Appeal from a conviction in the Southern District of New York, Dudley B. Bonsal, Judge, after a jury verdict, for robbery of a federally insured bank in violation of 18 U.S.C. § 2113(a).
Lumbard, Hays, and Timbers, Circuit Judges.
Robert John Evans appeals from a judgment of conviction entered against him on March 27, 1973, in the Southern District of New York after a three-day jury trial before the Honorable Dudley B. Bonsal, United States District Judge. The indictment, filed August 16, 1972, charged Evans in one count with robbing the First National City Bank, located at 130 East 42nd Street, in New York City, in violation of 18 U.S.C. § 2113(a). The jury found the defendant guilty, and sentence was imposed by Judge Bonsal of eight years imprisonment under 18 U.S.C. § 4208(a) (2). The defendant, who is currently serving his sentence, appeals on two grounds: first that the three eyewitnesses to the robbery who identified him at trial were incompetent so to testify, or alternatively that their testimony was the product of impermissible pre-trial identification procedures and hence inadmissible,*fn1 and secondly that the trial court's failure specifically to instruct the jury on the dangers of eyewitness identification was reversible error. We find that these contentions are without merit, and we accordingly affirm the conviction.
The First National City Bank at 130 East 42nd Street in Manhattan was robbed at about 11:30 A.M. on July 28, 1972. The robber had been standing in line for some minutes waiting to reach the teller's window. When he reached the window, he thrust a folded piece of paper on the counter in front of the teller, Janice Weber. Miss Weber looked up at the man, unfolded and read the note, which stated, "This is a holdup your 100's, 50's, 20's Don't stall My Partner will start shooting. Don't faint or I'll shoot." Miss Weber handed over $2665 in currency to the robber. She placed the bills on the counter, looked up again and watched the man who had given her the note take the money and walk out of the bank. She kept the note. As the robber left, Miss Weber pushed the emergency alarm, triggering the surveillance camera located over the exit door. A photographic record was thus made of the robber leaving the bank.
During the time the robber was at Miss Weber's window, and also for several minutes beforehand, the robber was observed by two customers in the bank, Margaret Kelly and Pauline Monahan, who were standing in line at the window next to Miss Weber's. Both saw the note and money change hands, and both watched the robber leave the bank.
Before trial, the defendant moved to exclude the testimony of Misses Weber, Kelly, and Monahan, the three possible eyewitnesses to the robbery. A Simmons hearing*fn2 was held to determine whether their testimony on the issue of identification was to be excluded. (See Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968)). John Janson, an FBI agent, testified that on the day of the robbery, in the afternoon, he had separately shown to each of the three eyewitnesses a photographic spread in an effort to identify the robber.*fn3 Each eyewitness was unable to make a fully positive identification, but each selected a photograph of the defendant and also one of another man as pictures of the likely suspect. (According to Janson, from the seven photographs presented, Miss Weber selected that of the defendant and that of one Neil Masotta. Miss Kelly selected photographs of the defendant and one Larry Curtin. Miss Monahan made the same selection as Miss Kelly.) On the basis of their identification in the photographic spreads, the defendant was arrested and charged with the robbery.*fn4
When the individual eyewitnesses testified at the hearing, certain inconsistencies emerged concerning just what had happened during the spreads conducted by Agent Janson. Miss Weber acknowledged she had selected the defendant's photograph, but she was not sure whether the other photograph she had picked was of Masotta or was rather "the last one," which would have been of one James Timmons. Miss Kelly testified that she had at first picked only the defendant's photograph, but on cross-examination she conceded she had picked a second, although less positively. Miss Monahan remained consistent in her selection. Each eyewitness also admitted that within the week prior to the Simmons hearing each had been shown either stills from the surveillance film taken of the robbery (Miss Weber) or parts of the film plus photographs of other robberies in which the defendant had allegedly been involved (Miss Kelly and Miss Monahan). Judge Bonsal denied the defendant's motion to exclude the eyewitnesses' identification testimony.
At trial, the government's case consisted of the testimony of the three eyewitnesses, the surveillance film, the expert testimony of an FBI documents examiner, and the testimony of an officer of the bank that it was insured by the Federal Deposit Insurance Corporation and that surveillance cameras were in use at the 130 East 42nd Street branch. No evidence was presented by the defendant.
At trial, Miss Weber identified the defendant as the robber and stated that she was sure of her identification, even though she also admitted to having selected not only the defendant's photograph but also that of another at the photographic spread on the day of the robbery. In addition, the presentation of the surveillance film to the jury was also made during Miss Weber's testimony, and over the defendant's objection Miss Weber was permitted by the trial court to point out during the showing of the film the location of persons and objects in the bank.*fn5 Miss Kelly, in her testimony, made a similar in-court identification of the defendant as the man she had seen commit the robbery. She, too, acknowledged that she had not been completely positive of her identification of the defendant at the photographic spread on the day of the robbery.*fn6 Miss Monahan was the third eyewitness to testify at trial. During her testimony in the morning, she was unable to identify the defendant as the man who committed the robbery. During the luncheon recess the prosecution had her view the surveillance film again, and in the afternoon she was recalled to the witness stand, over defense objection. The objection was overruled, and, her memory refreshed, she identified the defendant as the robber.
