Appendix — Neil v. Biggers

ae ee

APPENDIX A

No. 20540

United States Court of Appeals

for the Sixth Circuit

Archie Nathaniel Biggers, :

Petitioner-Appellee, | Appeal from the

United States Dis-

; trict Court for the

William S. Neil, Warden, Tennes- Middle District of

see State Penitentiary, Nashville, Tennessee, Nash-

Tennessee, ville Division.

Respondent-Appellant. |

Decided and Filed August 18, 1971

Before: Edwards, McCree and Brooks, Circuit Judges.

Edwards, Circuit Judge. In this case we are asked by

the State of Tennessee to review and reverse the issuance

of a writ of habeas corpus sought by petitioner Biggers

in the United States District Court for the Middle District

of Tennessee. After a full hearing and after review of the

full record of the proceedings in the state courts of Ten-

nessee wherein Biggers had been convicted of rape and

sentenced to 20 years in Tennessee’s State Vocational

Training School, the District Judge found that identifica-

tion procedures employed by Nashville police and subse-

quently made the subject of extensive testimony at trial

had been so essentially unfair as to represent a depriva-

tion of appellant’s federal constitutional right to due

process of law. He ordered Tennessee either to retry

appellant or release him.

sd

The District Court found the facts pertinent to issuance

of the writ as follows:

sane ane

“On the evening of January 22, 1965, Mrs. Mar-

garet Beamer was attacked at knife-point by an in-

truder who broke into her home. Mrs. Beamer’s

screams aroused her thirteen-year old daughter who

rushed to the scene and also began to scream. At this

point, the intruder is alleged to have said to Mrs.

Beamer, ‘You tell her to shut up, or I’ll kill you

both.’ This Mrs. Beamer did, whereupon she was

taken from the house to a spot two blocks away and

raped. The entire episode occurred in very dim light

and the rape itself occurred in moonlight. As a re-

sult, Mrs. Beamer could give only a very general

description of her assailant, describing him as being

fat and flabby with smooth skin, bushy hair and a

youthful voice.

‘Over a seven month period following the crime

the police showed Mrs. Beamer various police photo-

graphs and had her attend several ‘line-ups’ and

‘show-ups.’ However, the victim was unable to iden-

tify any of the persoms shown to her as being her ‘

assailant. Finally, on August 17, 1965, petitioner was

arrested as a suspect in the rape of another woman.

While petitioner was being detained in connection

with that case the police asked Mrs. Beamer to come

to the police station to ‘look at a suspect.’ The iden-

tification process employed at this point was called A

a show-up. )

‘‘At the instant show-up Mrs. Beamer identified 4

petitioner as being her assailant. As to what tran-

spired at the show-up, there is some conflict between

the testimony given by Mrs. Beamer at the trial and

that given by her at the evidentiary hearing held in

this court on October 30, 1969. In testimony given at

the trial, Mrs. Beamer testified that on viewing the

petitioner the ‘first thing’ that made her think he

| a

—As—

might be her assailant was his voice. However, at the

October hearing, Mrs. Beamer testified that she iden-

tified petitioner positively prior to having him speak

the words spoken by Mrs. Beamer’s attacker a

than seven months earlier during the crime— You

tell her to shut-up or I’ll kill you both.’ There is also

conflict between the testimony given by police officers

at the trial and that given by them at the October

hearing as to whether or not identification of peti-

tioner was made before or after he was asked to

speak these words.

‘“‘At any rate, petitioner was identified at this

show-up as being Mrs. Beamer’s attacker, and the

subsequent indictment and conviction of petitioner

was based almost exclusively upon this station house

identification.*

The District Judge reviewed this record on a legal

standard recently reiterated by the United States Supreme

Court in language which is directly applicable here:

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

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

Court held that because of the possibility of unfair-

ness to the accused in the way a lineup is conducted,

a lineup is a ‘critical stage’ in the prosecution at

which the accused must be given the opportunity to

be represented by counsel. That holding does not,

however, apply to petitioner’s case, for the lineups

in which he appeared occurred before June 12, 1967.

Stovall v. Denno, 388 U.S. 293 (1967). But in de-

claring the rule of Wade and Gilbert to be applicable

only to lineups conducted after those cases were de-

cided, we recognized that, judged by the ‘totality of

“1 There is considerable doubt on reading the trial record

as to whether or not Mrs. Beamer made a positive in-court

identification of petitioner at the time of the trial.”

— -

the circumstances,’ the conduct of identification pro-

cedures may be ‘so unnecessary suggestive and con-

ducive to irreparable mistaken identification’ as to

be a denial of due process of law. Id., at 302. See

Simmons v. United States, 390 U.S. 377, 383 (1968) ;

cf. P. Wall, Eye-Witness Identification in Criminal

Cases; J. Frank & B. Frank, Not Guilty; 3 J. Wig-

more, Evidence, § 786a (3d ed. 1940); 4, id. §1130.”

Foster v. California, 394 U.S. 440, 442 (1968).

Employing the term ‘‘show-up’’ to refer to a situation

where police bring a single suspect before a victim of *

crime for identification purposes, the District Judge held: |

d

f

‘‘On this basis the Court must conclude that the

circumstances here present are not such as to warrant

the show-up procedure and, consequently, that its use

at petitioner’s trial denied him due process of law. F

* * @ ;

(T]here 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

screaming of Metro Jail inmates no other efforts were

made. There are several other prison facilities in the

area and there is no evidence 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 death-bed 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 an immediate show-up

rather than a much more reliable line-up. Further-

f

)

}

any Weed

more, none of the other circumstances which the above

discussed cases indicate may justify a show-up ex-

isted in the instant case. The evidence clearly shows

that the complaining witness did not get an oppor-

tunity to obtain a good view of the suspect during

the commission of the crime.? Also, the show-up con-

frontation 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 photo-

graphic identification of the suspect or a good physi-

cal description of her assailant. The nature of the

show-up as conducted in this case—with the great

lapse of time between the crime and the identification,

the hesitancy of the witness in identifying the peti-

tioner,> the circumstances of the stationhouse con-

frontation coupled with Mrs. Beamer’s knowledge

that petitioner was thought by police to be her as-

ilant,—tended to maximize the possibility of mis-

identification of the petitioner. True, it may have

been more convenient for the police to have a

show-up. However, in matters of constitutional due

process where police convenience ‘is balanced against

the need to extend basic fairness to the suspect in a

criminal case, the latter value should always outweigh

“2 The only other eye-witness, Mrs. Beamer’s daughter

could not identify Biggers. Amd see, the case of United

States ex rel. Garcia v. Follette, supra [417 F.2d 709 (2d Cir.

1969) ] and accompanying text and cases.

“3 See the case of United States ex rel. Williams v. La-

Vallee, supra [415 F.2d 643 (2d Cir. 1969), cert. denied 397

U.S. 997 (1971)] and accompanying text and cases.

“4 See the case of United States v. Thompson, supra [417

F.2d 196 (4th Cir. 1969), cert. denied, 396 U.S. 1047 (1970)]

and accompanying text and cases.

“5 See United States v. Gilmore, supra [398 F.2d 679 (7th

Cir. 1968) ] and accompanying text.” (Footnotes in quotation. )

a

the former. In this case it appears to the Court that

a line-up, which both sides admit is generally more

reliable than a show-up, could have been arranged.

The fact that this was not done tended needlessly to

decrease the fairness of the identification process to

which petitioner was subjected. _

‘*Due process of law and basic fairness demand that ;

the most reliable method of identification possible be }

used in a criminal case. See, Simmons v. United

States, supra, [390 U.S. 377 (1967)] at 383-384. The

conduct of the show-up in this case created an atmos- ’

phere which was so suggestive as to enhance the '

chance of misidentification and hence constituted a

violation of due process.

‘*Clearly, this identification did not amount to a

harmless error, since the victim’s identification of

petitioner was virtually the only eviderice upon which

the conviction was founded. See, Chapman v. Cali-

fornia, 386 U.S. 18 (1966).

‘* Accordingly, judgment will be entered granting |

the application of Archie Nathaniel Biggers for a i

writ of habeas corpus, voiding the conviction ob- Y

tained in the state court, and discharging the peti-

tioner from custody after the state has had a reason-

able time to retry him upon the same charge, any such

new trial to be unaffected by Mrs. Beamer’s station- i

house identification and the testimony of the police ‘

officers who were present when it took place.’ Biggers

v. Tenmessee, supra, at 409, [390 U.S. 404 (1968) ].

ee

We too have reviewed the state trial court record and

the appellate record above that, as well as somewhat dif-..

ferent transcript developed in the testimony before the

District Judge. We believe the record does not allow us to

antl an

find that the conclusions of fact of the District Judge are

clearly erroneous.

In addition, we find no error in the District Judge’s un-

derstanding of the principles of due process of law as they

apply to identification proceedings prior to decision of the

Wade,’ Gilbert? cases. Normally this would mean affirm-

ance of the judgment on the careful opinion written by

Judge Miller* in the court below.

What divides our panel, however, is the effect of the

direct appeal proceedings which preceded the instant fed-

eral habeas corpus case. These included affirmance of ap-

pellant Biggers’ conviction by the Supreme Court of Ten-

nessee, a grant of certiorari by the United States Supreme

Court, and the subsequent affirmance of the decision of

the Supreme Court of Tennessee by an equally divided

vote of the membership of the United States Supreme

Court. Our brother finds in the appellate proceedings

which culminated with a 4-4 affirmance by the United

States Supreme -Court a final adjudication of all due

process issues arising out of the pretrial identification

measures employed in relation to appellant Biggers. As

we understand the matter, he regards the 4-4 vote as the

expression of a final federal view upon the critical due

process question involved in this. appeal, and believes that

it precluded the District Judge from entertaining, taking

timony on, or making findings of fact in relation to the

pretrial identification process in the course of appellant

Biggers’ petition for a federal writ of habeas corpus.

There are three reasons which compel our disagree-

ment:

~*~

1 United States v. Wade, 388 U.S. 218 (1967).

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

8 Judge William E. Miller is now a member of the United States

Court of Appeals for the Sixth Circuit.

vin dhl

First, the District Judge decided a different question i

than that which had been presented to the United States

Supreme Court on certiorari. :

The question upon which certiorari was granted as

stated in the Application for Certiorari was:

one

‘*The petitioner, a 16 year-old Negro boy, was com-

pelled by the police, while alone in their custody at

the police station, to speak the words spoken by a

rapist during the offense almost eight months earlier

for voice identification by the prosecutrix.

‘*Was the denial of petitioner’s right to personal

dignity and integrity by the police, and the failure to

give him benefit of counsel, provide him with a line-

up, or with any other means to assure an objective,

impartial identification of his voice by the prosecutrix

a violation of petitioner’s Fifth, Sixth and Fourteenth

Amendment rights?’’ (Emphasis added.)

As is clear from the quotation below from Judge

Miller’s opinion, he expressly did not decide the effect of

voice identification, except perhaps as a portion of ‘‘the ;

totality of circumstances’’ of an impermissibly suggestive i

show-up:

‘*([T]he Court finds it unnecessary to reach the is-

sue of whether voice identification as used here

amounted in itself to a violation of due process. It '

may be that the validity of such identification should

normally be left to the jury. Since the voice identifica-

tion took place during the show-up and the show-up

procedure itself is unconstitutional as employed in

this case, there is no reason to reach the sppcifiq is-

sue raised concerning voice identification. ”

- -

tah i laa AC AMAL ALE ALO ERLE VAIASEARY AAR A AED SAIS A

While obviously four estes of the court felt that jthe

_ grant of certiorari opened the door for consideration of a

ae eae

broad due process question, it is entirely possible that

some or all of the four members who voted against re-

versal did so solely on the voice identification issue

squarely represented by the application for certiorari.‘

Secondly, as we understand the controlling decisions of

the United States Supreme Court, we believe that the

doctrine of res judicata does not apply in the usual sense

in federal habeas corpus proceedings. Fay v. Noia, 372

U.S. 391 (1963); Sanders v. United States, 373 U.S. 1

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

In Fay v. Noia the Supreme Court said:

‘‘The breadth of the federal courts’ power of inde-

pendent adjudication on habeas corpus stems from

the very nature of the writ, and conforms with the

classic English practice. As put by Mr. Justice Holmes

in his dissenting opinion in Frank v. Mangum, supra,

at 348: ‘If the petition discloses facts that amount to

a loss of jurisdiction in the trial court, jurisdiction

could not be restored by any decision above.’ It is of

the historical essence of habeas corpus that it lies to

test proceedings so fundamentally lawless that im-

prisonment pursuant to them is not merely erroneous

but void. Hence, the familiar principle that res judt-

cata is inapplicable in habeas ‘proceedings, see, €. 9.,

Darr v. Burford, 339 U.S. 200, 214; Salinger v. Loisel,

265 U.S. 224, 230; Frank v. Mangum, 237 U.S. 309,

334; Church, Habeas Corpus (1884), § 386, is really

but an instance of the larger principle that void judg-

ments may be collaterally impeached. Restatement,

Tylements (1942), §§.7, 11; Note, Res, Judicata, 65

the briefs presented before) the Supr urt (quoted at

length in Judge Brooks’ dissent) ¢ould not e d scope of the

Supreme Court’s consideration merely by di ssing broader due

process questions. i oe oe ae

: Be Since le jorari ‘was granted on the issu of voice identifica-

tion, =

— A-10—

Harv. L. Rev. 818, 850 (1952). Cf. Windsor v. Mc-

Veight, 93 U. S. 274, 282-283. So also, the traditional

characterization of the writ of habeas corpus as an

original (save perhaps when issued by this Court)

civil remedy for the enforcement of the right to per-

sonal liberty, rather than as a stage of the state

criminal proceedings or as an appeal therefrom, em-

phasizes the independence of the federal habeas pro-

ceedings from what has gone before. This is not to say

that a state criminal judgment resting on a constitu-

tional error is void for all purposes. But conventional

notions of finality im criminal litigation cannot be

permitted to defeat the manifest federal policy that

federal constitutional rights of personal liberty shall

not be denied without the fullest opportunity for plen-

ary federal judicial review.’’ Fay v. Noia, supra at

422-24. (Emphasis added.) (Footnotes omitted.)

