Petition — Watkins v. Sowders

79-5949

IN THE SUPREME COURT OF. THE UNITED STATES

NO. » Misc., October Term 1979

JOHN GREGORY WATKINS,

Petitioner

DONALD E. BORDENKIRCHER, WARDEN,

Respondent

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR SIXTH CIRCUIT

(AND APPENDIX)

Venseh Aleph

FRANK W. HEFT, Jit; PAUL G. TOBIN

CHIEF APPELLATE A OF THE JEFFERSON DISTRICT PUBLIC DEFENDER

JEFFERSON DISTRICT PUBLIC DEFENDER OF COUNSEL

200 CiVIC PLAZA

70L WEST JEFFERSON STREET

LOUISVILLE, KENTUCKY 40202

(502) 587- 3800

COUNSEL FOR PETITIONER

CERTIFICATE

I do hereby certify that a copy of this petition was

served by depositing the same in a United States mail box, with

first class postage prepaid, to Hon. Victor Fox, Assistant Attorney

General of Kentucky, Capitol Building, Frankfort, Kentucky 40601,

Counsel for Respondent, on Beivmpiand 1G , 1980.

a4 Oo

Ferd Ww Lest pf

FRANK W. HEFT, JR.V C

‘

.

Pre an.

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX,

TABLE OF POINTS AND AUTHORITIES

Berger v. United States, 295 U.S. 78, 55 S.Ct. 629,

75 L-Ed-3d 13S C9355

Brown v. Commonwealth, Ky.App., 564 $.W.2d 24 (1978)

Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973)

attached

18,19

Chambers v. Mississi i, 410 U.S. 284, 93 S.Ct. 1038,

35 L.Ed.2d 257 (15735 17

Donnellyv. DeChristoforo, 416 U.S. O37, 3.8.6.

623, 55 L.Ed.2d 942 (1955)

Dixon v. Contmonwealth, Ky., 505 S.W.2d 771 (1974)

Foster v. California, 394 U.S. 440, 89 S.Ct. 1127,

L.Ed. )

Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951

18 L.Ed.2d 1178 (1967)

Haskins v. United States, 433 F.2d 836 (10th Cir.

1970)

Hayes v. Commonwealth, Ky., 467 S.W.2d 354 (1971)

In Re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99

. Ed. 55)

In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed.

682 (1948)

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12

L.Ed.2d 908 (1964)

Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280,

86 L.Ed. 166 (1941)

Luckett v. Commonwealth, Ky., 550 S.W.2d 517 (1977)

Malley v. Connecticut, 414 F. Supp. 1115 (D. Conn.

1976) ’

Manning v. Jarnigan, 501 F.2d 408 (6th Cir. 1974)

18

Manson v. Brathwaite, 432 U.S, 98, 97 S.Ct. 2243,

53 L.Ed.2d 140 (1977)

Myers v. Commonwealth, Ky., 489 S.W.2d 277 (1973)

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34

L.Fd-2d GOL (1972) ,

Pinto v. Pearce, 389 U.S. 31, 88 S.Ct. 192, 19

L.Ed.2d 31 (1967)

Pointer v. Texas, 380 U.S 400, 85 S.Ct. 1065,

L.Ed. 1965)

Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507

16 L.Ed.2d 600 (1960)

Simmons v. United States, 390 U.S. 377, 88 S.Ct.

967, 19 L.Ed.2d 1247 (1968)

Summitt and Watkins v. Bordenkircher 608 F,2d

t 7.

Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9

L.Ed.2d 908 (1964)

United States ex rel, Fisher v. Driber, 546 F.2d 18

(Grd Cir. 1976)

ipixon States ex rel. Phipps v. Follett, 428 F.2d

ar. cert.- denie -5.908, 91

S.Ct. 151, 27 Rt Ed.2d 146 (1970)

United States v. Allison, 414 F.2d 407 (9th Cir.)

cert. denied, u.8. 68, 90 S.Ct. 449, 24 L.Ed.2d

433 (1969)

United States v. Barker, 553 F.2d 1013 (6th Cir. 1977)

United States v. Broadhead, 413 F.2d 1351 (7th Cir.

cert. denie U.S. 1017, 90 8.Ct. 581,

24 L.Ed.2d 508 (1970)

United States v. Cranson, 453 F.2d 123 (4th Cir.

,» cert.denied, U.S. 909, 92 S.Ct. 1067,

31 L.Ed.2d 821 (1972)

United States v. Mitchell, 540 F.2d 1163 (3rd Cir.

