Petition for Writ of Certiorari — Wallace v. Smith

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SUPREME COURT, u. 8.

IN THE

Supreme Court of The United States

OCTOBER TERM, 1973

mo 40

WILLIAM O. WALLACE, ACTING WARDEN

OF THE WEST VIRGINIA PENITENTIARY,

Petitioner,

EDWARD LEE SMITH,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHAUNCEY H. BROWNING, JR.

Attorney General

RICHARD E. HARDISON

Deputy Attorney General

E. LESLIE HOFFMAN III

Assistant Attorney General

Room 26, Capitol Building

Charleston, West Virginia

25305

Counsel for Petitioner

Ser aS Se 75S OEE AE 3

PPP

* r Se ee ee

77G TE MEME MAY YU UOTE a ** 1

INDEX

Page

CITATION TO OPINIONS BELOW MW 2

SE ee OI EE

QUESTIONS PRESENTED Saint a

CONSTITUTIONAL PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 8

% 5 5

I. The Out-of-Court Confrontation between

the victim and the respondent was not so

suggestive as to constitute a denial of due

r ciusticnesss

II. If the Out-of-Court Confrontation admit-

ted at Trial was error, it was harmless

| he ARETE TAEDA .

CONCLUSION __ . 3 W

TABLE OF CITATIONS

CASES

Page

Gilbert v. California, 388 U.S. 263, 18 L.

Ed. 2d 1178, 87 S. Ct. 1951 (19677 8

Neil v. Biggers,—U.S.—,34 L. Ed. 2d

401, 93 S. Ct.ä— (197255 eee 5,6, 7

Simmons v. United States 390 U.S. 377,

19 L. Ed 2d 1247, 88 S. Ct. 967 (1968) 7

Smith v. Coiner, 473 F. 2d 877

. ee e. 5

Stovall v. Denno, 388 U.S. 293, 18 L. Ed.

2d 1199, 87 S. Ct. 1967 (19677 7

Terry v. Peyton 433 F.2d 1016

r,, AA

United States v. Cunningham, 423 F. 2d

1269, 1275 (4th Cir. 197o)Pß) r 1 8

United States v. Davis, 407 F. 2d 846

(4th Cir. 1969) EEN SANE URE Pe 6

—— 2

—

IN THE

Supreme Court of The United States

October Term, 1973

NO.

WILLIAM O. WALLACE, AcTING WARDEN

OF THE WEST VIRGINIA PENITENTIARY,

Petitioner,

EDWARD LEE SMITH,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the United States Court of Ap-

peals for the Fourth Circuit entered on February 1,

1973.

CITATION TO OPINIONS BELOW

The opinion of the Northern District of West Vir-

ginia denying habeas corpus relief for the respondent

is printed in Appendix B hereto and is unreported. The

opinion of the Court of Appeals which reversed the

judgment of the District Court for the Northern Dis-

trict of West Virginia is printed in Appendix A hereto

and is reported at 473 F.2d 877.

—

rr SS

JURISDICTION

The judgment of the Court of Appeals, printed in

Appendix A hereto, was entered on February 1, 1973.

A petition for rehearing en banc was denied by the

Court of Appeals on March 30, 1973. The Court of

Appeals stayed its mandate on April 10, 1973, pending

timely application to this Court for a writ of

certiorari.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether under the precedent established in

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

Biggers, US. (Dec. 6, 1972), the Circuit

Court of Appeals erred in determining that the out-of-

court confrontation between the victim and Edward L.

Smith, the respondent herein, was so unnecessarily

suggestive and conducive to irreparable mistaken iden-

tification that admission into evidence, as part of the

government’s direct case, of evidence of the identifica-

tion made in the confrontation constituted a denial of

Smith’s right to due process.

2. Whether, should this Court determine evidence

of the out-of-court confrontation was improperly ad-

mitted at the trial, it can be held to constitute harmless

error.

: 3

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision involved is the due pro-

cess clause of the Fourteenth Amendment to the United

States Constitution.

STATEMENT OF THE CASE

Reference herein will be denoted as (T..) for

the trial transcript filed as part of the Answer to Order

to Show Cause in the district court, and (A..) for

the designated Appendix in the Fourth Circuit Court of

Appeals.

On April 22, 1968, respondent was convicted in the

Circuit Court of Pendleton County, West Virginia, for

the crime of forcible rape, and subsequently sentenced

to an indeterminate term of ten to twenty years in the

penitentiary. After exhausting State remedies, re-

spondent petitioned for a writ of habeas corpus in the

United States District Court for the Northern District

of West Virginia; a plenary hearing was held, and re-

lief was denied. Respondent then sought an appeal in

the Circuit Court of Appeals for the Fourth Circuit.

The Court of Appeals reversed the district court and

held that respondent was denied due process of law

when evidence of an out-of-court identification by the

prosecutrix was admitted at the trial. .

The evidence revealed that in the early morning of

January 21, 1968, Mrs. Myrtle Hammer, the prosecu-

trix, was sexually assaulted in her home about four

miles from the rural town of Franklin, population 695,

West Virginia. The prosecutrix testified that she was

U eee eee ee nat a

NVM A EN EMERY rH NEN RN) Te —

awakened about 4:30 a.m. on January 21, 1968, by a

strange noise, and after a few moments heard her bed-

room door open and a man was standing in the door-

way. (A. 28, 29.) She testified that it was dark, but that

she had a flashlight and turned it on the face of the

man, and in her mind “started to draw a picture of

him.” (A. 29.) The man attacked the prosecutrix,

threw her on the floor and began having intercourse

with her; the assailant then forced the prosecutrix on

the bed and completed the sexual act. (A. 29, 30.) The

prosecutrix testified that her assailant stayed on the

bed with her for several minutes, and that she then

made her escape to her son’s house about a quarter of

a mile away. (A. 30.) The son testified that the prose-

eutrix arrived at approximately 7:00 a.m. and advised

him of what had happened. (T. 26.) The son contacted

the State Police and met them at his mother’s house. (T.

28.)

at Rit

The son in the company of a State trooper went into

the house and discovered the respondent sleeping in the

bed of the prosecutrix. (T. 28.) Respondent was ad-

vised of his rights and placed under arrest. (T. 38.)

While waiting in a doctor’s office about 9:00 on the

morning of the attack, the prosecutrix was confronted

with the respondent who was in the company of two

State policemen. She identified him on that occasion as

the man who was her assailant. (A. 31, 36, 37.) (T. 64,

72, 73.) There were no other confrontations between

the respondent and the prosecutrix. (A. 31.)

rr .

At the trial, the prosecutrix again identified the re-

spondent as her assailant and also testified as to the

identification in the doctor’s office. (A. 29, 31.) The

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prosecutrix withstood extensive eross- examination with

respect to her identification of the respondent. (T. 15,

25.)

As previously stated, the Circuit Court of Appeals

found that the evidence of the out-of-court identifi-

cation of the respondent denied him due process, and,

therefore, his conviction was set aside.

ARGUMENT

I, THE OUT-OF-COURT CONFRONTA-

TION BETWEEN THE VICTIM AND

THE RESPONDENT WAS NOT SO

SUGGESTIVE AS TO CONSTITUTE

A DENIAL OF DUE PROCESS.

The finding of the circuit court in this case is predi-

cated on its belief that evidence of the prosecutrix’s

post-custodial, pretrial identification of the respondent +

as part of the government’s direct case, fatally infected

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

We believe that the decision is clearly erroneous in view g

of this Court's decision in Neil v. Biggers, — U.S.

, 34 L. Ed. 2d 401, 93 S. Ct. — (1972).

There are several factors for this Court’s considera-

tion in examining the apparent conflict between the

circuit court’s decision and this Court’s rule as an-

nounced in Biggers. In that opinion, Justice Powell

stated:

4 .. [T]he factors to be considered in evaluat-

ing the likelihood of misidentification include 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 de-

wert err neee . opt 1

scription of the criminal, the level of certainty

demonstrated by the witness at the confronta-

tion, and the length of time between the crime

and the confrontation.’ ”

In the instant matter the prosecutrix testified that

she turned her flashlight on the respondent for a couple

of seconds before he attacked her and clearly saw his

face. (T. 11, 20, 21.) Additionally, she was forced to

submit to a physical assault lasting several minutes,

leaving little doubt that his face and features could

have been permanently embedded in her mind. After

the rape, the victim waited for her attacker to fall

asleep before leaving the bed on which the assault oc-

curred. She estimated that she stayed in the bed some

ten minutes after the attack before fleeing to seek aid.

