Petition — Jago v. Webb

Supreme Court brief1977

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IN THE

Supreme Court of the United States

October Term, 1976

No. 76-1540

JOSEPH H. HAVENER, Superintendent

Southern Ohio Correctional Facility,

Petitioner,

vs.

WALTER WEBB, JR.,

Respondent.

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

—

WILLIAM J. BROWN,

Attorney General of Ohio,

LEO J. CONWAY,

SIMON B. KARAS,

| Assistant Attorneys General,

State Office Tower

30 East Broad Street, Suite 1513

Columbus, Ohio 43215

(614) 466-5414

Attorneys for Petitioner

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43215

TABLE OF CONTENTS

Page

OPINIONS BELOW : 1

JURISDICTIONAL BASIS | 2

QUESTION PRESENTED:

WHETHER THE DECISION OF THE

COURT BELOW HONORS THE SUB-

STANCE OF NEIL V. BIGGERS, 409 U.S.

188 (1972) AND CONSTITUTES A MIS-

APPLICATION OF THE CRITERIA FOR

JUDGING THE CONSTITUTIONAL AD-

MISSIBILITY OF BOTH IN COURT AND

OUT OF COURT IDENTIFICATION

EVIDENCE

CONSTITUTIONAL PROVISION INVOLVED 2

STATEMENT OF THE CASE 3

STATEMENT OF FACTS

ARGUMENT IN SUPPORT OF GRANTING

CERTIORARI 8

CONCLUSION 13

CERTIFICATE OF SERVICE i4

APPENDIX

(Tr. 136-138), Court of Common Pleas, Sum-

mit County, Ohio, Case No. CR73-9-949 14

Opinion, Court of Appeals, Summit County,

Ohio, Case No. 7355, July 3, 1974 17

Opinion, Ohio Supreme Court, Case No. 74-

836, November 15, 1974 26

Opinion, United States District Court For

The Northern District Of Ohio, Eastern Divi-

sion, Case No. C75-67A, June 30, 1975

Opinion, United States Court of Appeals For

The Sixth Circuit, Case No. 75-2374, Febru-

. MERKEN CaO

Order, No. 75-2374, above, March 25, 1977,

denying rehearing

Table of Authorities

Brathwaite v. Manson, 527 F.2d 363 (2nd Cir.

1975), cert. granted, — U.S. — (1976)

Coleman v. Alabama, 399 U.S. 1 (1970)

Foster v. California, 394 U.S. 440 (1969)

Hancock v. Tollett, 447 F.2d 1323 (6th Cir. 1971)

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

1973), cert denied, 415 U.S. 923 (1974)

Hayes v. Cowan, 535 F.2d 351 (6th Cir. 1976)

Heltzel v. Collins, 518 F.2d 851 (6th Cir.),

cert. denied, 423 U.S. 999 (1975)

Holland v. Perini, 512 F.2d 99 (6th Cir.),

cert. denied, 423 U.S. 934 (1975)

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

1971), cert. denied, 405 U.S. 928 (1972)

Marshall v. Rose, 499 F.2d 1163 (6th Cir. 1974)

Neil v. Biggers, 409 U.S. 188

(1972) 2, 8, 9, 11, 12,

Sewell v. Cardwell, 454 F.2d 177 (6th Cir. 1972)

Simmons v. United States, 390 U.S. 377 (1968)

Stovall v. Denno, 388 U.S. 293 (1967)

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

397 (7th Cir.), cert. denied, 421 U.S. 1016

(1975)

United States ex rel Penachio v. Kropp. 4 448 F.2d

110 (6th Cir. 1971)

United States v. Ayendes, 541 F.2d 601 (6th Cir.

1976)

United States v. Bridgefourth, 538 F.2d 1251

(6th Cir. 1976)

United States v. Caulton, 498 F.2d 412 (6th Cir),

cert. denied, 419 U.S. 898 (1974)

United States v. Clark, 499 F.2d 889 (6th Cir.

1974), cert. denied, 420 U.S. 910 (1975)

United States v. Rowan, 518 F.2d 685 (6th Cir.

1975)

United States v. Russell, 532 F.2d 1063 (6th Cir.

1976)

United States v. Scott, 518 F.2d 261 (6th Cir.

1975)

Constitutional Provisions

Fourteenth Amendment, United States

Constitution, Section 1

Rules

Rule 19, Rules of the Supreme Court

iii

—

IN THE

Supreme Court of the United States

October Term, 1976

JOSEPH H. HAVENER, Superintendent

Southern Ohio Correctional Facility,

Petitioner,

vs.

WALTER WEBB, JR.,

Respondent.

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals of Summit

County, Ohio, Case No. 7355, is unreported. (Appen-

dix page 17). The opinion of the Ohio Supreme Court,

Case No. 74-836, is unreported. (Appendix page 26).

The opinion of the United States District Court For

The Northern District Of Ohio, Eastern Division, Case

No. C75-67A, is unreported. (Appendix page 28). The

opinion of the United States Court Of Appeals For

The Sixth Circuit, Case No. 75-2374, and a subsequent

denial of rehearing, are as yet unreported. ( Appendix

pages 36 and 51). The concurring and dissenting opin-

ions of the Court of Appeals For The Sixth Circuit are

located at Appendix pages 47 and 49.

JURISDICTIONAL BASIS

The decision of the United States Court of Appeals

For The Sixth Circuit was entered February 18, 1977.

(Appendix page 36). A petition for rehearing and

suggestion of rehearing en bane was denied March 25,

1977. (Appendix page 51). Jurisdiction is conferred

by 28 U.S.C. §1254(1).

QUESTION PRESENTED

WHETHER THE DECISION OF THE COURT BE-

LOW HONORS THE SUBSTANCE OF NEIL V.

BIGGERS, 409 U.S. 188 (1972) AND CONSTI-

TUTES A MISAPPLICATION OF THE CRITERIA

FOR JUDGING THE CONSTITUTIONAL ADMIS-

SIBILITY OF BOTH IN COURT AND OUT OF

COURT IDENTIFICATION EVIDENCE

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Fourteenth Amendment to the

United States Constitution, Section 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or en-

force any law which shall ab the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal pro-

tection of the laws.

— — — — —

STATEMENT OF THE CASE

Respcadent, Walter Webb, Jr., hereinafter Webb,

was convicted of armed robbery in the Court of Com-

mon Pleas of Summit County, Ohio, Case No. CR 73 9

949. Prior to trial, Webb filed a motion to suppress

certain identification evidence, which was denied. (Tr.

136-138). (Appendix page 14). Upon appeal, the de-

cision of the trial court concerning identification evi-

dence was affirmed, respectively on July 3 and Novem-

ber 15, 1974, by the Court of Appeals of Summit

County, Ohio, and the Ohio Supreme Court. ( Appendix

pages 17 and 26).

On February 2, 1975, Webb filed a petition for writ

of habeas corpus pursuant to 28 U.S.C. §2241 with

the United States District Court For The Northern

District Of Ohio, Eastern Division, alleging as one

contention, the identification question. On June 30,

1975, upon an agreed record, and after oral argu-

ment, the district court denied the writ. (Appendix

page 28). Upon appeal to the United States Court of

Appeals For The Sixth Circuit, that court, by 2-1 de-

cision, reversed the denial of the writ of habeas corpus

on the identification question. (Appendix page 36).

Petitioner Havener’s application for rehearing and

suggestion of rehearing en banc was denied. ( Appen-

dix page 51). The mandate of the Court of Appeals has

been stayed pending the application for certiorari.

STATEMENT OF FACTS

While useful as an overall model, the statement of

facts set forth in the opinion of the Court of Appeals,

appendix page 37, is unacceptable to petitioner.

The evidence at trial reveals that at

6:00 A.M. on August 16, 1973, a 1967 light blue

Chevrolet with 20 day liscense tags

line at a service station owned by

Hee

a .

cerning the failure of the vending machine

a full cup of coffee, inquired as to

odations, bought $2.00 worth of gas and drove

About 1 hour later, two black males approached Mr.

Baker, who was then servicing a customer’s car out-

side the station, and asked him where the restroom was

located. A few minutes later, after Mr. Baker had gone

inside, the men reappeared and Mr. Baker met them in

the doorway. The men announced their purpose and

pocket. Then Mr. Baker and Franklin Leach, a custo-

mer who was in the station at the time, were forced

to lie down in a back room. When the men demanded

all his money, Mr. Baker started to give them his coin

kicked in the chin for failing to keep his head down as

ordered. Mr. Baker and Mr. Leach waited for a few

minutes on the floor after the men had left. Mr. Baker

then called the police.

When the police arrived Mr. Baker and Mr. Leach

provided descriptions of their assailants. Mr. Baker

described one man as about 5’8” to 6’, 180 to 200

pounds, with a squint in his left eye. The second man

was described as about 6’ tall, over 200 pounds, with

long sideburns. (Tr. 55, 324-325). Mr. Leach de-

scribed the first man as 510”, 200 pounds, black hair,

processed, left eye with a squint, dark complexion. The

other man was described as 6’, over 200 pounds, black

hair, medium complexion. (Tr. 57, 324-325). Both Mr.

