Petition — Saler v. Kreiger

Supreme U. K

F J ED |

rs 1975

MICHAEL RODAK, —

Supreme Court of the United States

October Term, 1974

No. 7521 1 2

JAMES SALER,

Petitioner,

vs.

RALPH KRE!GER, Sheriff,

Cuyahoga County,

Respondent.

|

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Sixth Circuit

BERNARD A. BERKMAN

HAROLD L. LEVEY

BERKMAN, GORDON AND KANCELBAUM

2121 The Illuminating Building

Cleveland, Ohio 44113

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Questions Presented .

Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Writ

I. The Decision Below Conflicts With the Decisions

of Other Courts of Appeals as to the Interpreta-

tion of This Court’s Opinion in Neil v. Biggers,

409 U.S. 188 (1972) ... 9

II. The Court Below Has Decided an Important

Question of Federal Law Which Has Not Been

or ww Ww Wh

But Should Be Settled by This Court 14

III. The Decisions Below Conflict in Principle With

Applicable Decisions of This Court 16

A. The Decision Below Conflicts in Principle

With the Court’s Decision in Townsend v.

Sain, 372 U.S. 293 (1963) 17

B. The Decision Below Conflicts in Principle

With the Court’s Decision in Neil v. Biggers,

409 U.S. 188 (1972) ; 18

Conclusion 19

APPENDIX:

A. Journal Entry of the Cuyahoga County Juvenile

Court Al

B. Opinion of the Court of Common Pleas ................ A3

C. Opinion and Journal Entry of the Court of Ap-

peals .

N D. Entry Denying Motion for Reconsideration by

the Court of Appeals A

K Ge of Gecteaa Coun & Chis Daaie

2 Leave to Appeal — 1

1. Order of Supreme Court ot Obfo Denying Mo-

tion for Reconsideration AIS

* Order ot the United States Supreme Court ;

- Denying Stay Pending Petition for Certiorari __.A16

es OR a ee ee ,

Court All

L Order af the United States Court of Appeals

for the Sixth Circuit ....... A35

J. Title 28, United States Code, Section sade) ..A36

TABLE OF AUTHORITIES

Cases

Commissioner v. Bilder, 369 U.S. 499 (1962) ................ 13

Cooper v. Picard, 428 F.2d 1351 (Ist Cir. 1970) ............ 18

Crooker v. California, 357 U.S. 433 (1958) 17 -

Federal Trade Commission v. Travelers Health Asso-

ciation, 362 U.S. 293 (1960) — 16

Gilbert v. California, 388 U.S. 263 (1907) 14, 15

Kirby v. Illinois, 406 U.S. 682 (1972) 14, 15, 16, 18

Linkletter v. Walker, 381 U.S. 618 (1965) 13

Neil v. Biggers, 409 U.S. 188 (1972) ........3, 9, 10, 12, 13, 18, 19

People v. Anderson, 389 Mich. 155 (1973) 15

People v. Hallaway, 389 Mich. 265 (1973) dines ae

Securities and Exchange Commission v. United Benefit

Life Insurance Company, 387 U.S. 202 (1967) 16

Smith v. Coiner, 473 F.2d 877 (4th Cir. 1973), cert. den.,

414 US. 1115 11,13

Speiser v. Randall, 357 U.S. 513 (1058) 13

Stanley v. Cox, 486 F.2d 48 (4th Cir. 1973), cert. den.,

416 U.S. 958 li

State v. Lathan, 30 Ohio St. 2d 92, 282 N.E.2d 574 (1972) 18

Stovall v. Denno, 388 U.S. 293 (1967) --, 10, 11, 12, 13, 19

Thompson v. Louisville, 362 U.S. 199 (1960) 17

Townsend v. Sain, 372 U.S. 293 (1963) 17

United States v. Calamaro, 354 U.S. 351 (1957) ....... 13

United States ex rel. Kirby v. Sturges, 510 F.2d 397

(7th Cir. 1975), cert. den. U.S. 12

United States ex rel. Thomas v. New Jersey, 472 F. ad

735 (3rd Cir. 1973), cert. den., 414 U.S. 878

United States ex rel. Trignani v. Russell, 405 F. 2d 1119

(3rd Cir. 1968) 18

United States v. Wade, 388 U.S. 218 (1967) ...........14, 15, 16

‘ Upshaw v. United States, 335 U.S. 410 (1948) .......... 17

Wilkinson v. United States, 365 U.S. 399 (1961). 17

Statutes and Rules

Ohio Revised Code:

Section 2901.13

Section 2905.01

Section 2905.44 4

Rules of the Supreme Court of the United States:

Rule 19(1)

United States Code, Title 28:

Section 1254(1)

Section 2254 4 8

Section 2254 (d)

—

—

13, 16, 17

on &

We

ST ES ig Nee MAAR

To the United States Court of Appeals

for the Sixth Circuit

The petitioner, James Saler, prays that a Writ of Cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit en-

tered in the above entitled case on April 23, 1975.

At the time of the initiation of the instant habeas

corpus proceeding in the Federal District Court, petitioner

was in the constructive custody of Ralph Kreiger, Sheriff of

Cuyahoga County, State of Ohio. Pursuant to the order

of the District Court, petitioner was admitted to the Ohio

by thie ide ia court ta the , l de,

— of the Ohio State Reformatory. Peii-

tioner has remained in such custody to the present time.

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth

Circuit, not reported, appears as Appendix I. The memo-

randum, opinion and order of the United States District

Court, Northern District of Ohio, Eastern Division, is re-

produced as Appendix H.

The orders of the Supreme Court of Ohio appear as

Appendices E and F. The opinion and orders of the Court

of Appeals, Cuyahoga County, Ohio, are reproduced as

Appendices C and D. The opinion of the Cuyahoga County,

Ohio, Court of Common Pleas, appears as Appendix B.

The order of the Cuyahoga County, Ohio, Juvenile Court

is reproduced as Appendix A.

JURISDICTION

the judgment of the Court of Appeals for the Sixth

Circuit was entered on April 23, 1975, and this Petition

for a Writ of Certiorari was filed timely within ninety

(90) days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. §1254 (1).

Code, 52284 (d), are reproduced as Appendix J.

nn n

Basis of Federal Jurisdiction

- Petitioner, pursuant to Title 28, United Ststes Code,

6 — Be sera: fg

United States District Court, Northern District of Ohio,

Eastern Division, challenging his state court convictions

for armed robbery, sodomy and rape. The petitioner prays

this Court to issue a Writ of Certiorari to review the

decision of the United States Court of Appeals, for the

Sixth Circuit, affirming the District Court’s denial of the

petition for writ of habeas corpus.

History of Proceedings ,

On April 13, 1972, petitioner was convicted in the

Court of Common Pleas, County of Cuyahoga, State of

Ohio, for violation of Ohio Revised Code Sections 2901.13,

2905.01, and 2905.44, prohibiting, respectively, armed rob-

bery, rape and sodomy. Petitioner was sentenced to the

Ohio State Reformatory for terms in accordance with the

relevant statutes, all sentences to run concurrently (Docket

entry of May 8, 1972). Ohio Revised Code Sections 2901.13

(armed robbery), 2905.01 (rape) and 2905.44 (sodomy)

provide the following respective sentences: 10-25 years,

3-20 years, and 1-20 years.

The Court of Appeals for Cuyahoga County affirmed

the conviction and sentence, and the Supreme Court of

Ohio dismissed petitioner’s appeal on the ground that it

raised no substantial constitutional question. The peti-

tioner is of tender years and frail physical characteristics.

Because his commitment to a penal institution pending

ultimate reversal of his convictions would have resulted

in irreparable harm, petitioner applied to Mr. Justice Stew-

art for an indefinite stay of execution of sentence pending

the timely filing and determination of a petition for writ

of certiorari. On November 13, 1973, Mr. Justice Stewart

denied petitioner’s application, and pata bien ne eageem

toe sera e eee :

in November, 1973, petitioner filed bus petition for

writ of habeas corpus in the United States District Court,

Northern District of Ohio, Eastern Division. On June 20,

1974, without a hearing, the District Court issued its memo-

randum opinion and order denying the writ of habeas

corpus, and the District Court, on July 8, 1974, denied

petitioner’s application for a certificate of probable cause.