(A. 30.)

The Court should also note that a relatively short in-

terval elapsed between the occurrence of the offense and

the identification of the respondent at the doctor’s office

the same day. As stated in Terry v. Peyton, 433 F.2d

1016 (4th Cir. 1970), “The short interval between oc-

currence of the crime and identification * * * was not

conducive to misidentification but tended rather to in-

sure a fresh, accurate identification.”

Consideration must also be given to the fact that the

prosecutrix unequivocally identified the respondent at

trial and such identification withstood excessive cross-

examination by counsel. (T. 15, 25.) As stated in

United States v. Davis, 407 F.2d 846 (4th Cir. 1969) :

“* * * Through cross-examination every circumstance

that might have led to mistaken identity was thoroughly

exposed.”

EL AINE RY

7 .

For a confrontation to constitute a denial of due pro-

cess, it must be unnecessarily suggestive and conducive

to irreparable misidentification. Simmons v. United

States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967

(1968) ; Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d

1199, 87 S. Ct. 1967 (1967) ; and Neil v. Biggers, supra.

We assert that the one-on-one confrontation that oc-

curred in this matter was in no way so suggestive that

its admission into evidence constituted error.

The circuit court places great weight on the fact that

the respondent was not provided a lineup. In his dis-

sent, Judge Murray noted:

“* * * The Court may take judicial notice of the

fact that according to the 1970 Census, Frank-

lin, West Virginia had a population of 695 peo-

ple. Therefore, arranging a line-up in 1968

which would be composed of persons unknown

to the victim undoubtedly would take a period

of time. Additionally, here the police had not ap-

alg er pT someone merely from a description,

ut had the strongly suggestive circumstance of

the arrestee being found in the victim’s bed. To

follow up the arrest by showing this man to the

victim certainly does not seem an unreasonable

police procedure.”

It should be noted that the showup approved by this

Court in Biggers occurred in Nashville, Tennessee, a

city which in 1970 had a population of nearly 450,000.

Again in Biggers, the victim identified her assailant in

the environs of a police station in custody of five officers.

In the case at bar the victim viewed the respondent in

the presence of two officers, in the quiet of a doctor’s

office. As previously noted, unlike Biggers there was a

delay of merely several hours between the occurrence

LPT SPRITE EPSON AT OO

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of the attack and the confrontation. Moreover, the vie-

tim made a positive in-court identification of the de-

fendant.

II. IF THE OUT-OF-COURT CONFRON-

TATION ADMITTED AT TRIAL

WAS ERROR, IT WAS HARMLESS

ERROR.

With respect to the decision of the court below that

the evidence of the out-of-court identification was inad-

missible and thus error was committed when it was ad-

duced at trial, we cite Gilbert v. California, 388 U.S.

263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967), for the

proposition that, even if evidence of an in-court identi-

fication is wrongfully admitted, petitioner is not en-

titled to a reversal in the event that it is harmless error.

Petitioner contends that, in light of the extensive cor-

; roborating and circumstantial evidence adduced at

| trial, if it was error to admit the in-court identification

1 of the respondent by the prosecutrix, that error was

harmless.

Additionally, we eite United States v. Cunningham,

423 F.2d 1269, 1275 (4th Cir. 1970), for the proposi-

tion that admission of an identification witness’ testi-

i mony as to his lineup identification may be harmless

| error where the accused was convicted on substantial

; circumstantial evidence. The fact that the respondent

was found in the victim’s bed and the chemical test dis-

closed the presence of sperm on the linens of the bed in

3 which Smith was found asleep could not be found

; to constitute less than substantial circumstantial

evidence.

TUNA INGER ee Re NL Ee

Finally, we must point out that the ostensible out- of-

court identification of the respondent by the prosecutrix

was made under circumstances which were mitigating

in view of the fact that when the petitioner was brought

before the prosecutrix, nothing was apparently said as

to his identity or as to his connection with the then al-

leged crime. (A. 22.)

CONCLUSION

Therefore, for the above-stated reasons, the peti-

tioner prays that this petition for writ of certiorari be

granted.

Respectfully submitted,

WILLIAM O. WALLACE,

Acting Warden of the

West Virginia Penitentiary

By Counsel

CHAUNCEY H. BROWNING, JR.

Attorney General

RICHARD E. HARDISON

Deputy Attorney General

E. LESLIE HOFFMAN III

Assistant Attorney General

Counsel for Petitioner

IN THE

United States Court of Appeals

FOR THE FOURTH CIRCUIT

NO. 71-1535

EDWARD LEE SMITH,

Appellant,

IRA M. COIN ER, Warden of the

West Virginia State Penitentiary,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA, AT

ELKINS.

ROBERT E. MAXWELL, CHIEF JUDGE.

kaa

Before WINTER and BUTZNER, Circuit Judges,

and MURRAY, District Judge.

(Argued September 14, 1972 5

Deeided February 1, 1973.) g

William H. Ledbetter, Jr., (Court- appointed counsel)

for Appellant, and Willard A. Sullivan, Assistant

Attorney General of West Virginia, (Chauncey H.

Browning, Jr., Attorney General of West Virginia,

and Richard E. Hardison, Assistant Attorney General

of West Virginia, on brief) for Appellee. f

m ' ' . 1

F EMER SE ˙·» BNE Pt HR i car Ce eS CM ORES FEDS cei |

a — — —

CLARA RN AML ARIES ee A YW

A-2

WINTER, Circuit Judge:

After exhausting available state post conviction

remedies, Edward Lee Smith sought a federal writ of

habeas corpus to set aside his state conviction for the

rape of a seventy-two-year-old widow. The district

court conducted a plenary hearing but found lacking

in merit Smith’s contentions that he had been denied

due process of law. Smith argued that due process

had been denied because (a) the trial jury had been

coerced into finding him guilty, (b) he lacked counsel

when the prosecutrix identified him as her attacker,

and (c) the state’s evidence in its direct case that the

prosecutrix had identified him as her attacker in a

one-to-one confrontation shortly after the commission

of the offense was unduly suggestive under the circum-

stances surrounding the identification. As to the latter

contentions, the district court, without passing on the

validity of the one-to-one confrontation or the claimed

denial of the right to counsel, concluded that an in-

court identification by the prosecutrix was not tainted

by the earlier identification and the in-court identifi-

cation provided a valid basis upon which the jury

could have found Smith guilty.

n *

We disagree. We think that the one-to-one confron-

tation under the circumstances denied Smith’s right

to due process and that evidence of the prosecutrix’s

identification as part of the government’s direct case

fatally infected the trial. Since we cannot conclude

that this evidence was harmless beyond a reasonable

doubt, Chapman v. California, 386 U. S. 18 (1967),

we reverse the judgement of the district court and

direct that the writ issue unless the state affords Smith

a new trial within a reasonable period to be fixed by

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A-3

the district court. Because of our conclusion with re-

spect to the evidence of the out-of-court identification,

we do not reach Smith’s other basic contention that

the jury was coerced into finding him guilty. It arose

from circumstances which are unlikely to recur if

Smith is tried anew, and the issue we do decide is

sufficient, standing alone, to warrant relief.

On February 1, 1968, during the morning hours

before dawn, the prosecutrix was awakened by an

intruder and raped in the bedroom of her home in

Franklin, West Virginia. The incident occurred in the

dark although the prosecutrix saw her assailant for

“two seconds” by using a flashlight that she had in

her room. The prosecutrix wore glasses all of the time,

and she had been under treatment for cataracts for two

years, without improvement. She was not wearing her

glasses when she saw her assailant and she subse-

quently described him as somewhat resembling another

man in the community who, another witness testified,

was about fifty years old.

About three hours after the incident, Smith was

found asleep, partially undressed, in the prosecutrix’s :

bed. He was discovered by the son of the prosecutrix e

and a police officer whom the son had summoned, both é

of whom had gone to her house after she had gone to

her son's house to report what had happened. Smith

was awakened and was immediately arrested. When

he was dressed, he was advised that he had a right to f

remain silent, that he had a right to have a lawyer 5

represent him, and that any statement he made could }

be used against him. He declined to make a statement.

