[NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1509
UNITED STATES OF AMERICA,
Appellee,
v.
JAY WOODWARD,
Defendant, Appellant.
No. 99-1510
UNITED STATES OF AMERICA,
Appellee,
v.
PATRICK KING,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Matthew S. Robinowitz, by Appointment of the Court, for
appellant Woodward.
James P. Duggan, by Appointment of the Court, for appellant
King.
Donald L. Cabell, Assistant U.S. Attorney, with whom Donald
K. Stern, United States Attorney, was on brief for appellee.
July 25, 2000
COFFIN, Senior Circuit Judge. Defendants Patrick King and
Jay Woodward appeal their bank robbery convictions, arguing,
inter alia, that witness identifications of them should have
been excluded from evidence at trial and that the court erred by
enhancing their sentences based on the bodily injury caused to
a teller. Finding no error in the court's admission of the
identifications and no merit in defendants' other contentions,
we affirm.
I. Background
A Fleet Bank in Peabody, Massachusetts, was robbed at
gunpoint on the morning of June 23, 1998, at approximately 11:30
a.m. A few minutes later, truck driver Gary Evans observed four
darkly dressed men, two of whom were transferring leather bags
from one car to another, in the parking lot of a nearby
restaurant.
The following facts are derived from testimony given at a
hearing on Woodward's motion to suppress Evans's identification
of him as one of the four men. Evans was pulling into the rear
parking lot of the Hometown Buffet restaurant to make a delivery
when he was cut off by a gray Oldsmobile. Evans, angered,
yelled at the car's driver as the car raced around him and
pulled to a stop in front of him, near a parked black Mustang BT
and a red vehicle. Evans proceeded to park his truck to make
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his delivery and observed two men exit the car and load leather
bags from the gray Oldsmobile into the trunk of the Mustang
before speeding off in the Mustang. The front seat passenger of
the Oldsmobile then got out and showed Evans that he was
carrying a gun before leaving the scene in the red car with the
fourth individual. Evans asked restaurant employees to phone
the police.
After being interviewed by local police and FBI Agent
Margaret Cronin, Evans was taken by police car to Chestnut
Street in Lynn to view two of the suspects. When pulling onto
the street, Evans saw the red car he had seen at the restaurant,
and at approximately 1:20 p.m. Evans identified Remington as he
stood on the sidewalk and then King, also standing on the
sidewalk with police. After making the identifications, Evans
observed Remington and King being arrested and taken away in
police cruisers and the red car being searched and then towed
away.
Evans was then escorted, this time by Agent Cronin, to Alice
Avenue. On the way to Alice Avenue, Evans was told by Cronin
that police believed they had apprehended the remaining two
individuals and that Evans needed to identify them if he could.
The street was blocked off, multiple police cars were present,
and bystanders were trying to observe the situation. Evans
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observed the black Mustang before he was asked to view anyone.
At approximately 2:25 p.m., Evans confirmed that Meola, who was
presented in handcuffs and escorted by police officers into the
middle of the street, was one of the individuals present at the
Hometown Buffet. Finally, Evans identified Woodward, who was
also escorted into the street in handcuffs by police.
Woodward filed a motion seeking to suppress Evans's
identification of him on the ground that it was so suggestive
and unreliable that its admission into evidence would violate
his due process rights.1 The district court agreed that the
identification was impermissibly suggestive, but held that it
was sufficiently reliable to be admitted. Woodward renews his
challenge on appeal. Both appellants also challenge the court's
finding that bodily injury was caused to a teller during the
robbery and make various claims regarding the court's
instructions to the jury and its sentencing determinations.
II. Discussion
A. Identification
1Although King challenges the admission of his show-up
identification on appeal, he neither joined in Woodward's motion
to suppress below nor presented evidence at the suppression
hearing and thus has not preserved his argument. See Fed. R.
Crim. P. 12(f); Campos-Orrego v. Rivera, 175 F.3d 89, 95 (1st
Cir. 1999).
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An out-of-court identification claimed to be
constitutionally flawed is subject to a two-pronged inquiry.
See United States v. De Jesus-Rios, 990 F.2d 672, 677 (1st Cir.