‘Petitioner, on July 3. 1974, filed his “Notice of Ap-

Circuit Court of granted petitioner’s motion for

a certificate of probable’ cause on August 14, 1974. That

court entered its affirming the judgment of the

Statement of Facts

At about 5:30 pm., on July 30, 1971 (Tr. 179), peti-

tioner, a minor fifteet years of age,

rt

i

F

to hit them with a long pipe that he held unless. the

youths accompanied him to the Sunoco gas station at the

top of the path (Tr. 326). 0 . |

‘Upon arriving at the gas station, a second man (Tr.

328), Mr. Ferren (Tr. 174), searched each youth, and forci-

bly seized a pocket knife and several photographs from

Patton (Tr. 175, 327). Though the youths inquired why

they were being detained, no explanation was forthcoming

(Tr. 329).

Ferren called the police (Tr. 168), and two patrolmen

arrived in response to the call (Tr. 169). Upon arrival,

the police found the youths to be nervous and frightened

(Tr. 227-228). The police searched the youths (Tr. 334),

and then transported them to Central Police Station (Tr.

335). After arriving at the station, the patrolmen con-

ferred with two policewomen (Tr. 234), and then placed

the youths in Room 108 of Central Police Station (Tr.

237, 288, 335), where they sat for some time (Tr. 337).

‘ The police telephoned the victim of a rape, sodomy,

and armed robbery that had occurred July 16, 1971 in

the same area where the boys were accosted on July

30, 1971 (Tr. 208, 238). Policewoman Bilinovich told the

victim, Miss Margaret Hill, that the police “had two sus-

pects in custody” (Tr. 137, 208, 238), and asked Miss Hill

to come down to Central Police Station (Tr. 139).

Upon arriving at the police station, Miss Hill first

saw the two patrolmen who had rendered her assistance

two weeks earlier, after the criminal acts had occurred

(Tr. 139). Miss Hill was then met by Policewoman Bilino-

vich (Tr. 289), who told Hill that they had two suspects

in custody, and wanted her to “walk by” and “look at

them” to see “if she could identify them” (Tr. 142, 208,

238, 257).

7

nto Room 108 (Tr. 143, 237, 239, 258). In addition

boys, the only other persons present in the

employees (Tr. 238, 239, 258, 290). Peti-

or counsel present (Tr.

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After conducting this identification in Room 108, both

patrolmen and the two policewomen took Hill and the

petitioner, but not Patton, to the Detective Bureau located

in the Police Station (Tr. 145, 339). The petitioner’s

mother arrived and was also taken to the Detective Bureau

(Tr. 340). The petitioner and his mother were seated

at a long table (Tr. 146, 340). While face to face with

the defendant, Hill recounted the rape, sodomy, and armed

robbery episode that occurred on July 16 (Tr. 261, 340).

After about an hour of being together with the petitioner,

and in the midst of the police in the Detective Bureau,

Hill became “emphatic about her identification of Saler”

(Tr. 262), as one of her assailants (Tr. 55-62).

At trial, when policewoman Bilinovich was asked why

no lineup was arranged, she testified that she was “aware

: ‘The criminal conduct complained of took place be-

itil ben Be 15 p.m. and 5:45 p.m. (Tr. 121), in the area

of the Cleveland flats near the same, previously recited,

(Tr. 55-56). In fear of her life, Margaret Hill was the

victim of rape, sodomy and armed robbery (Tr. 61, 100).

Miss Hill was so emotionally upset (Tr. 212) that she was

uncertain as to what exactly each of her assailants was

saying or doing (Tr. 94, 98, 100, 112, 120). Following the

. — where the treating physician ordered Miss Hill a

males, between 12 and 15 years of age, one was dark-

haired and the other blond-haired (Tr. 113-115, 205, 214-

215).

Even though Miss Hill had been very emotionally up-

set, and unable to give a detailed description of either of

her assailants, she positively identified the assailant in

open court (Tr. 58), and in answer to the court’s question,

stated that such identification was based upon her observa-

tions of July 16th, and not the out-of-court confrontations

of July 30th (Tr. 160). However, the prosecution made no

effort to establish that the in-court identification was inde-

pendent of the pre-trial confrontation.

During the trial Miss Hill testified that the petitioner

was the same height and weight as was her assailant on

July 16, 1971 (Tr. 149). However, the defendant was

three inches taller and almost 40 pounds heavier at the

trial than he was at the time the crimes were committed

(Tr. 554, Exhibits G and H).

* N 1 on - ;

1 *

ay mu ad - ; - .

bs REASONS FOR GRANTING THE WRIT

ij

I

Ai Decent Welw CONbLICts Wit un

DECISIONS OF OTHER COURTS OF APPEALS

AS TO THE INTERPRETATION OF THIS

COURT’S OPINION IN NEIL V. BIGGERS, 409

U.S. 188 (1972).

In Neil v. Biggers, 409 U.S. 188, 198-199 (1972) this

Court stated:

What is less clear from our cases is whether, as inti-

mated by the District Court, unnecessary suggestive-

ness alone requires the exclusion of evidence. While

we are inclined to agree with the courts below that

the police did not exhaust all possibilities in seeking

persons physically comparable to petitioner, we do not

think that the evidence must therefore be excluded.

The purpose of a strict rule barring evidence of un-

necessarily suggestive confrontations would be to

deter the police from using a less reliable procedure

where a more reliable one may be available, not be-

cause in every instance the admission of evidence of

such a confrontation offends due process. Clemons v.

United States, 133 U.S. App. D.C. 27, 408 F.2d 1230,

1251 (1968) (Leventhal, J., concurring); cf. Gilbert v.

California, 388 U.S. 263, 273, 87 S. Ct. 1951, 1957, 18

L. Ed. 2d 1178 (1967); Mapp v. Ohio, 367 U.S. 643, 81

S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Such a rule would

have no place in the present case, since both the con-

frontation and the’ trial preceded Stovall v. Denno,

supra, when we first gave notice that the suggestive-

ness of confrontation procedures was anything other

than a matter to be argued to the jury.”

10

_ The District Court in the instant case properly ruled

that the pre-trial identification procedures were unneces-

sarily suggestive. Appendix H, pp. A29-A30, A34. Fur-

thermore, such procedures and petitioner’s trial (both oc-

curring during 1972) post-dated the decision in Stovall v.

Denno, 388 U. S. 293 (1967). Notwithstanding such findings,

the District Court assessed the unnecessary pre-trial proce-

dures in light of the totality of circumstances to determine

whether the procedures were conducive to a very substan-

tial likelihood of irreparable misidentification. Appendix

H, page A31.

The Appellate Court below held that the decision of

the District Court is in accord with this Court’s ruling in

Neil v. Biggers, supra. Appendix I. Thus, the Court of

Appeals rejected petitioner’s argument to the contrary,

namely, if pre-trial suggestive identification procedures

and the trial of the defendant occur after the date Stovall

was decided, then due process requires the exclusion of

testimony concerning the out-of-court identification:

whether a defendant can prove that, notwithstanding such

procedures, the identification is “reliable” under the total-

ity of circumstances is irrelevant.

The Sixth Circuit’s decision below is in conflict with

the decision on the same matter of the United States Court

of Appeals, for the Fourth Circuit:

“The recent decision of the Supreme Court in

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. 2d

401 (1972), in our view, has no application to this case.

In Neil, the rule was stated that the admissibility of an

identification obtained as a result of a suggestive con-

frontation was to be determined by the likelihood of

misidentification, in short, by its reliability, taking into

account the totality of the circumstances surround-

ing the making of the identification. The Neil rule,

11

2s the opinion makes clear (at 198, 93 S.Ct. 375), ap-

_ plies to pre-Stovall cases since police officers, prosecu-

tors and other law enforcement officers were not them

aware that ‘suggestiveness of confrontation procedures

was anything other than a matter to be argued to the

jury. (at 199, 93 S.Ct. at 382). In contrast, in post-

_ Stovall cases, of which the instant case is one, the rule

to be applied is the Stovall rule, i.e., whether the con-

frontation was so unnecessarily suggestive and con-

ducive to irreparable mistaken identification as to

amount to a denial of due process of law. In post-

Stovall cases, ‘[s]uggestive confrontations are disap-

proved because they increase the likelihood of mis-

identification, and unnecessarily suggestive ones are

condemned for the further reason that the increased

chance of misidentification is gratuitous.’ (at 198, 93

~ S.Ct. at 382). The shift in emphasis from unneces-

sarily suggestive confrontations (post-Stovall cases)

to reliability of identification (pre-Stovall cases) is

explained by the need, once Stovall was decided, ‘to

deter the police from using a less reliable procedure

where a more reliable one may be available.” (At 199,

93 S.Ct. at 382).” Smith v. Coiner, 473 F.2d 877, 882

(4th Cir. 1973), cert. den., 414 US. 1115. n

supplied).