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A-4

After he was booked, he was taken in handcuffs to a

doctor’s office where the prosecutrix was being ex-

amined and treated. In handcuffs and with a state

policeman at each arm, he was exhibited to the prosecu-

trix who identified him as her attacker. He had been

given no opportunity to obtain counsel or to request

that counsel be appointed to represent him. Evidence

of the identification at the doctor’s office was part of

the state’s direct case at trial. At trial, the prosecutrix

also made an in-court identification.

According to Smith, he happened to be in the prose-

cutrix’s bed under these circumstances: The afternoon

before, Smith, who was working in the vicinity, began

drinking with friends before returning to his home in

Virginia. About 2:00 a.m., he began the journey home

in his truck. He picked up a hitchhiker who was older

and heavier than Smith. Shortly thereafter Smith

stopped the truck because he was so sleepy. The hitch-

hiker left and Smith went to sleep. Later the hitchhiker

returned, awakened Smith and took him to a house,

subsequently determined to be the house of the prose-

eutrix. He was shown by the hitchhiker to a room with

an empty bed. When the hitchhiker left the room, Smith

partially undressed, went to bed and went back to sleep.

Smith said that he did not know whose house it was

nor the identity of the hitchhiker. The hitchhiker was

not seen again, nor was any attempt made by the police

to locate him. Smith remained asleep until awakened

by the police officer. He denied seeing the prosecutrix

or raping her.

Although, if Smith’s version of the facts is true,

this is a bizarre case, yet it cannot be said that Smith’s

version is inconsistent with the other facts of record.

A-5

After being raped the vietim left her bedroom, leaving

her assailant in the bed, and locked herself in a down-

stairs bathroom for a period of time, where she dressed.

She then walked about a quarter of a mile to her son’s

home to report the incident. The record is imprecise,

but a considerable period of time may have elapsed

between commission of the crime and Smith’s discovery

because the victim thought that the crime was commit-

ted about 4:30 a.m. and the son thought that his mother

had arrived at his house about 7:00 a.m.

While the record shows that initial entry to the

prosecutrix’s house was obtained by someone’s climb-

ing on to a porch roof and breaking a second story

window, Smith said that he entered by a door opened

by the hitchhiker. The window broken was in another

bedroom which did not connect with the bedroom in

which the victim was sleeping except via the first floor.

The prosecutrix testified that the doors were locked

when she retired, but she was not asked if she left the

door unlocked when she went to her son’s house. The

son testified that when he arrived with the police the

door was ajar. Smith said that the porch light was on

when he entered and the victim said that the porch

light was turned on by the rapist before he came up-

stairs and attacked her.

According to Smith, he stated that he had been in

the company of a hitchhiker immediately after he was

awakened and learned that the crime had been com-

mitted, but the police and the son would not listen to

him, The police deny that he mentioned a hitchhiker at

that time, but one policeman admitted that a hitch-

hiker was mentioned as soon as Smith was taken to the

police station before being taken to the doctor’s office.

r ae RS Ee

A-6

No investigation was made of Smith’s claim that he

had been in the company of a hitchhiker, nor was any

attempt made to locate the alleged hitchhiker.

Chemical tests disclosed the presence of sperm on the

bed linens of the bed in which Smith was found asleep

but not on Smith’s underclothing in which he was

sleeping nor on his handkerchief.

All witnesses agreed that Smith’s truck was parked

in plain view of the victim’s house.

Smith argues that under the per se exclusionary

rule of United States v. Wade, 388 U. S. 244 (1967),

and Gilbert v. California, 388 U. S. 263 (1967), his

convietion must be set aside because he neither had

nor had he waived counsel when he was exhibited to

the prosecutrix in the doctor’s office. This contention

is severely shaken by Kirby v. Illinois,—U. 8.—

(1972), decided after Smith’s brief was filed. In Kirby,

it was held that an individual has no right to counsel

at a pre-indictment lineup; therefore, the per se ex-

clusionary rule of Wade and Gilbert would not apply

to identification testimony based upon such a confron-

tation. Smith was not indicted until after he was

identified by the prosecutrix. Although Kirby may be

read to extend the right to counsel to points of time

earlier than the indictment, i.e., “points of time at or

after the initiation of adversary judicial criminal

proceedings—whether by way of formal charge,

preliminary hearing, indictment, information or ar-

raignment” (emphasis supplied) (Kirby v. Illinois,—

U. S.—at—,32 L.Ed. 2d at 417), we do not consider

;

— eee eee e

SEL LALLA UP NIN AL I oO we

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A-7

whether adversary criminal proceedings, other than an

indictment, had been begun against Smith at the time

of the confrontation because of the paucity of the rec-

ord in this regard. Rather, we turn to a consideration

of whether the confrontation was unduly suggestive, a

valid due process objection which was recognized in

Kirby.

III.

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

Court, while holding that the Wade-Gilbert per se ex-

clusionary rule should not be applied retroactively to

confrontations which took place prior to the date of

those decisions, nevertheless held that a confrontation,

not barred by Wade and Gilbert, may be so unneces-

sarily suggestive and conducive to irreparable mis-

taken identification that he [defendant] was denied due

process of law.” 388 U. S. at 302. Cited in support of

the stated rule was our own decision in Palmer V.

Peyton, 359 F.2d 199 (4 Cir. 1966). See also Sim-

mons V. United States, 390 U. S. 377 (1968). In

Kirby v. Illinois, in concluding that the Wade-Gilbert

per se exclusionary rule should not be applied until

adversary judicial criminal proceedings had begun,

the Court repeated that confrontations, immune to

attack under Kirby, could still be violative of due

process rights if they were “unnecessarily suggestive

and conducive to irreparable mistaken identification.”

U. S.—at—, 32 L.Ed.2d at 418.

In Stovall, where there was a one-to-one confronta-

tion in a hospital room where the victim was thought

to have not long to live, the Court recognized that

“Tt]he practice of showing suspects singly to persons

for the purpose of identification, and not as part of a

i" * Denn N nat ee tar

A-8

lineup, has been widely condemned.” 388 U. S. at 302.

We certainly agree because the accuracy of an identi-

fication depends in large part upon the objectivity with

which the confrontation is conducted. Greater accu-

racy can be assured when a suspect is exhibited to a

witness in the company of others having similar facial

and physical characteristics under circumstances

where the mind of the beholder is not affected by inten-

ded or unintended, blatant or subtle, suggestions of

the suspect’s probable guilt.

In Stovall, the rule was laid down that whether a

given confrontation denied due process of law depended

upon the totality of the circumstances surrounding it;

and in Stovall, the identification was held not to deny

due process because the possible imminent death of the

victim rendered not feasible any other way in which

she could say that Stovall was or was not her assailant.

Although Stovall approved a one-to-one confrontation

under the totality of the circumstances present there,

important factual differences exist between Stovall

and the instant case. When we apply the totality of cir-

cumstances test here, we conclude that Smith was

denied due process of law.

The prosecutrix was in no physical danger at the

time that the confrontation in the doctor’s office took

place and that office was only a short distance from the

police station. At the time that Smith was exhibited

to her he was handcuffed and escorted by two uni-

formed police officers. The manner of exhibition,

although properly motivated by considerations of

security, thus carried with it an implied suggestion by

| the police that they believed Smith was the guilty

der

party. There is no claim that the prosecutrix would

FF APY EON Ne ges on

WET NN Or Bent + te Mer gta —

A-9

have been unable to attend a lineup when she left the

doctor’s office or thereafter, and there is no suggestion

that the identification in this case was part of an on-

the-scene immediate investigation such as has been

held unobjectionable in other cases. See Russell v.

United States, 408 F.2d 1280 (D.C. Cir. 1969);

United States v. Perry, 449 F.2d 1026 (D.C. Cir.

1971); United States v. Hines, 455 F.2d 1317 (D.C.

Cir. 1972). It should be noted that in each of these

cases the confrontation occurred promptly after com-

mission of the crime, the police had obtained a good

description of the offender, and under the circumstan-

ces it was important to continue the search for the real

culprit promptly if he had not been apprehended. Here

the confrontation was over five hours later (See McRae

v. United States, 420 F.2d 1283 (D.C. Cir. 1969)

where evidence of a confrontation four hours after

the crime was committed was ruled inadmissible), the

victim gave little if any description of her assailant,

and none to the police as will be hereafter developed,

and the police were so certain that they had the real

culprit that they in effect had determined to make no

further investigation. The showup here was not con-

ducted for any of the reasons or under any of the

circumstances relied on to sustain the validity of the

confrontations in Russell, Perry and Hines.