1976)

United States v. Raneiglo, 433 F.2d 228 (5th Cir.)

cert. denied, 400 U.S. U.S. 959, 91 S.Ct. 358

27 L.Ed.2d 268 (1970)

United States. v. Sutherland, 428 F.2d 1152 (5th

Cir. cert. denie U.S. 1078, 93 S.Ct.

698, 34 L.Ed.2d 668 (1972)

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926,

.Ed. )

Viereck v. United States, 318 U.S. 236, 63 8$.Ce.

. Ed.

Watkins v. Commonwealth, Ky., 566 S.W.2d 630 (1978)

STATUTE et

28 U,S.C. §1254(1)

CONSTITUTIONAL PROVISIONS

Sixth Amendment

Fourteenth Amendment

17

8

1,5,12,20

7,9,828,a2

18

Res

aa

y+. 9 yey pea

PETITION FOR A WRIT OF CERTIORARI

TO N

S

C

FOR THE SIXTH CIRCUIT

The petitioner, John Gregory Watkins, prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Sixth Circuit which

was entered in the case on October 19, 1979.

OPINIONS BELOW

The trial court did not render a written opinion in this

case. The judgments of conviction in the trial court were:

entered on July 15, 1977 and are reproduced in the Appendix

at 21-22. The Kentucky Supreme Court affirmed the judgment

of the trial court in Watkins v. Commonwealth, Ky., 556 S.W.2d 630

(1978). This opinion is reproduced in the Appendix at 19-20.

A petition for a writ of habeas corpus was filed

in the United States District Court for the Western District

of Kentucky at Louisville. The petition was dismissed in a

memorandum edition. The opinion and judgment entered by the

the United States District Court are reproduced in the Appendix

at 11-18. The United States Court of Appeals for the Sixth

Circuit affirmed the judgment of the United States District

Court in Summitt and Watkins v. Bordenkircher, 608 F.2d 247

(6th Cir. 1979). The opinion and judgment of the United States

Court of Appeals for the Sixth Circuit are reproduced in the

Appendix at 1-9.

JURISDICTION

The order of the United States Court of Appeals

for the Sixth Circuit affirming the judgment of the United

States District Court was entered on October 19, 1979 and

this petition for a writ of certiorari is timely filed within

ninety days of that date. This Court's jurisdiction is invoked

under 28 U.S.C. § 1254(1).

—"*

QUESTIONS PRESENTED

I. ' DOES CONSTITUTIONAL DUE PROCESS OF LAW REQUIRE

A STATE TRIAL COURT TO CONDUCT A’ HEARING OUTSIDE THE

PRESENCE OF THE JURY TO DETERMINE THE ADMISSIBILITY OF

IDENTIFICATION EVIDENCE AND ‘DID THE FAILURE TO SUPPRESS

THE IDENTIFICATION AFTER ITS UNRELIABILITY WAS DISCOVERED

AT TRIAL DEPRIVE THE PETITIONER OF A FAIR TRIAL CONSONANT

WIIH DUE PROCESS OF LAW?

II.

DID THE CLOSING ARGUMENT OF THE PROSECUTOR

DEPRIVE THE PETITIONER OF HIS RIGHT TO A FAIR AND

IMPARTIAL TRIAL BASED SOLELY UPON THE EVIDENCE AGAINST

HIM?

CONSTITUTIONAL PROVISIONS INVOLVED

SIXTH AMENDMENT

In all criminal prosecutions the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the’State and district wherein the crime shall have

been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation, to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses

in his favor, andto have the assistance of counsel for his

defense.

FOURTEENTH AMENDMENT

Section.1. All persons born or naturalized in the United

States, and subject to the jurisdiction hereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunitites 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 law.

STATEMENT OF THE CASE

The petitioner, John Gregory Watkins, was indicted

by the | March 1975 term of the Jefferson County Grand Jury

on one count of armed robbery and one count of first

degree assault (Transcript of Record 153965 at p. 2, hereinafter

referred to at TR 153965). The January 1977 term of the

Jefferson Souney Grand Jury retumed another indictment

charging Watkins with one count of bail —_— (Transcript

of mesons 158242 at p. 2, hereinafter referred to at TR

158242). On June 20 and 21, 1977, the cases were jointly

tried before a jury.

