. 2d 432, 111 S. Ct. 1884 (1991). See also United States v. Turcks, 41 F.3d 893, 898 (3d Cir. 1994). Because we recognize the risk that Woessner's testimony about the Waterworks robbery may have had a spill-over effect on the Millvale robbery verdict, we will consider its impact on both convictions.
Apart from the contested surveillance photographs, there is no physical evidence linking defendant to the Waterworks robbery. The government refers us to evidence that defendant had an expensive drug addiction and unexplained income, as well as his post-arrest comment to another inmate that he would "beat the case." The government also relies on testimony of three persons, each of whom knew defendant, that he was the person in the Waterworks surveillance photographs. Of the government's three witnesses, one testified he had seen defendant only two or three times; the second was an admitted drug user on ...