Petitioners Brief — Neil v. Biggers

’ RULES PROVISIONS INVOLVED

JES

1,

2.

ONS PRESENTED

History of the Litigation

The State's Case Against Biggers

The federal habeas corpus

evidentiary hearing

RY OF ARGUMENT

ENT —

Biggers' previous conviction, affirmed

by this Court by an equally divided vote,

barred further review of the station-

house identification in a federal habeas

B. Case law

The stationhouse identification of

Biggers was held fairly and scrupulously

and not in derogation of his con-

Stitutional rights.

RPBION 2. cccccccces se oes sede tecee es cee

APPENDICES:

Appendix A - U. S. ex rel Radish v.

Crim. Ct. of City of N.Y. (2nd Cir. 1972)

(Mulligan, J. Dissenting) .....

Appendix B -note, 40 Cinc. L. Rev. 833

CITATIONS

Casés:

Anderson v. Johnson, Warden,

390 U.S. 456 (1968) ...... cc ccc cee ‘:

Biggers v. Neil,

448 F.2d 91 (6th Cir. 1971)

Biggers v. Tennessee,

219 Tenn. 553, 411 S.W.2d 696 (1967)

Biggers v. Tennessee,

390 U.S. 404 (1968)

Coleman v. Alabama,

399 U.S. 1 (1970) .... cece ee cw cece

Duncan v. Tennessee,

405 U.S. 127 (1972)

Durant v. Essex Co.,

74 U.S. 107 (1868) ............... .

Etting v. United States Bank,

» 24U.S. 57 (1826)

Hertz v. Woodman

218 U.S. 205 (1910)

Inman v. Baltimore and O. R.R., .

361 U.S. 138 (1959) .... ce eee cc eee

Kirby v. illinois,

MOGULS. (1972) 0. eee e eee eens +.

Palmer v. Peyton, j

359 F.2d 199 (4th Cir. 1966) .............0.

ii

Radich v. New York,

401 U.S. 531 (1971) .... 2. ec ccc cece ee

Ross v. Radich,

O.T. 1971 No. TAPAOAD Sideee cx svcuncass ;

Stovall v. Denno,

388 U.S. 293 (1967) .... cc cect cc cee cee ;

United States ex rel Radich v.

Criminal Court of New York,

F.Supp. _—«(S.D.N.Y. 1971),

rev'd F.2d (2nd Cir. 1972) .....

United States v. Pink,

315 U.S. 208 (1942) ...................

United States v. Worrall

2 U.S. (2 Dall. oe (1798) eT ee

Wade v. United S

358 F.2d $57” (oth Cir. hs)

Was Bridge Co. v. Stewart,

44 U.S. @ How. y 413 (1845) beneeeed os :

CONSTITUTION, STATUTES AND RULES

Constitution of the United States:

Fifth Amendment ................c00.

Statutes:

28 United States Code § 2241 (1966) ...........

28 United States Code § 2244 (1966) ...........

28 United States Code § 2403 (1948) ...... eee

Rules of the United States Supreme Court:

27

27

25,33

Miscellaneous:

Collings, Habeas Corpus for Convicts —

Constitutional Right or Legislative Grace ?

40 Calif. L. Rev. 335 (1952)...

Developments in the Law— Habeas Corpus,

83 Harv.-L. Rev. 1038 (1970) ..............

Pollak, Proposals to Curtati Federal

Habeas Corpus for State Prisoners:

Collateral Attack on the Great Writ,

OG Tae bis}: DR Ree io on bees cence seen ae

Remedies Against the United States and

its Officials, 70 Harv. L. Rev. 827 (1957)...

Senate Report No. 1797, 89th Congress,

2nd Session, 1966 Code Cong. & Ad.

PONWEE DOO ocd coche es ese os ves esesen seen

note, 40 U. Cin. L. Rev. 819 (1971) oe eee Sieceteiwis

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

NO. 71-586

WILLIAM S, NEIL, Warden,

Tennessee State Penitentiary,

Petitioner

ARCHIE NATHANIEL BIGGERS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

Mr, Biggers' rape conviction was affirmed by the Ten-

nessee Supreme Court, Biggers v. Tennessee, 411S.W.

2d 696 (1967) (Pet. Cert. App. I).. This Court granted

certiorari, 388 U.S. 909 (1967) (Pet. Cert. App. H); af-

firmed the judgment below by an equally divided vote,

Biggers v. Tennessee, 390 U.S, 404 (1968) (Pet. Cert.

App. G); and denied a petition to rehear; 390 U.S, 1037

(1968) (Pet. Cert. ‘App. F). The United States District

2

Court for the Middle District of Tennessee granted a peti-

tion for the writ of habeas corpus in unreported orders

(A. 32, A. 45) and the Sixth Circuit affirmed, Biggers v.

Neil, 448 F.2d 91 (6th Cir, 1971) (Pet. Cert. App. A).

JURISDICTION

The judgment of the United States Court of Appeals for

the Sixth Circuit was entered August 18, 1971. The peti-

tion for certiorari was timely filed October 27, 1971.

This Court's jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL, STATUTORY AND

RULES PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United

States provides in pertinent part:

"No person shall . . . be deprived of life, liberty,

or property, without due process of law..."

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part:

"No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws."

Habeas corpus is codified in Title 28, United States

Code, which provides in pertinent part:

_ $2241, Power to grant writ

"(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

3

and any circuit judge within their respective jurisdic -

tions...

"(c) The writ of habeas corpus shall not extend to a

prisoner unless—

"(3) He is in custody in violation of the Constitution

or laws or treaties of the United States..."

§ 2244. Finality of Determination

"(c) In a habeas corpus proceeding brought in behalf

of a person in custody pursuant to the judgment of a

State court, a prior judgment of the Supreme Court of

the United States on an appeal or review by a writ of

certiorari at the instance of the prisoner of the decision

of such State court, shall be conclusive as to all issues

of fact or law with respect to an asserted denial of a

Federal right which constitutes ground for discharge in

a habeas corpus proceeding, actually adjudicated by the

Supreme Court therein, unless the applicant for the

writ of habeas corpus shall plead and the court shall

find the existence of a material and controlling fact

which did not appear in the record of the proceeding

in the Supreme Court and the court shall further find

that the applicant for the writ of habeas corpus could

not have caused such fact to appear in such record by

the exercise of reasonable diligence."

Title 28, United States Code, further provides:

§ 2403, Intervention by United States; constitutional

question

"In any action, suit or proceeding in a court of the

United States to which the United States or any agency,

officer or employee thereof is not a party, wherein the

constitutionality of any Act of Congress affecting the

public interest is drawn in question, the court shall

certify such fact to the Attorney General, and shall

4

permit the United States to intervene for presentation

of evidence, if evidence is otherwise admissible in the

case, and for argument on the question of constitution-

ality. The United States shall, subject to the applicable

provisions of law, have all the rights of a party and be

subject to all liabilities of a party as to court costs to

the extent necessary for a proper presentation of the

facts and law relating to the question of constitutionality.”

The 1954 rules of this Court were in effect at the time

the original writ of certiorari was granted, June 12, 1967,

Rule 23, The Petition for Certiorari, remained unchanged

in pertinent part by the 1967 amended rules, and was as

follows:

"1, The petition for writ of certiorari shall contain

in the order here indicated—

"(c) The questions presented for review, expressed

in the terms and circumstances of the case but without

unnecessary detail, The statement of a question pre-

sented will be deemed to include every subsidiary ques-

tion fairly comprised therein. Only the questions set

forth in the petition or fairly comprised therein will

be considered by the court."