1993). The court must first consider whether the procedure was
impermissibly suggestive. See id. If the court finds that the
technique was improper, it must consider whether, under the
totality of the circumstances, the identification itself was
reliable, despite the suggestive procedure. See id.; see also
Manson v. Braithwaite, 432 U.S. 98, 114 (1977) ("[R]eliability
is the linchpin in determining the admissibility of
identification testimony . . . ."). Indicia of reliability
include "the opportunity of the witness to view the criminal at
the time of the crime, the witness' degree of attention, the
accuracy of his prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the time
between the crime and the confrontation." Manson, 432 U.S. at
114 (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)); see
also De Jesus-Rios, 990 F.2d at 677. "[I]t is only in
extraordinary cases that identification evidence should be
withheld from the jury." United States v. Turner, 892 F.2d 11,
14 (1st Cir. 1989).
Although the admissibility of a witness identification is
a mixed question of law and fact, for the purposes of argument
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only, we indulge Woodward's argument that the district court's
determination should be reviewed de novo. Even if we conclude
that error occurred, however, the jury's judgment remains intact
if a review of the entire record persuades us that the error was
"'harmless beyond a reasonable doubt.'" De Jesus-Rios, 990 F.2d
at 678 (citation omitted).
We are in full agreement with the district court's
determination that the procedure was impermissibly suggestive.
Even though Woodward was already in custody and could easily
have been taken to the police station for a line-up
identification, he was singled out in handcuffs to Evans, who
had seen the other individuals he identified be arrested and who
had been told by police that they believed they had apprehended
the remaining robbers. See, e.g., Velez v. Schmer, 724 F.2d
249, 251 (1st Cir. 1984) (noting that "[a] staged show-up is
presumptively more suggestive than a line-up" and concluding
that a show-up was improper when the police made suggestive
remarks and could have waited a short time to allow the
organization of a line-up). We thus turn to the reliability
prong of the analysis.
Woodward argues that inaccuracies in Evans's initial
description of him render the show-up identification unreliable.
When first interviewed at the Hometown Buffet, Evans described
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Woodward as having a blond crew cut, although Evans apparently
had long blond hair at the back of his head and the hair at the
front of his head was described by Agent Cronin as brown.
Woodward also emphasizes that Evans described Meola as dark-
skinned, although Agent Cronin testified that she would not
characterize him as such, and that Evans misidentified the make
of the red car. Finally, Woodward points out that although
Evans testified at the suppression hearing that four men arrived
at the Hometown Buffet in the Oldsmobile and Agent Cronin
confirmed that he had so stated at the scene, a Peabody police
officer testified that Evans told him he saw three men exit the
Oldsmobile but the fourth was waiting in the red vehicle.
Woodward contends that the accuracy of the prior description is
the most important factor in assessing reliability and that the
discrepancies here are therefore of great significance, relying
on Dispensa v. Lynaugh, 847 F.2d 211 (5th Cir. 1998).
Contrary to Woodward's argument, accuracy is given no
greater emphasis than the other factors relevant to reliability.
Woodward's reliance on Dispensa is misplaced because there the
court held only that, based on the particular facts before it,
the lack of accuracy in the witness's prior description was by
far the greatest indication that the out-of-court identification
was not reliable. See id. at 220 (not only did the witness
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describe assailant as shorter and lighter than defendant, but
also did not include "his moustache, his general hirsuteness,
and the striking tattoos" in her description). Furthermore, the
discrepancies in Evans's descriptions are not sufficient to
taint the overall reliability of the identifications. As the
district court noted, Woodward was likely wearing a hooded
sweatshirt similar to those Evans specifically reported seeing
on two of the other participants,2 which would have obscured
Evans's view of the length of the hair on the back of Woodward's
head, which Evans correctly described as blond. In addition,
despite the fact that Evans mistook the red car, which was a
Dodge Stratus, for an Oldsmobile, he reported five of the six
digits on its license plate, and he also correctly identified
the black car as a Mustang GT. Finally, although the Peabody
officer testified differently, Evans's statement that he
observed four men in the gray Oldsmobile as it pulled into the
parking lot was substantiated by Agent Cronin's report.
Evans's physical descriptions of the four individuals, as
least as relayed at the suppression hearing, admittedly
2At the suppression hearing, Evans testified that Woodward
did have a hooded sweatshirt on, with the hood up on his head
during part of the encounter, but this information was
apparently not in Agent Cronin's report of Evans's original
description.
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contained less detail than is ideal.3 Nevertheless, this court
has upheld the admission of identifications even when the
original description contained minimal physical detail, see
Allen v. Massachusetts, 926 F.2d 74, 81 (1st Cir. 1991) (only
description witness apparently gave of suspect was that he was
a black man), and when a witness provided no physical
description of the suspect prior to the identification,
see United States v. Watson, 76 F.3d 4, 7 n.1 (1st Cir. 1996)
(witness provided no description of assailant but identified him
within minutes of the assault); United States v. Drougas, 748
F.2d 8, 28 (1st Cir. 1984) (witness did not provide any prior
description but was co-conspirator with suspect). Furthermore,
we have allowed an identification when the witness's original
description contained inaccuracies. See Gullick v. Perrin, 669
F.2d 1, 4 (1st Cir. 1981) (description was reliable even though
the victim's initial description of her assailant included a
patch of silver hair, which defendant did not have).
