Tommy Don Haskins v. United States, 433 F.2d 836, 10th Cir. (1970)
Tommy Don Haskins v. United States, 433 F.2d 836, 10th Cir. (1970)
2d 836
This is a direct appeal from a jury conviction for violation of 18 U.S.C. 2312,
illegal interstate transportation of a stolen vehicle. There are four errors urged
on appeal: (1) That the pre-trial and in-court identifications of Haskins by the
owner of the vehicle violated the due process rights of appellant; (2) because
the car owner was physically and emotionally exhausted, a positive
identification of the thief was impossible; (3) the sentence imposed violated the
constitutional rights of appellant; and (4) the trial court erred in failing to direct
a judgment of acquittal on the basis of insufficient evidence.
Three witnesses testified for the prosecution. Harriss, the car owner, testified
that on the afternoon of May 15, 1969, he observed someone taking his car
from its parking place in Denison, Texas. After chasing the car for about sixty
yards, he caught it as the driver waited for a traffic light to turn green. At that
point, Harriss opened the right door, stuck his head inside to converse with the
driver and started to get in. The driver, seeing the attempt, accelerated the car
and caused Harriss to be knocked to the ground.
From his observations at the stoplight, Harriss described the driver as between
25 and 28 years of age, 5 feet 10 inches tall, wearing a sport shirt with the
sleeves rolled above the elbow, and the driver had a tattoo on his right forearm.
After Haskins was arrested, a preliminary hearing was conducted before the
United States Commissioner. During that hearing, Harriss identified Haskins as
the man he had seen behind the wheel of his car on May 15, 1969. At trial,
Harriss made an in-court identification of the defendant and also related the
earlier preliminary hearing identification.
4
As Harriss was sent sprawling to the ground, another Denison resident viewed
the events and followed the car to a liquor store, where the thief apparently
made a purchase. The driver was observed for ten or fifteen minutes but the
local citizen could not make a positive in-court identification at trial.
The third witness was the Oklahoma highway patrolman who made the arrest
at Colbert, Oklahoma, six miles from Denison, Texas, around 7:30 p.m., May
15, 1969. Trooper Squires testified that he observed a vehicle being recklessly
driven so he stopped the auto which he then recognized as fitting the
description of the stolen Denison car. He gave a physical description of the
arrested party which coincided with that given by Harriss, including the tattoo
on the right forearm, and made an in-court identification of Haskins as the
same person arrested May 15, 1969.
The defense presented two character witnesses and the defendant himself. On
the stand Haskins stated that he was in Denison on the afternoon of May 15,
1969. As he was walking home to Cartwright, Oklahoma, he was given a ride
to a bar in his home town where another man invited him to ride to Durant,
Oklahoma. Some more drinking was done in a Durant bar and it was there that
the other man told Haskins that the car he was driving was stolen. The man
said he was going to catch a freight or hitchhike out of town. Appellant testified
that he then became scared, so he drove the stolen vehicle to Colbert,
Oklahoma, where he was going to call a lawyer just as the police pulled him
over.
did advert to the pre-trial identification, the constitutional validity of the two
identifications is attacked on appeal on the basis of the Wade and Stovall
decisions. Initially we note that the pretrial identification was not invalidated
by the absence of counsel. Thus any infirmity in the procedures utilized must
be based on the independent ground that the pre-trial and in-court
identifications were "so unnecessarily suggestive and conducive to irreparable
mistaken identification that * * * [appellant] was denied due process of law."
Stovall v. Denno, 388 U.S. 293 at 302, 87 S.Ct. 1967 at 1972.
9
This argument is raised for the first time on appeal. At no time either before or
during the trial did defense counsel interpose an objection to the method of
identification. For good reason, appellate courts are hesitant to consider Wade
or Stovall claims raised only at the appeal stage. 2 But at the same time, Rule
52(b), F.R.Crim.P., 18 U.S.C., requires us to exercise our discretion whether to
notice "plain errors or defects affecting substantial rights" even when no
objection is made at trial. Since we cannot say that improper identification
procedures might not violate constitutional rights, it would be difficult to
conclude that such rights are not "substantial," so we will consider them.