Rule 33

"(2) (b) In any proceeding in whatever court arising

wherein the constitutionality of any Act of Congress

affecting the public interest is drawn in question and

the United States or any agency, officer or employee

thereof is not a party, all initial pleadings, motions

or papers in this court shall recite that 28 U.S.C.,

§ 2403 may be applicable and shall be served upon the

Solicitor General, Department of Justice, Washington,

D. C. 20530. In proceedings from any court of the

United States as defined by 28 U.S.C., § 451, such

initial pleading, motion or paper shall state whether

5

or not any such court has, pursuant to 28 U.S.C.,

§ 2403, certified to the Attorney General the fact that

the constitutionality of such Act of Congress was drawn

in question."

QUESTIONS PRESENTED

I, WHETHER AN AFFIRMANCE BY THE SUPREME

COURT IN AN EQUALLY DIVIDED OPINION AFFIRMING

A STATE CONVICTION ACTS AS RES JUDICATA AS TO

THE SAME ISSUES RAISED IN A SUBSEQUENT PETITION

FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT.

Il. WHETHER RESPONDENT WAS DENIED A FAIR

TRIAL AS A RESULT OF THE USE OF IDENTIFICATION

EVIDENCE ALLEGEDLY THE BY-PRODUCT OF AN UN-

CONSTITUTIONAL PROCEDURE.

STATEMENT OF THE CASE

1. History of the Litigation

Respondent Biggers was identified by Mrs. Margaret

Beamer of Nashville as the man who raped her January 22,

1965. The identification was made at the Nashville police

station on August 17, 1965, and Biggers was charged with

Tape.

Biggers was convicted after a trial by jury held Novem-

ber 29—December 3, 1965. His conviction was affirmed

by the Tennessee Supreme Court in Biggers v. Tennessee,

219 Tenn. 553, 411 S.W.2d 696 (1967) (Pet. Cert. A-68).

This Court granted certiorari, 388 U.S. 909 (1967)

(Pet. Cert. A-67) and affirmed by an equally divided Court

4-4 (Douglas, J., dissenting) (Marshall, J., not participating),

6

390 U.S. 404 (1968) (Pet. Cert. A-61). A petition to re-

hear was denied, 390 U.S. 1037 (Pet. Cert. A-60).

The question upon which certiorari had been granted

in the 1967 Term case as stated in that earlier Applica -

tion for Certiorari was: -

"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 [the exact time

was actually six months, twenty-six days] earlier for

voice identification by the prosecutrix."

"Was the denial of petitioner's right to personal dig-

nity and integrity by the police, and the failure to give

him benefit of counsel, provide him with a lineup, 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?" (Pet. Cert. A-8)

The briefs and transcript of record filed in that earlier

case may be found in Volume 51, Transcripts of Records

and File Copies: of Briefs, Nos. 232-237, Supreme Court

of the United States, October Term 1967. A transcript

of the oral argument was submitted as Appendix J to the

present Petition for Certiorari. The documents needed

for consideration of the case are the Transcripts of Rec-

ord and Briefs from the earlier case, No. 237, O.T. 1967!

(one copy in Supreme Court Library and one copy of Tran-

script of Record an exhibit filed in this proceeding; cited

as R. _), Petition for Certiorari (containing earlier

opinions and the Sixth Circuit opinion), the transcript of

oral argument and the Joint Appendix (cited as A. ).

1 Petitioner's motion to use the original record in Biggers v. Tennessee,

No, 237, O.T. 1967, was granted, 405 U.S. 954 (1972).

7

After rehearing was denied in April, 1968, a petition

for writ of habeas corpus was filed in July, 1968, in the

United States District Court for the Middle District of

Tennessee, Nashville Division (A. 6) alleging that the

identification procedures violated the Due Process Clause

of the Fourteenth Amendment.

The District Judge, Hon. William E. Miller? denied

a motion to dismiss (A. 17), saying this Court "did not

settle the merits of this case, and affirmed only through

an equal split in opinion." (A. 19).

Affidavits were submitted by Petitioner (A. 24-A. 30),

and a limited evidentiary hearing was ordered. (A. 31).

After the Court heard testimony, it ordered a new trial

without the stationhouse identification. (A. 32). A mo-

tion to reconsider based on the earlier adjudication by this

Court was overruled. (A. 45).

The Sixth Circuit affirmed in an opinion by Judge Ed-

wards with the concurrence of Judge McRee, with Judge

Brooks dissenting. (Pet. Cert. A-1). This Court granted

certiorari, 405 U.S. 954 (Feb. 28, 1972). The Solicitor

General has not indicated whether he wishes to ask the

Court for permission to intervene pursuant to 28 U.S.C.

§ 2403 to defend the constitutionaltiy of 28 U.S.C. §2244(c).

2. The State's Case Against Biggers®

A. The Crime

Mrs, Margaret Beamer, 39, the mother of five children,

returned to her Nashville home Friday afternoon, January

22, 1965, from her job as an LPN at Hubbard Hospital,

where she had worked fifteen years.

* Judge Miller is a member of the United States Court of Appeals for the

Sixth Circuit.

* The Account which follows is stated as favorable to the theory of the

as is supported by the record,

8

Her husband, a law student attending night classes on

Mondays and Fridays (R. 27), left the house to get some

law books about 9:00 p.m., leaving her alone in the house

with her 12 year old daughter and 6 year old son.

The rapist, who apparently had been looking down into

the house from the railroad tracks outside, entered the

house. (R. 14). There is a hallway near the confluence

of two bedrooms, a living-room, and the kitchen, (R. 9,

12, 13, 21, 22, 33, 34, 83, 87-93). Although the hallway

itself was unlighted (R. 12), there was “light in the living

room, light in the bedroom and light in [Mrs. Beamer's]

bedroom.” (R. 12). The lighting in her house was "ordi-

nary" and "well-lighted." (R. 14).

The intruder stepped out of the dark kitchen, grabbed

Mrs. Beamer in the hallway and grappled her to the floor.

(R. 9). Her screams brought her twelve year old daughter,

Francesca into the hallway; but the rapist, brandishing a

large shiny knife, ordered Mrs. Beamer to tell her daughter

to go back into her bedroom, which the daughter did.4

4 ‘The defense has discounted the daughter's testimony, but this 12 year

old (age 13 at trial), although unable to identify Biggers, said “he was

tall, and he was kind of big and dark” (R. 83), “Negro,” (R. 83), and

“had on a short-sleeved shirt.” (R.83) The rapists voice made a par-

ticular impression on her. She described it as “a young voice” (R. 84)

and distinguished it from the voice of the defense attorney, whom she said

she supposed.had "an old voice.” (R. 97) She noted the rapist had a

silver knife, did not have on a hat, and thought his short-sleeved shirt

closed at the neck (R. 91).

Her testimony weakens the contention, at least as to this witness, that

State authorities sought to overreach the defendant with an impermissibly

suggestive identification practice.

The daughter noted this about the assailant: 1) tall, 2) big, 3) dark,

4) Negro, 5) wore short-sleeved shirt closed at the neck, 6) had no hat,

and 7) had young voice. The inference is the voice did not fit for the

size of the man. This was a matter for the jury. Even defense witnesses

noted what a large person he was to be so young. ‘Biggers testified he was

5°9” to 6° and weighed 187-200 pounds (R. 112), His stepfather, a de-

fense witness, said Biggers “never did go anywhere” because “he said he

was overlarge for his age.“ (R. 127) A picture of the defendant (never

introduced into evidence, although made an exhibit) is in the record at

197, ihe

9

During the scuffle on the floor of the hallway, Mrs. Beam-

er was "looking up in his face." (R. 14)°, She said there

was no light in the kitchen (R. 33) and was asked, "So you

couldn't have seen him then? Answer: "Yes, I could see

him, when I looked up in his face." Question: "In the

dark?" Answer: "He was right in the doorway —it was

enough light from the bedroom shining through. Yes, I

could see who he was." (R. 33).

