318 A.2d 903

UNITED STATES, Appellant, v. Edward L. SHERRY, Appellee.

No. 7392.

District of Columbia Court of Appeals.

Argued Nov. 13, 1973.

Decided April 12, 1974.

*904Regina C. McGranery, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Joseph F. Mc-Sorley, Asst. U. S. Attys., were on the brief, for appellant.

George F. Knox, Sr., Washington, D. C., appointed by the court, for appellee.

Before REILLY, Chief Judge, and KERN and HARRIS, Associate Judges.

KERN, Associate Judge:

The government appeals from an order entered by the trial court after a pretrial hearing (a) suppressing photographic and lineup identifications and (b) excluding any in-court identification of appellee by the complaining witness. We are constrained to reverse and remand for further proceedings.

The complaining witness was robbed by three men in broad daylight on the streets of Washington. Within IS minutes he had given descriptions of his assailants to the police and the description of one assailant matched appellee who was known to them. Within two and a half hours after the crime he viewed an array of photos in which the police had included appellee’s photo. The court’s main reason for suppressing the resultant identification of ap-pellee by the witness (R. at 78-79) was that appellee’s photo “completely [stood] out from the other pictures” because it was the only single view snapshot (full face) in the array, which included eleven other double view snapshots (both full face and profile). The court concluded that this infirmity necessarily tainted the complainant’s line-up identification and would infect any in-court identification at the subsequent trial.

Eyewitness identification procedures which are so suggestive as to give rise to a substantial likelihood of misidentification will be suppressed as violative of due process. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Clemons v. United States, 133 U.S.App.D.C. 27, 33-34, 408 F.2d 1230, 1237 (1968). However, we are of opinion that the difference in format between appellee’s picture and the other eleven contained in the array shown complainant shortly after the robbery is not, as a matter of law,1 so *905suggestive as to violate due process, United States v. Harrison, 460 F.2d 270, 271 (2d Cir. 1972); United States v. Magnotti, 454 F.2d 1140, 1141 (2d Cir 1972); we, therefore, reverse the trial court’s order suppressing the photo identification hy the complaining witness.

Here, the array, which is a part of the record before us, pictured white males of similar physical characteristics and did not emphasize any distinguishing personal features of appellee, compare United States v. Sanders, 156 U.S.App.D.C. 210, 214, 479 F.2d 1193, 1197 (1973); Mason v. United States, 134 U.S.App.D.C. 280, 286, 414 F.2d 1176, 1182 (1969); and, the complaining witness during the viewing was not directed to the photo of appellee by comments or gestures on the part of the police, compare United States v. Trivette, 284 F.Supp. 720, 723 (D.D.C.1968).2

While we recognize this array was less than ideal,3 we conclude under these circumstances that it did not emphasize details critical to recognition of appellee and did rest upon the complaining witness’ ability to make an informed choice based upon his prior observation of appellee during the robbery.4

The trial court’s suppression of the lineup and in-court identifications was also error since it found them tainted only because of its erroneous conclusion that the photo identification was impermissibly suggestive. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

Reversed and remanded.

United States v. Sherry
318 A.2d 903

Case Details

Name
United States v. Sherry
Decision Date
Apr 12, 1974
Citations

318 A.2d 903

Jurisdiction
District of Columbia

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