495 F2d 137 United States v. K Hicks

495 F.2d 137

161 U.S.App.D.C. 311

Joseph K. HICKS, Appellant.

No. 72-1783.

United States Court of Appeals, District of Columbia Circuit.

Argued March 13, 1974.
Decided April 5, 1974.

William T. Shannon, Washington, D.C. (appointed by this court), for appellant. Remsen B. Ogilby, Washington, D.C. (appointed by this court), also entered an appearance for appellant.

Edward D. Ross, Jr., Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for appellee. Harold H. Titus, Jr., U.S. Atty. at the time the record was filed, also entered an appearance for appellee.

Before HASTIE,1 Senior Circuit Judge, and WRIGHT and ROBB, Circuit judges.


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Appellant was convicted of a violation of the Bomb Threats Act, 18 U.S.C. 844(e) (1970). The question presented on appeal relates to the admission in evidence of pretrial voice identification of appellant from a single recording. Appellant argues that the pretrial identification was impermissibly suggestive under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and therefore inadmissible in evidence.


It may well be that the circumstances surrounding identification by voice can be as suggestive as similar circumstances with respect to visual identification of a person or his photograph. The question is whether the same factors of suggestion discussed in Stovall, supra, 388 U.S. at 301-302, 87 S.Ct. 1967, apply equally to identification made by the ear and by the eye.


Assuming the principles announced in Stovall do apply to pretrial voice identification, the conviction here must still be affirmed because we find that, in the circumstances of this case, any error in the admission of the pretrial identification evidence here is harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).




Of the Third Circuit, sitting by designation pursuant to 28 U.S.C. 294(d) (1970)