Mrs, Beamer and her assailant left the "well-lighted"

house® (R. 14) through the dark kitchen and went out -

5 At this point the District Attorney asked if she were “able to describe

this man, other than seeing a butcher knife.” She answered, “No, other

than I remember the blade being shiny.” (R. 14) Here again, the State

argues the witness was taking pains not to overreach the defendant and was

testifying without malice or vindictiveness.

The tone and timbre of the witnesses, their vindictiveness or lack there-

of,and the confusion as to whether Mrs. Beamer made an in-court identifi-

cation come through cold on the printed record. Appellate lawyers and

judges can never get the feel of the case which the jury gets, which is all

the more reason why jury verdicts should be overturned cautiously,

On cross-examination, the defense attorney asked the victim, “You

could see? No light? And you could see him and know him then?” and

Mrs, Beamer answered, “Yes.” (R. 34),

8 The 12 year old daughter said there was an opening from the living

room into the hall. The lamp “was next to the chair that was next to the

door that leads outside.” (R. 89) The defense attorney then asked: In

which corner—northwest or northeast? The witness said northwest. Ap-

parently this was illustrated to the jury (Defense Atty: “In this corner over

here... or in this corner over here... ?” R. 89), but reading the cold record,

one can't tell whether the lamp was by the chair next to the hall’ where ’

Mrs, Beamer was thrown to the floor or whether the lamp was somewhere

else. (R. 89) “Northwest corner” (R. 89) means nothing. It makes a

big difference, however, because it corroborates her answer of “Yes” to

the question on cross-examination: “You could see? No light? You could

see him and know him?” (R. 34).

10

doors. She testified, "There was a moonlight night, with

a few clouds. And street lights on down on the street,

not on the track. But it [the lights] did not extend up over

the track. Taller than the track was." (R. 13). A full

moon was shining brightly. (R. 34) Neon street lights,

called Ben West’ lights, hung over the tracks (R. 13).

illuminating the way as they walked along the tracks. One

or two blocks away from Mrs. Beamer's house (R. 33), in

a little wooded area off the tracks (R. 10), the defendant

held a butcher knife over her, and standing over her with

the knife lay down with her cheek to cheek having inter -

course for 15 minutes. (R. 28). After penetrating her

sexual organs and reaching a climax (R. 60), Biggers let

her dress and go back up the -railroadtrack. (R. 10, 11).

Biggers “went off in the opposite direction, running."

(R. 10).

Mrs. Beamer said that when Biggers raped her he had

on “a short-sleeved green shirt. As to the type of trous-

ers on, all Ican remember, they were dark. I don't know

what color."® (R. 29).

Returning home and finding her children safe, she called

the police (R. 15) who carried her to the hospital. (R. 44).

The physician who examined her testified at the trial she

had had intercourse during the previous three hours. (R. 63)

During the following months the police showed her thirty

to forty photographs both at home and the police station

7 ‘The name of a former Nashville mayor.

8 A witness called by the defense to testify as to Biggers* good character,

Miss Nina Carter, was a bookkeeper at Meharry Medical College, and ac-

quainted with Mrs. Beamer and her work as an LPN. She testified Mrs.

Beamer was of good character: “Well, I'll say I don't know anything wrong

about her." (R. 144) There was no evidence introduced that her testimony

should not be entitled to full faith and credit in a court of law.

ll

(R. 15, 39) but only one even had features like the rapist.

(R. 15). Then, six months and twenty-six days after her

attack, the Nashville Police solved the case.

B. The Arrest

The trial testimony concerning the arrest and subse-

quent developments, such as Biggers being declared incor -

rigible by the Juvenile Court, make sense only when sup-

plemented with the affidavits of Biggers, his mother, and

his attorney filed at the federal habeas corpus hearing.

(A. 24-30).. When these are combined, the State's case

is as follows:

Biggers, while receiving emergency treatment at Hub-

bard Hospital about 10:30 p.m. August 16, 1965, was ques -

tioned about a cut arm. (A. 26) The attempted rape of

Mrs. Carrie D. Silverman, a resident of the Bordeaux

area of Nashville, was also being investigated at this

time. (A. 29). Biggers was taken to the home of Mrs.

Silverman in Bordeaux (R. 51; A. 29) where, according

to his affidavit (A. 29) "Mrs. Silverman attempted but

could not identify [me]." However, Officer Cathey tes -

tified at the trial out of the presence of the jury, that on

the case that “happened on Cliff Drive [the Silverman

attempted rape] . . . we had a positive identification, you

see." (R. 55), The next morning, August 17, the

Juvenile. Court declared Biggers incorrigible because of

the Silverman attempted rape and bound him over for trial

as anadult. (R. 52, 55; A. 28; Biggers' mother in her

affidavit said she was told by the police that her son was

“identified by a lady in Bordeaux on the charge of assault

with intent to ravish and also by a Negro woman on a

charge of rape and that he could not be released. ")

12

Establishing the "positive identification" (R . 55) of

Biggers in the Silverman assault took from 10:30 p.m.

(A. 29) until midnight or shortly thereafter. Biggers

was arrested about 1:30a.m. (R. 51) and lodged over-

night with the Juvenile Court night attendant for safekee-

ing. (A. 30).

On the morning of August 17, he was declared incor -

rigible (R . 52) and taken to the police station by officers

Cathey and Hamm, working under the direction of Lt. Mc-

Daniel. (R. 52). Officers Smith and Berry brought Mrs.

Beamer to headquarters. (R. 39). The stage was thus set

for the confrontation between Mrs. Beamer and the defendant.

C. The Identification

The officers who picked Mrs. Beamer up at her home

the morning of August 16, stated, "We had a suspect we

would like her to look at and see if she could identify him."

(R. 40). Defense counsel tried to maximize the suggesti-

bility of the wimess, but she stated, "I identified the sus-

pect. They didn't point him out." %

The circumstances of the police station identification

were as follows:

. Although no notice has been taken of this, Mrs. Beamer perhaps saw

Biggers first at the Juvenile Court prior to the stationhouse identification.

Biggers at one point testified: Q. “Where were yoy when you first saw

Mrs. Beamer?" A. “At the Juvenile.” Q. “At Juvenile Court? What

day was that?" A. “Oh, I don't really know.” (R. 107) At another

place in the record, Mrs. Beamer on cross-examination mentioned she had

testified at the juvenile court (R. 24). Then apparently speaking of the

police station identification, although this is unclear, defense counsel

asked: “And that was the second time you were allowed to see him?”

(R. 24) Mrs. Beamer answered: “That is correct." (R. 25).

13

At the police station, Mrs. Beamer, with another woman

whose identity the record does not reveal, waited to iden-

tify Biggers in a room off a longhallway. (R. 66, 73).

Biggers' testimony was: “I was in a room all by myself

with another detective, R. B. Owen, and Lt. —I think it

was Sgt. Woods come in there and got me, and carried me =:

to the room where she [Mrs. Beamer] was. And there

was another woman with her. And I was facing her, just

like I am facing this speaker right here, and she looked

at me, and then she told him to tell me to say, —uh —

Stop, or I'll kill you. Something like that. And Woods

told me to say it. And I hesitated for a minute, and then

he said, Say it, Son, and I said it. And then she nodded

her head like this." (R. 107-108).

Three policemen testified Mrs. Beamer identified the

defendant. Detective Smith remembered she said, "That

is the man" without ever hearing the defendant speak.

(R. 40). Lt. McDaniel said she identified Biggers without

any hesitation: "Mrs. Beamer was in the office directly

across from mine, and we had the defendant.come and

stand —walk up the hall and then come and —come back

and stand in front of the room, which, without any hesita-

tion, she——", (R. 66). When asked what happened when

the defendant was asked to talk, the officér said: “Right

at that time when she iden-, saw him, she asked us to

have him repeat a question which he repeated. That,

and she also by voice, yes, sir." (R. 66). Lt. McDaniel

was asked, "You brought her down to identify that one

subject?" and he answered, "That's right. He walked

by the door opening —her —where she was sitting the

door was open, which another lady was sitting in the of-

fice also, —." (R. 73).