In Sanders, the Supreme Court discussed the same

principle:

“‘At common law, the denial by a court or judge of

an application for habeas corpus wis not res judicata.

King v. Suddis, 1 East 306, 102 Eng. Rep. 119 (K. B.

1801); Burdett v. Abbot, 14 East 1, 90, 104 Eng. Rep.

501, 535 (K. B. 1811); Ex parte Partington, 13 M. &

W. 679, 153 Eng. Rep. 284 (Ex. 1845); Church,

Habeas Corpus (1884), 4 386; Ferris and Ferris, Ex-

traordinary Legal Remedies (1926), 455. ‘A person

detained in custody might thus proceed from court

to court until he obtained his liberty.’ Coz v. Hakes,

15 A. C. 506, 527 (H. L., 1890). That this was a prin-\

ciple of our law of habeas corpus as well as the Eng-

lish was assumed to be the case from the earliest

days of federal corpus jurisdiction. Cf. Ex

parte Burford, 3 Oranch 448 (Chief Justice Mar-

shall). Since then, it has become settled in an un-

broken line of decisions. Ez parte Kaine, 3 Blatchf.

oh

_——

— A-11 —

1, 5-6 (Mr. Justice Nelson in Chambers); Jn re

Kaine, 14 How. 103; Ex parte Cuddy, 40 F. 62, 65

(Cir. Ct. S. D. Cal. 1889) (Mr. Justice Field) ; Frank

v. Mangum, 237 U.S. 309, 334; Salinger v. Loisel, 265

U. 8. 224, 230; Waley v. Johnston, 316 U. S. 101;

United States ex rel. Accardi v. Shaughnessy, 347

U. 8. 260, 263, n. 4; Heflin v. United States, 358 U. S.

415, 420 (opinion of Mr. J ustice Stewart) (dictum) ;

Powell v. Sacks, 303 F.2d 808 (C. A. 6th Cir. 1962).

Indeed, only the other day we remarked upon ‘the

familiar principle that res judicata is inapplicable in

habeas proceedings.’ Fay v. Nota, 372 U. S. 391, 423.

“Tt has been suggested, see Salinger v. Loisel,

supra, at 230-231, that this principle derives from the

fact that at common law habeas corpus judgments

were not appealable. But its roots would seem to go

deeper. Conventional notions of finality of litigation

have no place where life or liberty is at stake and in-

fringement of constitutional rights is alleged. If ‘gov-

ernment . . . [is] always [to} be accountable to the

judiciary for a man’s imprisonment,’ Fay v. Nowa,

supra, at 402, access to the courts on habeas must not

be thus impeded. The inapplicability of res judicata

to habeas, then, is inherent in the very role and func-

tion of the writ.’’ Sanders v. United States, supra at

7-8. (Emphasis added.) (Footnotes omitted.)

Thirdly, we do not believe that logically or historically

a 4-4 division of the United States Supreme Court can de

held to represent any federal adjudication of appellant’s

federal constitutional claims on the merits.

. . An equal division of an appellate court does not settle

| any principle of law or issue of fact for that court. It rep-

resents affij walle the judgment appealed from because

there were) insufficient votes for reversal. —

Supreme Court opinions which we believe to be settled

law demonstrate both principles:

— A-13 — | |

“In the very elaborate arguments which have been

made at the bar, several cases have been cited which

have been attentively considered. No attempt will be

made to analyze them, or to decide on their applica-

tion to the case before us, because the judges are

divided respecting it. Consequently, the principles of

law which have been argued cannot be settled; but

the judgment is affirmed, the court being divided in

opinion upon it.’? Etting v. United States Bank, 24

U.S. 57, 76 (1826). (Emphasis added.)

**In cases of appeal or writ of error in this court,

the appellant or plaintiff in error is always the mov- ij

ing party. It is affirmative action which he asks. The

question presented is, shall the judgment, ‘or decree, ;

be reversed? If the judges are divided, the reversal

cannot be had, for no order can be made. The judg- ¥

ment of the court below, therefore, stands in full }

force. It is, indeed, the settled practice in such case

to enter a judgment of affirmance; but this is only

the most convenient mode of expressing the fact that

the cause is finally disposed of in conformity with the

action of the court below, and that that court can i

proceed to enforce its judgment. The legal effect

would be the same if the appeal, or writ of error,

were dismissed.’’ Durant v. Essex Co., 74 U.S. 107,

112 (1868). (Emphasis added.)

‘Four members of the Court would reverse. Four

members of the Court would dismiss the writ as im- b

providently granted. Consequently, the judgment of

the United States Court of Appeals for the Siath

Circuit remains in effect.” Anderson v. Johnson,

Warden, 390 ai 456 (1968). (Emphasis added. )

| As we read these = the equally divided vote of

the United States Supreme Court in Biggers v. Tennessee,

390 U.S. 404 (1968), means only that ‘‘the judgment of

~— A-13 —

\

[the Supreme Court of Tennessee] remains in effect.’’

Anderson v. Johnson, supra, at 456. There is, of course,

no doubt that federal habeas corpus allows for subsequent

federal review of claims of federal constitutional viola-

tions after final state court judgment. And it is clear from

the opinion of the Supreme Court of Tennessee, 411 S.W.

9d 696 (1967), that it neither considered nor decided the

federal constitutional validity of the ‘‘show-up”’ which the

District Judge on habeas found invalid.

The judgment of the District Court is affirmed.

Brooks, Circuit Judge, dissenting. I respectfully dissent.

As indicated in the majority opinion, this is an appeal by

the State of Tennessee from an order of the District

Court granting petitioner-appellee, Archie Nathaniel Big-

gers, a writ of habeas corpus. Petitioner Biggers was

convicted in state court for the crime of rape. Upon appeal

to the Supreme Court of Tennessee the conviction was

affirmed. Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696

(1967), reh. denied March 1, 1967. An appeal to the United

States Supreme Court followed. Certiorari was granted,

388 U.S. 909 (1967), and the Supreme Court affirmed the

judgment of the Supreme Court of Tennessee by an

equally divided Court. Biggers v. Tennessee, 390 U.S. 404

(1967), reh. den. 390 US. 1037 (1967). Petitioner then

brought this action for a writ of habeas corpus. The Dis-

trict Court granted the writ, basing its decision to set

aside petitioner’s state conviction upon its conclusion that

the totality of circumstances sufrounding petitioner’s pre-

trial identification presented a significant possibility of

irreparably mistaken identification,’ and, therefore, peti-'

_/\» Petitioner’s identification preceded] the decisions in United

~ trates v. Wade, 388 U.S. 218 (1967},| and Gilbert v. California,

U.S. 263 (1967), and the standarfis established by those cases

‘e not to be applied retroactively, Stavall v. Denno, 388:°U.S. 293 |

(1967). Pit re

— A-14—

tioner’s constitutional due process rights were violated

when this identification (the sole identification evidence)

was testified to by the police at the state trial. A number

of other constitutional challenges were raised, however,

since the District Court concluded that the pretrial iden-

tification prejudiced petitioner’s constitutional rights, it

did not reach the merits of the other claims. For reasons

hereafter stated, I would reverse the judgment and re-

mand to the District Court for consideration of the other

claims raised by the petition for habeas corpus.

- The State of Tennessee has raised two issues on this

appeal. First, whether the District Court properly enter-

tained the petition for habeas corpus in light of the United

States Supreme Court’s affirmance of petitioner’s con-

viction. Second, whether petitioner was denied a fair trial

as a result of the use of the identification evidence alleg-

edly the by-product of an unconstitutional identification

procedure. The District Court decided both issues in favor

of petitioner Biggers, and the State of Tennessee contends

both conclusions are erroneous. While the issues as for-

mulated by the State of Tennessee generally convey the

nature of the questions under review, they do not ac-

curately delineate the legal controversy involved. Thus,

there is really no doubt that the District Court had the

power to entertain the petition for habeas corpus, how-

ever, the essence of the dispute is whether the power of

the court to collaterally review petitioner’s state convic-

tion extended to the issue of the constitutional infirmity

of the pretrial identification procedure And the question

which divides this Court is what effect, “if any, did the

United States Supreme Court’s equally divided affirm-

ance of petitioner’s state conviction have upon subsequent

District Court reconsideration, by collateral review, of the

identical issue rest Supreme Court. I view

. the crucial issue in this essentially one of litigious

finality in criminal matters. See , Finality in Crim-

) |

) — A-15—

inal Law and Federal Habeas Corpus for State Prisoners,

76 Harv. L. Rev. 441 (1963), for a discussion of relevant

policy considerations.

The District Court’s conclusion on the matter of finality

is summed up by its holding that:

“The fact that petitioner’s conviction was tech-

nically affirmed by reason of the United States Su-

preme Court’s even division of opinion is of no con-

sequence here since the merits of the claim were not

adjudicated. Even if they had been adjudicated,

Samders shows that those claims would not have been

: automatically barred from consideration by this Court

; in a habeas corpus proceeding.’’

The District Court, as well as the majority opinion con-

strue the language in Sanders v. United States, 373 U.S.

1 (1962), and Fay v. Noia, 372 U.S. 391 (1962), that prin-

ciples of ‘‘res judicata are inapplicable in habeas proceed-

ings’? to mean that a District Court has jurisdiction to

entertain any and all claims raised by a habeas corpus

| petition. However, I do not interpret that language em-

ployed in Sanders and Noia, supra, to mean there is no

finality in a criminal matter. Clearly a criminal defend-

ant having had a particular issue fully litigated first in

state court and then federal court, simply cannot turn

around upon an adverse resolution of the issue and start

the whole process of litigating the question again. The

point is well taken, and-I do not see a difference of views

on the question, that res judicata will not bar the criminal

| defendant from beginning a habeas corpus proceeding in

| the United States District Court which raises new issues

or issues not fully litigated in the state or federal courts.

However, logic and precedent dictatp that a defendant is

collaterally estopped from relitigating the merits of an

issue plenarily litigated and resolved on the merits against

him. See Gaitan v. United States, 295 F.2d 277, 280 (10th

— A-16—

Cir. 1961), cert. denied 369 U.S. 857 and 9 A.L.R.3d 213,

discussing the confusion resulting from the indiscriminate

use of res judicata nomenclature. Also see, United States

ex rel, Schneteler v. Follette, 406 F.2d 319, 322 (2nd Cir.

1969), cert. denied 395 U.S. 926, basing a similar holding

on the principle of stare decisis.

As has been indicated, the difficult question dividing this

Court is whether the issue of the constitutional infirmity

of the pretrial identification procedure has been fully

litigated. That is, was the equally divided affirmance by

the United States Supreme Court of petitioner Biggers’

conviction an adjudication on the merits of the pretrial

identification issue. The majority feels that the constitu-

tionality of the entire identification procedure had not

been scrutinized by the Supreme Court in the original

appeal because 1) the District Judge felt he was deciding

a different question than that presented to the Supreme

Court, that is, the District Judge concentrated his atten-

tion on the legality of the show-up rather than on the

constitutionality of the voice identification; 2) the applica-

tion for certiorari filed in the Supreme Court by petitioner

stresses only the constitutionality of the voice identifica-

tion; and 3) there is no positive indication in Mr. Justice

Douglas’ dissenting opinion in Biggers v. Tennessee, 390

U.S. 404 (1968), that more than four Justices considered

a ‘‘broad due process question’’. I disagree and believe

the record simply does not support the majority’s con-

clusion that the constitutionality of the entire pretrial

identification procedure was not wholly reviewed by the

Supreme Court.

First, I fail to see what significance can be attached to

the fact that the District Court felt that it was deciding

a different question than that which was presented to the

Supreme Co Just because the District Court took

| Special interest in the legality of the show-up in assessing

the ‘‘totality of circumstances’’ ue iS mean the Su-

| ‘eee

— A-17 —

preme Court ignored consideration of that fact or con-

centrated solely on the voice identification in applying the

‘totality’? test. Moreover, the appellate record shows _

that the Supreme Court had before it all facets of the

identification procedure in reviewing the case on cer-

tiorari. Thus, I see no importance in the fact that the

District Court chose to emphasize a previously considered

aspect of the totality of the identification procedure in

determining its constitutionality.

Secondly, I find absolutely no support in the Supreme

Court appellate record for the majority’s position that

Biggers’ application for certiorari limited the Court’s

review only to the constitutionality of the voice identifica-

tion as, quite to the contrary, the record clearly shows

that the entire spectrum of factors surrounding the iden-

tification procedure was presented in a broad due process

challenge to the conviction. As a preliminary observa-

tion, it should be emphasized that even on this appeal

petitioner had admitted in his brief that the Supreme

Court reviewed the broad due process question. In foot-

note five of petitioner’s brief it is stated:

‘‘The [Supreme] Court heard arguments and con-

sidered briefs with respect to whether Biggers’ Fifth

and Fourteenth Amendment rights had been abridged

in (1) his identification violated the Due Process

Clause under the totality of circumstances test adopted

in Stovall v. Denno, 388 U.S. 293 (1967) and (2) the

use at trial of words which Biggers was compelled

to speak solely for purposes of voice identification

violated the Fifth Amendment as incorporated in the

Fourteenth. The latter question had been reserved by

the Court in United States v. Wade, 388 U.S. 218 a

223 (1967).’’