Baker and Mr. Leach also gave a description of the

clothing worn by the robbers.

According to the original police report taken by

officer Boxler, who did not testify at trial, neither Mr.

Baker or Mr. Leach mentioned a mustache in their

description. (Tr. 58, 324-325). This was confirmed by

Detectives Harris and Goodwell who interviewed Mr.

Baker and Mr. Leach immediately after the crime had

been committed, but after the initial police report. De-

tective Harris testified that neither Mr. Baker or Mr.

Leach had told him about a mustache. (Tr. 324-325,

339). On the other hand Mr. Baker testified that he

had told police about a mustache, facial hair, and/or

hair around the man’s mouth. (Tr. 108, 172-173, 195-

—

97). Mr. Leach, while sure of his recollection that

one of the robbers had a mustache, and believing that

he did tell the police, was unable to recall whether his

description included a mustache. (Tr. 118, 245-246,

250-252, 261). It was uncontroverted that Webb had a

mustache. (Tr. 339).

Mr. Baker also told police about the earlier visit to

his station by the couple in the blue Chevrolet. Mr.

Baker testified at trial that, while the man who ap-

peared earlier had asked to use the phone, he did not

see him use it, (Tr. 165-166), and that he had not

observed the man at 6:00 A.M. very closely. (Tr. 97-

98, 165, 180-181). Mr. Baker testified that the man

who appeared at 6:00 A.M. was not one of his assail-

ants. (Tr. 181-182, 206-207, 209, 211, 213).

Early on the morning of August 17, 1973, one day

after the robbery, Officer Bailes, who was on general

traffic duty, saw the light blue Chevrolet described by

Mr. Baker.' Officer Bailes stopped the vehicle, and dis-

covered that the 20 day liscense was expired, where-

upon he took the occupants of the car, James Lenzy,

Richard Bentley, and Wanda Burt, Bentley’s girl-

friend, to the police station. James Lenzy and Richard

Bentley were similar in appearance to the descriptions

given by Mr. Baker and Mr. Leach. Lenzy being the

shorter of the two and with a squint in his left eye.

Richard Bentley resembled Webb. (Tr. 129-130).

Mr. Baker and Mr. Leach were called by police and

asked to come to the station, which they did arriving

separately about \ hour apart. After Bentley agreed

to participate in a show up, he was seen by Mr. Baker

and Mr. Leach, neither of whom identified him as one

of the robbers. (Tr. 232-233, 317, 329). Lenzy refused

to participate in a show up but was seen by Mr. Baker

and Mr. Leach as he was using a telephone. At that

point identification was made of Lenzy as the man

with the squinty eye. (Tr. 174, 234, 329). While it

appears clear that Bentley was rejected prior to the

identification of Webb, Mr. Baker and Mr. Leach were

inconsistent as to whether Lenzy was identified after

Webb or before. Mr. Baker testified that it was after,

(Tr. 174); Mr. Leach testified it was before (Tr. 234,

244).

In the interim, Wanda Burt had told police that she,

Lenzy, Bentley, Webb, and Webb’s codefendant at trial,

Cindy Johnson, had come to Akron from Canton, that

Not Officer Goodwell as stated in the Court of Appeals

opinion, appendix page 38. (Tr. 310).

Webb and Johnson were at a Brown Derby Motel’, that

Webb was wanted in Canton for not appearing at trial

on another charge, and that apparently, Webb was

somehow involved in the robbery under investigation.

(Tr. 68, 318).* After confirming the outstanding war-

rant, police went and arrested Webb. Cindy Johnson,

a white woman with red hair and the owner of the blue

Chevrolet in which Bentley, Lenzy, and Wanda Burt,

were riding, was not arrested at that time, but was

brought to the police station at her request.

When the police left to arrest Webb, Mr. Baker and

Mr. Leach were asked to remain while police went to

pick up another suspect. When the police returned,

Mr. Baker and Mr. Leach were sitting in an open area

in the detective bureau adjacent to a hallway leading

to the interrogation rooms. Webb was brought down

the hallway in handcuffs and in the presence of officers

and placed in an interrogation room. Nothing was said

at that point in time between detectives and Mr. Baker

and Mr. Leach.

When Webb was brought in, Mr. Baker immediately

recognized him and nodded his head at the detectives.

(Tr. 105, 201, 336-337). It is unclear as to whether

Mr. Leach also nodded. After Webb was placed in an

interrogation room, the detectives conversed with Mr.

Baker and Mr. Leach, both identifying Webb, although

it appears Mr. Baker spoke first. (Tr. 105, 201, 536-

337, 343). It does not appear that Mr. Baker and Mr.

Leach conferred prior to identifying Webb.

At trial, both Mr. Baker and Mr. Leach identified

Webb and testified as to the out of court identification

at the police station. Mr. Baker also testified as to his

Mr. Baker had referred the man who appeared at 6:00

A.M. to a local Brown Derby motel.

Wanda Burt was not available to testify at trial.

identification of Webb at a preliminary hearing. Mr.

Leach was not present at the preliminary hearing.

Both testified that they were absolutely positive in

their identification and that it was based upon the

events on the day of the robbery. (Tr. 96, 105-107,

170, 176, 227, 234-235, 264).

ARGUMENT IN SUPPORT OF

GRANTING CERTIORARI

Petitioner has undertaken a lengthy review of the

facts of the case, not merely to challenge the factual

determination of the Court of Appeals, but to place

such decision in perspective. In his dissent, Judge

Celebrezze noted:

Although the majority appears to favor a strict

exclusionary rule turning upon the extent to which

resort to impermissible identification procedures

was compelled by necessity, it honors these prece-

dents by continuing to adhere to the standard of

review suggested in Neil v. Biggers, 409 U.S. 188

(1972). (Appendix page 49).

See Brathwaite v. Manson, 527 F.2d 363 (2nd Cir.

1975), cert. granted, — U.S. — (1976). Havener

would suggest however that, while honored in lan-

guage, the criteria of Neil v. Biggers, supra, were mis-

applied in substance. The Court of Appeals opinion,

placed in the context of the record, exaggerates the

factors of suggestiveness and minimizes those indicia

of reliability found persuasive by the state courts and

the initial federal court.

In Neil v. Biggers, supra, the Court made clear that

it is “the likelihood of misidentification which violates

a defendant’s right to due process.” Suggestiveness is

of course disapproved because “it increases the likeli-

hood of misidentification,“ but even assuming sugges-

tiveness, the test is whether the identification is re-

liable:

We turn to the central question whether under the

‘totality of the circumstances,’ the identification

was reliable even though the confrontation pro-

. — was suggestive. 409 U.S. at 199. (emphasis

added )

In Neil, supra, the Court set forth a 5 part test for

determining reliability:

1. The opportunity of the witness to view the

criminal at the time of the crime

the witness’ degree of attention

the accuracy of the witness’ prior description

of the criminal

the level of certainty demonstrated by the wit-

ness at the confrontation

the length of time between the crime and the

confrontation.

All factors being considered, the record shows the error

of the Court of Appeals.

With respect to opportunity of view, the Court of

Appeals stated:

The witnesses in this case, by their own testimony,

could not have viewed the robbers for more than

‘a couple of minutes.’ For much of that time, the

witnesses were on the floor, and for all but a few

seconds were at gunpoint. (Appendix page 45).

Mr. Baker testified however, that the robbery took

place after turning daylight, (Tr. 164, 167), that the

robbery itself took about 5 minutes, which seemed

longer, (Tr. 104, 168), that he had a clear look at the

robbers when he initially handed them the money at

gunpoint and when he was backed into the back room,

and that even from the floor he was able to observe

- > ger

them. (Tr. 167, 189-190). Mr. Leach similarly testi-

fied that he had a good opportunity to see the robbers,

not only when they crossed into the station and asked

to use the restroom, (Tr. 230), but thereafter when

the robbery started. Not only was Mr. Leach turned

around by Webb when he started to go the wrong way,

but Mr. Leach was looking up from the floor. (Tr. 120-

121). It is significant that Mr. Leach was kicked for

not keeping his head down. (Tr. 230).* The robbers

wore no masks.

With respect to the witness’ degree of attention, Mr.

Baker testified that his station had been robbed on 3

prior occasions, and that he had specifically instructed

his employees to observe the robbers so that they could

testify in court. Mr. Baker further testified that he

followed his own instructions and observed the men

carefully. (Tr. 103, 108, 109, 168-169, 191). Mr.

Leach similarly made an attempt to observe the rob-

bers. (Tr. 120-121, 229-230). The Court of Appeals

minimized this testimony with a brief comment, un-

able “to describe them in any detail.”