The evidence for the Prosecution tended to establish

that on January 11, 1975 at approximately 11:30 p.m. an

attempted robbery occurred at the Thoroughbred Liquor Store

in Louisville, Kentucky. Walter Smith, an employee and

part-owner, and Donald L. Goeing, Jr., were working in the

store when three or four black males entered the store

(Transcript of Evidence p, 21, 51, hereinafter referred to

as TE). Saith testified that one of them approached the

counter, asked for a pack of cigarettes, and when Smith turned

around, said "this is a hold up." (TE 21). Goeing was refilling

the soda machine at this time, and when the assailant saw

Some movement in that direction, he stated: " I said don't

reach for anything" and fired two shots at Goeing (TE 23-24).

One shot hit Goeing in the arm and the other went through the

right ventricle of his heart (TE 48). Goeing was hospitalized

for twelve days and recovered after a three and a half month

convalescence (TE 48),

The evidence against Watkins was based solely on

identifications made by Smith and Goeing (TE 21, 47- ~48).

Defense counsel submitted a written pre-trial motion for a

Suppression hearing on the identification testimony (TR 153965,

28-29). Before any evidence was heard, this motion was

reasserted in court, out of the presence of the jury, and was

overruled (TE 2, 9). Prior to testimony and identification

by Smith and Goeing, defense counsel objected to not being

allowed an in camera hearing, since it forced him to explore .

the circumstances of the line-up and show-up in the presence >

of the jury (TE 24), but ‘his objections were overruled

(TE 21,24). Repeatedly defense motions for a mistrial on the

same basis were overruled (TE 24, 28, 98). A review of the

identification testimony at trial follows.

Smith gave a description to the police on the evening

of January 11, 1975, which described the assailant as a light-

skinned black male, thirty-five years old, approximately

five feet, nine inches tall (TE 34-35). According to his

testimony, Goeing saw his assailant for about five seconds

before he lost consciousness (TE 49-51). .On the day of his

arrest, Watkins was placed in a three man lineup with two

dark-skinned black males and identified by Smith (TE 41-43).

Smith testified that at the time he made the identification

he "wasn't completely sure" but that later on, when he "got

himself together," he was sure (TE 43). Watkins was then

taken to the hospital in the custody of two police officers

to be viewed by Goeing in his hospital bed. Goeing had

been informed that the police were "going to let him see

someone that he could identify." (TE 54-55). Goeing

testified that, at the time of his identification, he

Stated: "...it could have been close enough that it could |

have been his twin brother, it could have been somebody else."

(TE 55). Goeing stated that he had seen Watkins nine or ten time

in court since that time (TE 55). No other arrests were made

in the case, and no photographs or other possible suspects

were shown to Smith and Goeing (TR 71,74).

Watkins took the stand in his own behalf and testified

that he had not been involved in the crime (TE 122, 124). .

Watkins stated that on the evening in question he had played

pool with David English and Gerald Redman. He then spent the

remainder of the night with English, who was his cousin (TE 123)

Watkins’ whereabouts were confirmed by the. testimony of David

‘ .

English and Gerald Redman (TE 99-113). Anthony Dove was also

called by the defense and testified that he was in Thoroughbred

Liquor Store on the evening of January 11, 1975, and that Watkins:

was not the man who shot Donald Goeing, Sr. (TE 116-117).

In closing argument, the prosecutor stated that, "

finding Watkins guilty and giving him the maximum sentence,

the jury could get "the message across" from "the Governor on

down, that we don't want this man or men like him in our

community " (TE 175). The defense objected to this line of

argument as inflammatory and was overruled (TE 176). The pro-

secutor then proceeded to exhort the jurors: "This is your

chance to get them out of here. This is your chance " (TE 176).

He concluded with the statement: "Don't think this is being harsh.

This is the only way you can get the message across. These

babies are tough " (TE 178). At the conclusion of its thirty

minute deliberation, the jury returned a verdict of guilty on

all counts and recommended the maximum sentence on each count

(TE 180-181).

The judgment of the trial court was affirmed by the

Supreme Court of Kentucky in Watkins v. Commonwealth, Ky., 565 S.W.

2d 630 (1978). <A petition for a writ of habeas corpus was filed,

pursuant to 28 U.S.C. § 2254, with the United States District Court

for the Western District of Kentucky at Louisville. The petition

for a writ of habeas corpus was dismissed by the district court

and the United States Court of Appeals affirmed the dismissal in

Summitt v. Bordenkircher, 608 F.2d 247 (6th Cir. 1979). This

petition for a writ of certiorari is from the order of the United

States Court of Appeals affirming the petitioner's conviction.