Thus, the Fourth Circuit has decided that in post-

Stovall cases, the occurrence of unnecessarily suggestive

pre-trial identification procedures compels the exclusion

of testimony concerning the out-of-court identification.”

416 ös 958, the Fourth Neuen e a

2 Was

e e eee

— — crores”) ahd, there Coiner, — 2

was not to be excluded, from

12

The foregoing decision of the Fourth Circuit also is

in conflict with the decision of the Circuit Court of Appeals

for the Seventh Circuit. That court, in United States ex rel.

Kirby v. Sturges, 510 F.2d 397 (7th Cir. 1975), cert. den.,

— US. — as did the appellate court below, con-

cluded that the Neil test of reliability was the applicable

constitutional standard notwithstanding that unnecessarily

suggestive pre-trial identification procedures were con-

ducted subsequent to this Court’s decision in Stovall. The

Seventh Circuit reached such decision notwithstanding its

conclusion that the arguments in favor of an exclusionary

rule, which would deter the police from conducting a show-

up when a line-up is feasible, carry substantial force:

The reliability of the trial process “in its search for

truth” would be enhanced; the danger of convicting the in-

nocent and the serious risk of a miscarriage of justice

would be minimized; the burden of judicial review of the

particular circumstances of each of the multitude of cases

in which eyewitness identifications are challenged may be

lessened significantly; and the room left for considerable

judicial disagreement aue to the somewhat illusive stan-

dards for determining when an identification is sufficiently

reliable would be greatly diminished. United States ex rel.

Kirby v. Sturges, supra, 510 F.2d at 405-406.

The finder of fact at trial is apt to reach different

verdicts depending on whether the Neil or Stovall rule is

applicable to a given case. For application of the Stovall

rule requires consideration of the totality of circum-

stances surrounding only the pre-trial, out-of-court con-

frontation procedures, and a determination of whether

such procedures are unnecessarily suggestive. Considera-

tion of the circumstances surrounding the identification

of the witness at the time the criminal conduct occurred,

and a determination of the reliability of the identification,

13

though relevant under the Neil rule, are irrelevant under

e ag egg Smith v. Coiner, supra.

‘the ‘exclusion of testimony concerning

the out-of-court identification requires the exclusion of

testimony of an in-court identification unless the state

proves by clear and convincing evidence that such in-court

testimony is of a source independent of the unlawful pre-

trial procedures. See, e.g., United States ex rel, Thomas v.

New Jersey, 472 F.2d 735, 739 (3rd Cir. 1973), cert. den,

414 US. 878.

Thus, under the Neil rule the defendant is required to

prove that the pre-trial procedures were conducive to an

unreliable identification, notwithstanding the suggestive

pre-trial procedures. However, under the Stovall rule the

burden is on the state to prove by clear and convincing

evidence that the in-court identification was of a source

independent of the pre-trial procedures; and, “where the

burden of proof lies may be decisive of the outcome.”

Speiser v. Randall, 357 U.S. 513, 525 (1958).

The granting of the writ of certiorari would enable

this Court to settle the direct conflict that has developed

over a most troublesome question in the administration of

justice, and to ensure that a defendant receives equal

justice through application of the same standards of con-

stitutional law regardless of his place of trial. Title 28

US. C., Rules of the Supreme Court of the United States,

Rule 19 (1). See, e.g., Linkletter v. Walker, 381 US. 618,

620 (1965); Commissioner v. Bilder, 369 US. 499, 501

(1962); United States v. Calamaro, 354 U.S. 351, 354 (1957).

accordance with this Court’s decisions in United States v.

Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 US.

263 (1967); and Kirby v. Illinois, 406 US. 682 (1972), the

petitioner was denied his right to counsel at the pre-trial

identification procedures.

In United States v. Wade, 388 U.S. 218, 240 (1967), this

the courtroom identification is of an independent source.

The Court then held in Gilbert v. California, 388 U.S. 263,

273 (1967), that testimony at trial of the illegal out-of-

court confrontation is per se inadmissible, and the state

is not entitled to prove that such testimony has an inde-

pendent source.

Following its decision in Gilbert, the Court concluded

that the right to counsel attaches only at the time that

judicial adversary proceedings have been initiated. Kirby

v. IIlinois, 406 US. 682 (1972). Although the plurality

decision in Kirby refers to the initiation of “judicial” pro-

ceedings, this court further noted that it is the commence-

ment of the adversary process that gives rise to the right

to counsel:

“The initiation of judicial criminal proceedings is far

from a mere formalism. It is the starting point of our

whole system of adversary criminal justice. For it

is only then that the government has committed itself

been initiated. Id. at 690. The decision does not appear

to encompass or limit specifically the Court’s holding in

Wade. For Wade is designed to insure the reliability of

identifications; the per se Gilbert rule is designed to con-

trol police conduct without regard to the reliability of

identifications. See, People v. Hallaway, 389 Mich. 265

(1973); People v. Anderson, 389 Mich. 155 (1973).

Petitioner urges this Court to settle and clarify the

answers to the questions of federal law left unsettled by

its decision in Kirby v. Illinois, supra, namely, the nature

of the criminal adversary process to which a defendant’s

constitutional right to counsel attaches; and the mitation,

if any, that the decision in Kirby places upon the right to

counsel as set forth in the Court’s holding in Wade. Title

28 U.S.C., Rules of the Supreme Court of the United States,

Rule 19(1). See, e.g., Federal Trade Commission v. Trav-

elers Health Association, 362 U.S. 293, 297 (1960); Securi-

ties and Exchange Commission v. United Benefit Life In-

surance Company, 387 U.S. 202, 207 (1967).

Such questions are directly presented in the instant

case. The police arrested the defendant and obtained a

positive identification from the victim-witness that the

police had the right boy. However, the police proceeded

to subject the petitioner to a-further face-to-face confron-

tation for one hour with the victim-witness, and had the

victim relive the criminal conduct and reinforce her iden-

tification. The instant pre-trial procedures were a police

effort to insure successful prosecution; not one of mere

investigation. The adverse positions of the state and boy

solidified, and the petitioner was entitled to the presence

of counsel at the time the police determined to proceed

with the hour-long ordeal. Moreover, the failure of the

state to prove that the in-court identification was of a

source independent of the pre-trial confrontation rendered

the receipt into evidence of the in-court identification a

violation of due process.

THE DECISIONS BELOW CONFLICT IN PRINCIPLE

WITH APPLICABLE DECISIONS OF THIS

COURT.

To prevent gross miscarriages of justice, this Court

has granted review where the federal court below has de-

cided substantial due process questions “in a way in con-

flict with applicable decisions of this Court.” ‘Title 28

U.S. C., Rules of the Supreme Court of the United States,

17

Rule 19(1); Crooker v. California; 357 US. 433, 434

(1958); Thompson v. Louisville, 362 U.S. 199, 203 (1960);

Upshaw v, United States, 335 US. 410 (1948); Wilkinson

1 |

The court below misapplied applicable de-

cisions of this Court to the instant case in failing to grant

the petitioner an evidentiary hearing and in concluding

that ‘the’ identification testimony was reliable.

A. ‘The Decision Below Conflicts in Principle With

the Court’s Decision in Townsend v. Sain, 372

In affirming the District Court's denial of the writ for

habeas corpus, the Court of Appeals below rejected peti-

tioner’s contentions that an evidentiary hearing was com-

pelled in the habeas proceeding, although the court did not

specifically address itself to such contentions. In Town-

send v. Sain, 372 U.S. 293 (1963) the Court held that if it

is unclear whether the state trial court applied the correct

constitutional standards in disposing of a defendant's

claims, an evidentiary hearing is compelled. For, under

such circumstances the federal district court cannot ascer-

tain whether the state court found the law or the facts

cision of the state trial court may rest upon an error of

ae.

is compelled. «

Tow state tal Get MAE Gal Rh teatend teerert

identification’ was “independent” of the suggestive con-

frontation (Tr. 729-730). However, the transcript of pro-

ceedings had in the state trial court fails to indicate

dard of federal law, to-wit:. Whether the state proved by

clear and convincing evidence the independence of the

18

in- court identification. Thus, an evidentiary hearing is

compelled. i

Furthermore, the decision of the state trial court pre-

dated this Court’s decisions in Kirby v. Illinois, 406 U.S.

