United States v. Dennis Santander Simoy

Simoy appeals his conviction for felony murder, in violation of 18 U.S.C. § 1111 , and robbery, in violation of 18 U.S.C. § 2111 . Appellant contends that the district court erred in .finding that a witness’s identification of appellant was reliable, and therefore admissible at trial, despite an unnecessarily suggestive identification procedure. In addition, he claims that the district court abused its discretion in denying his request for a jury instruction covering the lesser included offense of second degree murder. We affirm.

Reliability of Davis’s Identification

At approximately 8:00 p.m. on December 29, 1991, Sergeant Stacey Levay escorted Peregrina Armour, an Andersen Air Force Basé clerk, to the Bank of Fort Sam Houston for the purpose of depositing the commissary’s daily proceeds. Following the usual procedure, Armour drove her own car and Levay followed in his patrol vehicle. The parking lot was lit by street lights. The breezeway which screened the side of the bank building, however, was unlit.

As Armour and Levay stepped into the breezeway entrance, they were attacked by two men who stole the money pouch containing the daily proceeds. During the attack, Levay was…