14

The third police witness who testified concerning the

identification was Detective Bailey. He unequivocally

said Mrs. Beamer identified Biggers, not by voice, but

“by looking at him, and said he was the one." (R. 79).

Detective Bailey answered, “Yes, sir,'' when asked,

“Had she identified him before he was ever asked to talk?"

Mrs. Beamer was asked at trial, “What physical char-

acteristics, if any, caused you to be able to identify him?"

She replied, “First of all, —uh—his size, —next I could

remember his voice." (R. 1792), She testified generally

and positively that she identified Biggers at the police sta-

tion on August 17. (R. 16-19). The physical characteristics

Mrs. Beamer testified to were Biggers' face: "No, when

he placed his face against mine —that was another thing,

his skin was rather smooth, as, you know, someone that

didn't shave." (R. 18). (Biggers on cross -examination

was asked by the District Attorney: "You haven't started

shaving yet, have you?" A. "No, sir" (R. 112)]; his

size: “Well, as I said, the size. He had—vwell at the

time he raped me, his shirt was unfastened, and he had a

large kind of flabby abdomen and breasts." ‘'Kind of flabby

big breasts. As I say, the abdomen was fat." (R. 19);

his hair ("Sort of bushy" R. 18); and lastly, his voice.’

40 Only two other policemen testified. Officer Black's testimony concerned

events long before the Biggers arrest. (R. 103-106) Officer Cathey was asked,

“Were you, yourself, present at any time when anyone attempted to make an

identification of Mr. Biggers?” and answered, “Well, I was in and out of the

room, General. I cannot say— as far as being there." (R. 48).

- All the witnesses (three policemen and Mrs. Beamer) said she first identi-

fied the defendant by his appearance and then later he was asked by Mrs.

Beamer to speak the words of the rapist. Even Biggers’ testimony is not to

the contrary.

= She said it was a "medium-pitched voice of a young man not an old man,

not mature.” Q. "Was it loud, or soft?” A. “He talked soft." (R. 17).

This is apparently an accurate description to the extent that such information

can be gleaned from a printed record. The attomey for Biggers opened his

examination of Biggers as follows: Q. “Now, talk sol can hear you.” A.

"Yes, sir." Q. “Now, you are talking o.k.” (R. 104).

é

D. The Trial

The State brought the defendant to trial on November

29, 1965, following the arrest on August 17. He was

represented by two retained attorneys. The trial began

on Monday, November 29, and concluded Friday, Decem-

ber 3. The jury found the defendant guilty and recom -

mended a sentence of twenty years which was imposed by

the Court. In accordance with Temnessee law he was

sentenced to the State Vocational Training School for Boys

and upon reaching his majority was transferred to the

Temnessee State Prison. (R. 187).

The State's proof was as heftdfore detailed, except

there was no mention made of the Silverman rape attempt.

The defendant testified and denied the crime, saying

he could not remember his activities the night of January

22.. Six witnesses testified to his good character. The

defense sought by the testimony of the defendant's mother,

stepfather, and acquaintances to establish that defendant

was unlikely to have committed the crime because no one

could get him to leave his home.

The defendant's witnesses sketched a portrait of a mal-

adjusted child living as a recluse. His mother said, "He

just stayed at home. I couldn't get him to leave home.

.-.-I just couldn't get him to leave, no matter what we

did. We tried, but I just couldn't get him out." (R. 117).

His stepfather said Biggers "stayed at home of [sic] the

time cause we couldn't get him to go anywhere." (R. 126).

When asked why, he said, "Well, at first he said —uh—

his breath smelled. _He—uh—and he also said he was

overlarge for his age." (R. 127). Mrs. Leftwich, a

neighbor, testified:

16

"Well, the only thing that I can say is that when I go

into the home, usually he would meet me at the door,

or his mother would tell him to come to the door, and

he always met me and spoke, and sometimes, after he

would speak he would go to the back, and I would say,

Nathaniel, what's happening? I'd say, What's happen- ~

ing why“you are leaving the door, he said, Mrs. Daniel,

—that's my career name is Daniel—he says that I'm

so big, I'm ashamed of myself, and I said, But you're

handsome, You're tall and handsome. A lot of men

would desire to be the height and the size of you, that

you are, And so, from then on, he always would talk

tome.” (R. 155).

Another defense witness, a neighbor, Mrs. McCain,

gave this testimony: ;

"Well, I hadn't seen this child right then, but a few

days later I began to see Nathaniel Biggers, and of

course by him staying in the house all day like he did,

I wondered about him, and I began to watch to see if

he'd stay in when his mother would tell him to. Well,

I never would see him come out doors for he looked at

television all day long, and occasionally I would see

him look out the window, all day. That went on for

about a year, and we began to worry about him and

wonder what was wrong with a boy that large staying

in, because she left, she'd say, Keep the doors locked,

but every time anybody knocked on the door over there,

naturally we'd see it, because we was right on the front,

my husband's bedroom and mine, right on the front.

And we'd look out to see what was happening. He

wouldn't come to the door but shortly after the person

would leave, he would come to the door and look out."

(R. 161-162).

, 17

Mrs. Alsup, a neighbor called as a defense witness,

had this to say about the defendant:

“And they told me about this boy [Biggers]. Well I got

concerned about him, and he worried me cause all he

would do was stay at home, and come to the door and

look out. If anyone come up, he wouldn't answer the

door, then he'd wait till they would leave, and then he

would come to the door. And answerthe door. And

I said, Well, why couldn't he come then? And it wor-

ried me —but he was always at home, and it worried

me why did he stay at home so much, and not get out

and carouse up and down the street like the rest of the

boys. And I would lay there and fuss, and I worried

and I worried and I worried about him, till it just made

me sick, and the Doctor said, Well, you're just going

to have to quit worrying about that boy. I said, How

canI? I said, He's a boy, and it worries me. Be-

cause ——

"Q Was he—

"A He didn't go anywhere night or day.

"Q Uh-huh? Uh-huh?

“A And it was enough to make you concerned about

him.

"Q Did you discuss it with his mother?

"A No. I-—I—lI wasn't able to get out.

"Q Uh-huh?

“A But I said when I did get out, I said, I am sure

going out somewhere. And why does she keep him’

housed up like that? All the time?" (R. 169-170).

The State established on cross-examination of the de -

fendant's stepfather that the defendant's home was only

two blocks away from White's Lunch Room. (R. 131, 132,

136) Mrs. Beamer, after being raped, called the police

using the phone at White's Lunch Room. (R.

18

15, 23). She said: "I went to White [sic] Lunch Room,

and it's about three or four doors down——in fact, it's two

doors down from where I was—my house——." (R. 23).

A question claimed by some not to be fully answered in

the trial transcript is whether Mrs. Beamer made an in-

courtroom identification. The District Attorney asked

her, "Are you telling this Jury today that you have any

doubt about this? Or do you have any doubt about this?"

Answer: "No, I don't have any doubt." (R. 17). Later

the trial judge asked Mrs. Beamer, "Is there any doubt

in your mind today?" After an objection was made by de-

fense counsel, the judge asked her again: “All right. Is

there any doubt in your mind today?" Mrs. Beamer said,

"No, there's no doubt." (R. 19).

The State contended when this case was before this Court

previously that Mrs. Beamer made an in-courtroom identi-

fication. Mr. Justice Douglas in his dissent disagreed,

saying, "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." 3900U.5S.

at 406 n. 2.

E. The Féderal Habeas Corpus Evidentiary Hearing

After a petition for rehearing was denied April 22, 1968,

390 U.S. 1037, a petition for the federal writ of habeas

corpus was filed July 1, 1968, alleging, inter alia, an im-

proper stationhouse identification of Biggers. (A. 6-16).

