United States v. John Clarence Parker

Appellant was convicted by a jury of two bank robberies, the first of which occurred on April 30, 1969, the second on May 23rd of the same year. He was sentenced to 20 years imprisonment on *1252 each count, the sentences to run concurrently.

Appellant’s assignments of error are based upon in-court identifications which he claims were tainted with an illegal line-up in violation of the doctrines taught in United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967). Appellant was not represented by counsel at the time of the line-up. Although the in-court identifications in connection with the April 30th conviction may be impermissibly tainted by the line-up procedure, we hold the record before us clearly demonstrates that the paramount in-court identifications on the May 23rd conviction were not so tainted and that the latter were of an origin entirely independent of the alleged illegal line-up identification of May 26, 1969.

Count One of the indictment charges the appellant and Loren Hugh Smith 1 with the crime of bank robbery with force and violence of the Hollywood Branch, The…

(concurring).

I concur in the result.

(dissenting):

I respectfully dissent. The trial judge did not make, as he was required to do, his own independent preliminary determination as to whether the lineup procedure was impermissibly defective and, if so, whether it tainted the testimony of the prosecution’s witnesses to the lineup. That such an independent determination is required is beyond doubt. The accused was without counsel when the lineup was conducted, and it is not controverted that he had not theretofore been adequately advised of his right to counsel. In these circumstances, the burden was upon the prosecution to convince the trial judge, prior to the introduction of the identifying testimony and “by clear and convincing evidence,” that that testimony had not been tainted by the lineup, if defective, and the investigative technique with which it was attended. United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967). See United States v. Phillips, 427 F.2d 1035 (9th Cir. 1970).

In his principal opinion, my Brother Kilkenny appears to recognize that the existing law comports with my expres *1256 sions in the foregoing paragraph and that, accordingly, one of Parker’s significant rights was…

432 F.2d 1251 UNITED STATES of America, Appellee, v. John Clarence PARKER, Appellant. No. 25186. United States Court of Appeals, Ninth Circuit. Oct. 15, 1970. Kristina M. Hanson (argued), Morrison, Foerster, Holloway, Clinton & Clark, San Francisco, Cal., for appellant. Larry S. Flax (argued), Asst. U.S. Atty., Robert L. Meyer, U.S. Atty., David R. Nissen, Chief, Criminal Division, Los Angeles, Cal., for appellee. Before KOELSCH, ELY and KILKENNY, Circuit Judges. KILKENNY, Circuit Judge: 1 Appellant was convicted by a jury of two bank robberies, the first of which occurred on April 30, 1969, the second on May 23rd of the same year. He was sentenced to 20 years imprisonment on each count, the sentences to run concurrently. 2 Appellant's assignments of error are based upon in-court identifications which he claims were tainted with an illegal line-up in violation of the doctrines taught in United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967). Appellant was not represented by counsel at the time of the line-up. Although the in-court identifications in connection with the April…