REASONS FOR GRANTING THE WRIT

THIS COURT HAS NOT SPECIFICALLY ADDRESSED THE

QUESTION OF WHETHER CONSTITUTIONAL DUE PROCESS OF LAW

REQUIRES A STATE TRIAL COURT TO CONDUCT A HEARING OUTSIDE

THE PRESENCE OF THE JURY TO DETERMINE THE ADMISSIBILITY OF

IDENTIFICATION EVIDENCE. FURTHERMORE, THERE APPEARS TO

BE A CONFLICT BETWEEN CIRCUIT COURTS OF APPEALS ON WHETHER

SUCH A HEARING IS CONSTITUTIONALLY REQUIRED. THE CASE AT

BAR REFLECTS THE NECESSITY TO RESOLVE THIS ISSUE.

‘

At trial, after the jury was sworn but prior to the

opening Statements’ in the case, counsel for John Watkins

moved for an in camera hearing to review the Suggestive procedures

by which Watkins was identified (TE 11). This motion was over-

ruled. Subsequently, the in-court identification was admitted

over the objection of defense counsel (TE 21). | A short

time later, whon Watkins' counsel cross-examined the prosecuting

witness, he articulated for the record his need for a hearing

and the prejudice he felt in the denial of his motion by the

court (TE 24);

MR. SOUTHARD; r*ta going to have to explore

testimony of the line-up and the show-up that I

feel like I shouldn't have to do in front of

the jury. And I just want to again make my ob-

jection for the record to not being allowed to

have a hearing.

Defense counsel again reiterated this objection after his cross-

examination of the second prosecuting witness, (TE 58):

MR. SOUTHARD: Your Honor, prior to the testi-

mony of these two witnesses, I made an objection,

And I would again renew my objection to having

to bring out that testimony and move for a mis-

trial.

At the close of tha prosecution's case, counsel for

Watkins once again renewed his motion (TE 93):

...I would also move foramistrial based on

the admission of the identity testimony without

allowing an out of court hearing as to that testi-

mony, especially since he was not represented at the

line-up by counsel.

Finally, at the close of the defense, counsel renewbd his pre-

vious motion (TE 144). All of these motions were overruled.

In Gilbert v. California, 388 U.S. 263,

87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), at 388 U.S. 272, the

court addressed the problem of identi fication, testimony and

held that the "admission of in-court identification without —

first determining that they were not tainted by the illegal

line-up but were of independent origin was constitutional

error." | | :

In a more general manner, the procedures to be used

in determining the admissibility of identification testimony

have been ceveloped in a series of Supreme Court decisions,

beginning with United States v. Wade, 388 U.S. 218, 87 S.Ct.

1926, 18 L.Ed.2d 1149 (1967). If a hearing to determine the

admissibility of an identification is not held, the court noted

in Wade, at 388 U.S. 240, 87 S.Ct. 1939:

-

The state may then rest upon the witnesses’

unequivocal courtroom identification, and not

mention the pretrial identification as part

of the State's case at trial. Counsel is then

in the predicament in which Wade's counsel found

_himself - realizing that possible unfairness

‘at the lineup may be the sole means of attack

upon the unequivocal courtroom identification,

and having to probe in the dark in an attempt

to discover and reveal the unfairness, while.

bolstering the government witness’ courtroom

identification by bringing out and dwelling

upon his prior identification,

In Foster v. California, 394 U.S. 440, 89 S.Ct.

1127, 22 L.Ed.2d 402 (1969), the court held that the "totality

of the circumstances" Surrounding a pretrial identification should

be scrutinized by the trial court to ensure that the identi fi-

‘cation was not so "unnecessarily Sugsestive and conducive to

irreparable mistaken identification" as to amount to a denial,

of cue process. Refining this standard in Neil v. Bipgers, 409

U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the court said,

at 409 U.S. 200, 93 S.ct. 382: :

Bae,

~~

es os > ye bs

at a

-+ »« .the facts to be considered in evrluating .

the likelihood of misidentification include

the opportunity of the witness to view the

criminal at the time of the crime, the witness’

degree of attention, the accuracy of: the

witness' prior description ‘of the criminal,

the level of certainty. demonstrated by the

witness at the confrontation and the length

of time between the crime and the confrontation.