With respect to accuracy of prior description, the

accounts given by Mr. Baker and Mr. Leach were more

than general and were well within the bounds of

articulation, including approximate height, weight,

hair color and style, complexion, and clothing. Based

in part on these descriptions, police took into custody

Lenzy, the man with the squinty eye, and Bentley, who

*On this point, the Court of Appeals noted a discrepancy

between Mr. Baker who testified that Webb kicked Mr. Leach,

and Mr. Leach who testified that Lenzy kicked him. This

discrepancy may be explained in part by the fact that Mr.

Leach was kicked immediately after Lenzy hit Mr. Baker

over the head with a gun. (Tr. 171, 192, 229).

did in fact resemble Webb. Moreover, as to the question

of a mustache, the Court of Appeals never mentions

that Mr. Baker testified that he told police about it.

With respect to the level of certainty, such factor is

positive in favor of admissibility. Mr. Baker and Mr.

Leach both testified that they were positive and the

jury apparently believed them. Moreover, this is credi-

ble in view of the fact that they rejected Bentley,

parenthetically, in a show up, even though again

Bentley resembled Webb.

On this point, the Court of Appeals noted Mr.

Leach’s testimony on the motion to suppress that he

had only identified one suspect, Lenzy, on the morning

after the robbery, and his testimony at trial that he

had identified two persons, Webb and Lenzy. The Court

of Appeals fails to note however Mr. Leach’s testimony

that he was confused as to the time frame involved in

defense counsel’s questions. (Tr. 236-237, 241, 249,

259, 263, 265). This matter was subject to extensive

cross examination and placed before the jury.

With respect to the length of time between the

crime and the confrontation, less than 30 hours, such

time span pales in comparison to the time involved in

Neil v. Biggers, supra.

To be sure, grant of a petition for writ of certiorari

is rare in the circumstance where only the private in-

terests of the parties will thereby be vindicated. Rule

19, Rules of the Supreme Court. The present case

however offers more than the mere fact that, because

of exclusion of both the out of court and in court identi-

fications, retrial will be futile.

The state and federal courts are dependent upon this

Court for guidance in their resolution of constitu-

tional issues. While the Court has set forth the para-

meters, consistency of application and balancing of

suggestiveness versus reliability remain to be achieved.

Stovall v. Denno, 388 U.S. 293 (1967); Simmons v.

United States, 390 U.S. 377 (1968); Coleman v. Ala-

bama, 399 U.S. 1 (1970); Foster v. California, 394

U.S. 440 (1969) ; Neil v. Biggers, supra. The present

case is a proper vehicle and example. Despite no show-

ing that the state courts and the initial federal court

did not apply the correct constitutional guidelines,

three separate opinions were issued on a matter which

previously had uniform resolution.

As indicated by the concurring and dissenting opin-

ions in this case, the question of suggestiveness in

identification procedures has given rise to much con-

troversy and inconsistency of application. A compari-

son of the present case to other reported decisions of

the Court of Appeals, citing, Neil v. Biggers, supra, is

informative. United States v. Ayendes, 541 F.2d 601

(6th Cir. 1976); United States v. Bridgefourth, 538

F.2d 1251 (6th Cir. 1976) ; Hayes v. Cowan, 535 F.2d

351 (6th Cir. 1976) ; United States v. Rowan, 518 F.2d

685 (6th Cir. 1975); United States v. Scott, 518 F.2d

261 (6th Cir. 1975); Heltzel v. Cowan, 518 F.2d 851

(6th Cir.), cert. denied, 423 U.S. 999 (1975) ; Holland

v. Perini, 512 F.2d 99 (6th Cir.), cert. denied, 423

U.S. 934 (1975); United States v. Clark, 499 F.2d

889 (6th Cir. 1974), cert. denied, 420 U.S. 910

(1975); United States v. Caulton, 498 F.2d 412 (6th

Cir.), cert. denied, 419 U.S. 898 (1974); Hastings v.

Cardwell, 480 F.2d 1202 (6th Cir. 1973), cert. denied,

415 U.S. 923 (1974); Contra, See: United States v.

Russell, 532 F.2d 1063 (6th Cir. 1976); Marshall v.

Rose, 499 F.2d 1163 (6th Cir. 1974). See also: Han-

cock v. Tollett, 447 F.2d 1323 (6th Cir. 1971) ; United

States ex rel Penachio v. Kropp, 448 F.2d 110 (6th Cir.

1971); Sewell v. Cardwell, 454 F.2d 177 (6th Cir.

1972); Johnson v. Salisbury, 448 F.2d 374 (6th Cir.

1971), cert. denied, 405 U.S. 928 (1972). While cer-

tainly each case must be judged on its own facts, the

“suggestiveness” herein, when matched with indicia

of reliability, is no less comparable than other prior de-

cisions in which affirmance was upheld.

Petitioner makes no attempt in this application to

catalogue the innumerable decisions from other cir-

cuits, such being unnecessary to establish the need for

further guidance in the application of Neil v. Biggers,

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

397 (7th Cir.), cert. denied, 421 U.S. 1016 (1975), a

case factually similar to the present one and decided

differently, makes this point all too well. What is of

concern to petitioner is that a once thought final and

valid state court judgment is subject to chance. The

Court of Appeals herein, in focusing on suggestiveness,

to the exclusion of reliability, did not honor Neil v.

Biggers, supra, in substance. Accordingly, its misap-

plication should be reversed.

CONCLUSION

The Court of Appeals opinion constitutes a misappli-

cation of the criteria of Neil v. Biggers, supra. The

petition for writ of certiorari should be granted and

reversal entered.

WILLIAM J. BROWN,

Attorney General of Ohio,

LEO J. CONWAY,

SIMON B. KARAS,

Assistant Attorneys General,

State Office Tower

30 East Broad Street, Suite 1513

Columbus, Ohio 43215

(614) 466-5414

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Petition

for Writ of Certiorari was mailed to respondent

Walter Webb, Jr., through the office of his counsel,

Albert S. Rakas, Dana F. Castle, Margery B. Koosed,

Appellate Review Office, School of Law, Akron Uni-

versity, Akron, Ohio, 44325, and Dennis J. Bartek, 73

East Mill Street, Akron, Ohio, 44325. I hereby certify

that all persons required to be served have been so

served.

LEO J. CONWAY

Assistant Attorney General

APPENDIX

RULING OF TRIAL COURT

ON IDENTIFICATION

[p. 136]

STATE V. WEBB, No. CR 73 9 949

Court of Common Pleas, Summit County

The Court: Well, as to the first proposition dealing

with the denial of right of Counsel, there is no ques-

tion at all because the issue hasn’t even been raised.

There’s been no showing or any evidence that I’ve

heard that showed that he either requested or was

denied Counsel, and there’s probably — it’s been cited

in the Kirby vs. Illinois case that he would not be en-

titled to Counsel in that case anyhow.

As to whether it was an unduly suggestive con-

frontation there is more question presented than on the

question of denial of Counsel, but again I think the

matter is fairly clear. The whole concept under un-

duly confrontation is defined by the cases that the

Supreme Court has ruled upon. They have tried to

exclude a single confrontation after an undue period

of time has passed where the police are trying to sug-

gest to a witness that this is the party who committed

the crime and we are asking you to identify him. They

don’t have to use those words but that is the theory

underlying it. [p. 137]

To hold that the police cannot have a victim in an

offense view a possible suspect within a reasonable

period of time after the comniission of the offense

would be practically to deny the police the right to

investigate a crime, and I don’t think any case law

has held that yet. The whole idea is to stop abuses of

the process.

Now I fail to see where Mr. Webb’s rights have

been unfairly and unduly violated here in that he has

been subjected to a process in which a witness was

either badgered or had it suggested to him or had the

idea implanted in his mind or was presented with a

confrontation in which he could only arrive at a result

which the police desire.

I'd like to read to you the summary of facts in the

Kirby vs. Illinois case, cited in 406 U.S. Reports at

Page 682: Petitioner and a companion were stopped

for interrogation. When each produced, in the course

of demonstrating identification, items bearing the name

“Shard”, they were arrested and taken to the Police

Station. There, the arresting officers learned of a rob-

bery of one “Shard” two days before. That’s two days.

The officers sent for Shard, who immediately identi-

fied petitioner and his companion as the [p. 138] rob-

bers. At the time of the confrontation petitioner and

his companion were not advised of the right to Coun-

sel, nor did either ask for or receive legal assistance.

Six weeks later, they were indicted and brought to

trial. At the trial, after a pre-trial motion to sup-

press his testimony had been overruled, Shard testi-

fied as to his previous identification of petitioner and

his companion, and again identified them as the rob-

bers. The Defendants were found guilty. Their appeal

was upheld, and in the Kirby case the U.S. Supreme

Court held that the judgment is affirmed, and they

held that two days later was not an unreasonable time

between the offense and the single confrontation be-

tween the victim and the suspects.

It appears to me that the facts of that case are cer-

tainly close enough to this case to warrant following

the Kirby authority.

I will do so, and overrule the motion. You may

have your exceptions.