The Court ordered a limited evidentiary hearing which

amplified the available information a great deal.'* One

13 The order read: “(T)he Court desires open court testimony on the follow-

ing matters: the nature of the ‘show-up’ identification process as opposed

to the ‘line-up’ identification process, and why the former process was

employed in the instant case; and, the general reliability of voice identifi-

(Continued on following page)

19

policeman's notes said that Mrs. Beamer described her

assailant as 6' tall, 180 pounds, dark hair, with a medium

to dark brown complexion.1* (A. 74). Mrs. Beamer re-

membered that at the time of the rape she described her

assailant in this manner:

Teenager

Age 16-18

180-200 pounds

Dark brown complexion

Bushy hair but not like an Afro

Height 5".10" to 6'

Smooth face of someone who didn't shave much

Voice of a teenager before he reaches adulthood

and the voice gets deep. (A. 124-125).

onauvt & &© bw

Between the assault on January 22 and the identification

of Biggers on August 17 the police brought individuals and

pictures to Mrs. Beamer's home for identification, and she

attended several police station lineups containing four or -

five men dressed alike. (A. 81, 83, 124, 130).

On the evening of August 16, 1965, while Biggers was

receiving care at Hubbard Hospital for a cut arm (affida -

vits A. 24-30; testimony A. 76), Mrs. Silverman, the

(Continued from preceding page)

cation procedures, and their relative importance compared with other

methods of identification in linking the petitioner to the offense alleged

in the instant action.”

14 Both the State's attorney and Biggers’ attorney frustrated Judge Miller's

efforts to elicit from the police witness what description she had given of

her assailant. The State's attorney misunderstood what Judge Miller was

asking the witness (A. 87) and then again interrupted an answer to advise

the Court that Mrs. Beamer was to be a witness, which was irrelevant (A. 87).

Biggers’ attorney advised the Court that Mrs. Beamer did not testify about

the assailant's dress (A. 87), here again getting off the subject. Actually

Mrs. Beamer said the rapist wore a green shirt and dark trousers (R. 29).

20

victim of a rape attempt, was 4 patient at Baptist Hospital.

(A. 76).° Biggers, who had become a suspect, took the

officers to the scene of the Silverman attempted rape and

reenacted the crime.’® He was held that night on this

crime under a technical charge of "loitering." a (A. 81),

The next morning, August 17, two officers brought Mrs.

Beamer to police headquarters to look at a suspect. i‘, 129),

Biggers was in a room used by Dr. Core, and Mrs. Beamer

was in an office down the hall later used by the sergeant

of detective. (A. 78). Two black policemen in plain clothes

1

Biggers was charged but never tried on this attempted rape. In his affi-

davit, he denies everything. The prosecution for the Silverman attempted

rape was dropped after Biggers’ conviction and twenty year sentence in this

case. It is important to remember that the trial jury heard only about the

rape of Mrs. Beamer. The order granting the limited federal habeas hear-

ing precluded the state from introducing any evidence about the Silverman

assault. For the text of that order see n. 13 supra.

- Formal charges of attempted rape (Mrs. Silverman) (A. 77) and rape

(Mrs, Beamer) were subsequently placed before the Juvenile Court. (R. 52,

55) Biggers’ counsel seems to imply the police acted improperly by charg-

ing him with “loitering.” If it is necessary to detail a 16 year old until he

can be presented to a Juvenile Judge the following day, it would seem better

to hold him on a technical charge of “loitering” than on a charge of

“attempted rape” which would be a blot on his record forever, even if

unfounded .

‘ Apparently there is a typographical error in the transcript. Mrs. Beamer

said (A. 123): “I was told they had some suspects (sic), and if I recognized

this suspect, just to look at him and see if I could recognize him..."

Biggers’ counsel apparently understood her to say “suspect” (singular) for on

cross-examination he asked: “Now you said that the officers mentioned

that they had a suspect that they wanted you to see.”

This is the only difference, if indeed this be a difference, berween Mrs.

Beamer's trial testimony and habeas testimony that the State can find.

Everything else, except as pertains to the Silverman rape, is uncontroverted

(including the testimony of the police officers, discussed post).

The trial judge incorrectly said in his Order of April 17, 1970 (A. 34):

"As to what transpired 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.)

21

(Sgt. Woods and Officer Bailey) led Biggers past the door

where Mrs. Beamer was seated with an unidentified woman

and the policeman in charge, Captain McDaniel. (A. 79-

80). Mrs. Beamer immediately recognized Biggers as her

rapist without ever having heard him speak. (A, 80, 123,

124, 129, 134). After identifying him by his appearance,

she asked the officers to have him repeat the words, "Shut

up or I'll kill you" (A. 80, 123, 124, 129, 133), which

made her even more certain in her identification. (A. 129),

The foregoing proof given at the habeas corpus hearing was

uncontroverted. Biggers testified at the trial concerning

the confrontation, and his testimony is not contradictory.

(R. 108).

Other uncontroverted evidence offered at the habeas

corpus hearing was that Captain McDaniel attempted to

arrange alineup. On an average day there are 100 people

in the Metro jail, an adult facility, and a maximum of 50

boys and girls at the juvenile jail. (A. 69). Captain Mc-

Daniel conferred with Judge Tatum of the Juvenile Court

but was unable to find anyone of Biggers' stature. (A. 70).

He telephoned his superior officer at the jail likewise with-

out results. (A. 75). Captain McDaniel found the adults

at the jail comparable in size with Biggers were too old,

and the juveniles in the Juvenile Detention Center were too

small. (A, 72).

Mrs. Beamer said she positively identified Biggers at

the trial. (A. 122). She had no doubt in her mind at the

time of the trial. (A. 123). When asked what she meant

at the trial when she said she had no doubt, she said, "I

had no doubt because I was sure that this is the one." (A.

127). She said, "He had the same face, this is the same

man that attacked me, because he looks the same, the

same face, the same build, the same color, the same hair,

and the same age when I viewed him." (A. 128). On

22

cross-examination when asked if she had identified Biggers

at the trial, she said, "I can't recall whether I pointed my

finger, but I was asked if that was the man, and if that is

him over there, and there was some way that I indicated

that Mr. Biggers was the individual." (A, 131),

Dr. Irwin Pollock, a psychology professor at the Uni-

versity of Michigan with special expertise in auditory per-

ception, testified as Biggers' expert witness. From his

study of the record in this Court in 1968 in Biggers v..

Tennessee, he found many factors he thought prejudicial,

among them:

a) one to one confrontation (A. 92)

b) lapse of time (A. 92)

c) Defendant was identified as a suspect to Mrs.

Beamer (A. 93)

d) Defendant was requested to utter a specific state -

ment, "Shut up or I'll kill you," which had emo-

tional connotations.(A. 93)

e) Mrs, Beamer was surrounded by police officers

perhaps intent "in finding for a particular suspect"

(A. 93)

Dr. Pollock characterized the procedure used as a yes-

no procedure which he called inferior toa "forced choice"

procedure (A. 93) and noted that auditory memory is not

as good as visual memory. (A. 96). Dr, Pollock admitted

on cross~-examination that he had assumed that Mrs.

Beamer's prime mode of identification had been auditory.

(A. 103).

23

Biggers' mother testified the police took her son away

from the hospital the night of August 16 and kept him until

she saw him at Juvenile Court at three or four o'clock the

next morning. (A. 120). At about 8:00 a.m., she retained

an attorney. (A. 121).

The District Judge took the case under advisement in

November and the following April ordered a new trial

"unaffected by Mrs. Beamer's stationhouse identification

and the testimony of the police officers who were present

when it took place," quoting the dissent of Mr. Justice

Douglas, Biggers v. Tennessee, 390 U.S. 404, 409 (1968).