In Manson v. Brathwaite, 432u.s. 98 | 97 §.ct. 2243, 53

L.Ed.2d_140- (1977), the court reiterated that "reliability

is the linchpin in determining the admissibility of identification

testimony" and that the facts to be considered are those set out

in Biggers. Implicit in all of these holdings is that the admis sic

of the in-court identification. without first determining that

it was not tainted was constitutional error. See also

Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19

L.Ed.2d 1247 (1968); Dixon v. Commonwealth, Ky., 505 S.W.2d

771 (1974). If the initial confrontation is constitutionally

impermissible, then all subsequent identifications are also

subject to attack. Hays v. Commonwealth, Ky., 467 S.W.2d

354 (1971). :

In the case at bar, when trial counsel contested

the admissibility of the identification, due process required

a reliable determination of the disputed fact. Procedurally,

/ the test of reliability has been interpreted as reguiring a

—

hearing out of the presence of the jury. In Kentucky, this

preferred procedure has been enunciated in Luckett v. Common-

wealth, Ky., 550 S.W.2d 517 (1977);-Myers v. Commonwealth, Ky. ,!

}

499°S.W.2d 277 (1973); and Brown v. Commonwealth, Ky.App.,

564 S.W.2d 24 (1978).

In United States ex rel Fisher v. Driber, 546 F.2d

18 (3rd Cir. 1976), the court felt obligated to "follow the

mandate of the Jackson* court in determining that Townsend v.

Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L.Ed.2d 770 (1962), requires

an evidentiary hearing at the state level to determine the factual

complex in which the challenged identification was made." The

court in Driber went on to say, at 546 F.2d 21:

1. Jackson v. Denno , 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.

A similar test was formulated for the

Ninth Circuit by Judge (now Chief Judge)

Browning in Allison: |

[W]here a timely and

sufficient motion is made to

Suppress identification

testimony on the ground that

it has been tainted by pretrial

photographic identification

procedures, it must be heard

and determined by the court

outside the jury's presence .

in the same manner as any

other motion to suppress —

evidence alleged to be

inadmissible because unlawfully

obtained,

414 F.2d at 410. Accord, United States v.

‘Mitchell,.540 F,2d ITl63 (3d Cir. 1976). Sée

also United States ex rel, Phivps v. Follette,

° n. ir.), cert.denied,

‘400 U.S, 908, 91 S.Ct. 151, 27 L.Ed.Zvd 146

(1970) ;. United States v. Cranson, 453 F.2d.

123, 125- aes , cert.denied,

406 U.S. 909, 92 S.Ct. 1607, SI L.Ed.2Zd 821 .

-° (1972); United States v. Sutherland, 428 F.2d

1152,.11 t zs ,» cert.denied,

409 U.S. 1078, 93 S.Ct. 698,-34 L.Ed.zd 668

(1972); United States v. Broadhead, 413 F.2d

ep > ae Le t oy , cert. denied,

396 U.S. 1017, 90 S.Ct. 581,-274 L.Ed.Zd 508.

(1970); Haskins v. United States, 433 F.2d

836, 838- Ec af : . United vs

States v. Reneiglio, 429 F.2d 228,230 (8th

_ Gir.), cert.denied, 400 U.S, 959, 91 S.Ct, 358,

27 L-Ed.Zd Z68 (1970). a) ,

In the case at bar, counsel for Watkins was well

aware of the Wade dilemma of "bolstering the courtroom identifi -

cation by bringing out and dwelling upon his prior identification

during cross-examination of the Prosecuting witness"

Supra, at 338 U.S. 240, 87 S.Ct. 1939.

objected strenuously to the necessity of

_ See Wade,

Indeed, defense counsel

7 using this technique

and to the prejudice inherent in 8.

jections,

Tne evidence in this case reveals various factors

which should have been reviewed by the trial court to determine

the existence of possible taint. A review of these factors

-~a

follows.

i ie

. F *

, =

(1) Neither of the eyewitnesses had much of an

opportunity to view the assailant. Walter Smith stated that

he only saw the fact of the man when he turned around from getting

the cigarettes. The shots were immedi ately fired and the man

ran out (TE 32,33). It happened so quickly that Smith did not

even have time to get the money out of the cash register (TE 32).

Furthermore, Smith described the man as being about thirty-five

years old, and Watkins was only seventeen at the time. Goeing

testified that he saw the man's face for about five seconds as

he turned around from the soda machine. Shots were then fired,

and he passed out (TE 51,51). Both witnesses stated that the

assailant was a stranger and they had no reason to pay any par-

ticular attention to him (TE 24, 49). He was just another

customer until he stated that "this is a hold-up." The

interval between the time this statement was made and the time

‘the man ran out of the door was a méetter of seconds. Thus, the

opportunity for observation was mininal at best.