While Biggers’ application| for certiorari was phrased

as to emphasize the voice i entification question, the State,

of Tennessee’s statement of the issues presented in its

_ +

RR ER ie

— A-18 —

‘Brief In Opposition to the Petition for Writ of Cer-

tiorari’’ definitely indicates a broader due process factual

review.?, Furthermore, the briefs accompanying the ap-

plication for the writ of certiorari and the actual briefs

filed once the writ was granted unquestionably show that

all factors surrounding the identification ‘procedure were

raised for review in the broadest due process challenge

possible. I recognize and regret. that quoting from these

documents will substantially lengthen this dissenting

opinion, but I feel that it is necessary to demonstrate

conclusively that the Supreme Court had before it all

aspects of the identification procedure in hearing the

original appeal in this case, that there has been plenary

review of that issue, and that no new issues of fact or

law regarding this question were raised by petitioner in

his habeas corpus request.®

In the appeal to the Sxpreme Court the grounds for

granting certiorari were presented through Biggers’ ‘‘Pe-

tition and Brief for Writ of Certiorari’’. In that docu-

ment at pages 7-8, under subtitle ‘‘Reasons for Granting

the Writ’’, it is argued:

2 Question II in the State of Tennessee’s brief under the sub-

title “Questions Presented” was “Whether or not the Sixth Amend-

ment to the United States Constitution relating to assistance of

counsel requires counsel to be present during the identification pro-

cedure, (1) when the investigation is but a general inquiry into

an unsolved crime, and (2) when held prior to commencement of

criminal proceedings” [Emphasis in original]. And, in the State

of Tennessee’s “Supplemental Brief in Opposition to the Petition

for the Writ of Certiorari” the question specifically addressed was

“whether or not petitioner was denied due process of-law by the

identification procedure followed at the police headquarters. . . .”

8 An additional reason for quoting at some length from these

documents is that they are not readily available. In quoting from

these materials, I have omitted footnotes and references to tran-

script pages, however, the complete record of all documents

filed in ‘this case in the Supreme Court may be found in

Volume 51. Transcripts jof Records and File Copies Briefs,

Nos, 232-237, Supreme rt of the United States, October Term

1967.

=.

Petitioner Was Denied His Rights Under the Due

Process Clause of the Fourteenth Amendment and the

Fifth and Sixth Amendments to the United States

Constitution Under Circumstances Similar to Those

in Conflicting Court of. Appeals Cases Granted Cer-

tiorari and Presently Pending Before This Court.

The facts in. this case are starkly simple, but they

raise a critical question of the fairness and impar-

tiality of police identification practices. They reveal

that Archie Biggers was denied his right to a fair

trial by police practices which denied him elementary

Fourteenth Amendment protections.

The only evidence against petitioner at trial was

the identification made by the prosecutrix, Mrs. Mar-

garet Beamer, that Archie Biggers was the man who

had raped her. Biggers, a 16 year old Negro was

arrested early on the morning of August 17, 1965 and

charged with the attempted rape of another woman

(Tr. 70). Later the same day, the police brought

Mrs. Beamer, who had been raped on the night of

January 22, 1965, almost eight months earlier (Tr. 4-7,

20, 85-88) to ‘‘look at a suspect’’ (Tr. 27-28, 57, 106,

109-110). Unable to describe or identify her assailant

(Tr. 13) her case had remained without clues. Asked

to identify Biggers if she could, the first view she had

of the petitioner was of him alone in the custody and

presence of five police officers (Tr. 112). He had no

lawyer. The police then required him to speak the

exact words of the rapist spoken during the offense

(Tr. 6, 7, 17, 47, 93, 108, 112-113, 156), on the basis

of which she identified petitioner as the rapist. These

were the circumstances surrounding the identification

by the prosecutrix. |

The facts in this case raise the issue present in

conflicting Second and Fifth Circuit cases which this

anaes a

— A-20 —

Court has granted certiorari to determine. United

States ex rel. Stovall v. Denno, 355 F.2d 731 (2nd

Cir. 1966), cert. granted 34 U.S.L. Week 3429 (June

20, 1966); Wade v. United States, 358 F.2d 557 (5th

Cir. 1966), cert. granted 35 U.S.L. Week 3124 (Oct.

10, 1966). The Second Circuit, sitting en banc, held

that the defendant’s Fifth, Sixth and Fourteenth

Amendment rights were not violated when he was

taken to the victim’s hospital room for identification

without the benefit of a line-up or counsel, even though

arraignment had been postponed to allow him to ob-

tain counsel. The Fifth Circuit, in Wade v. United

States, supra, specifically adopted the view of the dis-

senting judges in Umited States ex rel. Stovall v.

Denno, supra. It excluded testimony of the line-up

on the ground that the line-up had violated the de-

fendant’s constitutional rights because two witnesses

had seen him in the custody of the police shortly

before the line-up, and defendant’s counsel had not

been notified and was not present at the line-up.

Archie Biggers, like Wade, was denied elemental pro-

tections against suggestion and the right to counsel

during the test to identify his voice. Indeed, the cir-

cumstances of Biggers’ identification were less con-

ducive to impartiality than those in United States v.

Wade, supra, and the arguable necessity for. speed in

identification and difficulty in arranging a line-up in-

volved in United States ex rel. Denno, supra, is not

present in this case.

In subsection II of that subtitle (‘‘The Facts in This

Case Show That Petitioner Was Denied Due Process of

Law and the Protection of the Fifth and Sixth d-

ments to the Constitution of the United Staten) i is

argued: | i | : \

To negate inference dr suggestion from an identifi-

cation proceeding, a line-up is generally regarded as

ee

=. on

essential to provide a mode of comparison by police

authorities. See Criminal Investigation and Interro-

gation, Gerber and Schroeder ed., § 22.20 (1962);

Criminal Investigation, Jackson ed. (5th ed. 1962) at

pp. 41-42. The failure to provide Archie Biggers with

the protection of a line-up in a rape case, considering

his youth, the eight month period since the rape and

other circumstances is inexcusable. There was no

reason for the lack of a line-up, and every reason to

provide one. As Archie Biggers was being held in

police custody for an unrelated charge, this is not a

case of. street identification immediately after arrest,

nor even a case where it was physically impossible to

hold a line-up. Nor was there need to identify Archie

Biggers quickly. Mrs. Beamer had been raped eight

months earlier and the time necessary to arrange 4

line-up certainly would not have affected her identifi-

cation. Indeed, the time lapse, well known to the

police, should have been sufficient to mandate a line-up

to police conscientiously seeking an impartial, dispas-

sionate identification.

Again in subsection II at pages 12-13 it is argued:

Archie Biggers was also denied his right to assist-

ance of counsel at the time of his identification, clearly

a ‘‘critical stage’’ in his case. Escobedo v. Ilinois,

378 U.S. 478, 486 (1964). The police were without a

clue to the identity of the man who had raped Mrs.

Beamer. If she could identify a man it would cer-

tainly form at least the basis for prosecution. If

counsel had been present he could have done several

things to insure an impartial test. He could have

r tested a mo or alternatively some other plan

sure conditions designed to avoid suggestion. If

wen counsel could have questioned the prosecutrix

during identification before she had placed herself in

—A-23—

the position of making a positive identification. It is

quite possible that his mere presence would have

served to counterbalance that of the police, and the

inherént suggestiveness of police station identifica-

tion of one in custody. Had counsel been present he

might have prevented the police from requiring the

petitioner to speak the words of the rapist, words

which carried an inherent suggestion of guilt. Or |

counsel might have advised his client to remain silent.

The circumstances of this case, taken separately and \

in combination, establish violations of the due process |

clause of the Fourteenth Amendment, and through it,

violations.of the Fifth and Sixth Amendments.

In the State of Tennessee’s ‘Brief in Opposition to the

Petition for Writ of Certiorari”’ it is argued at page 8:

. Petitioner urges this Court to grant certiorari in |

this case because he contends that the identical ques-

tion raised here is presented in the two (2) cases

mentioned in which this Court has previously granted

certiorari. Respondent respectfully insists that the

questions are not the same. ai

—————

It is clear from an analysis of United States ex rel.

Stovall v. Denno, supra, and Wade v. United States,

supra, that the question in those cases is not whether.”

it is a violation of due process for a victim to identify

an accused during an identification procedure at police

headquarters, but whether it is incumbent upon the

State to provide counsel to the accused at the identi-

fication procedure following the commencement of

criminal proceedings against him. The case at bar is

unlike those cases inasmuch as at. the time of the

identification of the accused by Mrs. Beamer, no crimi-

nal proceedings had commenced insofar as this matter

is concerned. The plain truth is that the petitioner

had been arrested on a separate charge and as a mat-

— sh

ter of general inquiry Mrs. Beamer was called to see

whether or not she could identify him.

Once certiorari was granted the briefs decidedly show

that the Supreme Court had before it for review each and

every aspect of the identification procedure so as to assess

the ‘‘totality of circumstances.’’ Beside the point that the

‘‘totality’’ test raises a factually all encompassing due

process issue, in Biggers’ Supreme Court brief under the

subtitle ‘‘Argument’’ the broadest due process argument

is made. Therein, at pages 8-18, it is argued:

The Circumstances of Petitioner’s Pre-Trial Identi-

fication and Its Use as Evidence at Trial Deny Him

Due Process of Law as Guaranteed by the Fourteenth

Amendment.

The decisions of this Court in United States v.

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

388 U.S. 263 (1967) holding pre-trial identification in

absence of counsel violates the Sixth Amendment,

would require reversal in this case but for the decision

in- Stovall v. Denno, 388 U.S. 293 (1967), barring their

retroactive effect. Like Wade and Gilbert, Biggers

was denied the right to the assistance of his retained

counsel by the police holding a pre-trial identification

proceeding in his attorney’s absence. The Court re-

manded Wade to determine whether a subsequent in-

court identification should be excluded as the tainted

product of the line-up identification, while Gilbert ex-

cluded in-court testimony of.the pre-trial identification

per se. As petitioner was convicted on the testimony

of the prosecutrix’s pre-trial identification at a showup

(she did not attempt to identify him at trial) where

petitioner was unrepresented by counsel, Biggers

would be entitled under,Gilbert to exclusion of the

identification.

—

X A. The Failure of the Police to Hold a Lineup Vio-

lates Due Process.

. The question, therefore, is that left open in Stovall

av. Denno, 388 U.S. 293, 301, 302 (1967 ), whether the

pre-trial confrontation between petitioner and the

victim ‘‘was so unnecessarily suggestive and con-

ducive to irreparable mistaken identification that

[petitioner] was denied due process of law. This is

& recognized ground of attack upon a conviction inde-

pendent of any right to counsel claim. Palmer v.

Peyton, 359 F.2d 199 (C.A. 4th Cir. 1966).’’ The

accused in Stovall was identified without a lineup, a

procedure of acknowledged suggestiveness: ‘The

practice of showing suspects singly to persons for the

purpose of identification, and not as part of a line-up,

has been widely condemned” (388 U.S. at p. 302).

Nevertheless, due process was not violated in Stovall

solely because of exigent circumstances. The victim

was in danger of death, and if an identification was to

be made at all ‘‘an immediate hospital confrontation

was imperative’’ (Ibid.).

The extraordinary need for an immediate identifi-

cation without a lineup present in Stovall is com-

pletely absent here. On the contrary, at the time of

the identification, Biggers was in police custody on

an unrelated charge and continuously available for

identification. Similarly, Mrs. Beamer was, and had

been for seven months, continuously available to

identify possible suspects. Her health was unimpaired,

and no other factors made an immediate identification

by her without a lineup ‘‘imperative.’? Held without

exigent compelling circumstances, Biggers’ showup

identification violated due process under the reason-

ing of Stovall v. Denno, supra.

United States v. Wade, 388 U.S. 218 (1967) and

Gilbert v. California, 388 U.S. 263 (1967) found need

— A-25 —

of impartial and selective identification procedures,

and thereby the need for counsel, even when a lineup

is held in part because the reliability of any identifi-

cation of a stranger is severely limited by normal

human fallibilities of perception and memory. A

showup, on the other hand, results in the maximiza-

tion of suggestion that the suspect is the guilty party

and suggestion is the ‘‘ ‘one factor which, more than

anything else, devastates memory and plays havoc

with our best intended recollections * * *.’’’ Sugges-

tion is in large part the product of restricted selec-

tivity offered the witness in the identification process.

Instead of being forced to choose between several

persons with different heights, weights, profiles and

voices, Mrs. Beamer was confronted with a single

individual whose suspected guilt the police communi-

cated by presenting him alone and in custody. The

witness is free to accept or reject this police judg-

ment, but not to choose. With good reason, therefore,

the showup is labelled ‘‘the most grossly suggestive

identification procedure now or ever used by the

police.’? Wall, Eyewitness Identification in Criminal

Cases 28. See also, Stovall v. Denno, 388 U.S. 293,

302 n: 5 (1967).

In identifying petitioner, Mrs. Beamer relied par-

ticularly on her recollection of a voice she had not

heard in seven months, but selectivity is decreased

even more when identification is by voice. An identi-

fication by physical appearance may rest upon various

characteristics, one or a combination of which may be

particularly striking, such as the shape of a nose or

mouth, skin complexion, scars, or height and weight.