(A. 32-43). )

In another order entered a few weeks later, the Court

overruled the State's contention that the 4-4 affirmance

by this Court was res judicata. (A. 45-51).

24

SUMMARY OF ARGUMENT

1. The 4-4 Affirmance

This Court in 1968 gave plenary consideration to the

stationhouse identification. The affirmance, even though

by a divided Court, is res judicata as between the parties

as to the same issue affirmed by the Court.

The consideration this Court gave in 1968 to the station-

house identification is a factual question. The briefs and

the transcript of oral argument show that all aspects of

the identification were fully considered. The certiorari

grant did not limit the question to voice identification, par-

ticularly in view of Rule 23 of this Court which says that

a statement of a question presented is deemed to include

every subsidiary question fairly comprised therein.

In 1966 Congress enacted 28 U.S.C. §2244(c). The

statute provides:

"In a habeas corpus proceeding brought in behalf

of a person in custody pursuant to the judgment of a

State court, a prior judgment of the Supreme Court of

the United States on an appeal or review by a writ of

certiorari at the instance of the prisoner of the decision

of such State court, shall be conclusive as to all issues

of fact or law with respect to an asserted denial of a

Federal right which constitutes ground for discharge

in a habeas corpus proceeding, actually adjudicated by

the Supreme Court therein, unless the applicant for

the writ of habeas corpus shall plead and the court

shall find the existence of a material and controlling

fact which did not appear in the record of the proceed-

ing in the Supreme Court and the court shall further

find that the applicant for the writ of habeas corpus

could not have caused such fact to appear in such

record by the exercise of reasonable diligence."

25

The statute bars any relief for Biggers through federal

habeas corpus as to the stationhouse identification.

2. The Stationhouse Identification

* The District Court made erroneous findings of fact in

reading the 1965.trial transcript. These findings are plain

error and do not support an order granting a new trial ex-

cluding the stationhouse identification. Both lower

courts’ assays of the facts are demonstrably inaccurate

in several critical areas. The State's evidence at the fed-

eral habeas corpus hearing, though uncontradicted, was

disregarded and was even said to conflict with the 1965

trial record when a reading of the two shows they are com-

plimentary, not conflicting.

The identification below was less suggestive than the

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

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

ARGUMENT

1. Biggers' previous conviction, affirmed by this Court

by an equally divided vote, barred further review of the sta-

tionhouse identification in a federal habeas corpus hearing.

A. The Statute.

Title 28, U.S.C. §2244(c) (Supp. IV, 1969), a tl

28U.S.C, $2244 (1964) provides:

"(c) In a habeas corpus proceeding brought in behalf

of a person in custody pursuant to the judgment of a

State court, a prior judgment of the Supreme Court of

the United States on an appeal or review by a writ of

certiorari at the instance of the prisoner of the de-

cision of such State court, shall be conclusive as to

all issues of fact or law with respect to an asserted

26

denial of a Federal right which constitutes ground for

discharge in a habeas corpus proceeding, actually ad-

judicated by the Supreme Court therein, unless the ap-

plicant for the writ of habeas corpus shall plead and

the court shall find the existence of a material and con-

trolling fact which did not appear in the record of the

proceeding in the Supreme Court and the court shall

further find that the applicant for the writ of habeas

corpus could not have caused such fact to appear in

such record by the exercise of reasonable diligence."

The Senate Report on this amendment says:

“The new subsection (c) provides that when a habeas

corpus proceeding is brought in behalf of a person in

custody under a judgment of a State court, a prior

judgment of the Supreme Court of the United States on

an appeal or review by a writ of certiorari brought by

the prisoner will be conclusive as to all issues of fact

and law concerning an alleged denial of a Federal right

that were actually adjudicated by the Supreme Court.

There is an exception to the conclusiveness of this pre-

sumption if the applicant for the writ pleads and proves

the existence of a materially controlling fact that did

not appear in the record of the proceeding before the

Supreme Court and that he, the applicant, could not

have caused to appear in such a record by the exercise

of reasonable diligence. This subsection is intended

to give a conclusive presumption only to actual adjudi-

cations of Federal rights, by the Supreme Court, and

not to give such a presumption to mere denials of writs

of certiorari. |

“The purpose of these new subsections is to add to

section 2244 of Title 28, United States Code, provisions

for a qualified application of the doctrine of res judicata."

27

S. Rep. No. 1797, 89th Cong., 2d

Sess., 1966 U.S. Code Cong. and

Ad. News 3663, 3664.

The Habeas Corpus Committee, chaired by Senior Cir-

cuit Judge Orie L. Phillips of the Tenth Circuit, was com-

posed of federal judges who considered these recommenda -

tions to be consistent with this Court's habeas corpus rulings.

Judge Phillips referred to the measure in a letter to Senator

Joseph D. Tydings, September 24, 1966, inS. Rep. No. 1797,

89th Cong., 2d Sess. 4 (1966), as "a qualified application of

the doctrine of res judicata ."

In a case involving a similar res judicata question, this

Court affirmed a New York conviction for casting contempt

on the American flag by an equally divided Court in Radich

v. New York, 401 U.S. 531 (1971) (Mr. Justice Douglas not

participating). The District Court for the Southern District

of New York denied federal habeas corpus relief, relying on

§ 2244(c). United States ex rel. Radich v. Criminal Court

of New York, = F.Supp. _—s(S.D.N.Y. No. 71-2738,

decided December 3, 1971). The Second Circuit reversed in

a2-ldecision, F.2d ___ (2nd Cir. No. 71-2185, decided

April 26, 1972), certiorari pending sub nom. Ross v.

Radich (0.T. 1971 No. 71-1510).

The dissent of Judge Mulligan of the Second Circuit is

reprinted as Appendix A to this brief. Sd

The failure of the Sixth Circuit to even mention § 2244(c)

much less apply it in this case has been recently criticized .

See note, 40 U. Cin. L. Rev. 189 (1971). 8

In a situation analogous to this case, after granting

certiorari, briefing and oral argument, this Court dis-

18

This Note which is also critical of the Sixth Circuit in Biggers for not

following Supreme Court case law is reproduced as Appendix B to this brief.

28

missed the writ as improvidently granted in Duncan v.

Tennessee, 405 U.S. 127 (1972) (3 Justices dissenting).

It is clear from both the per curiam order and the dissent-

ing opinion that this Court felt there was no violation of

the constitutional guarantee against double jeopardy. How-

ever, the rule of Biggers, as affirmed by the Sixth Circuit,

would allow a federal district court to examine de novo the

double jeopardy issue just as if this Court had not given it

the fullest consideration when the case was initially before

the Court. Biggers never alleged any "material and con-

trolling fact" in the lower court that was notin the record

before this Court when the case was heard initially in 1967.

There are limits to the federal courts’ broad powers

of habeas corpus jurisdiction over state judgments. See,

e.g. Collings, Habeas Corpus for Convicts — Constitu-

tional Right or Legislative Grace?, 40 Calif. L. Rev. 335

(1952); Pollak, Proposals to Curtail Federal Habeas Cor-

pus for State Prisoners: Collateral Attack on the

Great Writ, 66 Yale L.J. 50, 63 (1956): “[I]}t is conven -

tionally assumed that perpetuation of federal district court

habeas corpus jurisdiction is not constitutionally required,

on the theory that Congress is free to give what items of

federal jurisdiction it chooses to courts which, unlike the

Supreme Court, exist only by congressional sufferage ."

66 Yale L.J., supra at 63; and note, Remedies against

the United States and its Officials, 70 Harv. L. Rev. 827,

864-875 (1957).

Suppose Congress took away habeas corpus jurisdiction

over state prisoners from all lower courts and reposed it

solely in this Court. This Court has already considered

Biggers and divided evenly on it 4to 4. Would Biggers be

allowed to relitigate this same contention again whenever

new Justices come to the Court? Logic dictates not.

