Appeal from the United States District Court for the Middle District of Pennsylvania.
Van Dusen and Weis, Circuit Judges, and Stern, District Judge. Stern, District Judge (concurring).*fn**
Antonio Mitchell appeals from a judgment of conviction entered after jury trial on an indictment charging him with three counts of bank robbery. We affirm, but take the opportunity to comment on certain aspects of the discovery procedure followed below.
The evidence at trial may be briefly summarized. A lone gunman robbed a Harrisburg branch office of the Pennsylvania National Bank at about 1:00 P.M. on February 12, 1975. The gunman approached the counter, requested change for a hundred dollar bill, laid a gun on the countertop and demanded the teller's money. More than $6,000.00 was handed to him by the teller. The robber placed the money in a green plastic bag. He left the bank on foot. Alerted by the nod of the teller, the bank manager set out in pursuit. When the robber reached a parked car several blocks from the bank, he turned and fired a single shot at the manager. The robber then got into the car and sped away. The manager had a clear view of the car. He was later able to make a positive identification of the vehicle. Bank surveillance cameras recorded portions of the robbery, and the photographs were admitted into evidence at trial. The teller who was robbed, Milford White, testified that he observed the gunman at close range for more than a minute. He identified Mitchell as the robber before the jury.
The prosecution introduced evidence which linked the appellant to the getaway car. It was stipulated that the car belonged to appellant's financee. Mrs. Alice Capp, a school crossing guard, was on duty about three blocks from the bank on the afternoon of the robbery. She testified that she saw appellant abandon the car in heavy snow near her post at the time just after the robbery occurred. She recalled that when he left the car to cut between some buildings, he was carrying a green plastic bag. Thomas Matthews and Rose Kemrer lived one block from the street where Mrs. Capp saw appellant abandon his car. They saw appellant moments after he was observed by Mrs. Capp. Both testified that appellant passed close to their house on foot, carrying a green plastic bag. When Matthews followed appellant's footsteps in the snow, he found several knitted caps. One of these hats was admitted into evidence through the testimony of Milford White, who testified that the robber had worn a similar hat.
There are only two major contentions of defendant which we find it necessary to discuss.*fn1
I. ALLEGED ERROR IN FAILURE TO DISCLOSE EVIDENCE PRIOR TO TRIAL
We will first consider the defendant's contention that he was denied the effective assistance of counsel by the failure of the Government to identify its identification witnesses "when requested" (page 17 of defendant-appellant's brief).*fn2
Prior to trial, defendant attempted to ascertain whether any identification procedures had been employed by the Government in the course of its investigation through a Demand for a Bill of Particulars:
"[Demand] 7. Information as to how, and the procedure used, in any witnesses identifying the Defendant, from line-up or from group of pictures, or just how. [sic]"
The Government responded as follows:
"[Response] 7. The defendant refused the Government request to participate in an identification procedure by line-up, and, therefore no line-up identification procedure was effected."
A Demand for a Bill of Particulars is not normally the appropriate means to secure the information about pretrial identifications of a defendant made by Government witnesses. United States v. Conway, 415 F.2d 158, 161-62 (3d Cir. 1969), cert. denied, 397 U.S. 994, 90 S. Ct. 1131, 25 L. Ed. 2d 401 (1970); 1 C. Wright, Federal Practice and Procedure, § 129 (1969). Such information falls rather within the scope of Rule 16, F.R. Crim. P. Simmons v. United States, 390 U.S. 377, 388-89, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968); United States v. Cranson, 453 F.2d 123, 126 (4th Cir. 1971), cert. denied, 406 U.S. 909, 31 L. Ed. 2d ...