IN THE COURT OF APPEALS,

NINTH JUDICIAL DISTRICT.

(January Term, 1974.)

C.A. No. 7355.

APPEAL FROM JUDGMENT ENTERED

IN THE COURT OF COMMON PLEAS

OF SUMMIT COUNTY, CASE NO.

73-9-949.

STATE OF OHIO,

Plaintiff-Appellee,

VS.

WALTER WEBB, IR.,

Defendant-Appellant.

DECISION AND JOURNAL ENTRY

Dated July 3, 1974.

This cause came on to be heard April 23, 1974, upon

the record in the trial court, including the Transcript

of Proceedings; and the briefs. It was argued by

counsel for the parties and submitted to the court.

Each assignment of error was reviewed by the court

and, upon review, the following disposition made:

COLE, J.

The defendant (appellant), Walter Webb, Jr., was

indicted, tried by jury, and found guilty of armed

robbery (R.C. 2901.13). Judgment was entered on

the verdict and, from that judgment, an appeal has

been lodged in this court.

I. The first assignment of error contends that the

trial court erred in overruling a motion to suppress

certain evidence, to-wit: a gun seized at the time the

defendant was arrested.

Under the exclusionary rule adopted by the Supreme

Court of the United States, “evidence obtained in viola-

tion of the Fourth Amendment cannot be used in a

criminal proceeding against the victim of the illegal

search and seizure.” U.S. v. Calandra, 94 S. Ct. 613

(1974), p. 619.

Normally there is required the appropriate issuance

of a warrant as a predicate for a lawful search. How-

ever, exceptions exist.

“It is well settled that a search incident to a

lawful arrest is a traditional exception to the war-

rant requirement of the Fourth Amendment. This

ral exception has historically been formulated

into two distinct propositions. first is that a

search may be made of the person of the arrestee

by virtue of the lawful arrest. The second is that

a search may be made of the area within the con-

trol of the arrestee.

“Examination of this court’s decisions in the

area show that these two propositions have been

treated quite differently. The validity of the search

of a person incident to a lawful arrest has been

regarded as settled from its first enunciation, and

has remained virtually unchallenged until the

present case. The validity of the second i-

tion, while likewise in principle, ioe tem

subject to differing interpretations as to the ex-

tent of the area which may be searched.”

U. S. v. Robinson, 94 S. Ct. 467 (1973), p. 471.

See, also: U. S. v. Edwards, 94 S. Ct. 1234 (1974)

which reiterates this principle and states, at page 1237,

that warrentless search conducted as incident to cus-

todial arrests has “traditionally been justified by the

reasonableness of searching for weapons, instruments

of escape and evidence of crime when a person is taken

into official custody and lawfully detained.”

In the case of Chimel v. California, 395 U.S. 752;

89 S. Ct. 2034 (1969), the search of what amounted to

a whole house, based on the custodial arrest of an

occupant, was held to be unreasonable. In arriving at

this decision, however, the opinion states:

“* * * When an arrest is made, it is reason-

able for the arresting officer to search the person

arrested in order to remove any weapons that the

latter might seek to use in order to resist arrest or

effect his escape. Otherwise, the officer’s saf

might well be endangered, and the arrest itself

frustrated. In addition, it is entirely reasonable

for the arresting officer to search for and seize any

evidence on the arrestee’s person in order to pre-

vent its concealment or destruction. And the area

into which an arrestee might reach in order to

grab a weapon or evidentiary items must, of

course, be governed by a like rule. A gun on a

table or in a drawer in front of one is ar-

rested can be as dangerous to the arresting officer

as one concealed in clothing of the person ar-

rested. There is ample justification, therefore, for

a search of the arrestee’s person and the area

‘within his immediate control’ — construing that

phrase to mean the area from within which he

— gain possession of a weapon or destructible

Thus, the broad question is the reasonableness of the

search as related to the arrest situation. The narrow

question, in the present case, is whether the gun was

located in an area within the immediate control of the

arrested person construing that phrase to mean the

area from within which he might gain possession of it.

The factual situation here involved was presented to

the trial court at the hearing on the motion to sup-

press. It may be reasonably inferred that the arrest-

ing officers had been informed that the defendant was

wanted by the Canton police for leaving a court in

Canton (p. 28), and Canton had a warrant for his

arrest. The arresting officers had been told by a witness

to be careful, that the defendant was a narcotic user

and “if he’s high he’! kill you and he does have a gun.”

They had further been told by the Canton police that

the defendant was dangerous. Defendant was located

at a motel. When the police arrived and knocked on

the door the defendant opened it. He had no clothes on.

One group of police immediately sought to arrest and

handcuff him (R. 9). The other two policemen moved

to the bed where a woman was lying, also without

clothing. There is some discrepancy and dispute as to

how far Webb was from the bed but, on page 9, one

officer testifies that he was “about right next to the

bed. The woman was told to get off the bed, the mat-

tress was pulled up, and between the mattress and the

springs was a revolver and some bullets for it. The

police, because of the warning, were expressly looking

for a gun.

The arrest here is proper and was made with reason-

able cause. The sole question concerns the reasonable-

ness of the area involved in the search. It would appear

the police had reasonable grounds to know that the

defendant had a gun; that he was potentially danger-

ous. Obviously, the gun was not on his person. The

woman also was obviously unarmed. However, the bed

area was within her potential control and possibly in

the control of the defendant if he tried to exert force.

The action of the police in searching that area for a

gun reported to exist for their own safety was reason-

able under the circumstances, since either the defen-

—

dant or his woman companion acting on his behalf

might have gained possession of a weapon from that

area.

The assignment of error is not well taken.

II. In his second assignment of error, the appellant

contends that the trial court erred in denying the

appellant motion to suppress a pre-trial identification

in that the circumstances were unduly suggestive and

conclusive to error.

There is no contention that appellant at the time of

the pre-trial identification, which occurred prior to the

initiation of charges for this offense, was entitled to

counsel. Such being the case, the sole ground for the

suppressing of a pre-trial identification is that the

procedures used violated the appellant's right to due

process. Stovall v. Denno (1967), 87 S. Ct. 1967, 388

U.S. 293.

In State v. Sheardon, 31 Ohio St. 2d 20 (1972), the

second paragraph of the syllabus reads as follows:

“The due process clause of the Fifth and Four-

teenth Amendments forbids any pre- or post-in-

dictment lineup that is unnecessarily suggestive

— conducive to irreparable mistaken identifica-

tion.”

In the present case, it appears that the two identify-

ing witnesses were asked to remain at the police sta-

tion to view a suspect.“ Somewhat later the appellant,

who had been arrested on another charge, was brought

into the detective bureau room where the witnesses

were seated on the way to placing him in an interro-

gation room. The witnesses seeing him either at that

time or slightly later identified him to the police as

one of the two men who had held them up at the

filling station operated by one of the witnesses.

The issue is that stated in Stovall v. Denno, supra

(p. 1972):

“* * * whether itioner * * * is entitled to

relief on his claim that in any event the confronta-

tion conducted in this case was so unnecessarily

suggestive and conductive to irreparable mistaken

— that he was denied due process of

aw.“

That case, as the one now considered, involved a

one to one show-up for identification and found it did

not violate the due process standards. The court said:

“The practice of showin — — singly to per-

sons for the pu of identi cation, — not as

part of a lineup, been widely condemned. How-

ever, a claimed violation of due process of law in

the conduct of a confrontation depends on the

totality of the circumstances surrounding it * * *.”

In that case, a death bed situation, in which a

critically wounded witness was in the hospital to which

the accused was brought, gave rise to the necessity of

the one to one viewing. No such situation here exists.

However, the same rule as to the totality of circum-

stances must be applied to determine if the viewing

process was “unnecessarily suggestive and conducive

to irreparable mistaken identification.” Sec, also:

Kirby v. Illinois, 92 S. Ct. 1877 (1972).

Obviously, a one to one confrontation is, of itself,

not suggestive of any thing. A chance meeting on a

street may lead to recognition not because of the situ-

ation but simply because of the similarity of appear-

ance to a pre-existing mental image. The element of

suggestion enters only (and the potential unfairness)

when the meeting is in some way officially conducted.

The conduct of the police, the way the confrontation

occurs, the requirement for immediate action, the orig-

inal opportunity of the witness to form a mental image,

the lack of deviation or other mistaken identification—

all these factors enter into the totality of mutual and

interrelating circumstances which must be considered.

Here the evidence indicates no overt effort by the

police to implant a concept of identification. The wit-

nesses were asked to wait to see a “suspect,” (R. 343)

and this word, in its common usage, implies no more

than a possibility of involvement in the criminal act.

