United States v. Jimmie Dale Phillips

On February 2, 1968, a national bank was robbed in Phoenix, Arizona, by an armed man, dressed in woman’s clothes, wearing a wig, heavy pancake makeup and lipstick. On July 2, 1968, appellant was charged in two counts with robbery and armed robbery of a national bank, and on July 9th, 1968, he was indicted for it. After a not guilty plea, the trial court had an evidentiary hearing on the appellant’s motion to suppress any “in-court” identification of appellant as the person who robbed the bank, based on the trilogy of 1967 cases (Wade v. United States, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 ; Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 and Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 ) and on Simmons v. United States, 390 U.S. 377 , 88 S.C. 967 , 19 L.Ed.2d 1247 , decided in 1968.

The motion to suppress was denied, renewed at the trial which began on December 3, 1968, and again denied. At the conclusion of the Government's case a motion to dismiss on the same ground was made, and renewed after all evidence was in. Again each such motion was denied. Appellant was convicted on both counts, sentenced to ten years and takes this…

427 F.2d 1035 UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Dale PHILLIPS, Defendant-Appellant. No. 24485. United States Court of Appeals, Ninth Circuit. June 2, 1970. Tom O'Toole (argued), Tom Karas, Federal Public Defenders, Phoenix, Ariz., for appellant. Lawrence Turoff (argued), Asst. U. S. Atty., Richard E. Burke, U. S. Atty., Phoenix, Ariz., for appellee. Before BARNES, DUNIWAY and ELY, Circuit Judges. BARNES, Circuit Judge: 1 On February 2, 1968, a national bank was robbed in Phoenix, Arizona, by an armed man, dressed in woman's clothes, wearing a wig, heavy pancake makeup and lipstick. On July 2, 1968, appellant was charged in two counts with robbery and armed robbery of a national bank, and on July 9th, 1968, he was indicted for it. After a not guilty plea, the trial court had an evidentiary hearing on the appellant's motion to suppress any "in-court" identification of appellant as the person who robbed the bank, based on the trilogy of 1967 cases (Wade v. United States, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 ; Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 and Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 ) and…

(dissenting):

I respectfully dissent. Insidious lineup procedures were soundly condemned by the Supreme Court in the trilogy of 1967 cases cited by the majority (United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 ; Gilbert v. Cali *1040 fornia, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 , and Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 .) Here, not only did the police construct a lineup so suggestive in its composition as to prejudice, gravely and severely, Phillips’ right to a fair and impartial trial, they also denied him the right to have his counsel present when the lineup was conducted. In my opinion, reversal is compelled by Stovall, supra, since "the confrontation conducted in this case was so unnecessarily suggestive and conductive to irreparable mistaken identificathat the in-court identifications were based upon observations of the suspect other than the lineup identification.” Id,. 388 U.S. at 240, 87 S.Ct. at 1939.

I first reach the due process issue, since I would characterize the lineup technique under consideration as a travesty. The lineup was composed of Phillips and four others, each wearing a blonde female wig. To…