In short, there was no justification for incurring the

inherent suggestiveness of a one-to-one confrontation

under the circumstances described, nor was there any

reason why a traditional and non-suggestive lineup

could not have been employed other than the testimony

of a state police officer that [wle have no lineups

here,” and a request by counsel in argument that we

take judicial notice that Franklin, West Virginia is a

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A-10

small community and thus was unable to provide

enough people to hold a lineup. With regard to the

latter, the record shows that Franklin is a community

of about 1,000 persons. We do not think that it is so

small as to provide justification for the highly sugges-

tive procedure used in this case. A lineup need not be

restricted to other prisoners, nor is there any prohi-

bition against recruiting participants from other more

populous communities. The fact that lineups have not

heretofore been conducted in Franklin, West Virginia

is no answer. Thus, we conclude that, under the totality

of the circumstances present here, the confrontation

was so unnecessarily suggestive and conducive to ir-

reparable mistaken identification that admission into

evidence as part of the government’s direct case of

evidence of the identification made at the confrontation

was a denial of Smith’s right to due process.

The recent decision of the Supreme Court in Neil

v. Biggers,—U. S. (December 6, 1972), in our view,

has no application to this case. In Neil, the rule was

stated that the admissibility of an identification ob-

tained as a result of a suggestive confrontation was to

be determined by the likelihood of misidentification, in

short, by its reliability, taking into account the totality

of the circumstances surrounding the making of the

identification. The Neil rule, as the opinion makes

clear (Slip Opinion at 9-11), applies to pre-Stovall

cases since police officers, prosecutors and other law

enforcement officers were not then aware that “sugges-

tiveness of confrontation procedures was anything

other than a matter to be argued to the jury.” (Slip

Opinion at 11). 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 confrontation was so

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unnecessarily suggestive and conducive to irreparable

mistaken identification as to amount to a denial of

due process of law. In post-Stovall cases, “‘[s]ugges-

tive confrontations are disapproved because they in-

crease the likelihood of misidentification, and unneces-

sarily suggestive ones are condemned for the further

reason that the increased chance of misidentification

is gratuitous.” (Slip Opinion at 10). The shift in em-

phasis from unnecessarily 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.” (Slip Opinion at 10-11).

While we think Neil inapposite, we do not think that

the identification by the victim in the doctor’s office

was admissible even under the Neil test.

Writing for the majority in Neil, Mr. Justice Powell :

said: i

. . . the factors to be considered in evaluating

the likelihood of misidentification include the 4

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 5

description of the criminal, the level of certainty FE

demonstrated by the witness at the confronta- :

tion, and the length of time between the crime 1

and the confrontation. f

(Slip Opinion at 11).

In the instant case, the victim, while undoubtedly

attentive, agreed that she saw her assailant for only

“two seconds” by the light of a flashlight. A person

with impaired vision, she was not wearing her glasses

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at the time. It is true that the confrontation followed

promptly after the commission of the crime, but the

record is totally lacking in any real corroborative evi-

dence that the victim had a specific person in mind,

other than one who was white, who she thought was

her assailant prior to the confrontation. The record

shows extreme sensitivity on the part of the victim

when questioned about what description, if any, she

had given prior to the confrontation. When asked if

she gave a description to the doctor of anyone other

than Smith, she denied doing so; yet, in the next

breath, she admitted saying to the doctor that her

assailant “had a little resemblance [to Max], I mean

his features.“ The doctor testified that the victim had

said that her assailant “didn’t seem too tall,” that her

assailant “resembled” Mac Roe and that Mr. Roe is

about fifty. The victim’s son testified that his mother

described her assailant as “slender and a long-faced

person” and “[o]ther than that she really didn’t have

too much of a description.“ The son did not recall what

she said about his age. When pressed on cross-examina-

tion, the victim said that she did not recall what she

told the police about the victim’s age, but that “[m]y

statement says twenty-six or seven.” It appears, how-

ever, from the testimony of the police that they did not

interview the victim until after the confrontation and

even then they sought no description because she had

already identified Smith. While the record shows that

Smith was twenty-six, it fails to show his height,

build or facial characteristics. His approximate age,

however, should have been no secret to one who had

been a party to the confrontation.

Neil permits admissibility of an identification re-

sulting from a suggestive confrontation only when

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there is substantial reliability of the identification. We

think the requisite degree of reliability is absent here.

IV.

We cannot conclude that, beyond a reasonable doubt,

the evidence of the impermissible confrontation as part

of the state’s direct case was harmless error. Chapman

v. California, supra. The in-court identification by the

prosecutrix, who was the only witness to the attack,

had inherent weaknesses. The prosecutrix was shown to

have very poor eyesight and to have seen her attacker

without her glasses and only by the use of a flashlight

for a few seconds. The in-court identification of the

prosecutrix, as well as her identification at the confron-

tation in the doctor’s office, was not entirely consistent

with the limited verbal description she gave before she

first saw Smith. She described her attacker as a man

resembling one approximately fifty years old, while

the record shows that Smith was twenty-six.

Given these infirmities in the in-court identification,

we cannot say that beyond a reasonable doubt a jury

would be unaffected by the evidence that she identified

Smith in the doctor’s office. Even if the testimony of

the prosecutrix is read to establish that the in-court

identification had an independent basis, a trier of the

fact might well conclude that an identification made

within hours after the crime would bolster and make

credible an in-court identification by a woman with

impaired sight after the lapse of considerable time.

While the discovery of Smith in the prosecutrix’s bed

was strong circumstantial evidence of his guilt, we

cannot say that Smith’s version of what occurred was

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A-14

totally implausible. It was consistent with the other

facts which were proved and Smith could have been

an innocent second victim, rather than an incredibly

stupid rapist who would go to sleep in his victim’s bed

and leave his motor vehicle within sight of his victim’s

house, unless we are prepared to say that Smith was

incredible as a matter of law. While Smith was an im-

peachable witness, we do not think that we would be

warranted in usurping the jury’s functions as the

trier of the facts and the judge of credibility. More-

over, this is not a case in which there were other eye-

witnesses, nor can it be said that the prosecutrix’s

in-court identification was unequivocally made inde-

pendently of the pre-trial confrontation. See United

States v. Cunningham, 423 F.2d 1269 (4 Cir. 1970).

E Although the present conviction cannot stand, on

retrial the prosecutrix will not be barred from making

a second in-court identification if she can show credibly

that her ability to identify Smith at that future date

was unaffected by the impermissible one-to-one con-

frontation which occurred. Evidence of whether there

may be an independent, untainted source for a second

in-court identification will, of course, be required to be

taken out of the presence of the jury, and the trial judge

will be required to make findings and a ruling.

PTO ee ys

For these reasons, we reverse the judgement of the

district court and direct that the writ of habeas corpus

issue. Issuance may be stayed, however, by the district

court for a reasonable period to enable the State of

West Virginia to retry Smith if it be so advised.

REVERSED AND REMANDED.

J PCTV

www ³·Ü. y MES MENS LONI, tT OT PR

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A-15

MURRAY, District Judge:

I respectfully dissent. In my view, the one-to-one

confrontation under the circumstances in this case did

not deny the defendant Smith’s right to due process and

therefore the use of the prosecutrix’s identification as

part of the government’s direct case was proper.

While it is true that the attack upon the prosecutrix

took place in the hours of darkness, she had already

been awakened by a noise which she heard in her home

and was trying to reach her son on the telephone when

her attacker appeared in the doorway of her bedroom.

She held a flashlight in her hand which she was using to

see the number she was dialing and shone it on the man

in her doorway. She got more than a fleeting glimpse

of the man: “I saw him well enough to know he was

white and his features.“ Her eyes must have become ac-

customed to the darkness for she further testified:

“Well, I started to draw a picture of him, his

height and I knew he was white and then he at-

tacked me.”

The sexual attack began when the attacker threw the

victim to the floor and was later continued by him on

the bed. After the attack, the victim apparently waited

until her attacker fell asleep beside her before stealing

downstairs to lock herself in the bathroom. She esti-

mated she remained in the bed after the attack about

ten minutes. After dressing in some old clothes in the

downstairs bathroom, she slipped out the rear door of

the house and walked a quarter of a mile to report the

attack to her son who then summoned police.