682 (1972) and Neil v. Biggers, 409 U.S. 188 (1972). At

F ˙ Oe ee See oe

Qhio criminal proceeding had the right to the of

counsel at a pre-trial confrontation whether or not such

confrontation preceded formal judicial proceedings. See,

e.g, State v. Lathan, 30 Ohio St. 2d 92, 282 N.E.2d 574

(1072).

Thus, in concluding that the in- court testimony was

“independent” of the pre-trial procedures (Tr. 730), the

state trial court may have limited its conclusion solely to

the issue of petitioner’s right to counsel. Therefore, re-

gardless of the test applicable to determine the admissibility

of in-court identification testimony, the state trial court

may have never ruled upon petitioner’s claims of violations

of due process grounded upon the unnecessarily suggestive

pre-trial procedures. See Cooper v. Picard, 428 F.2d 1351,

n.2 (ist Cir. 1970); United States ex rel. Trignani v. Rus-

sell, 405 F.2d 1119 (3rd Cir. 1968).

Petitioner is entitled to an evidentiary hearing on the

issue of whether the state trial court erred in receiving

into evidence the in-court identification testimony—the

only evidence legally sufficient to connect the petitioner

to the crimes charged. Appendix H, pp. A21-A22.

B. The Decision Below Conflicts in Principle With

the Court's Decision in Neil v. Biggers, 409 U.S.

188 (1972).

Even assuming, although petitioner denies, that the

admissibility of the in-court identification evidence is to

be assessed in terms of the “reliability” of such identifica-

tion, ante, p. 9, the Court of Appeals below erroneously

- affirmed the District Court’s conclusion that the identifica-

tion was reliable.

The decisions of the Court of Appeals for the Sixth and

Seventh Circuits are in direct conflict with the decisions

of the Fourth Circuit as to the interpretation of this

Court’s decisions in Stovall v. Denno, 388 U.S. 293 (1967)

and Neil v. Biggers, 409 US. 188 (1972). Uniform appli-

cation of constitutionally compelled standards of due pro-

cess of law is necessary to prevent inequality of justice

based upon the situs of the courthouse. The appellate

court below also has decided that an accused is not entitled

to the assistance of counsel with the onset of the adversary

criminal process but before the commencement of any

formal judicial proceeding: an important issue which has

not been but should be settled by this Court. Furthermore,

in conflict with principles established by this Court, the

appellate court below wrongfully denied petitioner an evi-

dentiary hearing and concluded that evidence essential to

the state’s case was properly received into evidence.

For the foregoing reasons, petitioner prays this Court

to issue the writ of certiorari.

Respectfully submitted,

Beawarp A. BerkMAN

Hancto L. Levey

Counsel for Petitioner

Al

APPENDIX A

Journal Entry of the Cuyahoga County Juvenile Court

(Dated December 7, 1971)

No. 273060

THE JUVENILE COURT OF CUYAHOGA COUNTY

State of Ohio, County of Cuyahoga

IN THE MATTER OF JAMES SALER, Delinquent Child

This cause ame on for hearing this seventh day of

December, 1971, before the Honorable John J. Toner upon

the complaint of Margaret Hill alleging that James Saler

a child about the age of fifteen years is a delinquent child

in this: That on or about July 16th 1971 about 5:00 P.M.

he did unlawfully with another now unknown in the gen-

eral vicinity of the rear of Jim’s Steak House, at the East

end of the Detroit Superior Bridge, Cleveland, Ohio, did

forcibly with a knife and against her will commit rape

upon the person of one Margaret Hill, a female person,

age 19 years, in violation of Section 2905.01, of the O.R.C.

(2) That on or about July 16th 1971 about 5:00 P.M. with

another now unknown, in the general vicinity of the East

end of the Detroit Superior Bridge in the rear of Jim’s

Steak House, Cleveland, Ohio, with a knife force carnal

copulation against nature with a certain female person age

19 years, to wit: one Margaret Hill, in an opening of the

body of the said Margaret Hill other than sexual parts, in

violation of Section 2905.44 of the ORC. (3) That on

or about July 16th, 1971 about 5:00 PM. with another

now unknown, in the general vicinity of the East end of

person, age 19 years, cash in the amount of $90.00 or

$100.00, the personal property of the said Margaret Hill,

in violation of Sevtion 2901.241 of the O.R.C. On Novem-

ber 5, 1971 notice in writing having been given to the

child’s mother at least three days prior to hearing on No-

vember 5, 1971 and after such hearing the Court finds that

there was probable cause to believe that the child com-

mitted the act alleged, which act constitutes a felony if

committed by an adult. The Court further finds that the

child was fifteen years of age at the time of the conduct

charged. The Court further finds after full investigation,

including a mental and physical examination of such child

made by the psychiatric clinic of the Court that there are

reasonable grounds to believe that the child is not com-

mitable to an institution for the mentally retarded or men-

tally ill; that he is not amendable to care or rehabilitation

in any facility designed for the care, supervision, and re-

habilitation of delinquent children; and that the safety of

the community requires that he be placed under legal re-

straint including, if necessary, for the period extending

beyond his majority. IT IS THEREFORE ORDERED,

ADJUDGED AND DECREED that under the provisions of

Section 2151.26 Ohio Revised Code, said child, James Saler,

is bound over for further proceedings according to law.

It is further ordered that said child be remanded to County

Jail pending furnishing a One Thousand Dollars cash or

surety or Two Thousand Dollars real estate appearance

bond. Whereupon James Saler furnished bond in the

amount of One Thousand Dollars surety with Allegheny

Mutual Insurance Company, by Chuck Harden, 1601 East

21st Street, Cleveland, Ohio, Attorney-in-Fact, sureties

i mmm

7

1

A3

conditioned for child’s appearance before the Common

Pleas Court of Cuyahoga County, which said bond is ap-

proved by the Court.

/s/ Jom J. Toner

Judge

APPENDIX B

Opinion of the Court of Common Pleas

(From Transcript of Proceedings, April 13, 1972)

No. CR-2552

IN THE COURT OF COMMON PLEAS

State of Ohio, Cuyahoga County

STATE OF OHIO,

Plaintiff,

vs.

JAMES SALER,

Defendant.

[729] The Court: The Court has heard the evidence

in this particular case, and in a unique situation such

as this sits in a dual capacity both as the trier of the

facts and as the trier of the law.

Although no formal motion was made and without

attempting to weigh the evidence, one of the questions

of law this Court was required to rule on in determining

this case was the suggested identification of the Defendant.

A

The question was: War mes tainted so'as to preciide

any iti-court Wentifiestion?

In this case the Court is not overly fond of the con-

frontation method used by the police in their desire to

either implicate or let go, and it therefore becomes my

duty to determine and look behind the confrontation to

the circumstances that the witness had in identifying the

individuals who perpetrated this alleged assault upon her.

In weighing the testimony, the Court finds that the

witness testified and the Court so finds that the alleged

assault took [730] approximately a half hour, that it hap-

pened around 5:15 or 5:30 in the evening, that it was

daylight, in July.

The Court will take judicial notice of the fact that

it is bright at that time.

That the person or persons who perpetrated this as-

sault or alleged assault were less than—she testified at

least a foot from her for a period of time, about a half

hour.

The Court finds that the witness had an ample oppor-

tunity to observe the people who perpetrated this par-

ticular act on her and finds beyond a reasonable question

that Miss Hill had a great opportunity to identify the

perpetrator of the crime, and that, therefore, the in-court

identification is not tainted by the confrontation, that the

identification was independent of the confrontation caused

by the police department.

In weighing now the facts of this particular case and

sitting as a jury in this particular case, the Court, of

course, realizes, as a jury would that the burden of proof

is on the State of Ohio to prove its case beyond a reason-

able doubt, and that the Court is [731] required to weigh

that reasonable doubt in favor of the Defendant.

AS

The Court must, as the trier of the facts, weigh the

testimony of the witnesses who have testified here in this

case.