Voice identification rests merely upon the tone and

timbre of a voice, as well as an individual’s speech

peculiarities. When few words are spoken and no

special speech peculiarities are present, as in this

—_ se

case, only tone and timbre are left to provide identifi-

cation. Selectivity is at the barest minimum; the

probability of error is maximised. Biggers, moreover,

spoke softly during the identification (R. 17). It is

difficult to believe the intruder spoke this way during

the assault and rape. The unreliability of voice identi-

fications as esmpared te physical identifications, with

the resultant imes:ased necessity for a lineup, was

recognised by the Fourth Circuit in Palmer v. Peyton,

359 F.2d 199, 201-308 (1966):

‘‘Where the identification is by voice alone, the

absence of some comparison involves grave dan-

ger of prejudice to the suspect, for as one noted

commentator has pointed out: ‘[E]ven in ordi-

nary circumstances one must be cautious and

accept only with reserve what a witness pretends

to have heard * * *.’”’

This Court rigorously questioned the reliability of

all identification testimony in United States v. Wade,

supra, and quoted with approval Mr. Justice Frank-

furter’s observation that: ‘‘The identification of

strangers is proverbially untrustworthy. The hazards

of such testimony are established by a formidable

number of instances in the records of English and

American trials.’’ The Case of Sacco and Vanzetti

30. If this characterization applies to an identifica-

tion by lineup, where comparison and selectivity are

greatest and suggestion minimal, it applies with far

greater force to the showup in this case where Mrs.

Beamer could only accept or reject police suspicion

that Archie Biggers was the rapist, and where the

showup identification was the sole evidence of guilt,

see infra p. 17.

The holding in Stovall that absent unusual circum-

stances a show-up violates the due process rights of

— A-27 —

an accused is also soundly rooted in the policy adopted

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

Gilbert v. California, 388 U.S. 263 (1967). Those cases

envision that ‘‘presence of counsel itself can often

avert prejudice and assure a meaningful confronta-

tion at trial.’’ (388 U.S. at 236). Suggestion is to be

prevented by an attorney calling the attention of the

police to identification procedures which produce it

and by proposing safeguards. For the attorney to

play a practically meaningful role as insurer of the

integrity of the pre-trial identification proceedings,

practices such as the showup which result in undue

suggestion must be condemned or counsel is reduced

to the role of passive observer, unable to prevent un-

reliability and reduced to attempting to expose it

after the fact at trial. If counsel is unable to assert

that a procedure as destructive of reliability as the

show-up is unconstitutionally suggestive, it is diffi-

cult to see how he will be able to assist law enforce-

ment as Wade presupposes ‘“by preventing the in-

filtration of taint in the prosecution’s identification

evidence’’ (388 U.S. at p. 238).

B. The Circumstance of the Identification and Its

Use at Trial Violate Due Process.

This case, however, goes far beyond Stovall, supra.

The record affirmatively shows that petitioner’s iden-

tification, and the use made of it by the state, denied

him the fair trial guaranteed by the Fourteenth

Amendment. The circumstances which denied Archie

Biggers due process will be separately examined, but,

of course, their prejudicial impact upon his trial is

cumulative.

First. Prior to the police call ‘‘to look at a sus-

pect’? Mrs. Beamer was particularly open and sus-

—A-28—

ceptible to suggestive influence. The crime had_oc-

curred seven months earlier and had lasted at the

most 30 minutes; inevitably the sharpness of her

memory had faded. Mrs. Beamer, by her own admis-

sion at trial, was terrified by fear of violence to her-

self and children. When asked (R. 14):

Q. ‘‘Are you able to describe this man other

than seeing a butcher knife?’’

She replied:

A. “‘No, other than I remember the blade being

shiny.’’

The crime took place at night. Mrs. Beamer was

grabbed in an unlit hallway and marched through an

unlit kitchen to railroad tracks and then to a wooded

area. At trial, she gave only a general explanation of

the characteristics which led her to identify peti-

tioner. As the Court said in Wade, the danger of sug-

gestion is ‘‘particularly grave when the witness’ op-

portunity for observation was insubstantial. .. .”

(388 U.S. at p. 229).

Second._The police suggested that the petitioner

was the rapist when they arrived at Mrs. Beamer’s

home and asked her to go ‘‘look at a suspect.’’ In-

herent in the word ‘‘suspect’’ was the suggestion that

the police had sufficient evidence linking the petitioner

to the crime to warrant holding him at the police

station for her identification. Thus the normal ex-

pectation of.a witness that the guilty person will be

present at the identification was substantially in-

creased by the police. Cf. Williams, Proof of Guilt, 96.

Third. At the station house Mrs. Beamer first saw

Archie Biggers in the custody of five police officers,

all of whom remained present during the identifica-

tion. The sheer number of officers, implying the im-

portance of the petitioner as a ‘‘suspect’’, may well

have allayed any thought by the witness that this

— A-29 —

might not be ‘‘the man.’’ On the other hand, the num-

ber of officers may have increased her fear of con-

tradicting the police as to the identity of a man re-

garded by them for reasons unknown to her as a

‘*suspect.’’

Fourth, When Mrs. Beamer did not identify Biggers _

by his physical appearance, the police required him

to speak words spoken during the attack—‘‘Shut up

or I'll kill you.’’—and eventually his compelled

speech was presented to the jury at trial. There is

little that could have been more suggestive of his guilt.

Mrs, Beamer had not indicated that the rapist had

particular speech mannerisms which required thgse

words to be spoken, and even if he had had speech

peculiarities he could have spoken other sentences of

phrases containing each of these words. Whether or

not a violation of petitioner’s Fifth Amendment

rights (see Argument II, infra) use of the rapist’s

precise words was unnecessarily suggestive.

Wall has evaluated the latter two suggestive tech-

niques used in this case. He states that ‘‘As bad as a

show-up is, there are a number of ways it can be made

worse, * * * One method is to point out the suspect to:

the witness even before the showup, indicating his

status as suspect. * * * If this practice is-not deemed

suggestive enough, then the suspect, when shown

alone, can be required to act or speak in the manner

in which the perpetrator of the crime is supposed fo

have acted or spoken, agmethod. adopted for example,

in the Sacco-Vanzetti case.’’ Eyewitness Identification

in Criminal Cases 30.

Fifth. Archie Biggers was unprepared and un-

equipped to protect himself against an identification

made unfair by suggestions to the witness. He was

16 years old, had a ninth grade education, and ap-

—~ A-30 —

parently no previous police record. His immaturity,

relative lack of education, and unfamiliarity with po-

lice procedures combined to make it difficult for him

to intelligently safeguard himself against suggestive

influence at the identification. Cf. Haley v. Ohio, 332

U.S. 596 (1948); Gallegas v. Colorado, 370 U.S. 52

(1962); In Re Gault, 387 U.S. 1 (1967). This vul-

nerability to police procedures suggesting his guilt

was further increased by the failure to notify Big-

gers’ family of the identification despite the fact that

his mother was available, the police having notified

her earlier on August 17th that her son was being

held on an unrelated charge. While the nonretroac-

tivity of the Sixth Amendment holding of Wade,

supra and Gilbert, supra, precludes reversal solely

on the basis of lack of counsel, the consequences of

an identification proceeding (held without an attorney

present must be noted as they affect an accused’s

right to a fair trial. Cf. Davis v. North Carolina,

384 U.S. 737, 740, 741 (1966). Placed in an unfamil-

iar situation and seized by the natural fear of one

whose liberty depends upon another, an accused is

unlikely either to reconstruct completely or be capa-

ble of testifying to all the suggestive influences which

would reflect on the witness’ impartiality and credi-

bility. An accused as young and inexperienced as

Archie Biggers is particularly affected by these dis-

abilities. We can never know if additional suggestive

influences may have further tainted the identification

in this case, but we do know that the procedure em-

ployed maximized potential suggestion without the

protective presence of counsel to protect the right to

cross-examine, Pomter v. Texas, 380 U.S. 400, 404°

(1965).

Siath. The pre-trial identification was exploited at

trial by the State’s complete reliance on the tainted

— A-31—

identification. Although she came to within a foot

of the assailant, Mrs. Beamer’s young daughter could

not identify Biggers. Mrs. Beamer did not attempt

an in-court identification. The pre-trial identification

was offered by the state and was presented em-

phatically to the jury as the difference bétween guilt

and innocence. No other evidence of guilt was pre-

sented although testimony elicited by the prosecution

from four police officers as to what transpired at the

identification made it appear to the jury that Mrs.

Beamer’s testimony was corroborated, see United

States v. Wade, 388 U.S. at p. 247 (opinion of Mr.

Justice Black). According to the prosecuting attor-

ney, the excitement of the crime was proof of accuracy

of the subsequent identification. Professor Borchard’s

studies show, however, ‘‘that the emotional balance

of the victim or eyewitness is so disturbed by his

extraordinary experience that his powers of percep-

tion became distorted and his identification is fre-

quently most untrustworthy’’ Convicting the Innocent,

XIII (1961). This is especially true in a rape prosecu-

tion where, as the Court has recognized, identification

presents ‘‘a particularly hazard that a victim’s under-

standable outrage may excite vengeful or spiteful mo-

tives’? United States v. Wade, 388 U.S. at p. 230.

Seventh. Without exception, the state could have

employed procedures to safeguard the fairness of the

identification and trial but did nvt do so. There was

no practical impediment to a lineup. The witness

need not have been told Biggers was a suspect. He

did not have to repeat the precise language used by

the criminal. Parents and counsel were available and

could have been present. The number of officers at

the identification was surely excessive and their testi-

mony at trial served only to prop up a thin case. No

in-court identification was offered. It was unneces-

oe a

sary for the state to initiate reference to prejudicial

newspaper accounts of Biggers’ arrest and identifi-

cation or to permit the jury to learn that Biggers

spoke the words of the criminal. Finally, it may have

been good advocacy for the prosecuting attorney to

tell the jury that ‘‘violence and terror . . . fixes

these matters indelibly in a person’s mind’’ (BR. 177)

but it hardly speaks of dedication to ‘‘making the

criminal trial a procedure for the ascertainment of

the true facts surrounding the commission of the

crime’’ United States v. Wade, 388 U.S. at p. 256

(opinion of Mr. Justice White).

The unfairness which began with the police labelling

petitioner a ‘‘suspect’’, extended through an identi-

fication replete with suggestion that he was the rapist

from which he could not safeguard himself, and cul-

minated at a trial in which the tainted identification

was the sole basis of conviction. At every turn the

police acted in such a way as to make a reliable iden-

tification impossible. Archie Biggers has been denied

the fundamental fairness guaranteed him by the due

process clause of the Fourteenth Amendment and his

conviction should be reversed.

In response to this argument, the State of Tennessee

countered, in its main brief in opposition to the merits of

the appeal, arguing:

Although the petitioner was not deprived of his

Fifth Amendment privilege against self incrimination

nor was he deprived of his Sixth Amendment right to

counsel, this Court is asked to review the circum-

stances of the identification to determine whether or

not they were so suggestive as to deprive the peti-

tioner of his right to a fair trial as guaranteed by the

Fourteenth Amendment to the Constitution of the

United States.

ois I ss

This Court in the case of Stovall v. Denno, supra,

held that although the accused was not denied his

Sixth Amendment rights because of the prospective

application of Wade and Gilbert, the matter could be

reviewed in order to determine whether a fair trial

was given him. This review for the purpose of deter-

mining whether or not the identification confrontation

was fair, was made upon the authority of Palmer v.

Peyton, 359 F. 2d 199 (4th Cir. 1966). This Court

stated that a ‘‘claimed violation of due process of

law in the conduct of a confrontation depends on the

totality of the circumstances surrounding it’’. It is

necessary that this Court review the circumstances

surrounding the identification of the petitioner in the

case at bar. It is significant that the Court in the

case of Palmer v. Peyton reviewed fhe circumstances

and determined that the accused therein was deprived

of a fair trial as guaranteed by the Fourteenth

Amendment although that particular question had

never been raised below. It is also significant that the

Court in the Palmer case cited no authority upon

which it reviewed the circumstances surrounding the

identification.

The petitioner Biggers was arrested during the

night of August 16, 1967, taken to juvenile court and

released by the juvenile court to the metropolitan

police of Nashville. Mrs. Beamer had been raped

months earlier and had from time to time visited the

police department in an attempt to identify suspects.

She was called to identify’ if possible the petitioner

while he was being held on a separate and unrelated

charge. He had been advised at the juvenile court

of his constitutional rights as had his mother. He

was displayed to Mrs. Beamer at police headquarters

and asked to speak certain words. She had reviewed

police files and viewed suspects during the months

— A-34—

since her rape. The identification which she made of

Biggers was not the product of suggestion but was

the result of many months of investigation. Mrs.

Beamer identified the petitioner in Court also. There

is no indication that her identification in the court-

room was the result of police suggestion nor is there

any indication that her identification in the courtroom

was the result of or influenced by her identification

before trial.

In the Stovall case the accused was handcuffed to

one of five police officers who, along with members of

the District Attorney’s Office, brought him to a hospi-

tal room in which the victim of the assault was con-

fined. He was identified by the victim from her hos-

pital bed after having been required to speak ‘‘words

and voice identification’. This Court held that the

circumstances were not such as to indicate that the

petitioner Stovall was deprived of his right to a fair

trial as guaranteed by the Fourteenth Amendment.

The facts in the Stovall case are very similar to the

facts in the case at bar.

This Court should affirm the conviction of the peti-

tioner for rape. There is nothing in the record to

indicate that the petitioner has been deprived of his

right to due process.

Following the equally divided decision by the Supreme

Court, Biggers petitioned for rehearing arguing:

Subsequent to the Court’s ruling in petitioner’s

case, certiorari has been granted to consider, in the

case of another state prisoner, those circumstances

which result in an identification procedure violating

the Due Process Clause of the Fourteenth Amend-

ment, Foster v. California, No. 638 Misc., 36 U. S. L.