Two police officers went directly to the scene and en-

tered through the rear door that the victim had left

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A-16

open. Finding nothing downstairs, they went to the

victim’s bedroom where they found the defendant asleep

in the victim’s bed. They got him out of bed and took

him into the town of Franklin, West Virginia. After

he was booked, he was taken across the street to the

doctor’s office where the victim was being examined and

treated. As stated in the majority opinion, the defend-

ant at the time was in handcuffs and in the company of

two officers. When he was exhibited to the victim no

statement was made by the officers, but she identified

him as her attacker.

The defendant had previously been advised by the

officers that he was entitled to a lawyer if he wanted one

and that if he didn’t have the funds to employ a lawyer,

they would see that the Court appointed a lawyer for

him. There is no indication from the record that the

defendant ever requested that a lawyer be appointed.

As Judge O'Sullivan! indicated in Roper v. Beto, 454

F.2d 499 (5th Cir. 1972) :

1/ Senior Circuit Judge, Sixth Circuit, sitting by

designation.

“One man show-ups have not been adjudged per

se violative of due process. 7 have been con-

demned as sug age ms but whether a particular

show-up and identification violates due process

is dependent on the ‘totality of the circum-

stances.’ The particular concern of the courts is

whether the show-up has produced reliable iden-

tification evidence or the likelihood of misidenti-

fication.” Id. at 502.

In the case of Bates v. United States, 405 F.2d 1104

(D.C. Cir. 1968), then Circuit Judge, now Chief Jus-

4 ean cok seta ita, e e eRe IRR e

A-17

tice Burger was dealing with the question of whether

an identification of an alleged sexual attacker by one

of the complaining witnesses was the result of an un-

necessarily suggestive confrontation under Stovall v.

Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199

(1967). A suspect was picked up by the police shortly

after the attack took place in the bedroom of the victim.

The complaining witnesses were asked to come down to

the street at midnight to view the defendant who was

the sole occupant of a police patrol wagon. The victim

did identify the defendant on this “show-up” and later

identified him in court as her attacker during the trial.

With regard to the reliability of such a show-up,

Judge Burger stated:

“There is no prohibition against a viewing of a

suspect alone in what is called a ‘one man show-

up’ when this occurs near the time of the alle

criminal act; such a course does not tend to bring

about misidentification but rather tends under

some circumstances to insure accuracy. The ra-

tionale underlying this is in some respects not

unlike that which the law relies on to make an

exception to the hearsay rule, allowing spon-

taneous utterances a standing which they would

not be given if uttered at a later point in time.

An early identification is not error. Of course.

proof of infirmities and on ype factors, such

as hysteria of a witness, can lored on cross-

examination and in argument. Prudent police

work would confine these on-the-spot identifica-

tions to situations in which possible doubts as to

identification needed to be resolved promptly;

absent such need the conventional line-up view-

ing is the appropriate procedure.

“Our review of the circumstances surrounding

the apprehension of Appellant and the police con-

A-18

duct which led to his identification satisfies us

that the claim that Appellant was denied due

process of law is without merit; there was no

substantial likelihood of irreparable misidenti-

fication’. To the contrary, the police action in re-

turning the suspect to the vicinity of the crime

for immediate identification in circumstances

such as these fosters the desirable objectives of

fresh, accurate identification which in some in-

stances may lead to the immediate release of an

innocent suspect and at the same time enable

the police to resume the search for the fleeing

culprit while the trail is fresh.” Id. at 1106.

In the present case, it appears reasonable to assume

that the officers, having found the defendant in the bed

of a lady reported by her son to have been raped, wanted

to take the man before the victim at the earliest possible

time so that she could confirm whether or not the man

in question was her attacker. Also, the officers un-

doubtedly would not want to detain even a person found

in the bed of a raped victim any longer than necessary

if indeed he were not the attacker.

The Court may take judicial notice of the fact that

according to the 1970 Census, Franklin, West Virginia

had a population of 695 people. Therefore, arranging

a line-up in 1968 which would be composed of persons

unknown to the victim undoubtedly would take a period

of time. Additionally, here the police had not appre-

hended someone merely from a description, but had the

strongly suggestive circumstance of the arrestee being

found in the victim’s bed. To follow up the arrest by

showing this man to the victim certainly does not seem

an unreasonable police procedure.

‘

Since the decision by then Cireuit, now Chief Justice

Burger in Bates, supra, the Court of Appeals for the

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A-19

District of Columbia Circuit in a number of carefully

considered opinions has held that a one-on-one show-

up at or near the scene of the crime and within a rel-

atively short time thereafter is not violative of the due

process rights of a defendant. Russell v. United States,

408 F.2d 1280 (1969), cert. den., 395 U.S. 928, 89 S.

Ct. 1786, 23 L.Ed.2d 245; United States v. Perry, 449

F.2d 1026 (1971); United States v. Hines, 455 F.2d

1317 (1972), cert. den., 406 U.S. 975, 92 S.Ct. 2427. The .

reasoning of those cases would appear to apply with

equal validity to the situation in this case where the

confrontation is in a doctor’s office within a few hours

of the crime. As Chief Judge Bazelon observed in

Russell (p. 1284):

It appears that prompt confrontations

in circumstances like those of this case will ‘if

anything promote fairness, by assuring reliabil-

ity* * *,’ This probability, together with the

desirability of expeditious release of innocent

suspects, presents ‘substantial countervailing

policy considerations’ which we are reluctant to

assume the Supreme Court would reject.”

In Perry, Judge Robinson emphasized that among the

interests to be considered are (p. 1033):

“«* * * [T]he combined needs for fast and effec-

tive police action in apprehending criminals, and

the avoidance of unnecessary inconvenience and

embarrassment to innocent citizens incidental

thereto. By such confrontations, a suspect not

identified as the perpetrator of the crime is ex-

onerated forthwith without being hauled to a

police facility for a line-up, and possibly with-

out suffering an arrest. Simultaneously, the po-

lice can quickly ascertain the necessity for any

further investigation and search for the real

A-20

culprit. Such confrontations, then, serve also to

protect the innocent, and to promote efficiency in

deployment of limited police resources.”

In the context of a federal prosecution, the decision

of this court in United States v. Levi, 405 F.2d 380

(1968), is instructive. That case dealt with the armed

robbery of a bank in Maryland by two men armed with

a shot-gun and a pistol. An assistant bank manager,

following the robbery, was advised by FBI agents that

they would bring someone to the bank to see whether

he could identify the man as one of the robbers. The

agents brought the defendant Levi to the bank some

four months after the robbery occurred and the bank

manager identified the defendant as one of the robbers.

He also made an identification at trial a year later. On

appeal, the defendant urged that the pre-trial showing

on a one-on-one basis for purposes of identification was

so unnecessarily suggestive and conducive to irrepar-

able mistaken identification as to deny him due process

of law. However, this court apparently did not con-

sider that any suggestiveness in the identification pro-

cedure used posed an issue of constitutional dimensions,

but rather that the sufficiency of the identification tes-

timony was a matter for jury determination under

proper instructions from the court. In this regard,

Judge Craven stated in his opinion (405 F.2d at p.

382):

In response to recurrent appeals questioning

the sufficiency of one-on-one positive identifica-

tion testimony to support a conviction, the Court

of Appeals for the District of Columbia has

promulgated a rule that when the defendant has

placed his identification in issue, it is incumbent

upon the trial court, on — to specially

instruct the jury (1) ‘that the evidence raises

A-21

the question of whether the defendant was in

fact e criminal actor and necessitates the jur-

or’s resolving any conflict in testimony upon this

issue,’ and (2) ‘that the burden of p is upon

> rosecution with reference to every element

e crime charged and this burden includes

che burden of proving beyond a reasonable doubt

the identity of the . as the pe ator

of the erime charged.“ Jones v. United States,

124 U.S. App. ., „83, 361 F.2d 537, 542

(1966). We approve.”

More importantly, in a case decided on December 6,

1972, the United States Supreme Court, in the fifth

case to come before it involving alleged suggestive

identification procedure, reviewed its prior decisions

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

v. United States, 390 U.S. 377, 384 (1968), Foster v.

California, 394 U.S. 440, 442 (1969); and Coleman

v. Alabama 399 U.S. 1 (1970), and found to be clearly

erroneous the district court’s conclusion that the con-

frontation violated due process. Neil v. Biggers, 41

L.W. 4064. In the Biggers case, the court recited the

facts with regard to the attack as follows:

„A. [H]e grabbed me from behind, and

oe — x — twisted me on the floor. Threw me

own on the floor.