It is the defendant's initial contention that the sum of these identifications by the three eyewitnesses establishes conclusively their incompetence to testify at trial on the issue of identity. In support of his contention, the defendant argues that the identifications made in court by Misses Weber, Kelly, and Monahan were founded not upon their personal familiarity with the robber's appearance, gained at the time of the robbery, but upon their recollection of the surveillance film (which, the defendant claims, is insufficiently clear to support any identification of the robber) and other photographs shown to them by government agents.
We are unable to discern any good reason for holding that the three eyewitnesses were incompetent to testify. While it is true that "what the witness represents as his knowledge must be an impression derived from the exercise of his own senses, not from the reports of others, -- in other words, must be founded on personal observation," 2 Wigmore, Evidence § 657 (3rd ed., 1940) (emphasis omitted), nonetheless it has long been established that "the result of the witness' observation need not be positive or absolute certainty . . .; it suffices if he had an opportunity of personal observation and did get some impressions from this observation." Id., § 658. These principles have been consistently applied with no less breadth in the area of testimony as to a person's identity. Id., § 660. As the Supreme Court noted in Stovall v. Denno, 388 U.S. 293, 299-300, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967): "The overwhelming majority of American courts have always treated the evidence question [of eyewitness identification] not as one of admissibility but as one of credibility for the jury." Cf. Wall, Eye-Witness Identification in Criminal Cases, 38. It is thus not surprising that the limitations which the Supreme Court has recently applied to this broad principle have been for specific purposes of protecting federal constitutional rights through the use of exclusionary rules. United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967); Foster v. California, 394 U.S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127 (1969); Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970); Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). Although these cases involved due process claims, as well as fifth and sixth amendment claims, none of them premised the exclusion of identification testimony on the incompetency of the particular witnesses involved. Nor do we read any of them as suggesting a limitation on the modern tendency to permit the admission of testimony as long as it is relevant, open to cross-examination, and not the fruit of illegal investigatory practices. It is not surprising, therefore, that the defendant, in his effort to establish incompetency, is unable to refer us to any cases which support his contention. In those which he briefly mentions, United States v. Barber, 442 F.2d 517 (3rd Cir., 1971), cert. denied, 404 U.S. 958, 30 L. Ed. 2d 275, 92 S. Ct. 327 (1971); and United States v. Fernandez (II), 480 F.2d 726 (2d Cir., 1973), as in the recent Supreme Court decisions just cited, competency was unquestionably assumed by the court, and the evidentiary question was understood to center not on the capabilities and capacities of the witnesses, but on circumstances which later undermined the reliability of their otherwise admissible first-hand knowledge.
Here, Misses Weber, Kelly, and Monahan each observed the robber at the time of the robbery, for an adequate length of time to perceive at least his general features, his sex, stature, bearing, the color of his skin, and even his fingernails. Their observations were made under conditions of adequate light, under (at least initially) normal daytime operations. There was no mask on the robber, nor any obstruction between the observer and the suspect. Nor is there any indication that the witnesses' faculties of observation were in any way impaired. Under these circumstances, the witnesses were clearly competent. See Simmons v. United States, supra ; Coleman v. Alabama, supra ; Clemons v. United States, and companion cases 133 U.S. App. D.C. 27, 408 F.2d 1230 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S. Ct. 1318, 22 L. Ed. 2d 567 (1969); United States ex rel. Phipps v. Follette, 428 F.2d 912 (2d Cir., 1970), cert. denied, 400 U.S. 908, 27 L. Ed. 2d 146, 91 S. Ct. 151 (1970); United States v. Hines, 147 U.S. App. D.C. 249, 455 F.2d 1317 (1972), cert. denied, 406 U.S. 975, 32 L. Ed. 2d 675, 92 S. Ct. 2427 (1972); United States v. Fernandez (I), 456 F.2d 638 (2d Cir., 1972).
We turn now to the question whether the testimony of the three eyewitnesses, otherwise competent, should have been excluded for the reason that it was the result of impermissibly suggestive pretrial identification procedures and hence, in its admission at trial, violative of due process. Cf. Simmons v. United States, supra. The defendant in his reply brief specifically disclaims that he is making a "taint argument" on the basis of Simmons, Wade, and Gilbert, supra, and states that his argument is only "an evidentiary [one] which inquires whether the witnesses could, from their ability to observe, identify the robber, and thus whether the witnesses were competent to testify." However, in his principal brief, the defendant argues that "the eyewitness ...