The District Judge mentioned the “fortuitous circum -

stance" of this Court being evenly divided, thus the

29

prisoner's relief being denied. Suppose in a federal

habeas corpus case (after all the state judges had found

no federal constitutional error) the United States District

Judge finds error and grants the writ. The appellate

court reverses 2to 1. The prisoner will be returned to

jail, assuming this Court doesn't grant further review,

yet two federal judges have decided the prisoner wrong-

fully incarcerated, while an equal number of federal judges

have thought his conviction constitutionally sound. The

prisoner by this “unfortuitous" circumstance must serve

out his sentence. 19

Section 2244(c) is a valid exercise of Congressional

power. Nothing in the legislative history of the statute

indicates that Congress intended any exception for 4-4

affirmances. The Senate Report, supra, refers only to

denials of certiorari as carrying no presumption that fed-

eral rights were actually adjudicated. As stated ina

note, Developments in the Law— Habeas Corpus, 83

Harv. L. Rev. 1038, 1152 (1970), referring to the lan-

guage used in §2244(c): "It is clear that ‘actually adjudi-

cated’ questions of law include all dispositions except

denials of certiorari."

B. Case Law

The Sixth Circuit cited three cases to support its de-

cision that a 4-4 affirmance by this Court does not repre-

sent an adjudication. The cases cited and quoted are

Etting v. United States Bank, 24 U.S. 57, 76 (1826);

Durant v. Essex Co., 74 U.S. 107, 112 (1868); and

Anderson v. Johnson, Warden, 390 U.S. 456 (1968).

** In the Radich federal habeas corpus case, the count now stands at 2-2.

The District Judge and one dissenting Second Circuit Judge would have

denied relief.

30

Mr. Chief Justice Marshall wrote for the Court in

Etting v. United States Bank, supra. it was necessary

in his opinion only to say that the judges were divided and

"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,

supra, 24U.S. at 78.

The Sixth Circuit next quoted from Mr. Justice Field's

opinion in Durant v. Essex Co., 74U.S. 107 (1868).

Significantly, the Sixth Circuit omitted what is said three

paragraphs after the language quoted in their opinion, to wit:

“The statement which always accompanies the judg-

ment in such case, that it is rendered by a divided

court, is only intended to show that there was a division

among the judges upon the questions of law or fact in-

volved, not that there was any disagreement as to the

judgment to be entered upon such division. It serves

to explain the absence of any opinion in the cause, and

prevents the decision from becoming an authority for

other cases of like character. But the judgment is as

conclusive and binding in every respect upon the parties

as if rendered upon the concurrence of all the judges

upon every question involved in the case."" 74U.S.

at 112. (Emphasis added). |

The third case relied upon by the Sixth Circuit

Anderson v. Johnson, 390 U.S. 456 (1968) is not appli-

cable. Theper curiam opinion merely stated that the

lower court's decision would remain in effect. This lan-

guage is explained by the fact that none of the eight Justices

voted for affirmance —four voted for reversal and four

voted to dismiss the writ as improvidently granted.

é

a

31

Not cited by the majority were United States v. Pink,

315 U.S. 208, 216 (1942) and Hertz v. Woodman, 218 U.S.

205, 213-214 (1910), where in equally divided affirmances,

it was emphasized that the decisions were conclusive and

binding upon the parties involved, though not authority for

subsequent cases. See also, Inman v. Baltimore and O.

R.R., 361 U.S. 138, 146 (1959) (dissenting opinion of

Douglas, J.); Washington Bridge Co. v. Stewart, 44 U.S.

(3 How.) 413, 424 (1845); and United States v. Worrall,

2 U.S. (2 Dall.) 384 (1798). \

A 4-4 affirmance in a criminal case historically and

logically means the same as it would in any other case.

It means the party taking the appeal, against whom there

is a presumption of guilt, has failed to carry his burden

of convincing the reviewing court that the judgment below

should be overturned.

The consideration this Court gave in 1968 to the station-

house identification is a factual question. The briefs and

the transcript of oral argument show that all aspects of

the identification were fully considered. The certiorari

grant did not limit the question to voice identification,

particularly in view of Rule 23 of this Court which says

that a statement of a question presented is deemed to in-

clude every subsidiary question fairly comprised therein.

2. The stationhouse identification of Biggers was held

fairly and scrupulously and not in derogation of his con-

Stitutional rights.

Mrs. Beamer was an intelligent, trained nurse. She

had been shown many mug shots of suspects, suspects

had been to her home, and she had attended police line-

ups. All these confrontations had been negative.

32

Once again on August 17, she was asked to look at a

suspect. Seated only with an unidentified woman and

Capt. McDaniel, she watched Biggers walk past an open

door. She identified him by his physical appearance.

Naturally, being conscientious, and remembering well

the words, "Shut up or I'll kill you," she confirmed the

identification by requesting the police officers to have

Biggers speak that sentence.

The evidence both at the trial and habeas corpus hear-

ing is uncontradicted that she gave a good description of

her assailant.2° She was able to clearly see her attacker,

and the neon lights (R. 13) along the tracks, as well as

the full moon (R. 34), illuminated the rapist's features,

as did her house lights.21 Contrary to what the District

Court said, there was no conflict between Mrs. Beamer's

trial testimony and habeas testimony. (A. 34) The Dis-

trict Court's statement that "there is also conflict between

the testimony given by the 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" is also erroneous.

(A. 34) Only three policemen testified at the trial con-

cerning the identification —Officers McDaniel, Smith, and

Bailey. McDaniel said she identified him without any

hesitation—"That, and she also by voice, yes, sir."?2

20 The District Court erred here (A. 33). Mrs. Beamer gave eight char-

acteristics (A. 123-125).

21 The District Court erred here (A. 33) when it said, “The entire episode

occurred in very dim light and the rape itself occurred in moonlight.

Mrs. Beamer looked into Biggers’ face in her house (R: 33) enough to

identify him. Neon lights were over the tracks also (R. 13, 34).

22 McDaniel's testimony is somewhat ambiguous. He was never asked at

the 1965 trial whether she identified him first by appearance or by voice,

but to the extent it can be gleaned from his testimony, she identified him

first by appearance (R. 66, 73).

33

Smith and Bailey said unequivocally she identified Biggers

before she heard him speak. (Smith, R. 40; Bailey, R. 79).

At the habeas corpus hearing, McDaniel on being asked

this question the first time, said Mrs. Beamer identified

Biggers before he spoke. (A. 80). Officer Bailey also re-

peated his trial testimony that Mrs. Beamer identified Big-

gers prior to his speaking. (A. 134)*°; McDaniel and Bailey

were the only officers who testified at the habeas hearing.

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

was more suggestive than this one. There three police-

men and two prosecutors sb~-ved Stovall to the victim in

her hospital bed. Contrary to what some have read into

the opinion, there is no indication that Mrs. Behrendt's

physical condition would preclude a later identification.

She later recovered to testify against Stovall, but her hos-

pital bed identification was made while she was seriously

ill, in mental or physical anguish, or drugged, or all three.

This is quite different from the identification made by Mrs.

Beamer, a woman who had over the months viewed many

suspects in person singly, in lineups and in photographs

calmly and dispassionately.

The showup here was also less suggestive than the one in

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

23 What gives this police testimony the ring of truth, and what has been

overlooked, is that when this record was made in 1965 showing unequivocally

that Biggers was identified before he spoke, there was no incentive for, the

police to shade the facts since it did not make any constitutional difference.

A year later Judge Jones wrote in his dissent in Wade v. United States:

“It follows from the opinion of the majority that it is improper for observers

of a crime to see a person suspected or accused of the offense prior to trial.

