488 F.2d 134 - Kalmbach v. Jones — 488 F.2d 134

How this case has been cited

Cited by 5 later decisions — most recently April 2010

3 federal appellate · 2 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Summary Calendar.*

¶2 *135Kerry P. Fitzgerald, Dallas, Tex., for petitioner-appellant.

¶3John B. Tolle, Asst. Dist. Atty., Dallas, Tex., for respondent-appellee.

¶4Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

¶6PER CURIAM:

¶7This is an appeal from the denial of a writ of habeas corpus sought by appellant Kalmbach as a result of a robbery conviction. Kalmbach’s sole contention is that the victim’s in-court identification was the product of unduly suggestive and fundamentally unfair pre-trial photographic identification, and this being critical to the prosecution’s ease, the state conviction is inform.1 We affirm.

¶8The sole identification witness was Mrs. Selma Bland, the owner and operator of the Valhalla Motel at the time of the robbery. On two separate occasions, one two weeks after the robbery, the other, just prior to trial, she was able to identify Kalmbach from two photographs shown to her. Moreover, when shown the photographs of additional suspects on several occasions, she did not mistakenly identify any one of them as those of the perpetrators. Thus, even if an error existed in the photographic identification under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247 (1968), it was harmless. See Powell v. Wainwright, 460 F.2d 1056 (5th Cir. 1972).

¶9Affirmed.