“Q. And there was no light in that kitchen?

“A. Not in the kitchen.

“Q. So you couldn’t have seen him then?

“A. Yes, I could see him, when I looked up

in his face.

“Q. Inthe dark?

“A. He was right in the doorway—it was

eon light from the bedroom shining through.

Yes, I could see — he was.

St i ee ee

A-22

“Q. You could see? No light? And you could

see him and know him then?

“A. Yes.” Tr. of Rec., pp. 33-34.

Id. at 4066.

After this occurred, the victim was walked at knife-

point along the railroad tracks, taken into the woods

and raped there. There was no light during this assault

other than moonlight. The whole incident took between

fifteen minutes and a half hour. Subsequently, the po-

lice tried to arrange a line-up, but were unsuccessful in

finding subjects at the City Jail or the City Juvenile

Home who could answer the general description given

by the victim. Instead they conducted a one-on-one

show-up, which consisted of two detectives walking the

respondent past the victim and having him repeat cer-

tain words.

In the Biggers case, the district court, in finding that

the show-up denied the defendant due process, stated:

* — is no indication that a truly concerted

effort was made to produce suitable subjects for

a line-up. Aside from a phone call to the juvenile

home and a screening of Metro Jail inmates no

other efforts were made. There are several other

rison facilities in the area and there is no evi-

ence that any effort was made to screen them

for subjects. The Court sees no reason why this

could not have been done in order to maximize

the fairness of the identification process. Here,

there was no evidence of any deathbed urgency

as in Stovall which would have precluded the

police from delaying the identification procedure

until a suitable line-up could have been arranged.

The crime was seven months old, the victim was

fully recovered and well, and there are no other

indications that the ends of justice demanded

et EA, A AACA — . — — D

A- 23

an immediate show-up rather than a much

more reliable line-up. Furthermore, none of the

other circumstances which the above discussed

cases indicate may justify a show-up existed in

the instant case. The evidence clearly shows that

the complaining witness did not get an —

tunity to obtain a good view of the sus ur-

ng the commission of the crime. Also, the show-

- confrontation was not conducted near the

time of the alleged crime, but, rather, some

seven months after its commission. Finally the

witness in the instant case was unable to give

either an independent photographic identifica-

tion of the suspect or a good physical description

of her assailant.” Neil v. Biggers, 448 F.2d 91,

94 (6th Cir. 1971).

The Court of Appeals for the Sixth Circuit also

reviewed the state trial and appellate court records

and the transcript of the habeas corpus hearing and

ruled that the conclusions of fact of the District Judge

were not clearly erroneous, and that he had properly

applied the principles of due process of law as they

applied to identification proceedings at the time of his

decision.

However, Justice Powell, for the Supreme Court

overturned the findings of both courts below, stating:

“We find that the District Court’s conclusions

on the critical facts are 1 by the

record and clearly erroneous. The victim spent

a considerable period of time with her assailant,

up to half an hour. She was with him under

a <p artificial light in her house and under

a full moon outdoors, and at least twice, once in

the house and later in the woods, faced him

directly and intimately. She was no casual ob-

server, but rather the victim of one of the most

e PPP ² SLT TOE TUL — AD SERENE MRR AI OM

—

IT PO ES OE —

— ——

A-24

y humiliating of all crimes. Her des-

— — to the police, which ineluded the assail-

ant’s — — age, height, weight, complex-

tion, skin texture, build, and voice, might not

have satisfied Proust but was more than ordi-

narily thorough. She had ‘no doubt’ that respon-

dent was the person who raped her. In the

nature of the crime, there are rarely witnesses

to a rape other than the victim, who often has

a limited opportunity of observation. The victim

here, a practical nurse by profession, had an

unusual ag ye to observe and identify her

assailant. She testified at the habeas 4 —

hearing that there was something about his face

‘I don’t think I could ever forget’. Pet. App., p.

128.” 41 L. W. at 4068.

Weighing all the factors in the case, the majority of

the Supreme Court concluded that there was no sub-

stantial likelihood of misidentification. The Court in-

dicated that the factors to be considered in evaluating

the likelihood of misidentification include the oppor-

tunity 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 crimi-

nal, the level of certainty demonstrated by the witness

at the confrontation, and the length of time between

the crime and the confrontation. These factors are very

similar to those applied for this court by Judge Craven

in upholding the one-on-one confrontation in United

States v. Levi, supra. In Levi, Judge Craven stated

for the Court:

“In deciding whether to permit a criminal case

to go to the jury, where identification rests upon

the testimony of one witness, the District Judge

ought to consider with respect to identification

testimony the lapse of time between the occur-

OUR AAT A: ton

OD RLM AIOE AR VO ON AWE AL I GW Moe

A-25

ance of the crime and the first confrontation,

the 3 during the crime to identify as

compared with the 2 rtunity of other wit-

nesses who may be unable to do so, the reasons, if

any, for failure to conduct a line-up or use sim-

ilar techniques short of line-up, and the District

Judge’s own appraisal of the capacity of the

identifying witness to observe and remember

facial and other features. In short, the District

Judge should concern himself as to whether the

totality of circumstances ‘give[s] rise to a ve

substantial likelihood of irreparable misidenti-

fication.’ ” Id. at 383.

The present case actually is stronger for the ad-

mission of the evidence than Neil v. Biggers. For a

confrontation to deny due process, it must have been

unnecessarily suggestive. Here there was clearly more

justification for the procedure used than existed in

Biggers. It is a fair inference in the Biggers case, the

attack having taken place in Nashville, Tennessee,

that there was a more adequate opportunity to obtain

subjects for a line-up than there would be in Franklin,

West Virginia. In the 1970 Census, the population of

Nashville was 447,877, and the population of Frank-

lin was 695. In Biggers, the police asked the victim to

come to the station house to “look at a suspect.” She

viewed the defendant there in the custody of five police

officers. In the present case, the victim viewed Smith

in the custody of two officers in the quiet of a doctor’s

office. Unlike the situation in Biggers, in the present

case there was no seven-months delay between the oc-

currence of the nighttime sexual attack and the one-on-

one confrontation. Instead, there was but a three-hour

delay. Additionally, the District Court mentioned in

footnote 1 of its opinion, as quoted by the Sixth Circuit

in Biggers, that there was considerable doubt on read-

A-26

ing the trial record as to whether the victim in that

case, Mrs. Beamer, made a positive in-court identifi-

cation of the defendant at the time of his trial. In the

present case, the victim did make a positive in-court

identification of the defendant.

Unquestionably, in the present case there are ele-

ments of the testimony which might affect the weight

to be given to the identification made by Mrs. Hammer.

It is true she had been treated for about two years for

cataracts. It is true that she did wear glasses. She

simply stated she can see without glasses but can see

better with them. The fact that she left her glasses

downstairs in the house when she retired would indi-

cate that she was able to get ready to retire without the

need of using her glasses. She does claim that she

studied the features of the man. She told her son that

her attacker was slender and a long-faced person. She

indicated at the trial when asked “Question: Do you

know of your own personal knowledge how old the de-

fendant here is? Answer: My statement says 26 or 27.”

Actually the defendant was 26. All of these elements

bear on the accuracy of her identification which the

jury should be allowed to consider.

It seems to the undersigned that the West Virginia

trial judge took the appropriate action in the present

case when, at the close of all the evidence, he consid-

ered the motion of defense counsel for a verdict of

acquittal. The sole basis urged on the motion was the

unsatisfactory nature of the identification testimony

of the victim. The trial judge stated:

“The Jury has a right to take into consideration

not only the identification of which you spoke but

the Jury has a right to connect that, if it can,

A-27

with the fact that he was found in the home by

the officers. However, the Jury will further have

the right to consider the view or the statement

of the defendant in regard to how he got there.

It is true that Mrs. Hammer had about nine

o’clock made an statement to Dr. Eye concerning

the identification of the person and vaguely des-

cribed that to the Doctor. The Jury will have

that also to consider and the Court is of the op-

pinion that it is a Jury question, a question of

fact and not a question of law and therefore the

— will overrule your motion for directed

verdict.”

In the present case, I think the Supreme Court would

reach the same conclusion it reached in Neil v. Biggers,

namely:

“The evidence was properly allowed to go to the

jury.”

I would affirm.