Week 3374 (3/25/68). Foster involves a lineup which

is alleged to have been unconstitutionally conducted.

—

— A-35 —

As petitioner was not accorded the elementary protec-

tion of a lineup—and the record is barren of evidence

justifying the failure to hold one—reversal in Foster

would, a fortiori, affect, if not determine, final reso-

lution of petitioner’s constitutional claim. An inter-

vening circumstance such as ‘‘the fact that the same

or a related issue has come before the court in other

cases still pending’’ is a common ground for grant of

rehearing. Stern and Gressman, Supreme Court

Practice, 3rd Ed. 389; see Pickett v. Union Terminal

Co., 313 U.S. 591 (1941); 314 U. S. 704 (1941); 315

U. S. 386, 389, 394 (1942). It is plainly appropriate

and just that the results in these two cases conform.

Unless it is beyond doubt that principles announced in

Foster will not bear upon petitioner’s claim, this

petition should be granted.

The petition was denied.

On the basis of this appellate record, it seems impossible

to simply assume that the Supreme Court failed to assess

each and every aspect of the identification procedure and

considered only the voice identification issue as conjec-

tured by the majority opinion. I view Mr. Justice Doug-

las’ dissenting opinion in which the due process issue

issue is discussed as a significant indication of the all in-

clusive factual review given that issue. In short, I believe

that the only conclusion which may be drawn from the

appellate record in the Supreme Court is that all facts

surrounding the pretrial identification were plenarily fe-

viewed by the Court, and the proceedings in the District

Court, pursuant to the request for habeas corpus, not only

could not raise any new or unexplored factual or legal

matters with respect to this issue, but were a mimicry of

the Supreme Court review.

If, as the appellate record indicates, there was a com-

plete review by the Supreme Court of the identification

procedure applying the appropriate legal test, the next

question dividing this Court is what effect the evenly

divided decision had on. the merits of that issue. I be-

lieve that logically, historically and legally a decision

reached by an evenly divided court is on the merits. The

majority correctly states that an equal division of an ap-

pellate court does not settle any principle of law. Logic,

of course, compels this result since to establish a prin- -—

ciple of law having precedent value a majority decision is

required. Both Etting v. United States Bank, 24 U.S. (11

Wheat.) 59 (1826), and Durant v. Essex Company, 74

U.S. (7 Wall.) 107 (1868), so hold. However, I disagree

with the majority’s statement that an equal division of

an appellate court does not settle an issue of fact. To the

contrary, the expression ‘‘finally disposed of’? in Durant

v. Essex Company, supra, I believe means a conclusive

decision on the facts. In addition, in Hertz v. Woodman,

218 U.S. 205, 213-14 (1909), it is stated:

‘Under the precedents of this court, and as seems

justified by reason as well as by authority, an af-

firmance by an equally divided court is as between

the parties a conclusive determination and adjudi-

cation of the matter adjudged, .. .’’

And, in United States v. Pink, 315 U.S. 203, 216 (1941),

it is stated that while an affirmance of a judgment by an

equally divided court is not an authoritative precedent it

is ‘‘conclusive and binding upon the parties as respects

that controversy’’. See also, United States v. Reeside, 19

L.Ed. 391 (1868).

While this rule is well established in civil cases, be-

cause of the novelty of the problem, there are only a few

criminal cases which have explored the effect of a judg-

ment arrived at by an equally divided court. However,

several state courts having been presented with the prob-

lem in criminal cases have concluded that an affirmance

— A-3§ — |

'

:

:

j

— A-37 —

by an equally divided court is, like in a civil case, on the

merits of the issues presented and ends the dispute over

those issues. See Chahoon v. Commonwealth, 62 Va. 822,

825 (1871), construing a statute; and see State ex rel.

Hampton v. McClung, 47 Fla. 224, 37 So. 51 (1904); Ex

parte White, 131 Fla. 83, 178 So. 876 (1938); Dean v.

State, 173 Miss. 255, 309-310, 162 So. 155 (1935), inter-

preting the common law.

The only federal criminal case besides Biggers and

Carter, supra, which research has uncovered involving a

judgment arrived at by an equally divided court, is

United States v. Worrall, 2 U.S. (2 Dall.) 384 (1798).

There the defendant was found guilty in the United States

Circuit Court of attempting to bribe a United States Com-

missioner of Revenue. Mr. Justices Chase and Peters

were unable to agree upon the question of whether the

| federal courts had common law jurisdiction in criminal

| cases, and there being no right of criminal appeal at that

| early date to the Supreme Court, of which the Justices

were also members, the judgment was affirmed because

of the equally divided court and punishment was imposed.

Admittedly, the affirmance resulting from this divided

court was a technical affirmance, but nevertheless it was

a final judgment upon which a prison sentence and fine

were imposed. See generally, 4 C.J. §1121; 24B CJS.

§ 1945. These precedents persuade me that an affirmance

by an equally divided co€ft in a criminal case, following

review of the issues presented, is on the merits of the

issues even though the affirmance must follow because the

judges are equally divided. And, as the appellate record

~, Clearly shows, the issue of the constitutionality of Big-

gers’ pretrial identification has been completely reviewed

on the totality of facts by the Supreme Court. Accord-

ingly, I would hold that while petitioner is not barred

from raising new issues or issues not fully litigated in

his habeas corpus petition, he is, however, collaterally es-

—

— A-38 —

topped from relitigating the merits of the identification

issue since that issue has been plenarily litigated and

resolved on the merits against him. Thus, I would re-

verse the judgment and remand the case to the District

Court for consideration of the other constitutional issues

raised by petitioner’s petition for a writ of habeas corpus.

— A-39 —

x

APPENDIX B

In the District Court of the United States

for the Middle District of Tennessee

Nashville Division

Archie Nathaniel Biggers, _

, Petitioner,

v.

William S. Neil, Warden Tennessee parE NG le

State Penitentiary, Nashville,

Tennessee,

Respondent. |

ORDER

(Filed May 4, 1970)

Respondent in the instant case has filed with the Court

a Motion to Reconsider. In so doing, respondent alleges

that the Court erred in accepting jurisdiction over the

instant habeas corpus matter‘’and in deciding on the

merits of petitioner’s claims. Respondent’s allegation of

error rests on the proposition that the affirmation of peti-

tioner’s conviction by reason of the equal division of

opinion of the United States Supreme Court when it

heard petitioner’s case in Biggers v. Tennessee, 390 U.S.

404 (1968), was an adjudication that ‘‘is as conclusive

and binding upon the parties as if rendered upon the

concurrence of all participating judges upon every ques-

tion involved in the case.’’ Respondent further contends

that since the issues raised in this case have been thus

‘‘adjudicated’’ by the Supreme Court, the doctrine of res

judicata should apply and the instant petition should

have been dismissed by the Court.

a

— A409 —

The issue raised by respondent’s present motion may

be stated thusly: In a habeas corpus proceeding, does an

affirmation by reason of an equal division of opinion

among the Justices of the Supreme Court amount to an

adjudication between the parties which, even though no

decision was rendered as to the merits of petitioner’s

claim, must be considered final 4n that the doctrine of

res judicata would bar petitioner from raising the same

constitutional claims in a subsequent habeas corpus peti-

tion? |

After a thorough consideration of the case law relevant

to the issue, the Court remains of the opinion expressed

in its Order of May 12, 1969, that the merits of peti-

tioner’s constitutional claims were left undecided by the

equally divided Supreme Court and that the doctrine of

res judicata does not operate in such a manner as to bar

petitioner from raising those constitutional claims again

as presented in his habeas corpus petition. It is generally

true that when the Supreme Court is equally divided as

to the outcome of a case, the judgment is automatically

affirmed without opinion. Etting v. Bank of the United

States, 24 U.S. 59 (1826). Furthermore, as respondent

points out, there is a general rule to the effect that ‘‘an

affirmance by an equally divided court is, as between the

parties, a conclusive determination and adjudication of

the matter adjudged. . . .”’ Herts v. Woodman, 218 U.S.

_-205 (1910); and see United States v. Pink, 315 U.S. 203

(1942); Durant v. Essex Co., 74 U.S. 107 (1868); and

Kaku Nagana v. Brownwell, 212 F.2d 262 (7th Cir. 1954).

However, the Court is of the view that the general rule

espoused in the above cited cases cannot be taken to stand

for the proposition that a technical affirmation which

results from the fortuitous circumstance of an equally

divided court and which makes no pronouncement, either

pro or con, on the merits of the constitutional claims of

a habeas corpus petitioner, must be protected by the

ta

— A-41 —

doctrine of res judicata. The cases cited by respondent

in support of his argument are unconvincing since they

deal wholly with litigation concerning property rights!

rather than the right of a criminal defendant to due

process of law where there is a possibility that his liberty

or even his life may be forfeit. As the leading cases on

the effect of affirmation due to an evenly divided court

make clear, the principles of law which are argued in

such a case are not decided but, rather, are left unsettled.

In such a circumstance, the Court affirms out of necessity

since, in its evenly divided state, it cannot overturn the

lower court ruling. Such an affirmation is a technicality

only, growing out of the policy of judicial administration

that there must at some point be an end to litigation.

See, Etting v. Bank of the United States, 24 U.S. 59

(1826).

It is inconceivable that a technical rule such as this,

born to serve the needs of judicial] administration, could

be employed to deny a criminal defendant the right to

obtain a full judicial determination of his constitutional

claims in the federal courts. Certainly, it would amount

to a trayesty on justice if such a result were permitted.

In the circumstances surrounding this case that travesty

would be compounded by the fact that the even split of

1 In cases involving contract rights, various property rights,

tax liability questions, etc., there are overriding economic and

administrative interests in seeing that finality is achieved in

litigation so that “business can proceed as normal.” The cases

cited by respondent make this very clear. In Hertz v. Wood-

man, 218 U.S. 205 (1910), the Court was concerned with de-

ciding who was entitled to the possession and enjoyment of a

distributive share of an estate for tax purposes; in Durrant v.

Essex Oo., 740 U.S. 107 (1868), the question involved rights in

certain realty; in United States v. Pink, 315 U.S. 203 (1941),

the Court was concerned with the disposition of surplus funds

of a Russian insurance company; and in Kaku Nagana v.

Brownwell, 212 F.2d 262 (7th Cir. 1954) suit was brought to

recover stock vested by an alien property custodian pursuant

to the Trading with the Enemy Act.

opinion occurred because of the necessity of Mr. Justice

Marshall having to recuse himself apparently due to past

professional association with petitioner’s attorneys. The

liberty of petitioner and others like him should not be

left to the mercy of mere fortuity.

Fortunately, it has been recognized from early common

law days to the present that such technicalities cannot

be used to thwart the right of the criminal defendant

to have merits of his constitutional claim fully adjudi-

cated. As the United States Supreme Court has recently

stated: ‘‘Conventional notions of finality of litigation

have no place where life or liberty is at stake and in-

fringement of constitutional rights is alleged.’’? Sanders

v. United States, 373 U.S. 1 at 8 (1962).2 Indeed, it has

long been recognized as a ‘‘familiar principle that res

judicata is inapplicable in habeas proceedings.’’ Fay v.

Noia, 372 U.S. 391 at 423 (1962). If government is always

to be accountable to the judiciary for a man’s imprison-

ment, then access to the courts by way of habeas corpus

must not be thus impeded. ‘‘The inapplicability of res

judicata to habeas, then, is inherent in the very role and

function of the writ.’’ Sanders v. United States, supra,

at 8; and see e.g. Fay v. Noia, supra at 402; King v. Sud-

dis, 1 East 306, 102 Eng. Rep. 119 (K.B. 1801); and, Cox

v. Hakes, 15 A.C. 506 (H.L., 1890).

The Court is not persuaded by respondent’s proposed

interpretation of 28 U.S.C.A., § 2244(c), dealing with the

finality of determinations by federal courts in habeas

corpus proceedings. As Sanders makes clear, § 2244(c)

was ‘“‘not intended to change the law as judicially

evolved.’’ Furthermore, ‘‘if construed to derogate from

the traditional liberality of the writ of habeas corpus,

2 Bee Note 1 supra.

—

— A-43 —

. . . § 2244 might raise serious constitutional questions.’’*

Sanders v. United States, supra, at 11-12, and see, Fay

v. Noia, supra, at 406.

It should be made clear that while res judicata is in-

applicable in habeas corpus proceedings, it is proper for

a judge to deny subsequent applications for habeas corpus

relief on the ground that the first denial had followed

a full hearing on the merits. However, it should also be

made clear that a judge is permitted to dismiss on such

grounds and not required to order a dismissal by reason

of any considerations of res judicata. See, Salinger v.

Loisel, 265 U. S. 224 (1960); and, Sanders v. United

States, supra.

The Sanders case is instructive as to the types of situ-

ations in which a judge may correctly elect to dismiss a

habeas corpus petition on the ground that a previous

hearing has disposed of the petitioner’s claims on their

merits. Sanders states that:

‘‘Controlling weight may be given to denial of a

prior application for federal habeas corpus or § 2255

relief only if (1) the same ground presented in the

subsequent application was determined adversely to

the applicant on the prior application, (2) the prior

determination was on the merits, and (3) the ends

of justice would not be served by reaching the merits

of the subsequent application.’’ Sanders, supra at 15.

and further that:

‘‘No matter how many prior applications for federal

collateral relief a prisoner has made [controlling

weight may not be given to denial of prior applica-

tions], if a different ground is presented by the new

3 See U. S. Const., Art. I, § 9, cl. 2 which provides:

“The Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Invasion

the Public Safety may require it.”