The Court realizes that the burden of proof is on

the State of Ohio to ‘establish each and every one of the

elements of the crime of rape, sodomy snd shacet sotmety-

I think it is well established that no corroboration

is necessary in establishing a rape. The testimony of Mar-

geret Hill was sufficient in and of ‘itself ‘to establish the

elements of rape.

Dr. Eisenstadt, however, did corroborate to a certain

abrasion of the temple, and a his testimony [732] was

that there was some prior sexual activity. He could tell

by the examination that he conducted.

The Court is mindful of 1.17 of our section of our

Code which is referred to as the aider and abettor section

„FEE hae bien: CAI Gunna: ihe

in his behalf, and that alibi is not a defense and no burden

of proof is placed upon the Defendant to establish an

alibi, but rather the burden is on the State of Ohio to

prove its case by evidence beyond a reasonable doubt.

The Court would also like to point out that certain

witnesses testified here this morning, Mr. John Douglas

and Miss Rosezita Chromek, and these witnesses were

permitted only to rebut the evidence given by the Defen-

dant himself and were limited solely, in this Court’s mind

anyway, to the evidence given by the Defendant that he

had only been down to this section of the flats on the

day of arrest, that of July 30, 1971, and as he testified

some five months before.

[734] In weighing all the testimony, that of Margaret

Rill, defense witnesses, and the limited purpose of the

rebuttal evidence, the Court can come to but one conclu-

sion, and the Court finds that the State has established

its case by proof beyond a reasonable doubt and will

find the Defendant guilty of the crimes charged. |

4

A7

The Court, before passing sentence on this matter,

must remand James Saler and order an investigation per

Revised Code Section 2947.25, and when that investigation

is completed, the Court will pass judgment at that time.

APPENDIX C

Opinion and Journal Entry of the Court of Appeals

(Dated April 19, 1973)

No. 31942

COURT OF APPEALS OF OHIO

E1icutu Districr, Country

or CUYAHOGA

STATE OF OHIO,

Plaintiff-Appellee

vs

JAMES SALER, a minor

Defendant-Appellant

JOURNAL ENTRY

This cause came on to be heard upon the pleadings

and the transcript of the evidence and the record in the

Common Pleas Court, and was argued by counsel for the

parties; and upon consideration, the court finds no error

prejudicial to the appellant and therefore the judgment

of the Common Pleas Court is affirmed. Each assignment

of error was reviewed and upon review the following

disposition made:

As

The defendant-appellant was convicted of rape

(R.C. 2905.01), sodomy (R.C. 2905.44), and armed robbery

(R.C. 2901.241) at a trial before a judge in Common Pleas

Court, a jury trial having been waived.

On appeal the appellant assigns five errors:

1. The Court of Common Pleas erred in its verdict

in view of the Defendant being subjected to an

out-of-court identification without the benefit of

counsel being present, in violation of due process.

2. The Court of Common Pleas erred in its verdict

in view of the Defendant being subjected to an

out-of-court identification on a single basis and not

as part of a lineup, in violation of due process.

3. The Court of Common Pleas erred in its verdict

in that the State did not establish its case beyond

a reasonable doubt.

4. The Court of Common Pleas erred in the method

used to examine a witness, constituting an abuse

of discretion.

5. For other errors apparent on the face of the record.

We find none of the assignments of error to be with

merit.

Assignments 1-2

During the trial, the following facts regarding the

out-of-court identification of the defendant were testified

to:

Shortly after she had been raped and robbed the prose-

cutrix told the police her assailants were two white boys

around age 15, one with dark hair and the other with

lighter hair, without other distinguishing characteristics.

A9

Two weeks after the rape the prosecutrix was called

to the police station and taken into a room by s police-

light hair and the other with dark hair. Upon being asked

if she recognized anyone, she responded immediately by

identifying decisively the defendant as one of her assailants

but she did not recognize the other boy.

The defendant’s mother was then called to the police

station and in another room in the presence of the defen-

dant, the defendant’s mother and a policewoman, the prose-

cutrix again identified the defendant as one of her as-

sailants.

All of the above events took place before the defen-

dant’s indictment and without counsel present.

The defendant contends that the out-of-court identifi-

cation procedure in this case violated due process of law

because the identification was on a single basis and his

lawyer was not present, and therefore all testimony con-

cerning the confrontations should have been excluded at

the trial.

The defendant's contention is not well taken.

The Ohio Courts and the United States Supreme Court

uave never required the presence of counsel at a pre-

indictment identification procedure. The exclusionary rule

of United States v. Wade (1967), 388 US. 218, and Gil-

bert v. California (1967), 388 U.S. 263, applies only to

post-indictment pretrial lineups in absence of counsel.’

Nor has a one-on-one confrontation been held to be

office next to another boy whom she did not recognize.

Further, though the out-of-court identification was re-

ferred to by the prosecutor in his opening remarks to

the court, no objection was then made by the defendant

and it was the defendant who first introduced testimony

at the trial concerning the identification.

Testimony was elicited at the trial to support the

finding of guilty beyond a reasonable doubt on each of

the charges either as a principal or a principal by aiding

and abetting.

committed upon her and her money was taken.

All

_ The defendant attempted to establish an alibi through

witnesses all of whom were either related to him or close

friends of the family. The trier of facts may accept all,

part, or none of what a witness testifies to. We are not

permitted to invade the province of the trier of facts.

Assignment 4

At the conclusion of the prosecutrix’s testimony, the

following colloquy took place between the court and the

The Court: I just have one question or a few

questions of you.

Your identification in this courtroom, is it based upon

your observations at the police station, or is it based

upon your observations as to what occurred on July

16, 1971?

che Witness: What occurred on July 16th.

The Court: How long were you with these in-

dividuals on July 16, 1971?

The Witness: About a half an hour.

The Court: What were the lighting conditions

at that time?

The Witness: It was very light out.

The Court: What time of the day or night was

it?

The Witness: About quarter after 5:00 until

quarter to 6: 00.

The Court: You say very light. Do you mean

that the sun was still out?

The Witness: Yes.

ee —

—

Al2

The Court: And how dose were youl to ‘these

individuals?

The Witness: About a foot away.

The Court: For the entire half hour?

The Witness: Yes.

The questions put to the witness by the court and

the answers elicited were admissible under the law.

No other errors apparent on the face of the record,

the judgment of the trial court is affirmed.

It is ordered that appellee recover of appellant its

costs herein taxed.

The Court finds there were reasonable grounds for this

appeal.

It is ordered that a special mandate issue out of this

court directing the Common Pleas Court to carry this

judgment into execution.

A certified copy of this entry shall constitute the man-

date pursuant to Rule 27 of the Rules of Appellate Proce-

dure. Exceptions.

/s/ Jom M. Manos

Presiding Judge

Manos, C.J., Jackson, J., Comnican, J., Concur.

— — — ——— ——— — — ⏑ 0

Al4

APPENDIX E

Orders of Supreme Court of Ohie Denying

Leave to Appeal |

(September 20, 1973)

No. 73-579

THE SUPREME COURT OF THE STATE OF OHIO

Tux Stare or Ono, Crry or CoLumsBus.

—

Appellee,

Vs.

JAMES SALER, a Minor,

Appellant.

APPEAL FROM THE COURT OF APPEALS

FOR CUYAHOGA COUNTY

This cause, here on appeal as of right from the Court

of Appeals for Cuyahoga County, was heard in the manner

prescribed by law, and, no motion to dismiss such appeal

having been filed, the Court sua sponte dismisses the ap-

peal for the reason that no substantial constitutional ques-

tion exists herein.

(Caption as above)

It is ordered by the Court that this motion is overruled.

Als

— A

for Reconsideration

(Dated October 18, 1973)

No. 73-579

THE SUPREME COURT OF THE STATE OF OHIO

Tue State or Omo, Crry or Col unmus.

THE STATE OF OHIO,

Appellee,

Vs.

JAMES SALER,

Appellant.

REHEARING

It is ordered by the court that rehearing in this case

is denied.

_ _ OO es

Al

APPENDIX G

Order of the United States Supreme Court Decaying

(November 13, 1973)

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

Washington, D. C. 20543

November 13, 1973

Bernard A. Berkman, Esquire

Berkman, Gordon & Kancelbaum

2121 The Illuminating Building

Cleveland, Ohio 44113

Re: James Saler, a minor v. Ohio, A-474

Dear Mr. Berkman:

Your application for stay in the above-entitled case

was presented to Mr. Justice Stewart, who has endorsed

thereon the following:

“Application denied.