——

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF WEST VIRGINIA

EDWARD LEE SMITH,

Petitioner

CIVIL ACTION

)

v. )

)

) NO. 70-6-E

)

IRA M. COINER,

Respondent )

Fairmont, WV

May 4, 1971

SOCeCCeSEEES

BEFORE: The Honorable ROBERT E. MAXWELL,

Judge.

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APPEARANCES:

For the Petitioner: Donald E. Price, Esq.

For the Respondent: Willard Sullivan, Esq.

Whereupon, on the 4th day of May, 1971, in the

United States District Courthouse in Fairmont, West

Virginia, the above-styled habeas corpus matter came

on for a plenary hearing and the following findings of

fact and conclusions of law were rendered by the Court,

to-wit:

PROCEEDINGS

THE COURT: We have here a very well developed

case. Our independent review of the record here does

not indicate or suggest that there are any other con-

tentions of a proportion or extent to which this Court

could direct itself.

The litigation before this Court is viewed from the

constitutional plane of various sections and provisions

of the Constitution of the United States. It is a limited

area of inquiry that a Federal Court can engage in and

it is a matter of proceedings that is in deference to the

State court system of criminal law procedures that

prevail.

The application of the broad provisions uniformly,

we might say and the guidelines, are the polar star upon

which decisions in litigations of this nature are based.

We have with the Answer to this litigation, the tran-

script of testimony which occurred in the criminal trial

in Pendleton County, which resulted in the conviction of

the Defendant for the crime of rape and the resulting

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sentence of 10 to 20 years, which is within the statu-

tory provisions.

We find that the date of the trial and all of the efforts

in that regard are adequately set forth in the Petition

of this petitioner. It reflects the arrest on January 31,

; 1968 and there is no controversy here.

It sets forth the trial, the arraignment and plea on

April 22, 1968, which was the time period adequately

given to counsel to develop and prepare their case. Then

we, of course, had the contentions which have been very

validly summarized and presented in this case by the

petitioner’s counsel.

We have some rather meaty questions that deserve

attention and review. First of all, is the identification

procedures employed here, were they violative of Wade

and Gilbert, decisions of the Supreme Court?

In other words, the test is, was the introduction of

the Defendant at Dr. Eye’s Office on January 31, 1968,

accompanied by two State Policemen while in hand-

cuffs, obviously suggestive as to taint the subsequent

judicial in-court identification by the victim and the

prosecuting witness?

If it is tainted, if it is an extra judicial identification

that is not reliable and dependable within the definition

of such, as set forth in Wade and Gilbert, then of course,

the identification in court is bad.

Then we have Stovall v. Denno, which is reported in

388 United States 293. This has to do with the retro-

activity of the matters involved and these all have to do

with consultation.

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We have a question and it ties into it on matters of

motivation, as to whether or not the investigation was

solely for the purpose of buttressing belief of guilt of

the investigating officers. Whether the officers exceeded

the proprieties and circumscription of due process by

their actions, or by their omissions, failed to satisfy due

process in developing the case so as to the Brady philos-

ophy of litigation to arm the then defendant with any-

thing that would be favorable to his theory and hypo-

thesis of innocence.

We have the second stage of the litigation that needs

close scrutiny. Of course, one of the reasons the Court

felt that this matter should be brought on for plenary

hearing was mainly, whether or not there was any im-

propriety in the function of the jury, so as to rob this

conviction of the essential and fundamental fairness of

trial.

We look into this charge and we find that there are

allegations that there should have been a change of

venue because the Pendleton Times and in particular,

its issue of February 1, 1968, said that:

“Corporal Spence said that they were called

about 7:00 o’clock and informed that Smith had

climbed up on the roof of the front porch of the

Hammer home about 6:30 a.m. and broke into

the second story window and assaulted Mrs.

Hammer.”

The balance of Petitioner’s Exhibit No. 1, that par-

ticular news article is not suggestive or violative of any

principles of free press and fair trial. The question is

whether or not that particular paragraph, written in

that particular way, fits into a pattern or program that

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would rob this case of its fundamental fairness con-

cept some months later when the jury was impaneled.

This article appeared on February 1, 1968, and ac-

cording to the petitioner, the jury trial was not had un-

til April 22, 1968 — that is the date of the arraignment.

So the question is whether or not this has gone so far

as to prevent a jury from being impaneled?

The first inquiry, of course, is directed to the first

area that we look at in assessing this contention, that

is whether or not a jury could be impaneled on voir dire

examination.

Apparently our record indicates there were no neg-

ative reactions to the voir dire examination about

knowledge of the case or prejudice or any preconceived

ideas about guilt or innocence. This is the first area that

we look to.

Next, we look to after discovery matters to see if

they should inject themselves into the presumed cor-

rectness of the jury on voir dire examination and their

results. We look to the record and we have an instance

raised where a juror by the name of Mallow was ap-

parently cognizant of the crime. He had discussed it

extrajudicially with others in the general neighborhood

type of conversations and discussions. And apparently

this was even to the point of perhaps stopping along the

roadway and viewing within 100 yards or so away, the

location and the point where the window had been dam-

aged in making the entrance.

Now, the question is. Does that raise itself to the

point of disqualifying that individual from the facts of

Pw A AS AE IIT TFL RS

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Degen REO RNAS NO SINE A I ee SPY N PS SORE N Eye Be

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the case? Next we must look to the possible coercion of

the jury by the judge in place of the foreman’s an-

nouncements that they were deadlocked on different oc-

casions and he telling them to return to the jury room —

telling him perhaps as the case was, to return to the

jury room under any circumstances and for the jury

to resume their deliberations.

Getting then to those areas generally, the impro-

priety of the jury, the coercion of the Court, the identi-

fication procedures; there appears to be maybe a gen-

eral area that a court should also view, and that would

be within the totality of the case. The totality of the

contention and the totality of the record can, in addition

to the particulars and including the particulars along

with others.

First taking up the coercive area of these matters —

well, looking to all of the situations and all of the con-

tentions. It is worthy of note here that that this convic-

tion was taken by direct appeal to the West Virginia

Supreme Court of Appeals and some few months after

the conviction this conviction was in effect upheld by

the denial of the Supreme Court of Appeals of West

Virginia to review the matter.

The record that we have before this Court and that

which was filed with it as a part of Respondent’s An-

swer, would seem to indicate that all of the contentions

here raised were very adequately and very competently

presented and consistent with good trial strategy by

trial counsel in the State court.

Therefore, not only the State court of record, but an

appellate court had a good, clean and clear opportunity

to pass upon these matters as matters of error in the

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case. And I think we have every right to assume that

consistent with their responsibilities, they would apply

their view of the constitutional qualifications of the

litigation.

As to the pariality and so forth, in the community.

The opinion that permeated the community from this

news story. The Court does not believe that the record

here or the testimony that has now been presented in

this Court is sufficient to demonstrate the petitioner’s

contentions here as having validity. The evidence that

is before this Court does not, in this Court’s judgment,

raise itself to the preponderance of the evidence level.

—— —

—jRä— 2,7 2 —

We have the Juror Riggelman, who according to the

record before us felt badly that he had capitulated. Ap-

parently from his statement we would gain the impres-

sion that he was the twelfth man, the one juror who

stood against the eleven for a hung jury and a dead-

locked jury. I believe that “deadlocked” was the word

that was used. And he capitulated and apparently suf-

fered some remorse thereafter. But apparently his

strong feelings, his strong sentiments were not in any ö

way affected by the article that appeared in the Pen- '

dleton Times.

And when we look at the voir dire inquiry, the neg- ‘

ative answers that were received and as the statutes

provide, the jury had been sworn to answer the ques-

tions of the court and perhaps others.

OPP TES oH

I believe it would be wrong from a Federal Constitu-

tional level to say here that notwithstanding the ac-

cepted practice and not withstanding the opportunity .

that was given for the jurors to answer yes or no, that f

they violated their sworn duty on voir dire examina- ‘

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tion. And that for the purpose of getting this defendant,

the petitioner here, or for the purpose of doing some-

——- they perjured themselves on voir

This Court cannot on the strength of the testimony

that we have before it, do anything other than say this

is conjecture or speculation and this has not raised it-

self to the level that is required in these types of pro-

ceedings or in fact, any proceedings.