There was moreover no specific identification by the

police of the appellant as the “suspect” although the

presence of the same officer made an inference as to

this conclusion likely (R. 326). He was merely brought

into the room without comment and without specifi-

cally being exhibited to the witnesses, and the identifi-

cation was volunteered by the witnesses. Their prior

verbal identification was reasonably close to the actual

appearance of appellant (R. 327) so far as the record

reveals, except for a question as to whether or not a

moustache had been mentioned to the officer taking the

description. There is no evidence either witness ever

erroneously identified anyone else as the participant

in the robbery. The witnesses (R. 174, 211, 232) had

previously rejected another man as one of the robbers.

(R. 312, 318, 329). Both witnesses had ample oppor-

tunity to form a clear mental image of their assailants

(R. 189 et seq.) as the robbery took place in daylight,

took five minutes or more, the witnesses faced the rob-

bers and neither wore any mask or other facial dis-

guise or concealment. Moreover, at the trial both wit-

nesses gave definite in-court identifications.

Taking all of these factors, and their mutual inter-

relation, it appears that there is nothing to indicate

that either witness was subjected to or responded to

official suggestions in the pretrial identification.

The evidence, at the pretrial hearing on the motion

to suppress, was not developed as far as that on trial

and, although it would appear appropriate objections

were not made at trial, the evidence at trial is used

as the criterion in determining this issue.

The assignment of error is not weil taken.

III. The appellant assigns as error that the verdict

is against the manifest weight of the evidence. The

basic question here is not whether a crime was com-

mitted but who committed the crime. There is positive

in-court identification by two witnesses which, if be-

lieved, is sufficient to answer this question beyond a

reasonable doubt. The credibility of these witnesses

was a matter for determination by the jury.

IV. It is assigned as error that the prosecutor made

certain improper remarks prejudicial to the appellant.

No objection was made to the remarks at page 381

and at page 412 and objection is therefore waived.

Moreover, there is no objection to references to new

clothes. Objection to reference to a changed appear-

ance of the defendant (R. 408) was sustained. Objec-

tion was made to the reference by the prosecutor to

“trickery” (R. 410) and it was sustained by the trial

court and the jury was instructed to disregard the

reference.

There are no other objections to the prosecutor’s clos-

ing statement on which error is assigned.

The assignment of error is not well taken.

Finding no error prejudicial to any substantial right

of the appellant, the judgment is affirmed.

Judgment affirmed.

The court finds that there were reasonable grounds

for this appeal.

It is ordered that a special mandate issue out of this

court, directing the Court of Common Pleas to carry

this judgment into execution. A certified copy of this

journal entry shall constitute the mandate, pursuant

to Rule 27 of the Rules of Appellate Procedure.

Ten (10) days from the date hereof, this document

shall constitute the journal entry of judgment, and it

shall be file stamped by the Clerk of the Court of

Appeals, at which time the period for review shall

begin to run. Appellate Rule 22(E).

Exceptions.

OSCAR HUNSICKER (sgd)

Presiding Judge—

for the Court.

HUNSICKER, P. J., and

DOYLE, J. concur.

(Hunsicker, J., and Doyle, J., retired and assigned to

active duty under authority of Section 6. (C), Article

IV, Constitution. Cole, J., of the Third Appellate Dis-

trict sitting by assignment in the Ninth Appellate Dis-

trict, under authority of Section 5.(A) (3), Section 14,

Constitution.

Judge Oscar Hunsicker presiding.

APPEARANCES:

Stephan M. Gabalac, Prosecuting Attorney, Frederic

L. Zuch, Assistant Prosecuting Attorney, Summit

County, City-County Safety Building, Akron, Ohio

43208—for Plaintiff-Appellee.

Dennis J. Bartek, Attorney at Law, 380 E. Exchange

Street, Akron, Ohio 44304—For Defendant-Appellant.

THE SUPREME COURT OF THE

STATE OF OHIO

1974 Term

To wit: November 15, 1974

No. 74-836

MOTION FOR LEAVE TO APPEAL

FROM THE COURT OF APPEALS

FOR SUMMIT COUNTY

STATE OF OHIO,

Appellee,

vs.

WALTER WEBB, JR.,

Appellant.

It is ordered by the Court that this motion is over-

ruled.

COSTS:

Motion Fee, $20.00 paid by Affidavit of Poverty.

I, Thomas L. Startzman, Clerk of the Supreme Court

of Ohio, certify that the foregoing entry was correctly

copied from the Journal of this Court.

Witness my hand and the seal of the Court

this day of 19

Clerk

Deputy

THE SUPREME COURT OF OHIO

1974 Term

To wit: November 15, 1974

No. 74-836

APPEAL FROM THE COURT OF

APPEALS

FOR SUMMIT COUNTY

STATE OF OHIO,

Appellee,

VS.

WALTER WEBB, JR.

Appellant.

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

of Appeals for Summit Count,, was heard in the

manner prescribed by law, and, no motion to dismiss

such appeal having been filed, the Court sua sponte

dismisses the appeal for the reason that no substantial

constitutional question exists herein.

It is further ordered that a copy of this entry be

certified to the Clerk of the Court of Appeals for

Summit County for entry.

I, Thomas L. Startzman, Clerk of the Supreme Court

of Ohio, certify that the foregoing entry was correctly

copied from the Journal of this Court.

Witness my hand and the seal of the Court

this day of 19

ee Clerk

Deputy

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Civil Action C 75-67 A

JUDGMENT ENTRY

Filed June 30, 1975

WALTER WEBB, JR.

Petitioner.

VS.

JOSEPH H. HAVENER, Superintendent,

Southern Ohio Correctional Facility,

Defendant.

The Court having entered its opinion,

It Is Ordered, Adjudged and Decreed that the Appli-

cation for Writ of Habeas Corpus is hereby denied

and the action is dismissed.

LEROY J. CONTIE, JR.

U. S. District Judge

— -

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Filed June 30, 1975

Civil Action C 75-67 A

ORDER

WALTER WEBB, JR.

Petitioner.

vs.

JOSEPH H. HAVENER, Superintendent,

Southern Ohio Correctional Facility,

Respondent.

Petitioner in the above captioned cause of action

has filed an application seeking the issuance of an

Order by this Court granting him habeas corpus relief.

On Friday, May 16, 1975, this Court held a hearing to

determine petitioner’s claim. At that time the attorneys

for the parties involved agreed and stipulated that the

trial record of the Common Pleas Court , Summit

County, Ohio be received into evidence. The attorneys

thereafter waived the introduction of other evidence

and proceeded to legal arguments.

The petitioner asserts two grounds for relief. First,

Petitioner asserts that he was denied his right to due

process of law in violation of Article I, $14 of the Ohio

Constitution and the Fourth Amendment of the United

States Constitution as applied to the states by the

Fourteenth Amendment of the United States Constitu-

tion when evidence of a gun which was obtained by

means of a warrantless exploratory search, made inci-

dent to an arrest, of a mattress which was not within

the immediate control of the arrestee or any other

person, was introduced at trial notwithstanding the

petitioner’s objection. Secondly, petitioner asserts that

he was denied his right to due process of law in viola-

tion of the Fourteenth Amendment of the United

States Constitution when despite petitioner’s objection

evidence of a show-up identification was introduced

which had been procured by parading the petitioner

past two victims of an armed robbery where petitioner

was handcuffed and in the custody of a police officer

who had previously directed the victims to remain in a

specific location until a suspect could be brought in

for their observation and that evidence obtained by

this procedure was fatally suggestive and conducive to

irreparable mistaken identification.

This Court first notes that the arguments

Summit County dealt with and denied petitioner’s

motions to suppress at the time of trial on both spe-

cific issues. This Court therefore finds that a hearing

wherein the presentation of evidence in regards to the

claims of petitioner is received is not necessary in the

instant case. See Townsend v. Sain, 372 U.S. 293, 83

S. Ct. 745, 9 L.Ed. 770 (1973).

are

The facts as agreed to between the parties

follows: At approximately 6:00 a.m. on August 16,

1973, a 1967 light blue Chevrolet stopped at a Martin

Oil Station located on North Main Street. Petitioner

one-half hour before the armed robbery.

Later that day, August 17, 1973, petitioner Webb

was arrested at the Brown Derby Motor Inn on a

warrant based on an incident which had occurred in

Stark County, Ohio. Information as to his location had

been obtained while the two suspects of the armed rob-

bery were being held in custody by the Akron Police

Department. Wanda Burt who knew the two suspects

in the armed robbery apparently accompanied the sus-

to the police station and thereupon indicated to

the police officers that petitioner was involved in a

rebbery and located at the motor inn descri

police station in handcuffs and upon the officers’ taking

him in to the police station, he was identified by the

victims of the armed robbery who were sitting in

waiting room at the instruction of the police officers.

The facts further indicate that the victims were able

to observe the other two suspects in the armed robbery

and a positive identification was made of only one, to

wit: Lenzy.

The Court turns first to the petitioner’s argument in

regards to the illegal seizure of the weapon. The gen-

eral law in the area of a warrantless search was stated

by the Supreme Court in the case of Chimel v. Cali-

fornia, 395 U.S. 752, 89 S. Ct. 2034, 23 L.Ed. 2d 655

(1969). Therein, the Supreme Court quoting from

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.