—_ A-44 —

application [or] if the same ground was earlier pre-

sented but not adjudicated on the merits’’ [Emphasis

added]. Sanders, supra at 17.

Looking to the facts here presented in light of the

Sanders rule and the foregoifig. reasoning, the Court con-

cludes that the prior hearing of petitioner’s appeal by

the United States Supreme Court did not determine the

merits of petitioner’s constitutional claim. Further, as

the memorandum opinion issued by the Court on April

17, 1970, makes clear, the ends of justice have been served

by this Court in hearing petitioner’s case and reaching

the merits of the constitutional claims presented. The

fact that petitioner’s conviction was technically affirmed

by reason of the United States Supreme Court’s even

division of opinion is of no consquence here since the

merits of the claim were not adjudicated. Even if they

had been adjudicated, Sanders shows that those claims

would not have been automatically barred from considera-

tion by this Court in a habeas corpus proceeding,

It occurs to the Court that there is yet another logical

reason to support its decision to consider petitioner’s

claim. The United States Supreme Court hearing in the

Biggers case followed the acceptance by the Court of a

writ of certiorari to review the affirmation of petitioner’s

conviction by the Tennessee Supreme Court. The fortu-

itous circumstance of an equally divided United States

Supreme Court simply had the effect of leaving undis-

turbed without opinion the ruling of the State Supreme

Court. Therefore, the instant habeas corpus petition is,

in effect, an initial federal habeas corpus petition alleging

error in a state criminal conviction. This being the case,

the Supreme Court of the United States has recently

established the proposition that notions of finality, such

as res judicata, forfeiture, or waiver, cannot be applied

so as to preclude the initial consideration of federal con-

stitutional claims in a federal court. Fay v. Noia, supra

at 428.

—

— A-45 —

‘Finally, it should be readily apparent that the situation

presented in the instant case is highly analagous to the

situation where a eriminal defendant, after appealing his

case to the highest state court, has had his conviction

affirmed by that court and has subsequently sought relief

by way of habeas corpus petition in a federal district

court. The analogy may be drawn as follows. Due to the

equal division of Opinion among the Justices, the United

States Supreme Court did not decide this case on its

merits. Therefore, the Tennessee State Supreme Court

is the highest court to have expressed an opinion as to

the merits of petitioner’s claim. That being the case, the

Court is of the view that petitioner Biggers stands in

essentially the same position as a criminal defendant who,

having exhausted his state court remedies pursuant to

28 U.S.C.A., § 2254, makes application for habeas corpus

relief in federal district court. In such a situation, and

in the instant situation, this Court has jurisdiction to

fully adjudicate petitioner’s constitutional claims since

it is an unchallengable principle of law that in habeas

corpus cases the ruling of the highest court of a state

on a constitutional claim never bars consideration of the

same constitutional issue by a federal district court.

Principles of res judicata simply have no application in

this situation.

Accordingly, for the foregoing reasons the Court con-

cludes that the technical affirmation of petitioner Biggers’

state conviction by reason of the equally divided court

does not foreclose this Court from disposing of the peti-

tioner’s constitutional claim on its merits. Therefore,

respondent’s Motion to Rehear should be, and the same

is hereby, dismissed,

WM. E. MILLER

United States District Judge

ST

— A-46 —

APPENDIX 0

ORDER

(Received April 17, 1970)

In this habeas corpus proceeding, the Court issued an

order on July 29, 1969, to the effect that an evidentiary

hearing should be held to determine whether or not there

were unconstitutional irregularities in the identification

process employed by the police in the instant case. This

identification procedure was the primary basis for peti-

tioner’s indictment. In ordering such a hearing the Court

was particularly concerned with the validity of the so-

called ‘‘show up’? identification method as it was used

by police and, also, the reliability and validity of voice

identification procedures utilized in the instant case. A

hearing on these issues was held on October 30, 1969, and

supplemental briefs were filed by both parties to the action

several weeks later.

Before reaching the merits of petitioner’s claims, a

brief statement of the facts is in order. Petitioner,

Archie Nathanel Biggers, when 16 years of age was con-

victed on a charge of rape in a jury trial and sentenced to

20 years in prison. On appeal to the Supreme Court of

Tennessee, the conviction was affirmed. Biggers v. State,

“219 Tenn. 553, 411 S. W. 2d 696 (1967). The case was

then accepted for review by the Supreme Court of the

United States on a writ of certiorari. Biggers v. Tennes-

see, 390 U. S. 404 (1968). Again, the conviction was af-

firmed. However, the affirmation was the result of an

equally divided court and, therefore, did not amount to

an adjudication of the merits of petitioner’s claims so as

to prevent him from bringing the instant habeas corpus

action. [See the May 12, 1969 Order entered by this Court

in the instant case; and also see, Etting v. Bank of the

United States, 24 U. 8. 59 (1826).]

7

— AAT —

The pertinent operative facts in light of the issues

raised in the current proceeding are as follows. On the

evening of January 22, 1965, Mrs. Margaret Beamer was

attacked at knife-point by an intruder who broke into her

home. Mrs. Beamer’s screams aroused her thirteen-year

old daughter who rushed to the scene and also began to

scream, At this point, the intruder is alleged to have

said to Mrs. Beamer, ‘‘You tell her to shut up, or I’ll kill

you both.’’ This Mrs. Beamer did, whereupon she was

taken from the house to a spot two blocks away and raped.

The entire episode occurred in very dim light and the

rape itself occurred in moonlight. As a result, Mrs.

Beamer could give only a very general description of her

assailant, describing him as being fat and flabby with

smooth skin, bushy hair and a youthful voice,

Over a seven month period following the crime the

police showed Mrs. Beamer various police photographs

and had her attend several ‘‘line-ups’’ and ‘‘show-ups.’’

However, the victim was unable to identify any of the

persons shown to her as being her assailant. Finally,

on August 17, 1965, petitioner was arrested as a suspect

in the rape of another woman. While petitioner was

being detained in connection with that case the police

asked Mrs. Beamer to come to the police station to ‘‘look

at a suspect.’’ The identification process employed at

this point was called a show-up. In this type of identifica-

tion procedure, the suspect appears before the victim

alone rather than in the company of others. The victim

therefore does not have to attempt to choose one person

from a group of persons presented to him, as in a line-up,

but rather the victim knows that the person presented to

him for identification is one whom the police suspect

of having committed the crime. At the instant show-up

Mrs. Beamer identified petitioner as being her assailant.

As to what transpired at the show-up, there is some con-

flict between the Testimony given by Mrs. Beamer at the

— A-48

trial and that given by her at the evidentiary hearing

held in this court on October 30, 1969. In testimony given

at the trial, Mrs. Beamer testified that on viewing the

petitioner the ‘‘first thing’’ that made her think he might

be her assailant was his voice. However, at the October

hearing, Mrs. Beamer testified that she identified peti-

tioner positively prior to having him speak the words

spoken by Mrs. Beamer’s attacker more than seven

months earlier during the crime—‘‘You tell her to shut-

up or I’ll kill you both.’’ There is also conflict between

the testimony given by police officers at the trial and

that given by them at the October hearing as to whether

or not identification of petitioner was made before or

after he was asked to speak these words.

At any rate, petitioner was identified at this show-up

as. being Mrs. Beamer’s attacker, and the subsequent in-

dictment and conviction of petitioner was based almost

exclusively upon this station house identification.

Turning now to a consideration of the legal conse-

qu attaching to the identification process described

above, the basic issue to be dealt with may be defined as

follows: was petitioner subjected to a type of identifica-

tion procedure, namely the show-up confrontation, which

was so unnecessarily suggestive and conducive to ir-

reparably mistaken identification as to have the effect

of denying due process of law to the petitioner? There

are relatively few cases dealing with this issue and the

validity of the show-up identification process in the light

of due process considerations. However, the teachings of

this small body of law point the way for decision of the

issue now before the Court.

1 There is considerable doubt on reading the trial record as

to whether or not Mrs. Beamer made a positive-in-court identifi-

cation of petitioner at the time of the trial.

—

— A-49 —

It is well settled that in the absence of -exceptional

circumstances any identification procedure, whether in

the nature of a show-up or a line-up, employed without

giving the suspect the right to have counsel present con-

stitutes a denial of due process. United States v. Wade,

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

263 (1967). Though petitioner in the instant case was

not provided with the advice of counsel, the rule of Gil-

bert and Wade has no application here since that rule

was not given retroactive effect. Stovall v. Denno, 388

U. S. 293 (1967). The Stovall decision makes it clear,

however, that aside from the right to counsel, a suspect

also has the right not to be subjected to police iden-

tification procedures which are so unfair, given the

‘‘totality of the surrounding circumstances,’’ as to present

a significant possibility of irreparably mistaken identifica-

tion. Where such faulty procedures are employed, they

present a ‘‘recognized ground for attack upon a con-

viction. . . .” See, Stovall v. Denno, supra at 302; Sim-

mons v. United States, 390 U. S. 377 at 383 (1967); and

Palmer v. Peyton, 359 F. 2d 199 (4th Cir., 1966). In

light of these general principles, Mr. Justice Douglas suc-

cinctly stated the issue involved here in his dissenting

opinion in the earlier consideration of petitioner’s case

by the Supreme Court of the United States. He pointed

out that whether or not the procedure by which Mrs.

Beamer identified petitioner denied him due process of

law ‘‘must be evaluated in light of the totality of the

surrounding circumstances’? with the view of deter-

mining if the procedure in petitioner’s case ‘‘was so un-

duly prejudicial as fatally to taint his conviction.’’ Big-

gers v. Tennessee, 390 U. S. 404 at 406 (1967).

The show-up identification process is, as the expert wit-

ness for petitioner testified, a far less reliable method of

identification than the line-up method. The fact that

this is so has been given judicial recognition. In Wise

— A-50—

v. United States, 383 F. 2d 206 (D. C. Cir., 1967); and

Wright v. United States, 404 F. 2d 1256 (D. C. Cir., 1968),

it was stated that ‘‘the presentation of only one suspect

in the custody of the police raises problems of suggesti-

bility that brings us to the threshold of an issue of fair-

ness.’’ See also, Biggers v. Tennessee, supra at 407-408;

and, Stovall v. Denno, supra at 302. See also, Wall, Eye

_ Witness Identification in Criminal Cases, 26-40, and Paul,

‘*Identification of Accused Persons,’ 12 Austl L. J. 42,

44 (1938) (as cited by Mr. Justice Brennan in the major-

ity opinion in Stovall v. Denno, supra.)

The problem intrinsic in the show-up identification proc-

ess is perhaps best stated as follows:

whatever may be said of lineups, showing a suspect

singly to a victim is pregnant with prejudice. The

message is clear: the police suspect this man. That

carries a powerfully suggestive thought. Even in a

lineup the ability to identify the criminal is severely

limited by normal human fallibilities of memory and

perception. When the subject is shown singly, havoc

is more likely to be played with the best-intended

recollections. Biggers v. Tennessee, supra at 407

(Justice Douglas’ dissent).

However, the use of the show-up process is not per se

unconstitutional. Where special circumstances such as

an urgent need for rapid identification are present, show-

ups are allowable. For example, in Stovall, the Court

found that the show-up was permissible and within the

bounds of due process where the procedure was con-

ducted in the hospital room of the victim who was at

the point of death following a stabbing attack. Clearly,

in that case, there was no time to conduct a line-up and

the urgency of the situation demanded that if any eye-

witness identification was to be obtained at all it had to

be obtained by the show-up method. The ‘‘totality of

— A-51 —

surrounding circumstances’? was such that the show-up

was found to be permissible.

Aside from the urgent sort of deathbed situation which

occurred in the Stovall case, thorough analysis of case

law in the area reveals certain other sets of circumstances

in which a show-up has been held permissible. For ex-

ample, courts have upheld the constitutionality of the

show-up where the witness had ‘‘an unusually good and

sustained opportunity to view the participants in the

commission of the crime. The theory of the courts is

that this particular circumstance makes it unlikely that a

show-up would lead to misidentification. See, United

States ex rel. Garcia v. Follette, 417 F. 2d 709 (2d Cir.,

1969) ; Macklin v. United States, 409 F. 2d 174 (D. C. Cir.,

1969); United States ex rel. Rutherford v. Deegan, 406

F, 2d 217 (2d Cir., 1969); Cline v. United States, 395 F.

2d 138 (8th Cir., 1968); and Hanks v. United States, 388

F. 2d 171 (10th Cir., 1968). Show-ups have also been

given court approval where the confrontation between

the witness and the accused occurs ‘‘so near the time

when the alleged crime was committed’’ that the chance

of misidentification is minimal. The time period within

which the show-up may be permissible ranges from a

few hours to a few weeks. See, United States ex rel. Wil-

liams v. LaValle, 415 F. 2d 643 (2d Cir., 1969); Stewart

v. United States, 418 F. 2d 1110 (D. C. Cir., 1969); United

States ex rel. Anderson v. Mancusi, 413 F. 2d 1012 (2d

Cir., 1969) (suspect identified within hours of crime);

Clark v. United States, 408 F. 2d 1230 (D. C. Cir., 1968)

(suspect identified within a few weeks and a ‘‘very

positive spontaneous identification’’ by the witness); and,

Bates v. United States, 405 F. 2d 1104 (D. C. Cir., 1968).

Also, where the show-up was conducted following other

independent identification by the witness (i. e., photo-

graphic identification), or a particularly good description

of the participant in the criminal act, courts have tended

ag

— A-52—

to approve the procedure. See, United States v. Thomp.

son, 417 F. 2d 197 (4th Cir., 1969).