We have the matter of the Juror Mallow, who ap-

parently had been past the scene of this matter with

others and had discussed it with others. Well, it does

not appear rational either as a matter of substantive

law or constitutional law, that a juror should be totally

and completely insulated and anticeptic from the facts

of a case. He would know something about it and he

would know of the location for this is a rural area of the

county. It would be hard in a county such as that, for a

crime of any nature to escape the knowledge of all the

people in the area.

So it is a question of degree. Does this man have suf-

ficient knowledge of the facts that would prevent him

as a juror from rendering a fair and impartial verdict?

The evidence here has not convinced this Court that this

man was disqualified in such an instance.

The question of the impartiality of the juror is one

that goes in many directions. In Parker v. Gladden, 385

United States 363. This is a 1966 decision where we had

a bailiff in that case who was also an officer of the court,

make a statement which a juror later testified that had

definitely influenced her decision. The conviction was

reversed due to this violation of the Sixth Amendment.

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Here in this case, we have the husband of the jailer just

in passing and not on a particularized reason, not for

any purpose, not for any direction, not for any reason

of influencing the juror’s mind, just happened together

with others, to be in the area in a very natural way

going to and from work and passing the scene of this

crime.

Now, this, of course, oecurred prior to the trial and

there had been no indication here no inference, really,

that these events, these discussions, these areas of gen-

eral conversation in anyway affected this juror.

The newspaper article, or another phase of this news-

paper article that I have earlier read, is a matter that

has been of some concern and interest by both the Bench

and Bar, since the case of Sheppard v. Maxwell, 384

United States 333.

There you had Dr. Sheppard in Ohio, who during the

course of his investigation of the death of his wife was

just literally bombarded by massive prejudicial publi-

city of just virtually every type and kind.

There the Supreme Court said of the State court

murder trial that the Due Process Clause of the Four-

teen Amendment had been violated.

Well, as we compare that which appeared in the

Sheppard case against that which we have here, the

pre-trial publicity is not in any way comparable.

Now, we have the question next of the alleged coer-

cion by the trial judge of the jury in this case. The one

part of that, which is important, is the reporting by the

foreman of the jury on the third occasion of their com-

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ing into court that there were eleven persons for con-

viction and one person for acquittal.

As to a federal case which admittedly is only guid-

ance to us and perhaps not determinative of the issues

in the State court, but expressive of the federal provi-

sion in matters of this nature, is United States v. Saw-

yers reported in 423 Federal 2d at 1335. This is a

Fourth Circuit case from last year.

There the Court said in part on page 1341:

“Indeed the trial judge may not inquire as to

how the jury stands. And thus may not know-

ingly press for a verdict either way, except in the

rare instance where the jury has disclosed to him

without inquiry their decision.”

Here we have a case where a federal court judge was

accused of pressuring the jury into a verdict. The pres-

sure was applied in that case and the defendant was

convicted and appealed on that ground, but he did not

prevail before the Fourth Circuit.

We are now confronted with whether or not what

that court said was coercive? The testimony that we

have presented here, at least to the effect, if not the

exact words were, “I want you to go back in there—

meaning the jury—and find a verdict.”

Now, with the court’s knowledge of the case being

eleven to one, let’s say for conviction; was he pressur-

ing the jury to go back in and convict the Defendant?

Would he have been pressuring the jury to go back in

and find a verdict of conviction, a verdict of guilty if

eleven to one had been for acquittal? Well, these are

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speculations and these are conjectures that could be

very forcefully argued in both directions.

It would seem that the court's purpose and his

reasoning and intent, or desire, was to have judicial

finality to the litigation. If the jury was to find the

defendant guilty, do so. If they were to find him not

guilty, do so. But it seems to have been his desire and

purpose and his intent to get the case off of dead center

and have a composite judgement returned.

Mr. Riggelman, as might just be parenthetically

noted here apparently blamed himself for capitulating

and being the twelfth juror to vote for conviction. He

did this sometime after the case was over and he

apparently did not express it, if it had any meaning or

purpose, if he did express it. But he apparently did not

express any feelings of oppression or being required to

vote as he did finally, other than the pressure and fore-

bearance of his associates in the jury room.

And indeed, as the record stands, there may be some

little confusion abided here. But I think it is not serious.

That the members of the jury, the eleven of them, were

not in the courtroom when the statement of the court

was made to the foreman, which is here compared.

And there is no record and properly no record, that

the jury room was filled with the statement of the court

from which a prejudicial determination could be made.

Now, we come down to the final critical question

perhaps, the test of whether or not the identification

made by the prosecutrix—the victim of the alleged

crime—in court during the trial of this case, was tain-

ted by the extrajudicial identification of the Defendant

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made on January 31st, in the Office of Dr. Eye. If

there had been a taint, if there had been an actual

human desire or consistency to follow through, then

we have a matter violative of the principles and teach-

ing in United States v. Wade.

So in looking to the very substance of it and in com-

paring and looking to the testimony of the prosecuting

witness that has appeared in our record here, this

Court is impressed that this woman, subject to excel-

lent—just excellent cross-examination ; an examination

that probed deeply with penetration and propriety into

a delicate area—whether this woman’s testimony as

adduced to the jury was valid, credible, had strength

and appropriate force and thus standing alone and free

of the identification in the doctor’s office.

Indeed, as we read the whole record, the black and

white words of it, that were brought forth in the trial

of this matter, this Court is impressed that identifica-

tion of the Defendant by the prosecutrix was valid.

It was one that was not subject to the things that Wade

and Gilbert and the other decisions along this line are

attempting to present.

There was credibility to the in-court identification

in this case and if there had been any lack of credi-

bility, it would have shown itself very, very forcefully

as the result of the excellent cross-examination that

was conducted as to the prosecuting witness. And it

did not; the identification did not develop that a weak-

ness in the identification process of the victim was

present. So the identification of the Defendant in the

case is not violative of either the spirit or the word

of Wade or Gilbert and the testimony here under this

5 EN c PRs ep at yes we 0 * er Nn 4 * *

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issue has not raised itself to a question of sufficient

magnitude to warrant the granting of relief.

So for all of these findings of fact and conclusions

of law that the Court has stated on the record here,

the petition of the petitioner for relief as prayed for

will be denied and an order will be entered in this

regard.

The Court is especially cognizant in this case of the

matters that have been filed with the Court and the

work presented and the very excellent service that has

been presented here by petitioner’s counsel in this

matter.

Attorneys are appointed to these cases without the

thought of reward, without the thought of compensa-

tion. They spend many, many hours as has been done

in this case, pouring over the records and developing

the facts and looking to the law and analyzing the law

and writing memorandums. This is a great and abid-

ing assistance to the Court in trying to get to the bot-

tom of these constitutional questions and problems

that are imposed in these matters.

Indeed it is the finest hour of our profession of law

when attorneys such as we have had in the case, stand

up and will accept these responsibilities and do the

commendable and outstanding jobs that they do and

the Court in this instance thinks it is appropriate to

pause for just a moment and personally and officially

express its appreciation to counsel. We are very grate-

ful.

Is there anything further that we can take up at this

time?

Dr.-

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MR. PRICE: Your Honor, may the Defendant

show his exception to the ruling?

THE COURT: Oh, yes, sir. It will be noted.

(Whereupon, Court was then adjourned until 1:30.)

CERTIFICATE OF COURT REPORTER:

I, JOHN G. BELL, Official Court Reporter of the

United States District Court, Northern District of

West Virginia, sitting at Fairmont, do hereby certify

that the foregoing transcript of the Court’s findings of

fact and conclusions of law as rendered in Civil Action

No. 70-6-E, is a true and correct copy of the same to

the best of my knowledge and belief.

JOHN G. BELL

me —

* — Mee eee

- 7 *

United States Court of Appeals

FOR THE FOURTH CIRCUIT

NO. 71-1535

EDWARD LEE SMITH,

Appellant,

v. a

IRA M. COINER, Warden of the

West Virginia State Penitentiary,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

WEST VIRGINIA AT ELKINS.

Upon motion of the appellant, by his counsel and for

cause shown,

IT IS ORDERED that the mandate in the above-

entitled case is stayed pending application of the appel-

lant in the Supreme Court of the United States for a

writ of certiorari to this Court, provided the applica-

tion is filed within the time permitted by law.

For the Court—by Direction.

WILLIAM K. SLATE, II

Clerk

A True Copy, Teste:

William K. Slate, II, Clerk

By Virginia Lipford

Deputy Clerk

Pp r ̃ ̃ ENTE EET

EERO AE OF IS ere 1 er

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.