2d 889 stated:

“(t]he scope of [a] search must be ‘ tied

to and justified by’ the circumstances which ren-

dered its initiation permissile.”

However, the Supreme Court went on to quote from

United States v. Rabinowitz, 339 U.S. at 83, 70 S. Ct.

at 443, (dissenting opinion) and state that the reason-

The facts of the instant case are that the officers

upon arresting the petitioner knew that he had within

his possession a weapon. His girl friend was sitting on

a chair several feet from the bed where the weapon

was eventually found. The State of Ohio asserts that

un-

Ohio therefore concludes that it was reasonable for

the officers to search for a known weapon within the

room to insure their own safety.

Upon consideration of these facts, this Court cannot

conclude that the search that was instituted was a

violation of the petitioner’s rights. Although there

were four armed police in the room at the time the

search was made, the search was not conducted for

evidence, but rather for the safety of the officers. It is

not unreasonable to assume that during the dressing

process the petitioner would have been seated on the

bed or been near enough to the bed to make an attempt

to secure a weapon. As such, this Court finds that it

was reasonable for the officers in the room to search

that bed for said weapon.

The Court further notes that the weapon found,

although admitted into evidence in the trial of the pe-

titioner, was in no way connected with the robbery

and that therefore even were the search unreasonable

the error in admitting said weapon into evidence must

be considered harmless.

Turning to petitioner’s second argument, the Court

finds that the case of Kirby v. Illinois, 406 U.S. 682,

92 S. Ct. 1877, 32 L.Ed. 2d 411 (1972), to be con-

trolling. The Court therein stated that a one-on-one

identification process was not a violation of the consti-

tutional rights of a defendant. See also Stovall v.

Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L.Ed. 2d

1199 (1967). This Court notes that the Summit County

Ninth District Court of Appeals in considering peti-

tioner’s identical claim stated:

“ . the conduct of the police, the way the con-

frontation occurs, the requirement for immediate

action, the original opportunity of the witness to

form a mental image, the lack of deviation or other

mistaken identification—all these factors enter

into the —＋ be mutual and interrelating cir-

cumstances which must be considered.

“Here the evidence indicates no overt effort by

the police to implant a concept of identification.

The witnesses were asked to wait to see a ‘suspect,’

(R. 343) and this word, in its common usage, im-

plies no more than a possibility of involvement in

the criminal act. There was moreover no specific

identification by the police of the appellant [peti-

tioner herein] as the ‘suspect’ although the pres-

ence of the same officer made an inference as to

this conclusion likely (R. 326). He was merely

brought into the room without comment and with-

out specifically being exhibited to the witnesses,

and the indentification was volunteered by the

witnesses. Their prior verbal identification was

reasonably close to the actual appearance of appel-

lant (R. 327) ATI pt oy to

for a question as to whether or not a mo

had been mentioned to the officer taking the de-

scription. There is no evidence either witness

ever erroneously identified anyone else as a 17"

ticipant in the robbery. The witnesses (R. 174,

211, 232) had previously rejected another man as

one of the robbers. (R. 312, 318, 329). Both wit-

nesses had ample opportunity to form a clear

as p n daylight, ve

minutes or more, the witnesses faced the robbers

and neither wore any mask or other facial disguise

or concealment. Moreover, at the trial both wit-

nesses gave definite in court identifications.

= all of these factors, and their mutual in-

terrelation, it a rs that there is nothing to in-

dicate that ei a So I.

responded to official suggest n pre-t

identification.“

In the case of Kirby v. Illinois, 406 U.S. 682, 92 8.

Ct. 1877, 32 L.Ed. 2d 411 (1972), the court therein

found the identification process in that case to be

proper under facts similar to those in the instant case.

The facts of that case were that the defendant and a

friend were picked up for possessing property which

was that of a particular individual. The police called

said individual, had him come to the police station and

upon his arrival and immediately upon entering the

room, individual identified the defendant and his

friend as those who had robbed him. The Court found

the identification to be proper.

Under the totality of the circumstances and consid-

ering the same factors as the Summit County Ninth

District Court of Appeals, this Court finds that the

identification process was not unduly prejudicial or

suggestive so as to violate the constitutional rights of

petitioner.

Therefore and for the reasons stated above, peti-

tioner’s application for Writ of Habeas Corpus is

hereby denied. Case dismissed.

It is so ordered.

Leroy J. CONTIE, JR.

U. S. District Judge

No. 75-2374

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WALTER WEBB, IR.,

Plaintiff-Appellant,

VS.

JOSEPH H. HAVENER, Superintendent

of Southern Correctional Facility,

Defendant-Appellee.

On Appeal from the United States District Court

for the Northern District of Ohio

Decided and Filed February 18, 1977.

Before: CELEBREZZE, MCCREE, and ENGEL, Circuit

Judges.

MCCREE, Circuit Judge, delivered the opinion of the

Court. ENGEL, Circuit Judge, (pp. 11-12) filed a sep-

arate concurring opinion. CELEBREZZE, Circuit Judge,

(p. 13) filed a separate dissenting opinion.

MCCREE, Circuit Judge. This appeal from the dis-

missal of a petition for a writ of habeas corpus re-

quires us to determine whether the admission of out-of-

court identification of appellant violated his constitu-

tional right to a fair trial.

Appellant attacks his state conviction of armed rob-

bery on two constitutional grounds. First he contends

that the out-of-court identification that two witnesses

made of him was made under such suggestive circum-

stances that its admission into evidence denied him due

process of law. He also argues that a gun was illegally

seized in a warrantless search and that its admission

was a violation of his Fourth Amendment rights. Be-

cause we hold that evidence of the challenged identifi-

cations should not have been admitted at trial, we need

not consider appellant’s Fourth Amendment claims.'

The evidence offered at trial reveals that in the

early morning of August 16, 1973, a black man and a

white woman in a light blue Chevrolet automobile

stopped for gasoline at a station owned by Howard

Baker in Cuyahoga Falls, Ohio. The man went into the

station, purchased a cup of coffee from the vending

machine, exchanged a few words with Mr. Baker, re-

turned to the car and drove off. About one-half hour

later two black men approached Baker, who was then

servicing a customer’s car outside the station, and

asked him where the restroom was. A few moments

later, after Baker had gone inside, they reappeared

and Baker met them in the doorway. Baker was forced

back into the station at gunpoint and ordered to give

over the money he had in his pockets. Then both Baker

and Franklin Harry Leach, a customer who was in

the station at the time, were forced to lie down in the

back room. While they were still lying down the rob-

bers left.

When the police arrived, Baker and Leach provided

descriptions of their assailants in general terms. One

man was described as about five feet eight inches to

Review by this court of the legality of this seizure and the

permissibility of the introduction of irrelevant and highly

prejudicial evidence obtained thereby is complicated by the

recent decision in Stone v. Powell, — U.S. —— (1976). We

therefore express no views about this issue, which may not

arise again in the event of retrial.

six feet tall, 180 to 200 pounds, with a squint in his

left eye. The second man was described as about six

feet tall, over 200 pounds, with long sideburns. Baker

also mentioned the earlier visit to his station by the

couple in the blue Chevrolet. Nevertheless, in his testi-

mony, Baker stated that the man in the Chevrolet was

not one of his assailants.

Early the next morning, Officer Goodwell, who was

on general traffic duty, saw a blue Chevrolet of the

general description mentioned by Baker. He stopped

the vehicle and discovered that its temporary registra-

tion had expired. He thereupon took its occupants,

James Lenzy, Richard Bentley, and Wanda Burt, to

the police station.

Although the testimony about what happened at the

police station is incomplete, and in some details con-

tradictory, it reveals that Baker and Leach were asked

to come to the station to try to identify Lenzy and

Bentley as the men involved in the robbery the day

before. Bentley agreed to participate in a show up,

but neither Baker nor Leach identified him. Lenzy

refused to participate in a show up, but was seen and

recognized by Baker and Leach together as he was

attempting to use a telephone.

Meanwhile, Wanda Burt had told police officers that

the Canton police were looking for appellant, and that

he and Cindy Johnson, his co-defendant at trial, could

be found at a nearby motel.’ After confirming that a

warrant had issued in Canton for appellant’s arrest,

Akron police officers went to the motel to execute the

* Wanda Burt was not available to testify at trial. We do not

know, therefore, exactly what information she gave about

Webb. It appears that Webb had left Canton during a trial

involving an unrelated crime.

warrant. Baker and Leach were asked to remain at

the station while the police went to bring in another

suspect.

Appellant and Johnson were in bed at the motel

when the police arrived. Appellant was arrested and

then both were taken to the police station. After ar-

rival, appellant, still handcuffed, was escorted by police

officers into a room where Baker and Leach were

waiting. They identified him.

The Supreme Court has on many occasions disap-

proved of police practices that involve unnecessarily

suggestive identifications. In Wade v. Gilbert, 388 U.S.