November 13, 1973

Potter Stewart”

lab

cc: John T. Corrigan, Prosecuting Attorney

Atten: Robert R. Feighan, Asst. Pros. Att.

of Cuyahoga County, Ohio

1560 East 21st Street

Cleveland, Ohio

No. C 73-1230

UNITED STATES DISTRICT COURT

NorrHErn District or Onto

Tara Drvistron

JAMES SALER, a minor,

; I etitio ner,

V.

RALPH KRIEGER, et al.,

Respondents.

MEMORANDUM OPINION AND ORDER

Barrier, CJ.

This is a petition for a writ of habeas corpus. The

petitioner, James Saler, is only eighteen years old. He

submits that he was convicted of crimes in violation of

basic constitutional rights. He advances, in his petition,

three closely interrelated contentions relating to in-court

and pre-trial identifications of him, made by a rape victim.

They are:

() “The totality of circumstances surrounding

the out-of-court confrontation was suggestive of a sub-

stantial likelihood of irreparable misidentification.”

(2) “The out-of-court, one-on-one confrontation,

conducted without any necessity for avoiding the cus-

F . ⁵Äa0̃ é . · NVA =

Als

tomary line-up procedure with the presence of counsel,

is an unnecessarily suggestive process and a per se

violation of due process.”

tioner’s Sixth Amendment rights in that it was con-

ducted in the absence of counsel.”

L

Petitioner was indicted for the crimes of armed rob-

bery, rape, and sodomy, in violation of Sections 2901.13,

2905.01, and 2905.44 respectively of the Ohio Revised Code.

After a bench trial, beginning on April 7, 1972, he was

found guilty of each of the charges in the indictment,

and sentenced to the Ohio State Reformatory for an inde-

terminate period according to law on each count, the sen-

tences to run concurrently.

The Court of Appeals for Cuyahoga County affirmed

the conviction and sentence, and the Supreme Court of

Ohio dismissed petitioner’s appeal on the ground that it

raised no substantia! constitutional question. On Novem-

ber 13, 1973, Mr. Justice Stewart denied petitioner's appli-

cation for an indefinite stay of execution of sentence pend-

ing the timely filing and determination of a petition for

writ of certiorari. Thereafter, no such petition was filed.

On December 4, 1973, this Court, upon agreement of

the respondent, granted petitioner’s application for bail

pending determination of his habeas corpus petition.

At trial, the victim testified to the circumstances of

the crimes, and positively identified petitioner as one of

her assailants. This was done as part of the State’s direct

case. No objection was made to this identification, nor

were there any pre-trial motions to suppress the identifica-

tion. Instead, petitioner’s counsel elicited on cross-exam-

Alꝰ

identifications of petitioner made by the victim.

Two police officers ers subsequently came to the witness

stand. Both testified extensively as to the pre-trial con-

frontations. The petitioner and his mother also presented

their respective views of these events as part of the de-

fense’s case.

Although never formally asked,’ the state trial judge,

who was sitting in the dual capacity of finder of fact

go,” and that, accordingly, it was his “duty to determine

and look behind the confrontation to the circumstances

that the witness had in identifying the individuals who

of Appeals dealt, in essence, with the three contentions

violation uf petitioner’s constitutional right to counsel. Re-

as recognized in United States v. Wade, 388 U.S. 218 (1967)

and Gilbert v. California, 388 U.S. 263 (1967) to pre-

trial identifications made at or after the time that ad-

The record here fully confirms the Court of Appeal's

holding on this issue. There is no dispute that petitioner

was without counsel at the time of the pre-trial identifica-

tions. It is clear, however, that these identifications took

place almost immediately after petitioner’s arrest, and be-

fore any formal charges were made against him. Accord-

ingly, there is no merit to petitioner’s third contention.

See also Hastings v. Cardwell, 480 F.2d 1202 (6th Cir.

1973).

The Court of Appeals also concluded, citing Stovall

v. Denno, 388 US. 293 (1967), that the confrontations

were not either unnecessarily suggestive or conducive to

irreparable mistaken identification. The Court recognized

that petitioner was subjected to what was in essence, a

one-on-one confrontation with the victim. At the same

time, it was concluded in view of “the totality of the

surrounding circumstances” that the confrontation was not

such as to undermine the essential reliability of the eye-

witness identifications, or require exclusion of such testi-

mony at trial.

II.

As indicated previously, the victim did not, as part

of her direct examination, allude to her pre- trial identifica-

tions of petitioner. The prosecutor, however, referred to

them in his opening statement (Tr. 25), and the direct

testimony of one of the police officers included corrobora-

tion of these identifications. No objections were ever en-

tered, however, either to the prosecutor’s remarks, or the

police officer’s testimony. Petitioner’s counsel, to the con-

committed in permitting the victim’s in-court identifica-

tion of petitioner.

The State’s case did not rest solely on the victim’s

in-court identification. Circumstantial evidence was ad-

duced linking petitioner to the crimes. William Patton,

petitioner’ companion at the time of his arrest, testified,

in addition, that petitioner had told him, approximately

one week after the crimes were committed, that he had

had “sex with some girl in the flats and had taken some

money from her.” (Tr. 191-192). There is no doubt, how-

ever, that the crucial evidence offered by the State con-

2. In his “Traverse and Memorandum,” filed 22

F bs

identification evidence requires the issuance of a writ.

argument is not made that any consideration which the state

to the evidence of the pre-trial identifications

testimony was tainted by unlawful identification proce-

dures, the error in not suppressing it could not be viewed

as harmless. |

The material basic facts, as adduced at the state court

trial, may be summarized as follows. On July 16, 1971

the victim, aged ninetzen and a high school graduate was

employed as a receptionist for a company located in the

Leader Building at Sixth and Superior Street, in downtown

Cleveland. According to her testimony at trial she left

work on that day at approximately 4:45 pm. and did

some quick shopping. The weather was clear, bright, and

warm.

She arrived at the east end of the Detroit-Superior

Bridge at about 5:15 p.m. She proceeded down a concrete

path that winds to an area commonly known as the “flats.”

While walking down the path, she noticed a boy behind

her, but continued on her way. A few seconds later,

an arm was around her neck, and a knife was at her

throat. Another boy was standing nearby with a broken

bottle in his hand. The victim said: I it’s money you

want you can have it.” (Tr. 60) The response from one

of the two boys was: “That’s not what we want.” (Tr.

60).

tioner as the boy who committed only the rape.

Thereafter, according to the victim's testimony, the

boys got up, took approximately eighty dollars from the

victim's purse, and told her to stay at the spot for ten

minutes or “we will kill you.” (Tr. 61) The boys then

fled. The assault took approximately fifteen minutes to

A23

ane-half hour, and occurred around 5:15 p.m. or 5:30 p.m.

in broad daylight. The juvenile assailants wore no masks,

„

The victim did not wait ten minut:s, but got dressed

and started back up the path. She came across a man

proceeding down the path, and asked for help. This man

unidentified at trial, took her down to a restaurant in

the “flats” called “Diamond Jim's,” where the police were

The record is not clear as to the exact sequence of

(Tr. 214-215)

3. This is s0 because the police officers who testi-

— * to 7 with the titer ‘Conant

they entirely from memory

On July 30, 1971, at approximately 5:40 pm., Miss

Rosezita Chromak came running up the same path, out

of breath and apprehensive. Miss Chromak, a secretary

working for the Republic Steel Corporation, used the path

regularly to get to and from work. She was aware of

the incident of July 16, and had been warned to watch

out for two boys, one dark haired, and the other light

haired.

As she testified,‘ she first perceived two boys on the

path matching the description previously given her on

July 29 at approximately 5:40 pm. Thinking that these

boys might be the two assailants, she backtracked up the

path to await others. Four or five people arrived, and

behind her. She noticed the boys following her, and solic-

ited the aid of a man to chase them away.

Upon reaching the top of the path on July 30, Miss

Chromak approached two people from her company who

were standing by the gas station near the entrance to

the path. She asked them if she could walk down the

path with them as she was “deathly afraid to go down by

myself because of two boys down there.” (Tr. 654) She

had again seen the same two boys on the path.