I had no notion that this was prohibited. 1 do not think it has been previously

held that putting a suspect or an accused in a lineup and treating him in the

same manner as the others are treated is or may be a violation of a con-

stitutional right." Wade v. United States, 358 F.2d 557, 560-561 (5th Cir.

1966).

34

Reynolds, on two occasions told the police he was unable

to provide much information as to the description of his

attackers. His description was "young black males,

close to the same age and height."" The two turned out

to be one 18 and 6'2" and the other 28 and 5'4-1/2". Con-

trast this with Mrs. Beamer's description which matched

Biggers perfectly. In Coleman, Reynolds, unlike Mrs.

Beamer, didn’t communicate his identification until after

the defendant spoke. Mrs. Beamer, however, told all

the officers right away that this was the man. The time

lapse between assault and identification in Coleman was

two months eight days; in Biggers, six months twenty-

six days. Reynolds testified that when the police asked

him to go to the city jail he “took [it] for granted" that

the police had caught his assailants. Coleman, supra,

399 U.S. at6. Mrs. Beamer went only to view another

suspect, as she had done many times before.

The District Court made five additional errors of fact.

They are:

1,

"(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 screen-

ing of Metro Jail inmates no other efforts were made."

(Order A. 41).

The record shows that Captain McDaniel consulted with

Judge Tatum of the Juvenile Court and his superidr at the

jail. (A. 69-75). It was not possible at such short notice

to find someone whose age and size were comparable to

Biggers. (A. 72). The District Judge's assertion that

“there are several other prison facilities in the area and

there is no evidence that any effort was made to screen

35

them for subjects" (A. 41), overlooks the realities of

police practice. The city police have no authority to use

people from the State prison for lineups. - This was in

1965. Even in 1972 we doubt if local police departments

are permitted to go to local prisons to get lineup subject.

The District Court seems also to have forgotten that

at the habeas corpus hearing the burden of proof was on

Biggers. No proof was offered that one or more unusually

large (200 lb.) 16 year old boys may have been available

if the police had made the effort. The testimony was un-

controverted that the police did make the effort and no

children of the size of Biggers were available.

2.

"The evidence clearly shows that the complaining wit-

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

the suspect during the commission of the crime."' (Order

A. 41).

This statement of the District Judge has no basis in

the record. If bya "good view" the Court means a pro-

longed look in good lighting, perhaps that statement is

valid. Mrs. Beamer said she was able to see him “right

in the doorway —it was enough light from the bedroom

shining through. Yes, I could see who he was." (R. 33).

She was with him fifteen minutes or more walking dlong

the tracks under neon lights which hung over the tracks.

(R. 13). Her testimony that she could see Biggers in

enough light to know who he was is uncontroverted.

36

3.

"The witness in the instant case was unable to give

either an independent photographic identification of the

suspect or a good physical description of her assailant."

‘(Order A. 41).

The District Court apparently was under the mistaken

impression that Mrs, Beamer was asked to and was unable

to give “an independent photographic identification of the

suspect.” She looked at numerous mug shots ,\ none of

which were of Biggers and told the police that none of them

was her assailant. Since Biggers had no prior record

(his 16th birthday was only four days before he raped Mrs.

Beamer, R. 104), the police had no pictures of Biggers.

We respectfully disagree with the District Court's state-

ment that Mrs. Beamer was unable to give a good physical

description of her assailant. See the eight characteristics

she gave the police. (A. 124-125). Captain McDaniel

commented on Mrs. Beamer's description of her assailant:

"She gave at that time, on January the 22nd, if I can just

glance over this, she might have——." (A. 87). The

Court interrupted him and neither the State attorney nor

Biggers' attorney pursued it, although it was obvious

_ Captain McDaniel had brought to court and could testify

from the police document showing the description Mrs.

Beamer had given the night of the rape.

4.

"The hesitancy of the witness in identifying the peti-

tioner." (Order A. 41).

The only testimony about "hesitancy" on Mrs. Beamer's

part came from Officer McDaniel at the trial, who said

37

she made the identification "without any hesitation."

(R. 66). A fair reading of all the officers’ testimony is

that she identified him at once. Biggers was asked to

speak merely for confirmation.

One can imagine a defense attorney's argument of

police incompetence if the police had exhibited Biggers to

Mrs. Beamer without giving him an opportunity for her

to hear his voice. It would have been the same as the

argument that would have been made in Stovall had the

police not taken Stovall to the victim's bedside had she not

recovered, °

Biggers' testimony indicates Mrs. Beamer may have

hesitated although in Biggers' testimony it was he who

hesitated. When he spoke, he said she nodded her head

to identify him. (R. 108). The reason why Biggers’ tes -

timony is not necessarily inconsistent with the State's

witnesses is that Mrs.: Beamer identified Biggers when he

was paraded past her. Then Biggers was brought to a

face to face confrontation where he was told to speak.

a

"Mrs. Beamer's knowledge that petitioner was thought

by police to be her assailant."" (Order A. 41).

Throughout the record all the police as well as Mrs.

Beamer testified that she was to look at a "suspect." '

There is not one word in the record that would support

a finding that the police thought Biggers to have been her

assailant. Remember she had previously looked at ‘mug

shots, had suspects brought to her home, and attended

numerous lineups.

This conclusion of the District Court that the police had

told Mrs. Beamer they thought Biggers was her assailant

oOo

38

is demonstrably and completely without any support in the

record, even by inference.

In addition to these five misunderstandings of the record

and unsupported conclusions of fact, we have previously

mentioned the trial court's finding that Mrs. Beamer

changed her story between the trial and the habeas corpus

hearing and that the police changed their story to show

that she identified him only when he spoke. This is

simply an inaccurate reading of the trial record, and we

have demonstrated its inaccuracy by citing the names of

the witnesses and the pages of their trial testimony which

support the opposite conclusion.

This is not a case of the trial judge weighing the credi-

bility of witnesses. ‘All the instances of factually inac -

curate conclusions made from the record have been made

from an uncontradicted record. Conclusions of law

premised on such a misunderstanding of the trial record

should not be allowed to stand. If the premises are faulty,

the conclusion is bound to be faulty.

. This case will not fit within the framework of Palmer

v. Peyton, 359 F.2d 199 (4th Cir. 1966) where the identi -

fication was by voice alone. We have no quarrel with

Palmer v. Peyton. If such a doctrine did not exist it

would be necessary to create one. As this Court recently

- said again in Kirby v. Mlinois, 406U.S. (1972), it

is possible for a confrontation to be so suggestive as to

violate due process. This is not one of those cases.

Dr. Pollack, the expert witness, assumed that Mrs.

Beamer's “primary mode of identification was through

voice ..." (A. 104). He made that assumption by taking

part of Captain McDaniel's testimony out of context (See

testimony of McDaniel at R. 66, quoted by Pollack at

39

A. 104). His conclusions are subject to question because

of the mistaken underlying factual assumptions.

This is not a constitutional case involving voice identi -

fication alone. A woman of honest: repute got a good look

at her attacker. She sat calmly in an office in the police

station with Captain McDaniel and another woman. Two

officers brought the defendant in her view. Without hesi-

tating she made a positive identification. She was even

more certain when she heard him speak. No one suggested

to her "this is the man."

The error of the District Court below in misreading the

1965 trial record and in ignoring the uncontradicted habeas

corpus testimony was not of law but of fact. Since the

premises of fact are contradicted by the record, the con-

clusions of law should be re-examined. The record shows

the identification was fairly conducted.

CONCLUSION

The judgment of the Sixth Circuit should be reversed

and the petition for the federal writ of habeas corpus dis-

missed.

Respectfully submitted,

BART C. DURHAM, III

Assistant Attorney General

211 Supreme Court Building

Nashville, Tennessee 37219

Telephone: (615) 741-2091

Of Counsel

DAVID M. PACK

Attorney General