218 (1967), the Court, recognizing that “the annals

of criminal law are rife with instances of mistaken

identification,” held that by recognizing the right of

an arrested suspect to the assistance of counsel when

he is compelled to participate in a lineup, this danger

would be minimized. The Court established a clear rule

that evidence of lineup identification of suspects who

did not have the benefit of counsel at the lineup was in-

admissible even without a showing of improper action

by the police that created any likelihood of misidentifi-

cation. However, even though the admission of im-

proper out-of-court identification was forbidden, the

Court held that an in-court identification by the same

witness could be made if a basis for the identification

independent of the improper lineup could be estab-

lished.* This approach is consistent with the doctrine

that permits the admission of evidence different from

This distinction between pretrial and in-court identifica-

tion was explicated in Coleman v. Alabama, 399 U.S. 1 (1970),

when Justice Brennan wrote that an in-court identification

could be based upon observations at the time of the crime

and not at all induced by the conduct of the lineup.

but related to other evidence obtained by constitu-

tionally impermissible means to be admitted if its pro-

ponent can show that it is not “fruit of the poisonous

tree.” Wong Sun v. United States, 371 U.S. 471

(1963).

In Stovall v. Denno, 388 U.S. 293 (1967), a case

argued and decided with Wade, although the Court

held that the exclusionary rule announced in Wade

should not be applied retroactively, nevertheless, it

stated that a pre-Wade identification made during a

one-on-one confrontation may be so unnecessarily sug-

gestive and conducive to irreparabie mistaken identifi-

cation that its use at trial would amount to a denial of

due process of law. Relying on the right to due process,

instead of the right to counsel, the Court in its brief

opinion did not elaborate upon the factors that would

require a decision that due process had been denied.

It recognized, however, that necessity can be a factor

in determining identification procedures that may be

used by the police. On the particular facts of Stovall,

where the identifying witness was in grave condition

in a hospital and there was no practical opportunity

to employ a less suggestive method of identification

than the one-on-one hospital room confrontation, the

Court found no violation of due process.“

The Court again expressed its concern about mis-

taken identification in Simmons v. United States, 390

U.S. 377 (1968). In that case, the defendant challenged

* The Court applied Stovall in Foster v. California, 394 U.S.

440, 443 (1968), when it held that repeated confrontations be-

tween the witness and the defendant were so arranged by the

police as to make the resulting identification virtually in-

evitable.”

in-court identification made by witnesses who had

previously identified the defendant during claimed un-

necessarily suggestive photographic displays. The

Court held that each case involving “convictions based

on eyewitness identification at trial following a pre-

trial identification by photograph” must be considered

on its own facts, and that such convictions will be set

aside “only if the photographic identification proce-

dure was so impermissibly suggestive as to give rise

to a very substantial likelihood of irreparable mis-

identification.” 390 U.S. at 384. In Simmons, as in

Wade and Coleman, the Court recognized that, despite

an intervening impermissible identification, an eye-

witness may retain a clear image of his assailant based

upon observations at the time of the crime. This image

may be so strong that in-court identification can be

considered “independent” of, and not the product of,

the impermissible procedure. This independent basis

must be determined on the facts of each case.’

In Neil v. Biggers, 409 U.S. 188 (1972), the Court

considered a habeas corpus challenge to a state con-

5 We have adopted the Simmons independent basis rationale

both when the flaw in the prior identification lies in the failure

to have provided an opportunity for counsel, see, e.g., Holland

v. Perini, 512 F.2d 99, cert. denied, 423 U.S. 934 (1975);

Marshall v. Rose, 499 F.2d. 1163 (1974); and when the flaw

was arguably impermissible suggestiveness, see, e.g., United

States v. Russell, 532 F.2d 1063 (1976) ; United States v. Scott,

518 F.2d 261 (1975); United States v. Matlock, 491 F.2d 504,

cert. denied, 419 U.S. 864 (1974); United States v. Clark, 499

F.2d 889 (1974), cert. denied, 420 U.S. 910 (1975); Mock v.

Rose, 472 F.2d 619 (1972), cert. denied, 411 U.S. 971 (1973);

United States v. DeBose, 433 F.2d 916 (1970), cert. denied,

401 U.S. 920 (1971).

viction which occurred before the Wade and Stovall

decisions. It was based in part on evidence introduced

at trial of a station-house identification by the victim.

The Court stressed that in such cases the “primary

evil” to be avoided was the “substantial liklihood” of

misidentification. 409 U.S. at 198. The Court indicated

that the evidence of that out-of-court identification

need not have been excluded simply because “the police

did not exhaust all possibilities in seeking persons

physically comparable” to the defendant. It expressly

refused to apply in that case “a strict rule barring

evidence of unnecessarily suggestive confrontations”

because the purpose of such a rule, “to deter police

from using a less reliable procedure where a more

reliable one may be available” could not be served by

its application in a case in which “both the confronta-

tion and the trial preceded Stovall . . . when [the

Court] first gave notice that the suggestiveness of

confrontation procedures was anything other than a

matter to be argued to the jury.” 409 U.S. at 199.

There has been considerable debate whether Biggers

should be read as rejecting a strict rule that would

emphasize control of police behavior in favor of a

rule, to be applied not only in pre-Stovall but also in

post-Stovall cas»s, that would require an examination

of each case limited to the possibility of misidentifi-

cation. The Second Circuit, in Brathwaite v. Manson,

527 F.2d 363, 371 (1975) (Friendly, J.) cert. granted,

U.S. (1976), indicated that it views Biggers as

only affecting pre-Stovall cases, and that a “stringent”’

rule excluding all “evidence of an identification un-

necessarily obtained by impermissibly suggestive

means” is necessary to “give fair assurance against

the awful risks of misidentification.”” The Seventh

Circuit, however, in United States ex rel. Kirby v.

Sturges, 510 F.2d 397 (7th Cir.), cert. denied, 421

U.S. 1016 (1975), refused to adopt such a rule and

questioned the power of the federal courts to impose

on the states rules whose “entire impact” would be to

deter undesirable police conduct.“

This court has not been asked to commit itself to

such a strict rule. We observe, however, that even in

cases in which we focused on the question of the re-

liability of the identification, we also examined the

practical alternatives available to the police at the

time they chose to conduct the identification procedure,

see e. g., United States v. Clark, 499 F.2d 889 (1974),

cert. denied, 420 U.S. 910 (1975); United States v.

Matlock, 49) F.2d 504, cert. denied, 419 U.S. 864

(1974); Mock v. Rose, 472 F.2d 619 (1972), cert.

„A “strict” rule would, in effect, make the degree to which

an identification was unnecessarily suggestive a controlling,

rather than an additional, factor in determining whether there

was a denial of due process. Such a rule would reduce the

number of cases in which there is a possibility of mistaken

identification testimony by deterring police from using un-

necessarily suggestive procedures. Testimony of possibly mis-

taken identification, unlike evidence that is excluded only be-

cause it was obtained in violation of Fourth Amendment

rights, is inherently unreliable. Cf. Schneckloth v. Bustamonte,

412 U.S. 218, 258 (1973) (Powell, J., concurring); Friendly,

Is Innocence Irrelevant? Collateral Attack on Criminal Judg-

ments, 38 U. Chi. L. Rev. 142, 160 (1970).

* Panels in the Fourth Circuit, the only other circuit which

has specifically addressed this question, have not agreed about

the desirability of such a rule, or about the effect of Biggers.

Compare Smith v. Coiner, 473 F.2d 877, cert. denied, 414 U.S.

1115 (1973), with United States ex rel. Pierce v. Cannon, 508

F.2d 197 (1974).

denied, 411 U.S. 971 (1973); and the degree to which

the confrontation could be considered inevitable or

accidental, see, e. g., United States v. Scott, 518 F.2d

261 (1975).

Our decision in this case, however, does not require

us to adopt such a rule.’ The state does not argue that

the station-house show up was not unnecessarily sug-

gestive. Instead it argues that we should limit our

consideration to determining whether the station-house

identification of Webb was reliable. Respondent con-

The district court, in denying appellant's petition for a

writ of habeas corpus, relied on the factual similarities be-

tween this case and Kirby v. Illinois, 406 U.S. 682 (1972). The

Supreme Court opinion in that case held that a person sub-

jected to a one-man stationhouse show up conducted before

formal charges had been filed was not entitled to counsel

under the doctrine established in Wade, supra. Although there

are similarities between Kirby and this case, there are im-

portant differences. Kirby was not brought to the station to

be identified, and the situation resulting in ihe confrontation

may not have been planned. In this case, although appellant

was arrested on other charges, it appears that his arrest was

precipitated by the suspicion that he was involved in the

robbery. Baker and Leach were told to wait while he was

brought in. There is testimony that some of the officers de-

bated whether to subject appellant to the show up or whether

instead to arrange a lineup, and that Webb himself requested

one. There was nothing fortuitous about the arrest or the con-

frontation questioned here.