While the show-up has been approved within the

context of the four situations described above, the courts

have zealously guarded the rights of the accused where

the show-up procedure was conducted in a manner so

suggestive and conducive to irreparably mistaken iden-

tification as to amount to a denial of due process. For

example, a show-up was expressly disapproved where a

witness was shown a lone suspect and asked, ‘‘Is this the |

man?’’ In this situation, the court stated that the words

and actions of the police in contriving the show-up

clearly indicated to the witness that the police thought

this suspect had committed the crime, thereby contribut-

ing to a ‘‘mutual reinforcement of opinion’’ likely to

lead to mistaken identification. See, Olark v. United

States, 294 F. Supp. 44 (D. D. C., 1968). In another case,

a Circuit Court of Appeals upheld the holding of a federal

district judge that a cell block confrontation between a

witness and a suspect was unnecessarily suggestive and

therefore the identification obtained from the show-up

could not be introduced at the trial. That show-up was

objectionable on due process grounds because the suspect

had been presented alone to the witness in a screened-

off portion of the jail and the witness knew beforehand

that the suspect was considered by police to be the

‘culprit. See, Clemons v. United States, 408 F. 2d 1230

(D. C. Cir., 1968); and see also, United States v. Gregg,

414 F. 2d 943 (7th Cir., 1969).

In yet another case, a show-up identification was disal-

lowed because the identifying witness did not have the

opportunity to obtain a good view of the participants in

the crime. See, United States v. Gilmore, 398 F. 2d 679

(7th Cir., 1968). The hesitancy of a witness to make a

positive identification in a show-up has also been said to

indicate the type of misidentification danger which would

contravene constitutional requirements of due process.

— A-53 —

These cases make it quite clear that while a show-up is

constitutionally acceptable in certain situations, courts

will look carefully at the factual situation surrounding

the show-up to determine whether or not the procedure

was conducted in such a manner as to violate due process

requirements. Courts also have looked to the surrounding

circumstances to determine whether or not a line-up

should have been conducted rather than the show-up with

its attendant dangers of misidentification. For example,

where police custody is involved, it has been held that

the need for a formal line-up may not,be circumvented by

keeping a suspect away from the stationhouse until an

informal show-up confrontation can be contrived. See,

United States v. Venere, 416 F. 2d 144 (5th Cir., 1969).

The Stovall case and the cases discussed immediately

above make it clear that while the practice of showing

suspects singly to witnesses for identification is widely

condemned, each case of this type must be judged on its

own facts and that convictions based on show-up iden-

tifications will be overturned only if the identification

procedure was so impermissibly suggestive as to give

rise to a very substantial likelihood of irreparable mis-

identification. See, Simmons v. United States, 390 U. S.

377 at 384 (1967). Though the show-up is clearly a less

reliable method of identification than the li-e-up, it is

necessary in some circumstances and this Court does not

subscribe to a rule that would prohibit its use as a matter

of constitutional requiréMent. However, the ‘‘totality

of surrounding circumstances’? must be examined closely

in this case to determine whether special circumstances

or exigencies such as those described above existed which

would warrant the use of the show-up instead of the more

reliable line-up procedure.

On this basis the Court must conclude that the cir-

cumstances here present are not such as to warrant the

show-up procedure and, consequently, that its use at peti-

———~-—-ag

tioner’s trial denied him due process of law. Respondent,

arguing in support of the use of the show-up procedure,

relies chiefly on the contention that a show-up was actu-

ally fairer to petitioner than a line-up would have been

since no prisoners were readily available in either the

Metro Jail or the juvenile home whose general description

matched that of petitioner. To have conducted a line-up

under these circumstances, contends respondent, would

have had a greater tendency to cause a misidentification

because in a dissimilar group the physical characteristics

of petitioner, whose general description matched that of

Mrs. Beamer’s assailant, would have been unduly accentu-

ated. This argument has perhaps some value but it is at

best debatable. According to expert testimony produced

by petitioner’s attorney, a line-up where no one had phys-

ical characteristics similar to petitioner would have been

less preferable than one where members of the group all

had certain similar characteristics but, in any event, would

be preferable to a show-up. This conclusion is derived

from the belief that any line-up would be a better test of

the victim’s memory since it would demand the exercise of

some selectivity in identification. Furthermore, there is

no indication that a truly concerted effort was made to

produce suitable subjects for a line-up. Asidefrom a

phone call to the juvenile home and a screening of Metro

Jail inmates no other efforts were made. There are sev-

eral other prison facilities in the area and there is no evi-

dence that any effort was made to screen them for sub-

jects. The Court sees no reason why this could not have

been done in order to maximize the fairness of the identi-

fication process. Here, there was no evidence of any death-

bed 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 an immediate show-up rather than a

=.”

— A-55 —

much more reliable line-up. Furthermore, none of the

other circumstances which the above discussed cases in-

dicate may justify a show-up existed in the instant case.

The evidence clearly shows that the complaining witness

did not get an opportunity to obtain a good view of the

suspect during the commission of the-crime.? Also, the

show-up 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

identification of the suspect or a good physical descrip-

tion of her assailant.‘ The nature of the show-up as con-

ducted in this case—with the great lapse of time between

the crime and the identification, the hesitancy of the wit-

ness in identifying the petitioner,® the circumstances of

the stationhouse confrontation coupled with Mrs. Beamer’s

knowledge that petitioner was thought by police to be

her assailant,—tended to maximize the possibility of mis-

identification of the petitioner. True, it may have been |

more convenient for the police to have a show-up. How-

ever, in matters of constitutional due process where police

convenience is balanced against the need to extend basic

fairness to the suspect in a criminal case, the latter value

should always outweigh the former. In this case it ap-

pears to the Court that a line-up, which both sides admit

is generally more reliable than a show-up, could have been

arranged. The fact that this was not done tended need-

lessly to decrease the fairness of the identification process

to which petitioner was subjected.

2 The only other eye-witness, Mrs. Beamer’s daughter could

not identify Biggers. And see, the case of United States ex rel.

Garcia v. Follette, supra and accompanying text and cases.

® See the case of United States ex rel. Williams v. LaVallee,

Supra, and accompanying text and cases.

* See the case of United States v. Thompson, supra, and ac-

companying text and cases.

5 See United States v. Gilmore, supra, and accompanying text.

— A-56 —

Due process of law and basic fairness demand that the

most reliable method of identification possible be used in

@ criminal case. See, Simmons v. United States, supra, at

383-384. The conduct of the show-up in this case created

an atmosphere which was so suggestive as to enhance the

chance of misidentification and hence constituted a viola-

tion of due process.

Clearly, this identification did not amount to a harm-

lees error, since the victim’s identification of petitioner

was virtually the only evidence upon which the conviction

was founded. See, Chapman v. California, 386 U. S. 18

(1966).

In view of this conclusion, the Court finds it unneces-

sary to reach the issue of whether voice identification as

used here amounted in itself to a violation of due process.

It may be that the validity of such identification should

normally be left to the jury. Since the voice identification

took place during the show-up and the show-up procedure

itself is unconstitutional as employed in this case, there

is no reason to reach the specific issue raised concerning

voice identification.

Accordingly, judgment will be entered granting the ap-

plication ‘of Archie Nathaniel Biggers for a writ of habeas

corpus, voiding the conviction obtained in the state court,

and discharging the petitioner from custody after the state

has had a reasonable time to retry him upon the same

charge, any such new trial to be ‘unaffected by Mrs.

Beamer’s station-house identification and the testimony of

the police officers who were present when it took place.”’

Biggers v. Tennessee, supra, at 409.

WM. E. MILLER

United States District Judge

——

eel ie

— A-57 —

APPENDIX D

In the District Court of the United States

For the Middle District of Tennessee

Nashville Division

Archie Nathaniel Biggers .

v.

Lake F. Russell, Warden > Civil No. 5120

Tennessee State Penitentiary,

Nashville, Tennessee

d

ORDER

(Filed July 29, 1969)

In this habeas corpus proceeding, the Court remains

of the opinion, expressed in its Order entered on May

12, 1969, that an evidentiary hearing is required to deter-

mine the issues in this cause. After reviewing the tran-

script and briefs, the Court desires open court testimony

on the following matters: the nature of the ‘‘show-up’’

identification process as opposed to the ‘‘line-up” iden-

tification process, and why the former process was em-

ployed in the instant case; and, the general reliability of

voice identification procedures, and their relative im-

portance compared with other methods of identification

in linking the petitioner to the offense alleged in the

instant action.

It is ORDERED that an evidentiary hearing, confined

to these issues, be set by the Clerk at the earliest time

consonant with the Court calendar.

WM. E. MILLER

(Seal) United States District Judge

— A-58 —

APPENDIX E

In the District Court of the United States

For the Middle District of Tennessee

Nashville Division

Archie Nathaniel Biggers, )

Petitioner,

Vv.

Lake F. Russell, Warden,

Tennessee State Penitentiary,

Respondent. ;

ORDER

(Filed May 12, 1969)

This action involves a motion by the respondent to dis-

miss the petition for writ of habeas corpus filed by Archie |

Nathaniel Biggers. The petitioner was convicted of rape

in the Criminal Court of Davidson County, Tennessee, in

1965. The judgment was affirmed by the Supreme Court

of Tennessee and then by an equally divided Supreme

Court of the United States early in 1968. Biggers has

now petitioned the Court for a hearing on his writ of

habeas corpus, pursuant to 28 U.S.C. § 2241.

Respondent maintains that the constitutional questions

here raised by the petitioner have been fully considered

and decided adversely to him by the United States

Supreme Court. It is the position of the respondent that

the Court should not, therefore, redetermine the same

issues

Though the present case has been argued before the

Supreme Court, the decision of that Court is without

Civil No. 5120

Te ee

— A-59 —

force as precedent. When the Supreme Court is equally

divided as to the outcome of a case, the judgment is au-

tomatically affirmed without opinion. Etting v. Bank of

the United States, 24 U.S. 59 (1826). Had there been a

more conclusive decision regarding the legal questions in

the present case, the Court could easily decline any further

review. There would be little reason for the Court to

rehear arguments previously rejected by the highest

judicial authority. But the Supreme Court did not settle

the merits of this case, and affirmed only through an equal

split in opinion. The Court therefore concludes that it

is not precluded from hearing evidence on the petitioner’s

allegations, and the respondent’s motion to dismiss is

hereby denied.

The Court being of the opinion that an evidentiary hear-

ing is required to determine the factual issues in this

cause, it is ORDERED that a hearing be set by the Clerk

at the earliest time consonant with the Court Calendar.

Any analysis of the merits of the petitioner’s contentions

will be deferred until after the evidentiary hearing.

WM. E. MILLER

(Seal) United States District Judge

a

— A-60 —

APPENDIX F

No. 237. ARCHIE NATHANIEL BIGGERS, Petitioner,

v. TENNESSEE, 390 U.S. 1037.

April 22, 1968. Petition for rehearing denied. Mr. .

Justice Marshall took no part in the consideration or de-

cision of this petition.

Former Decision, 390 US 404.

i

— A-61 —

APPENDIX G

*[390 US 404]

“ARCHIE NATHANIEL BIGGERS, Petitioner,

Vv

STATE OF TENNESSEE

390 US 404, reh. den. 390 US 1037

[No. 237]

Argued January 15, 1968, Decided March 18, 1968.

Appearances of Counsel

Michael Meltsner argued the cause for petitioner.

Thomas E. Fox argued the cause for respondent.

Per Curiam.

_ The judgment below is affirmed by an equally divided

Court. ,

Mr. Justice Marshall took no part in the consideration

or decision of this case.

Mr. Justice Douglas, dissenting.?

Petitioner was indicted for a rape committed when he

was 16 years old, was convicted, and after a trial by a

jury sentenced to 20 years, first to a juvenile facility and

later to prison. The Supreme Court of

1 As respects the practice of Justices setting forth their views

in a case where the judgment is affirmed by an equally divided

Court, see Communications Assn. v. Douds, 339 US 382, 412-

415, 422; Osman v. Douds, 339 US 846, 847; In re Isserman,

345 US 286, 348 US 1; Raley v. Ohio, 360 US 423, 440; Eaton

v. Price, 364 US 263, 264.

*[390 US 405)

Tennessee affirmed *the judgment of conviction. Biggers

v State, 219 Tenn 553, 411 SW2d 696.

On the night of January 22, 1965, Mrs. Beamer was at

home sewing, when an intruder with a butcher knife in

his hand grabbed her from the rear. Her screams brought

her 13-year-old daughter, who, arriving at the scene, also

started to scream. The intruder said to Mrs. Beamer,

‘*You tell her to shut up, or I'll kill you both.’? Mrs.

Beamer ordered her daughter to a bedroom, and the in.

truder took Mrs. Beamer out of the house to a spot two

blocks away and raped her.

During the next seven months the police showed Mrs.

Beamer numerous police photographs, one of which, she

said, showed a man who ‘‘had features’’ like the intruder.

The case lay dormant. Mrs. Beamer was unable to

describe the rapist other than to state he was fat and

“‘flabby,”’ had a youthful voice, smooth skin, and ‘sort of

bushy’’ hair.

On August 17, 1965, petitioner, still only 16 years old,

was arrested for the rape of another woman. On the

same day the police brought Mrs. Beamer to the police

station to “‘look at a suspect.’’ They brought petitioner

to the doorway of the room where she sat. She asked the

police to have him speak and they told him to repeat the

words spoken by the rapist, ‘‘Shut up, or I’ll kill you.”

Only after he had spoken did Mrs. Beamer identify peti-

tioner as the man who had raped her; she testified that it

was petitioner’s voice that ‘was the rst thing that made

me think it was the boy.’’ So far as the record indicates,

at the time of this confrontation neither the parents of

petitioner nor any attorney acting for him had been ad-

vised of the intended meeting with Mrs. Beamer.

