Matthew C. Cunningham, Appellant, v. United States of America, Appellee, 391 F.2d 457 (D.C. Cir. 1967)

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U.S. Court of Appeals for the District of Columbia Circuit - 391 F.2d 457 (D.C. Cir. 1967) Argued September 13, 1966
Decided June 23, 1967

Mr. Geoffrey Creyke, Jr., Washington, D. C. (appointed by this court), for appellant.

Mr. James A. Strazzella, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Donald S. Smith, Asst. U. S. Attys., were on the brief, for appellee.

Before DANAHER, Circuit Judge, BASTIAN, Senior Circuit Judge, and WRIGHT, Circuit Judge.



After having been found not guilty of felony murder as charged in the first count of an indictment and not guilty of premeditated murder as charged in the second count, this appellant was found guilty by the jury of second degree murder under the second count of the indictment and guilty of robbery, as charged in the third count; this appeal followed

and this court having considered the several contentions here advanced on brief and at oral argument and being satisfied that there was no error with respect thereto in all aspects except with reference to the appellant's claimed right to have counsel present at a line-up identification; and this court having deferred final disposition of the case pending decision by the Supreme Court of the cases of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199; and the Supreme Court by its decisions in such cases on June 12, 1967 having resolved the issues there presented and having held that the rules therein laid down should not be made retroactive;

Now, upon consideration of the foregoing and on the record of the District Court no error having appeared,

It is ordered and adjudged by this Court that the judgment of the District Court appealed from in this cause be, and it is hereby, affirmed.