(2) The three- man line-up was extremely suspect

because it involved only one light-skinned black male. This

was one of the few physical characteristics which Smith had

described to police. The fact that Smith was not sure of his

identification at that time, but beceme sure when he “got himself

together," suggests that later in-court appearances with Watkins

had the effect of strengthening his previously doubtful identi-

fication. The fact that he was not presented with any other

possible suspects fitting the description, either by line-up or

photograph, may have pressured Smith into identifying Watkins,

. particularly if he was aware of the fact that Goeing had identi-

fied Watkins as the man.

(3) The show-up in the hospital was also suspect.

The circumstances suggest that, when Goeing identified Watkins,

he expected to see the man who had shot him. Goeing was aware

that a man was being brought to his hospital bed in the custody

of the police to be identified. He viewed no other suspects but

Watkins, a young, light-skinned black male, obviously suspected

by the police. The circumstances of the identification were

I

: : eam ond oT

qo

clearly suggestive and prejudical, Goeing also expressed some

doubt at the time of this identification. He said it was close

enough that it could have been his twin brother, but it "could

have been someone else," (TE 55). Tris doubt was predictably

diminished with each court appearance or proceeding that involved

Watkins as the criminal defendant. The district court below

provided an excellent overview of exactly the type of prejudice

which confronted Watkins when it noted at Appendix 11-12.

Both Goeing and Smith made in-court identifi-

cations of the petitioner during the course of

their direct testimony for the prosecution. Both

were examined extensively on cross-examination

by counsel for petitioner, who brought out the 4

fact that the petitioner was brought to the hospital

and there was Pdentified by Goeing as the person

who had fired the shots, and that this identifi-

cation was reinforced in Goeing's mind by having

seen petitioner several times while awaiting the

call of the case, after the hospital confrontation.

Counsel for plaintiff also brought out on cross-

examination that Smith was called by the police ~

to come to a line-up two days after the robbery

and there was shown three or four black males. -

He identified the petitioner at the line-up,

although he admitted on cross-examination that

he was not entirely certain of his identification ©

at that time, but later said that after he got

himself together, he knew that petitioner was

the man. m

The District Court relied heavily on the extensive

cross-examination of the prosecution's witesses to reaffirm

the lack of suggestiveness of the identification. However,

since Watkins’ counsel was aware of the problem, there was

necessarily an element of restraint involved which precluded

a thorough examination, Watkins' counsel felt restricted

by the inherent prejudice of blind cross-examination. Thus,

he was put in the untenable position of trying to protect Watkins

as much as possible from the intrusion of prejudicial, perhaps

inadmissible evidence, while at the same time seeking to

discover facts about an identification of which he had no

prior knowledge. Regardless of the guarded nature of the

cross-examination, it unavoidably resulted in the same type

of bolstering which Wade condemns and which could have been

avoided if a suppression hearing had been held.

In Summitt and Watkins v. Bordenkircher, 608 F.2d 247, 251 (6th

Cir. 1979) the Court of Appeals concluded. that:

° .as applied to identification 9

evidence, Jackson v, Denno, supra and Pinto,

supra, only require that the trial court

make an independent determination of the

reliability of the identification after an

adequate hearing. In each of these cases,

the state trial court had before it all of the

facts concerning the reliability of the

identification evidence. The trial court

reached the conclusion, based upon these

facts, that the evidence was admissible.

Since both petitioners received an adequate

hearing and an independent determination of the

reliability of the identification evidence,

we cannot conclude that the procedure for

determining the admissibility of the identification

evidence violated due process.

' Since the defense counsel was forced to explore the reliability

of the identification on cross-examination in the presence

of the jury, it cannot be found that suck a procedure

constituted an adequate hearing on the reliability and

admissibility of the identification evidence. The utilization

of such a procedure places defense counsel in precisely the

untenable position envisioned in Wade v. United States, supra. While

trying to challenge the reliability of the identification

in the presence of the jury, defense counsel runs the inherent

risk of causing irreparable prejudice to his client by

unavoidably'bolstering the courtroom identification through

cross-examination. This is an inevitable result of the

hearing deemed adequate by the Sixth Circuit in Summitt v.