Moreover, other factors weigh in favor of reliability.
Although Woodward contends that the incident at the Hometown
Buffet happened very quickly, preventing Evans from having a
3
At the hearing, little information was elicited from Agent
Cronin as to the "detailed descriptions" of each of the four
individuals that Evans supposedly gave her at the Hometown
Buffet.
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good opportunity to observe the suspects, he admits that Evans's
degree of attention was very high. Because the car in front of
him was in close proximity to the four suspects, Evans had a
good opportunity to observe the four men and his level of
attention was heightened by their actions. Evans also was very
certain about his identifications. He interrupted Agent
Cronin's explanation of the show-up process to exclaim that he
could identify Remington, who was standing on the sidewalk, and
he testified that the moment he saw Woodward, as Woodward walked
between two cars towards him, he was positive that he recognized
him. Finally, the time between Evans's observation of the four
men and his show-up identification of Remington and King was
only about two hours and of Woodward and Meola, approximately
three hours. While we do not attach great weight to this
factor, two or three hours is not sufficiently extended to
detract from the other factors indicating reliability.
See Velez, 724 F.2d at 252 (concluding that most cases that
place substantial weight on this factor involved identifications
made within an hour of the crime and declining to place weight
on timing when the identification occurred more than nine hours
after the original observation). Thus, although Evans's
description of Woodward was not completely accurate, the sum of
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the reliability factors leads us to conclude that the court did
not err in admitting Evans's show-up identification of Woodward.
Furthermore, even if the court did err in admitting the
show-up identification, the error was harmless given the
abundance of other evidence confirming Woodward's guilt. See
Clark v. Moran, 942 F.2d 24, 27 (1st Cir. 1991) ("In the
practical application of this standard, courts have found error
to be harmless when the untainted evidence, standing alone,
provided 'overwhelming evidence' of the defendant's guilt.").
Cooperating defendant Meola testified that all four defendants
met several times during the week before the robbery to plan it,
that Woodward had helped to count the stolen funds, and that he
helped to hide the money before surrendering to police. Meola's
former girlfriend testified that all four defendants entered her
house at the same time on June 23, 1998, and announced that they
had just committed a robbery. She and Meola both testified that
Woodward helped them to hide the money in a bedroom closet in
the house on Alice Avenue.
B. Sentencing
Both Woodward and King contend that the court erred by
increasing their base offense levels by two pursuant to U.S.S.G.
§ 2B3.1(b)(3)(A), based on the bodily injury sustained by a bank
teller who was pushed to the ground by King during the
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commission of the robbery. "Bodily injury" is defined by the
guidelines as "any significant injury; e.g., an injury that is
painful and obvious, or is of a type for which medical attention
ordinarily would be sought." U.S.S.G. § 1B1.1 cmt. 1(b). The
district court's determination that bodily injury was sustained
is a factual finding that we review for clear error. See United
States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997) (factual
findings must be supported by a preponderance of the evidence
and are reviewed for clear error); United States v. Isaacs, 947
F.2d 112, 114-15 (4th Cir. 1991) (whether bodily injury occurred
is factual question).
Here, the court relied on facts contained in the presentence
report, see United States v. Skrodzki, 9 F.3d 198, 202 (1st Cir.
1993), such as that the teller suffered a welt as well as
whiplash from being struck by King during the robbery. 4 The
presentence report also stated that the teller sought medical
treatment at the hospital following the incident and that she
was unable to return to work for one month due to pain and
headaches. Furthermore, the medical records in evidence assert
that the teller was diagnosed with cervical strain and a
4
Although the presentence report indicated that the teller
had been struck with a gun, the district court did not believe
that a gun had been used, but found that King had pushed her to
the ground and caused her injury.
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contusion on her scalp, for which she was fitted with a cervical
collar and placed on a regimen of Motrin. In short, the court's
finding that King caused bodily injury during the commission of
the robbery was not clearly erroneous.
Defendants' remaining contentions are without merit.
Because we conclude that the court did not err in any of the
respects alleged by defendants, we affirm the convictions and
sentences.
Affirmed.
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