But more importantly, in Kirby, the Supreme Court limited

its consideration to the question of the Sixth Amendment

rights of the defendant. It expressly refused to consider

whether the show up, and later admission into evidence of the

resulting identification, deprived Kirby of the due process of

law. 406 U.S. at 690 n. 8. This question was considered in a

later habeas corpus action in which the Seventh Circuit de-

nied relief. See United States ex rel. Kirby v. Sturges, supra.

tends that even if this evidence was obtained by im-

permissibly suggestive means, it was in fact reliable.

We do not agree.

As we observed in United States v. Russell, 532

F.2d 1063, 1067 (1976), the Court in Biggers, supra,

outlined the factors to be considered in determining

the probability of misidentification when the identifi-

cation procedure has been unnecessarily suggestive:

(1) the opportunity of the witness to view the crim-

inal at the time of the crime

(2) the witness’ degree of attention

(3) the accuracy of the witness’ prior description

of the criminal

(4) the level of certainty demonstrated by the wit-

ness at the confrontation

and

(5) the length of time between the crime and the

confrontation.

Taking all these factors into account, we hold that the

probability of misidentification during the station-

house confrontation is great.

We have in the past noted that there is a great

potential for misidentification when a witness identi-

fies a stranger based solely upon a single brief observa-

tion. This is especially true when the observations were

made at a time of great stress and excitement, see

United States v. Russell, supra, and when the stranger

is of a different race. The witnesses in this case, by

their own testimony, could not have viewed the robbers

for more than “a couple of minutes.” For much of

that time the witnesses were on the floor, and for all

but a few seconds were at gunpoint. Although Baker

testified that, after having advised his employees to

do so, he took special care in observing the robbers in

order to be able to identify them, he was not able to

describe them in any detail. If, as was assumed at trial,

the shorter man with a squint in his left eye was not

appellant, then apparently it was the state’s theory

that appellant must have been the other robber. The

only information given about the second robber is

that he was approximately six feet tall, weighed over

200 pounds, and had long sideburns. Although appel-

lant is of this approximate height and weight, by the

uncontroverted testimony, at the time of his arrest on

the day after the robbery, he had a mustache and not

long sideburns.

There are also several other unexplained discrep-

ancies in the testimony given by the witnesses. First,

at the suppression hearing, Leach testified that he had

identified only one suspect, Lenzy, at the station on the

morning after the robbery. The next day at trial,

however, he testified that he had identified both Lenzy

and appellant. Second, although Leach testified that he

and Baker were first shown Lenzy, and then later

shown appellant, Baker testified that he identified

Lenzy only after he had identified Webb. Third, Baker

testified that it was Lenzy who had held the gun to

his face while Webb pushed Leach to the floor and

kicked him. But Leach testified that it was Lenzy who

had kicked him.

Although the role of the federal courts considering

petitions for habeas is not to resolve conflicts in the

evidence presented at trial, in this case the identifi-

cation testimony was the only evidence connecting

Webb with the armed robbery. This identification was

made under circumstances so suggestive that its re-

liability is seriously impaired even without discrep-

eee we — et ee ee ů — Z-

— —— —E— es

ancies. By asking the witnesses to wait at the station

while the officers left to bring in another suspect, the

police unavoidably suggested to the witnesses that

Webb, the man with whom the officers returned, was

the man whom they should identify. There was no

necessitous circumstance here, as there was in Stovall,

that justified a hurried confrontation. No explanation

was offered why a lineup was not arranged, and why

the witnesses were not separated at the time each made

his identification. We conclude, therefore, that, because

the station-house identification was unreliable and

because it was unnecessarily so, its admission at trial

denied Webb the due process of law. See Foster v.

California, 394 U.S. 440 (1968); United States v.

Russell, supra; Workman v. Cardwell, 471 F.2d 909

(6th Cir.), cert. denied, 412 U.S. 932 (1972).

The testimony does not reveal that an independent

basis existed for the in-court identification made after

the constitutionally inadmissible evidence of the sta-

tion-house confrontation had been introduced. Accord-

ingly, we cannot dismiss the error as harmless. Chap-

man v. California, 386 U.S. 18 (1967).

The decision of the district court is reversed and

the case is remanded with instructions to grant the

writ of habeas corpus unless within a reasonable time

petitioner is retried without the use of unconstitu-

tionally obtained evidence.

ENGEL, Circuit Judge, concurring.

The observations of Judge Celebrezze in his dissent

have considerable persuasive force when the facts here

are compared with those which yielded a different re-

sult in Hastings v. Cardwell, Holland v. Perini, and

Heltzel v. Collins, cited in the dissent. On the other

hand, the factual context of United States v. Russell,

supra, tends by comparison to support the result which

we reach in the instant case. As we continue to mea-

sure an ever growing variety of factual circumstances

against the basic principles of Stovall v. Denno and

subsequent decisions, we will run into the dilemma

which Dean Griswold discussed in the 1974 Roscoe

Pound Lectures with respect to search and seizure

cases:

In dealing with search and seizure cases, the

Court is in fact confronted with a massive di-

lemma. On the one hand, the cases are funda-

mental and of great public importance. In some

— 1 they go to the heart of our system of justice,

and it is comforting to think that the Supreme

Court is ultimately available to deal with ques-

tions of this sort. But, on the other hand, the

number of cases is great, and is increasing. And

each of these cases is a world in itself. An? case

in the search and seizure area will be ditferent

from every other case. There is only limited prece-

dential value in the decisions, and experience

shows that language used in one case in the search

and seizure field often has to be qualified or ex-

plained away when a different case arises with

slightly different facts. The result is an inherent

amount of uncertainty, and this uncertainty ex-

tends to the lower courts, which have to try to

apply the decisions of the Supreme Court.

Erwin N. Griswold: “Search & Seizure — A Dilemma

of the Supreme Court“, delivered at the University of

Nebraska College of Law; March 18-19, 1974.

My primary reason for concurrence is that an exami-

nation of the record in the state court shows that the

one-on-one identificaticn of appellant was totally sug-

gestive. Webb was under arrest. The witnesses were

in effect told whom they were to expect and were then

shown the suspect. It is difficult to find a more sugges-

— —— ee ee

EEE OR

ꝗ— —

tive procedure than that employed in this case. There

is also no credible finding by the state trial court, which

I might otherwise be obliged to honor, that the identifi-

cation by the witnesses had an indepen lent and un-

tainted basis.

Accordingly, I concur in Judge McCree’s decision.

At the same time, because we need not rely on it here,

I would refrain from any expression of preference for

the “strict” rule over the approach expressed by the

Seventh Circuit in United States ex rel Kirby v.

Sturges, 510 F.2d 397 (7th Cir. 1975).

CELEBREZZE, Circuit Judge, dissenting.

I respectfully dissent. I cannot reconcile the majority

view with our prior decisions which have sustained the

constitutionality of post-Stovall, one-on-one identifica-

tions procured under circumstances no more inherently

suggestive than those of the showup employed here.

Hastings v. Caldwell, 480 F.2d 1202, 1203 (6th Cir.

1973); Holland v. Perini, 512 F.2d 99, 103-104 (6th

Cir. 1975); Heltzel v. Cowan, 518 F.2d 851, 852-853

(6th Cir. 1975). In each of these cases we tacitly de-

clined to impose upon the states a per se rule which

would exclude evidence of any suggestive, out-of-court

identification not justified by exigent circumstances.

Although the majority appears to favor a strict ex-

clusionary rule turning upon the extent to which resort

to impermissible identification procedures was com-

pelled by necessity, it honors these precedents by con-

tinuing to adhere to the standard of review suggested

in Neil v. Biggers, 409 U.S. 188 (1972). However, in

applying Biggers’ five criteria to “the totality of the

circumstances” of the instant case, I disagree with the

conclusion reached by the majority. The identifications

were not so tainted by the apparent suggestiveness of

the custodial environment or the statements made by

the police as to invoke a palpable likelihood of mis-

identification. Independent indicia of reliability pres-

ent here are no less persuasive than they were in the

prior cases where we found no denial of due process.

The majority fails to expose any clear error in the

factual finding made by the District Court that “there

is nothing to indicate that either witness was sub-

jected to or responded to official suggestions in the pre-

trial identification.” In the absence of that, I see no

basis for our substitution of judgment. I would there-

fore affirm the denial of the writ of habeas corpus.

No. 75-2374

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Filed March 25, 1977

WALTER WEBB, JR.,

Petitioner-Appellant,

JOSEPH H. HAVENER,

Respondent-A ppellee.

ORDER

Before: CELEBREZZE, McCREE and ENGEL,

Circuit Judges.

Appellee filed a petition for rehearing with a request

for rehearing en banc. No Judge of this Court having

moved for a rehearing en banc, the petition to rehear

has been referred to the hearing panel.

Upon consideration, the Court being advised, it is

ORDERED that the petition for rehearing be

DENIED.

ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN, Clerk

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