Bordenkircher, supra.

The Third Circuit's decision in United States ex

rel. Fisher v. Driber, supra, is in direct conflict with the

Sixth Circuit's decision in Summitt v. Bordenkircher, supra.

Analogizing the principles enunciated in Jackson v. Denno,

supra, to Fisher, the Third Circuit concluded that a state

trial court is constitutionally required to conduct a hearing out

of the presence of the jury on the reliability and admissibility

of identification evidence where the request for such a hearing

is not a frivolous one. The case at bar presents a serious

question of identification. By denying an in camera hearing

2, Pinto v. Pearce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967). .

"sae *

on the reliability of the identification evidence, the state

trial court forced the issue to be resolved in the presence of |

the jury. Prejudice from such a procedure can be presumed by

the maximum sentence imposed on the petitioner.

The Manson court articulated these factors at 97 S.Ct.. 2253:

o + = fhe opportunity of the witness to view |

the criminal at the time of the crime, the

witness' degree of attention, the accuracy

of his prior description of the criminal,

the level of certainity demonstrated at the

confrontation, end the time between the crime

‘ and the confrontation. Against these factors

is to be weighed the a igs effect of the

Suggestive identificetion itself, .

While it is true that this kind of consideration was

afforded Watkins in the courts below there is less_ j

potential for prejudice to the defendant if these factors are

considered in the setting of a suppression hearing. This

determination must be made at the trial level to afford the

defendant his right to effective counsel, as well as to insure

his right to a fair trial. .

By contrast in the cése at bar, the reviewing courts +4

below have attempted to determine the reliability of the identifi-

cation retrospectively. Such a retrospective ruling can only “4

hypothesize about questions «which might have been asked, but

| were not because of the presence of the jury. Moreover, such

a retrospective determinaticn completely ignores the prejudice

to the defendant which results from his being required to test:

the identification through blind cross-examination at trial.

It is virtually impossible a= the appellate level to determine

what price the defendant has paid for his efforts to expose a

Suggestive identification. Although it may appear to a

reviewing court that there has been "extensive trial cross-

examination," the most telling cross-examination questions may

not have been asked because of the fear of damaging answers.

Consequently, post+conviction findings do not provide a reliable

ee ee ee

substitute for a suppressio- hearing at the trial hearing.

In conclusion, the failure of the trial court to grant

a prior incamera hearing on the identification by the eye-wit-

nesses prejudiced Watkins in two ways. First, at the trial

level, the lack of a hearing resulted in truncated cross-

examination of the p.*secution witnesses and the bolstering of

their in-court identifications by defense counsel. Second; at

the appellate level it provided the court with an incomplete

record of the proceedings om which to predicate the finding of

a lack of prejudice. Under the circumstances presented, nothing

short of a contemporaneous hearing could have satisfied Watkins'

right to a fair trial consonant with due process of law. Because

of the possibility of sugges tiveness in the pre-trial confron-

tations, the denial of a prior incamera hearing on the identifi-

cation by the eyewitnesses ceprived Watkins of a fair trial in

accordance with due process of law. In the alternative, the

failure to suppress the identification after its unreliability

was discovered at trial den:ed Watkins a fair trial.

TE. THIS COURT HAS INDICATED THAT A PROSECUTOR'S

CLOSING ARGUMENT CAN DEPRIVE A DEFENDANT OF HIS |

CONSITUTIONAL RIGHT TO A FAIR TRIAL. IN THE CASE.

AT BAR THE PROSECUTOR'S REPEATED INJECTION TO

EXTRANEOUS MATTERS INTO HIS CLOSING ARGUMENT WAS SO

PREJUDICIAL AS TO DENY THE PETITIONER! HIS CONSITUTIONAL

RIGHT TO A FAIR TIRAL CONSONANT WITH DUE PROCESS OF LAW.

THE CASE AT BAR REFLECTS THE NECESSITY FOR .THIS COURT TO

PROMULGATE STRICT GUIDELINES IN ORDER TO CURB ABUSES

IN THE CLOSING ARGUMENT WHICH DENY CRIMINAL DEFENDANT A

FAIR TRIAL.

In the case at bar, the prosecutor repeatedly encouraged

the jury to rely on extraneous matters in its deliberations,

with the apparent sanction of the court. Furthermore, the

ry en”

argument of the prosecutor was so blatant an appeal to passion

and prejudice as to deprive Watkins of his constitutional right. .

to a fair trial consistent with due process of law.