— A-62 — |

— A-63 —

The indictment followed. At the trial the daughter

testified to what she had seen the evening of the rape, but

was unable to identify petitioner as the rapist. The only

evidence connecting him with the

*[390 US 406]

rape was Mrs, *Beamer’s stationhouse identification. She

did not identify him in the courtroormi.? She testified that

she had identified him by his size, his voice, his smooth

skin, and his bushy hair. Three of the five police officers

who were present at thé identification testified over ob-

jection in corroboration of Mrs. Beamer’s reaction at the

confrontation.

This procedure of identification violates, of course,

United States v Wade, 388 US 218, and Gilbert v Cali-

fornia, 388 US 263. Those were cases of lineups and this

was not. Yet, though they recognized a suspect’s right

to counsel at that critical stage, the Court announced they

would not have retroactive effect.

Stovall v Denno, 388 US 293, and Simmons v United

States, 390 US 377, make it clear, however, that independ-

ent of any right to counsel claim, a procedure of identifica-

tion may be ‘‘so unnecessarily suggestive and conducive

to irreparable mistaken identification’? that due process

of law is denied when evidence of the identification is used

at trial. Stovall v Denno, supra, at 302. The claim that

Mrs. Beamer’s identification of petitioner falls within this

rule ‘‘must be evaluated in light of the totality of sur-

2 Respondent contends that Mrs. Beamer made an in-court

identification of petitioner as the rapist. But the portions of

the record relied on do not support this claim. After Mrs.

Beamer had described the station-house identification, the prose-

eutor asked her, “Is there any doubt in your mind today?” She

replied, “No, there’s no doubt.” The inference to be drawn is

that Mrs. Beamer had no current doubt as to the correctness of

her previous identification of petitioner at the police station.

Es

— A-64—

rounding circumstances”? with the view of determining if

the procedure in petitioner’s case *‘was so unduly preju-

dicial as fatally to taint his conviction.’’ Simmons y

United States, supra.

In Simmons, identification by use of photographs rather

than a lineup was upheld because the bank

*[390 US 407]

robbers “were still at large, the FBI had to quicky deter-

mine whether it was on the right track in looking for

Simmons, the witnesses’ memories were fresh since the

robbery was but a day old, and because the photos pic-

tured persons in addition to petitioner. In Sto » & sin-

gle-suspect confrontation held in a hospital rdgm

found to comport with due process because the stabbi

victim, the sole source of identification, was in danger of

death—to have conducted a lineup would have entailed

perhaps fatal delay.

We have no such problem of ‘compelling urgency here.

There was ample time to conduct a traditional lineup.

This confrontation was crucial. Petitioner stood to be

free of the charge or to account for it, dependent on what

Mrs. Beamer said. Whatever may be said of lineups,

showing a suspect singly to a victim is pregnant with

prejudice. The message is clear: the police suspect this

man. That carries a powerfully suggestive thought. Even

in a lineup the ability to identify the criminal is severely

limited by normal human fallibilities of memory and per-

ception. When the subject is shown singly, havoc is more

likely to be played with the best-intended recollections,

As noted, in Simmons, where identification was by

photograph, the Court stressed that: identification was

made only a day after the crime while ‘‘memories were

still fresh.’? Id. at 1254. Here, however, Mrs. Beamer

— A65 —

confronted petitioner seven months after the rape, and

the sharpness of her recall was being severely tested. In

Simmons, too, the Court emphasized that the five witnesses

had seen the robbers “‘in a well-lighted bank.’’ Ibid.

Here, however, there was ‘‘ [nJo light in the hall’? where

Mrs. Beamer was first assaulted; from that hall, the as-

sailant took her out. of the house through a kitchen where

there was ‘‘no light,’’ and the railroad track where the

rape occurred was illumi-

*[390 US 408]

nated only by *the moon. Indeed, the best view Mrs.

Beamer had of petitioner was in the hall by indirect light

from a nearby bedroom.

In Simmons, the record did not indicate that the FBI

told the witnesses which of the men in the photographs

were suspects. Here, on the other hand, the police told

Mrs. Beamer when they brought her to the station house

that the man she would see was a ‘“suspect.’’

Moreover, unlike the Simmons case, identification here

rested largely on voice. The fact that petitioner had

‘the voice of an immature youth” to use Mrs. Beamer’s

words, merely put him in a large class and did not relate

him to speech peculiar to him. Voice identifications in-

volve ‘‘grave danger of prejudice to the suspect¥’’ as the

Court of Appeals for the Fourth Circuit said in Palmer v

Peyton, 359 F2d 199, 201. No one else identified petitioner.

The daughter could not; and Mrs. Beamer did not identify

him in the courtroom. Petitioner was young and ap.

parently had no previous police record. There was no

other shred of evidence against him.

Under the circumstances of this case it seems plain that

the police maximized the suggestion that petitioner com-

mitted the crime.

— A-66 —

Of course, due process is not always violated when the

police fail to assemble a lineup but conduct a one-man

showup. Plainly here, however the highly suggestive at-

mosphere that had been generated by the manner in which

this showup was arranged and conducted could not have

failed to affect Mrs. Beamer’s judgment; when she was

presented with no alternative choices, ‘‘there [was] then

a strong predisposition to overcome doubts and to fasten

guilt upon the lone suspect.’? Palmer y Peyton, supra, at

201. The conclusion is inescapable that the entire at-

mosphere created by the police surrounding Mrs. Beamer’s

identification was so suggestive

*[390 US 409]

*that use at trial of her stationhouse identification con-

stituted a violation of due process. Since this was the

only evidence of identification, there can be no question

of harmless error. See Chapman v California, 386 US 18.

Petitioner is entitled to a new trial unaffected by Mrs.

Beamer’s station-house identification and the testimony

of the police officers who were present when it took place.

See Gilbert v California, supra, at 272-273.

The fact that petitioner is a Negro, and Mrs. Beamer

also, is of course irrelevant to the due process question.

t

xy

—cemnemen

— A-67 —

APPENDIX H

NO. 1562, MISC. ARCHIE NATHANIEL BIGGERS,

PETITIONER, V TENNESSEE

388 US 909

June 12, 1967. Motion for leave to proceed in forma

pauperis and petition for writ of certiorari to the Supreme

Court of Tennessee, Middle Division, granted. Case trans-

ferred to the appellate docket and placed on the summary

calendar and set for oral argument immediately following

No. 1087.

— A-68 —

APPENDIX I

Archie Nathaniel Biggers, Plaintiff in Error,

v.

The State of Tennessee, Defendant in Error.

219 Tenn. 553

411 S.W.2d 696.

(Nashville, December Term, 1966.)

Supreme Court of Tennessee

Opinion Filed January 12, 1967.

Petition for Rehearing Denied March 1, 1967.

From Davidson

Mr. Justice Dyer delivered the opinion of the Court.

Plaintiff in error, Archie Nathaniel Biggers, herein re-

ferred to as defendant, appeals from a conviction of rape

for which he has been sentenced to serve twenty (20)

years in the State Vocational Training School for Boys.

Defendant at the time of the crime was sixteen years old.

The victim, Mrs. Margaret Beamer, is a married woman

with five children. On the night of 22 January 1965 she

was at home in her living room sewing. About 9:00 p.m.

she started from her living room to the bedroom, which

rooms are separated by a hall, and as she reached the hall

defendant, with a butcher knife in his hand, grabbed her

— A-69 —

from behind pulling her to the floor. Her screams brought

her daughter out of a bedroom into the hall and when the

daughter saw what was happening she also began to

scream. Defendant said to Mrs. Beamer, ‘‘You tell her to

shut up or I’ll kill you both.’? Mrs. Beamer ordered the

daughter back into the bedroom. Defendant escorted

Mrs. Beamer out the back door of the house to a spot

about two blocks away where he had sexual relations with

her. Upon completion of the sexual act defendant ran

away and Mrs. Beamer, returning home, notified police.

About 10:15 p.m. on this night Mrs. Beamer was medically

examined which revealed she had had sexual intercourse

within three (3) hours prior to that time.

. During the early hours of 17 August 1965 defendant

was arrested for an incident occurring on this night of

his arrest and immediately taken to Juvenile Aid. Defend-

ant’s mother came to Juvenile Aid and in her presence

he was fully advised of his constitutional rights. Later

on in the morning defendant was released to the Police

Department and Mrs. Beamer, at Police Headquarters,

identified defendant as the person who raped her on 22

January 1965.

Defendant as a witness in his own behalf denied any

knowledge of the crime. Several witnesses testified to his

good character.

The assignments of error are as follows:

1. The evidence preponderates against the verdict

of the jury and in favor of the innocence of the

accused.

2. The defendant was prejudiced when a witness for

the State mentioned other offenses allegedly com-

mitted by the defendant for which he was not on

trial and for which he had not previously been con-

victed.

——_———

3. The defendant was prejudiced when the Attorney

General went outside the evidence in the case while

making his final argument to the jury.

4. The defendant was required to give evidence

against himself without having been advised of his

constitutional rights.

5. The defendant was prejudiced by the action of

the Trial Court in refusing to require the State to

furnish him a transcript of the trial proceedings.

— A-70 —

{1, 2] The first assignment of error is predicated upon

the ground the identity of defendant by the victim was so

vague, uncertain and unsatisfactory and given under such

circumstances as not to have any substantial probative

value. This identification was made based upon the de-

fendant’s size, voice, skin texture and hair. On identifica-

tion the trial judge asked the victim, ‘‘All right. Is there

any doubt in your mind.’ To which the victim replied,

“No, there’s no doubt.’’ Identification is a question of

fact for the jury. Stubbs v. State, 216 Tenn. 567, 393

S.W.2d 150 (1965). The first assignment of error is over-

ruled.

Under the second assignment of error it is alleged

Thomas E. Cathey a member of the Metropolitan Police

Department, as a witness for the State, mentioned other

offenses allegedly committed by defendant. In defend-

ant’s brief these references to other crimes are described

as being ‘‘by inference.’’ We have carefully examined the

pages of the transcript cited and find no reference to

other crimes. The assignment of error is overruled.

Objection is made, under the third assignment of error,

to the following argument by the Assistant District At-

torney General:

— A-71—

In many parts of our United States, Gentlemen of the

Jury, a case of this nature would never go to trial,

and I am sorry to say, its all south of the State of

Tennessee, and that is because of this fine woman,

Mrs. Beamer’s environment, economic circumstances,

and situation, she is not considered in those states to

have any more rights than a dog and her reproductive

organs—’’,

[3] The argument above was not completed due to ob-

jection by defendant which was sustained by the court.

The Assistant District Attorney General did not pursue

this line of argument further. Both the defendant and

the victim were members of the Negro race, a fact, of

course, known to the jury. It is insisted, under these cir-

cumstances, this argument was an appeal to racial preju-

dice. We agree this line of argument was improper, but

in light of the prompt action of the trial judge we think

such was harmless error. The third assignment of error

is overruled.

Mrs. Beamer and defendant, for the purpose of pos-

sible identification, were brought together at Police Head-

quarters. Mrs. Beamer requested police have defendant

Tepeat in her presence some of the words her assailant

had used at the time of the rape. The words requested

were, ‘Stop or I’ll kill you.’ Defendant, upon instruc-

tions of police, repeated these words and Mrs. Beamer

bases her identification of defendant as her assailant

partly upon his voice. Under the fourth assignment of

error it is alleged requiring defendant to speak these

words for the purpose of identification violated his con-

stitutional right against self-incrimination.

While the exact problem presented here has not been

before this Court, yet we think it is controlled by the

logic and reason used by the court in the case of Barrett

— A-72—

v. State, 190 Tenn. 366, 229 S.W.2d 516 (1950). The

Barrett case involved a defendant required to wear a hat

at the time he was being identified. This court, rejecting

the argument such was a violation of defendant’s privi-

lege against self-incrimination, quoted from Wigmore on

- Evidence, 3 Ed. Section 2265, p. 375 as follows:

“Unless some attempt is made to secure a com-

munication, written or oral, upon which reliance is

to be placed as involving his consciousness of the

facts and the operations of her mind in expressing

it, the demand made upon him is not a testimonial

one.’’ 190 Tenn. 372, 229 S.W. 2d 519.

A thorough analysis of the problem presented can be

found in 8 Wigmore on Evidence, sec. 2265, at pp. 386,

396 (McNaughton, rev. 1961). In analyzing this consti-

tutional privilege Dean Wigmore lists eleven (11) prin-

cipal categories which he specifically states are not

covered. Category No. 7 is; ‘Requiring a suspect to

speak for identification.”” A number of cases are cited for

the proposition a defendant’s rights are not violated

when he is forced to speak certain words solely for the

purpose of identification. See above citation in Wigmore.

[4] In the instant case defendant was told what words

to say and in repeating them he did not give any factual

information tending to connect him with the crime; nor

could any reliance be placed on these words which would

indicate defendant was conscious of, or had knowledge of,

any facts of the crime. The only thing he gave was the

sound of his voice to be used, along with other things,

solely for the _purpose of identification. Under these

circumstances we do not think defendant’s constitutional

right against self-incrimination was violated. The fourth

assignment of error is overruled.

[5] Under T.C.A. sec. 40-2037 et seq. the State is re-

quired to furnish to an indigent defendant a transcript

o_o

— A-73 —

upon request. The trial judge determines if the defendant

is indigent and in this case determined defendant was not

indigent. We find no error in this determination by the

trial judge. The fifth assignment of error is overruled.

Judgment affirmed.

Busyett, Corer Justice, Cuatrin and Creson, Justices,

and Hagsison, Speci, Justice, concur.