Miss Chromak’s remarks were either partially di-

rected at or overheard by Mr. Andrew Farren, one of the

gas station attendants who had previously been asked by

the police to keep his eye out for the boys. Subsequently,

Mr. Farren’s brother, the other attendant, went down the

path and returned with petitioner and a companion, Wil-

liam Patton, in his custody.’ The boys were placed in the

gas station, and the police were called. A knife described

to be of “fairly decent” size (Tr. 180) was taken from

Patton by Mr. Farren.*

The police officers who responded to Mr. Farren’s call

were the same two who had initially investigated the inci-

dent of July 16. They conferred briefly with Mr. Farren,

arrested the boys, and conveyed them to Central Police

6. Miss Chromak was not able positively to iden peti-

St Seah. Set Os A See So. oo, Se (Tr.

nnen

ant’s Office” (Tr. 237). It was large, with an open arch-

way as anentrance. (Tr. 253) It was used as headquarters

for the Third District police, as an information center,

and for juvenile bookings. It was filled with desks, chairs,

and a counter; and had a sitting area.

The two police officers then conferred with two police-

women who had participated in the investigations under-

taken on July 16, and who had been summoned to assis‘

that evening.

The police proceeded to notify the victim and the

parents of the two boys by telephone. Although it is not

entirely clear from the record, it appears that one of the

policewomen, Officer Bilinovich, called the victim. As the

victim testified, she was told that the police had picked up

“two suspects,” and was asked to come down to the station

(Tr. 137). This was the first contact she had had with the

police since July 16.

The victim arrived at Central Police Headquarters at

approximately 8:00 p.m. (Tr. 139, 289), and before the

parents. She met the policemen who aided her on July

16, and the policewomen. She was told to walk into room

108 and see if she could recognize anyone (Tr. 140-143). It

is not clear whether she was told anything else by the

police. Both officers Bilinovich and Roche testified that

nothing else was said. (See e.g. Tr. 208, 258-59) Yet the

victim herself testified that she had been informed prior to

viewing the boys, probably by policewoman Bilinovich,

of the circumstances of the boy’s arrest (Tr. 158-59)

The victim entered the room in the company of the

police officers. She positively identified petitioner as her

dark haired assailant (See Tr. 143, 240, 258), but was

unable to identify with certainty William Patton (Tr. 144).

longer than ten minutes. (Tr. 338)

Thereafter, the scene shifted to the Detective’s Bu-

reau on the third floor of the police station. Petitioner was

placed at one end of a long table beside his mother who

had finally arrived. The victim was seated at the other

end of the table, next to Officer Bilinovich, facing pe-

titioner and his mother. Others in the room included sev-

eral police officers. William Patton and his parents may

also have been present (Tr. 243), but it appears that they

were not (Tr. 147-260, 340, 476).

At this confrontation, petitioner was given Miranda

warnings in the presence of his mother and the victim.

(Tr. 242, 260). At the prompting of the police, the victim

related to petitioner and his mother the nature of the

crimes, and accused petitioner to his face of being one of

the assailants. (Tr. 147). Petitioner denied any involve-

ment (Tr. 240), but the victim never waivered in her cer-

tainty (Tr. 294). This second confrontation lasted ap-

proximately one hour. (Tr. 262). At its conclusion, ac-

cording to the testimony of officer Bilinovich, the victim

was “emphatic” about her identification. (Tr. 262) Peti-

tioner was detained as a consequence.

9. butt e the n ine ean, warnings were given

petitioner but it was the first time it was done in presence of

III.

The test to be applied in passing on whether the ad-

mission of the victim’s in- court identification amounted

to a denial of due process may best be seen as two-pronged.

As was said by Judge Friendly in United States ex rel.

Phipps v. Follette, 428 F.2d 912 (2nd Cir.), cert denied 400

US. 908 (1970) at 914-15:

“The first question is whether the initial identification

procedure was ‘unnecessarily’ . . . or ‘impermissibly’

. . . Suggestive. If it is found to have been so, the

court must then proceed to the question whether the

procedure found to have been ‘unnecessarily’ or ‘im-

permissibly’ suggestive was so ‘conducive to irrepar-

able mistaken identification . . or had such a ten-

dency’ to give use to a very substantial likelihood of

misidentification . . that allowing the witness to

make an in-court identification would be a denial of

due process.” See also United States ex rel. Bisordi

v. LaVallee, 461 F.2d 1020 (2nd Cir. 1972).

Respondent argues that the pre-trial identification pro-

cedures here involved may not be viewed as “show-ups.”

It is emphasized that the victim was shown two boys and

not just one, particularly during the first encounter. This

argument is specious. The victim was presented at the

police station with two “suspects,” each matching the de-

scription of only one of her assailants. Her viewing of the

boys may not be categorized as being similar to that of a

“lineup” procedure, where she would have been required

to select from a group of persons of substantially similar

appearance. The victim obviously v.2ewed each of the boys

separately and distinctly. Accordingly, what took place

here was in the nature of a “show-up,” wherein a “witness

is presented with an individual and asked if he can make

A29

an identification,” United States ex rel. Raymond v. Illi-

nois, 455 F.2d 62, 63 n.1 (7th Cir.), cert. denied 409 U.S.

885 (1972).

One man “show-ups” have been harshly criticized by

the courts. See e.g. Stovall v. Denno, supra, at 302. At the

same time, there is no per se rule declaring them violative

of due process or requiring exclusion of testimony relating

to them. See Neils v. Biggers, 409 U.S. 188, 198 (1972)

(“But as Stovall makes clear, the admission of evidence

of a show-up without more does not violate due process.“);

See also Stidham v. Wingo, 482 F.2d 817 (6th Cir. 1973);

Hastings v. Cardwell, supra; Stanley v. Cox, 486 F.2d 48

(4th Cir. 1973); Roper v. Beto, 454 F.2d 499 (5th Cir.)

cert denied 406 U.S. 948 (1972) (O’Sullivan J.). As was

said in United States v. Davis, 407 F.2d 846, 847 (4th Cir.

1969):

[D]ue process does not require that every pre-trial

identification of a witness must be conducted under

laboratory conditions of an approved lineup.”

“Show-ups” however, are inherently suggestive, and

in this case there are present certain aggravating factors.

Petitioner, it is true, was not in handcuffs at the time he

was viewed by the victim. But he was clearly in custody,

sitting in one of the offices used for bookings in the police

station. At the initial “show-up”, the victim was sur-

rounded by police officers who she knew to be familiar

with the crimes she endured, and who had invited her to

view “suspects.” The victim, moreover, according to her

own testimony at trial, had been informed by the police

of the suspicious circumstances of the boys’ arrest. Signifi-

cant, too, is the fact that the telephone call summoning

her to the station on the evening of July 30, was the first

contact she had had with the police since the date of the

assault, two weeks earlier.

A30

The second confrontation was clearly conducive to a

hardening of the victim’s identification. This time, the

victim’s attention was on petitioner alone for nearly one

hour, and she heard him deny her word. Emotions must

have been running high. Indeed, according to the testi-

mony of petitioner’s mother, at one point both petitioner

and the victim offered to take lie detector tests. (Tr. 474).

Any vengeful motives or outrage that the victim may have

felt were given full rein for development. United States

v. Wade, supra at 230.

The Court perceives little if any justification for these

procedures. These were not confrontations occurring

promptly after the crimes. See eg. Stidham v. Wingo,

supra; Hastings v. Cardwell, supra; Mock v. Ross, 472 F.2d

619 (6th Cir.), cert denied 411 U.S. 971 (1972); Bates v.

United States, 405 F.2d 1104 (D.C. Cir. 1968) (Burger J.)

Nor was there any urgency or emergency necessitating

them. See e.g. Stovall v. Denno, supra. Rather they were

deliberate encounters, neatly orchestrated by the police.

Contrast Mock v. Rose, supra.

At trial, when policewoman Bilinovich was asked why

no lineup was arranged, she testified that she was “aware

of the policy of the Juvenile Court that they do not hold

lineups for children when you bring them in off the street”

(Tr. 290). This explanation may only be taken as extraor-

dinarily lame, when one considers the serious nature of

the crimes involved, and the importance of a proper and

reliable identification. Significantly, Officer Bilinovich

testified that when three other children were picked up

as possible suspects prior to June 30, she at least took the

precaution of checking their alibis, before proceeding fur-

ther. Finding these alibis to be firmly established, these

three children were released without more.