10
11
Since defense counsel did not challenge the pre-trial identification procedures
in this case, no hearing was conducted to elucidate the facts surrounding that
identification. A number of cases have held that identifications at preliminary
hearings were not violative of due process, but the facts of those proceedings
were before the reviewing courts.4 We do not know what the conditions were at
the preliminary hearing confrontation. Perhaps a ventilation of the
circumstances surrounding that incident would produce a Stovall deficiency.
But even if we assume such a defect, a remand is unnecessary here because the
record before us provides an independent source for the in-court identification
of such a nature as to dispel any substantial likelihood of mistaken
identification.5
12
Harriss testified at trial that when he caught the automobile at the stoplight, he
opened the door and stuck his head inside. At that time he could see the full
features of the driver from his head downward. He described the man as about
twenty-five to twenty-eight years old, five feet ten inches tall, dark headed and
dressed in a sport shirt with the sleeves rolled above the elbow. He also noticed
a tattoo on the man's right forearm. In addition, a positive identification was
made at the preliminary hearing. The description fully matches that given by
the Oklahoma patrolman of Haskins at the time of arrest. We are convinced
that Harriss' precise description, corroborated by the patrolman, dissipates any
substantial likelihood of mistaken identification.
13
14
On his fourth proposition, appellant argues that the evidence failed to prove
that the vehicle was transported in interstate commerce and that such
transportation was with knowledge that the vehicle was stolen. To determine
the sufficiency of the evidence, we look to see if there is direct and
circumstantial evidence, along with all reasonably drawn inferences, upon
which a guilty verdict could rest.6
15
In that posture, the evidence reflects the following. The vehicle was taken from
a parking lot in Denison, Texas.
16
About three hours later, Haskins was arrested while in possession of the stolen
automobile in Colbert, Oklahoma. We have stated on numerous occasions that
where it is proved that the accused has in his possession a vehicle recently
stolen in another state, and absent a satisfactory explanation, the inference is
sustained that the accused knew the vehicle was stolen and that he transported
it in interstate commerce.7 The explanation for appellant's possession in this
case stretches our credulity and obviously had the same effect on the jury. The
evidence was sufficient to sustain the conviction.
17
Affirmed.
Notes:
1
See United States v. Ryder, 409 F.2d 1349 (4th Cir. 1969); Marden v. Purdy,
409 F.2d 784 (5th Cir. 1969); Cunningham v. United States, 133 U.S.App.D.C.
133, 409 F.2d 168, 169 (1969); United States v. Lipowitz, 407 F.2d 597 (3d
Cir. 1969); Caruso v. United States, 406 F.2d 558 (2d Cir. 1969).
In Solomon v. United States, 133 U.S. App.D.C. 103, 408 F.2d 1306, 1309
(1969), the D. C. Circuit suggests that "it would be better practice if District
Judges, when confronted by cases which appear to involve identification
testimony, would on the record and out of the presence of the jury inquire of
defense counsel whether they object onWade or Stovall grounds to any
identification which might be offered." This, of course, presupposes that
objections from counsel have not been proffered. We agree that this could do
much to avoid retrials, remand hearings, and hearings on motions collaterally
attacking convictions.
Clemons v. United States, 133 U.S.App. D.C. 27, 408 F.2d 1230 (1968),
proposes this analysis of the Wade-Gilbert-Stovall trilogy
United States v. Ryder, 409 F.2d 1349 (4th Cir. 1969); United States v. Davis,
407 F.2d 846 (4th Cir. 1969); United States v. Lipowitz, 407 F.2d 597 (3d Cir.
1969)See Dade v. United States, 132 U.S.App.D.C. 229, 407 F.2d 692 (1968).
Davida v. United States, 422 F.2d 528 (10th Cir. 1970); United States v.
Broadhead, 413 F.2d 1351 (7th Cir. 1969); Williams v. United States, 133
U.S.App.D.C. 185, 409 F.2d 471 (1969); Clemons v. United States, 133
U.S.App. D.C. 27, 408 F.2d 1230 (1968)
Havelock v. United States, 427 F.2d 987 (10th Cir. 1970); Lewis v. United
States, 420 F.2d 1089 (10th Cir. 1970); United States v. Bourassa, 411 F.2d 69
(10th Cir. 1969)
Rogers v. United States, 416 F.2d 926 (10th Cir. 1969); Fish v. United States,
371 F.2d 438 (10th Cir. 1967); Williams v. United States, 371 F.2d 141 (10th
Cir. 1967); Gregory v. United States, 364 F.2d 210 (10th Cir. 1966)