A31

Notwithstanding the “unnecessary suggestiveness” of

the pre-trial. identification procedures, a. claimed violation

of due process must be assessed in light of the totality

of the circumstances. In Neils v. Biggers, supra at 198

the Supreme Court reaffirmed: “the primary evil to be

avoided is ‘a very substantial likelihood of irreparable mis-

identification.’ Simmons v. United States, 390 U.S. at 384.”

The record here is replete with indicia that the victim

was not overborne by the suggestiveness of the procedures

used, and that her in-court identification had a definite

independent basis.

First, it is clear that the victim spent approximately

fifteen minutes to one-half hour with her unmasked assail-

ants at extremely close range, and under well lighted

conditions. The victim, in consequence, had ample oppor-

tunity to fix petitioner’s image in her mind. Second, the

victim was “no casual observer, but rather the victim

of one of the most personally humiliating of all crimes”

Neils v. Biggers, supra at 200. Third, the victim did give

the police a description of petitioner which, although seem-

ingly somewhat general, was entirely consistent with peti-

tioner’s appearance. Fourth, and perhaps most significant,

the victim immediately and firmly identified petitioner

at the police station, but was unable to do the same with

regard to his companion. This circumstance goes far to

indicate that the victim was careful, and not influenced

by the suggestiveness of the “show-ups.”

- The “show-ups” here took place two weeks after the

crime, and there is no denying that “the longer the interval

between the crime and the confrontation the greater the

likelihood that the second image will play an important

role in the in-court identification.” United States ex rel.

Bisordi v. LaVallee, supra at 1024. The factors listed

above, however, firmly militate against this having oc-

curred. Other cases, moreover, have not found in-court

identifications proceeded by “show-up” vicwings taking

place after equivalent relatively short intervals to be viola-

tive of due process where the record provides strong, coun-

tervailing indicia that the identifications were essentially

reliable, and not the product of police suggestion. e.g.

Johnson v. Salisbury, 448 F.2d 374 (6th Cir.), cert denied

405 U.S. 928 (1971); Hancock v. Tollett, 447 F.2d 1323

(6th Cir. 1971); United States ex rel. Bisordi v. LaVallee,

supra; United States ex rel. Rutherford v. Deegon, 406

F.2d 217 (2nd Cir.), cert denied 395 U.S. 983 (1969). See

also Neils v. Biggers, supra.

Petitioner contends that the victim, immediately subse-

quent to the incident “was so emotionally upset that she

was uncertain as to what exactly was happening to her,

and who was saying or doing what.” There is no basis

for this in the record. There is testimony that the vic-

tim was very upset, and was crying (Tr. 126, 210, 212),

and that she received sedation upon being taken to the

hospital. Officer Billinovich testified, however, that the

victim was “coherent” when she interviewed her at the

hospital (Tr. 267), and it is clear that the victim had

enough control to give the police an account of what had

happened, and a description of her assailants.

Under cross-examination, the victim never faltered

in her unequivocal and positive identification of petitioner.”

Petitioner emphasizes that when the victim was asked

A33

petitioner asserts, demonstrates the unreliability of her

identification, as objective evidence introduced at trial indi-

cated that at that time petitioner was substantially taller

and weighed far more.

This apparent discrepancy, as well as other alleged

infirmities in the victim’s testimony, are matters essentially

going to the weight to be given such evidence. Their

relevance to the inquiry being made here is marginal.

As was said in United States v. Casscles, 358 F. Supp.

517 (E.D. N.Y. 1973) reversed on other grounds 489 F.2d

20 (2nd Cir. 1973):

“The court is not concerned with the reliabil-

ity of properly admitted identification testimony, but

only whether the procedures leading to the identifica-

mn ee

constitutionally inadmissible. . .

A factor to be emphasized is that the victim was

subjected to extensive cross-examination at trial. All facts

concerning possible misidentification were before the state

trial court, and were forcefully argued in closing arguments

(Tr. 683-689). See United States ex rel. Rutherford v.

Deegon, supra. The state trial court, however, who saw

and heard all the witnesses, gave credence to the victim’s

identification, notwithstanding any alleged infirmities, and

rejected petitioner’s alibi defense, which was developed

through his own testimony and that of several relatives,

and one close friend of his family.

This is not a case like Foster v. California, 394 U.S.

440 (1969) where the pre-trial confrontation procedures

utilized by the police were such as to lead almost inexo-

rably to a defective identification. Rather it is much more

analogous to cases where, at the very least, in-court identi-

fications were found to be constitutionally permissible.

A34

See e.g. Neils v. Biggers, supra; Hancock v. Tollett, supra;

United States ex rel Carnegie v. MacDougall, 422 F.2d

353 (2nd Cir.), cert denied 398 U.S. 912 (1970).

The Court concludes that even though the pre-trial

confrontations were “unnecessarily suggestive,” they did

not give rise to such a danger of “irreparable mistaken

identification” as to require the exclusion of the victim’s

eye-witness testimony. Accordingly, the victim’s in-court

identification was properly admitted in evidence. The peti-

tion for writ of habeas corpus is denied.

The petitioner is ordered to surrender himself to the

appropriate authorities within ten days of entry of this

order. If he does not voluntarily surrender within ten

days, it is ordered that he be taken into custody by the

proper authorities, unless otherwise ordered by a court

of competent jurisdiction.

IT IS SO ORDERED.

/s/ Franx J. Barrier

Chief Judge

A35

APPENDIX I

Order of the Court of Appeals for the

Sixth Circuit

_ Filed April 23, 1975)

No. 74-2130

UNITED STATES COURT OF APPEALS

For Tue Srxrs Cmcurr

bens JAMES SALER,

Petitioner-Appellant,

v.

RALPH KREIGER, et al.,

Respondents-Appellees.

ORDER

Before: CELEBREZZE, MILLER and ENGEL, Circuit Judges.

The petitioner, James Saler, appeals the denial by

the district court of his petition for habeas corpus, challeng-

ing his conviction in an Ohio state court on various criminal

chargés of a serious nature, including rape. The sole

ground on which the petitioner challenges the validity

of his conviction in the state court is that the state used

illegal pretrial showup procedures for the purpose of hav-

ing the victim of the alleged crimes identify the petitioner

as one of her assailants. The district court, relying upon

the facts developed at the state court trial; found that

although the procedures were unnecessarily suggestive,

the suggestion under the totality of the circumstances was

Ax

not so conducive to irreparable misidentification as to con-

stitute a denial of due process of law.

We have examined the record and we find that this

conclusion of the district judge is fully supported by the

state court record and is in accord with the ruling of

the Supreme Court of the United States in Neil v. Biggers,

409 U.S. 188 (1972).

It is therefore ORDERED and ADJUDGED that the

judgment of the district court be and the same is hereby

affirmed.

Entered by Order of the Court.

/s/ Jom P. Huna

Clerk

APPENDIX J

Title 28, United States Code, Section 2254(d)

(relevant provisions)

“In any proceeding instituted in a Federal court by

an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court,

a determination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction

in a proceeding to which the applicant, for the writ and

the State or an officer or agent thereof were parties, evi-

denced by a written finding, written opinion, or other

reliable and adequate written indicia, shall be presumed

to be correct unless the applicant shall establish or it

shall otherwise appear, or the respondent shall admit—

(1) that the merits of the factual dispute were

not resolved in the State court hearing;

A37

(8) or unless that part of the record of the State

court proceeding in which the determination of such

factual issue was made, pertinent to a determination

of the sufficiency of the evidence to support such

factual determination, is produced as provided for

hereinafter, and the Federal court on a consideration

of such part of the record as a whole concludes that

such factual determination is not fairly supported by

the record:

And in an evidentiary hearing in the proceeding in the

Federal court, when due proof of such factual determina-

tion has been made, unless the existence of one or more

of the circumstances respectively set forth in paragraphs

numbered (1) to (7), inclusive, is shown by the applicant,

otherwise appears, or is admitted by the respondent, or

unless the court concludes pursuant to the provisions of

paragraph numbered (8) that the record in the State court

proceeding, considered as a whole, does not fairly support

such factual determination, the burden shall rest upon

the applicant to establish by convincing evidence that the

factual determination by the State court was erroneous.”