In his summation, the prosecutor delivered a tempestuous

commentary on the sociological and psychological framework of

criminals in general. His comments attempted to convince the

jurors that they would be doing their duty as citizens of this

community to return a conviction. The prosecutor made the

Ss

following remarks over objection (TE 174-175):

MR. ZOLLINGER: ...I don't like to see

anybody - to the penitentiary. The reason

I don't like to see that is because they have

to be there with people exactly like themselves.

When they go to the penitentiary they are going

to be in the same enclosure with people like

themselves who have no respect for the lives

and the rights of others, for people who'll

just as quickly take away his humanity as he's

willing to take that away from other people.

But, ladies and gentlemen of the jury that's

exactly the kind of community he belongs in.

He doesn't belong in the community where people

go to work every day.

MR SOUTHARD: Your Honor, I'm going to

object. I think this argument is out of the

context of the evidence.

THE COURT: Overrule the objection.

MR. SOUTHARD: Thank You,

MR ZOLLINGER: He belongs in a community of

people like himself, not out here where he's

confrontating people who work for a living, that

don't go around patking guns, that aren't going

into places where other people are working and

pointing a gun at them and confronting them with

death. That's strictly the’conditions.

risons ana tne autnorities, rom the Governor on

as that we don't want this man or men Tike him

in our community. he want him out of here. And

the only way you can get thet messape across is

by fixin ene sentences as Tong as you poss e

can Tix them. Fix those sentences s0 Tong that

this men will be off the streets as long as we

possible can keep him off the streets. (Emphasis

added)

¢ & oS is

Defense counsel renewed his objection and was overruled (TE 176).

The prosecutor then proceeded to ask the jurors (TE 176):

MR ZOLLINGER: And the kind of community that

you will live in, that your children will live

in, and your grandchildren will live in...I

don't think you woulé prefer to have a community

with people like this in it. This is your chance

to get them out of here, This is your chance.

(Empnasis: adced)

In conclusion, the prosecutor enforced his earlier comments by

repeating (TE 178):

MR. ZOLLINGER"...don't think this is being harsh.

This is the only way vou can get the message across.

These babies are tougn. They don’t care inact

the life or dignity cx have any respect for other

people. The a way you can get them to behave is

to get tough with them. (Emphasis added)

In addition. to these comments, the prosecutor misstated

the evidence (TE 169):

MR ZOLLINGER: ...You know what the alibi witnesses

said...One man said there was a girl with them and

the other one said there wasn't. .

According to the record, both witnesses unequivocally testified

there was no‘ girl involved (TE 107.113). é

The remarks by the prosecutor inferred that, by returning

a verdict of guilty, the jurors would be doing their duty as

perents, grandparents and herd-working citizens, ridding the

community of dangerous’ criminals. The prosecutor asked the

jury to contribute to the "cleaning up" of society by isolating

in the penitentiary all those who have "no respect for the lives

and rights o£ others."' He sought a maximum sentence against

Watkins to serve as an example to other criminals and to “the

Governor on cown," that "we don't want this man or men like him

in our comm:nity." (TE 175). The effect of this argument was

to give the jury additional issues to take into the jury room

otner than those raised by =he evidence. |

The Sixth Amendment to the United States Constitution

guarantees every defendant « trial by an impartial jury and the

right to be confronted by the witnesses against him. In re

Oliver, 333 =.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). These :

rights are guaranteed to state defendants as a matter of due

process of law under the Fourteenth Amendment. Pointer v.

Texas, 380 U.S. 400, 85 S.Cc. 1065, 13 L.Ed.2d 923 (1965).

The guarantee of a fair trial is implicit in the concept of

due process of.law. Chambers v. Mississippi, 410 U.S. 284,

93 S.Ct. 1033, 35 L.Ed.2d 297 (1973); ‘Sheppard v. Maxwell, 384

U.S. 333, 85 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

The effect of the constitutional guarantee enunciated

in the aforementioned cases has been aptly summarized by the

Supreme Court in the case of In re Murchinson, 349 U.S. 133,

75 S.Ct. 623, 99 L.Ed. 942 (1955) when it said:

A fair trial in a fair tribunal is a basic requirement

of due process. Fairness, of course, requires an

absence of acutal bias in the trial of cases. But

our system of law has always endeavored to prevent

its function in the best way "justice must satisfy

the appearance sf justice.” Id. at 349 U.S. 136,

755 S.Ct. 625, 99 L.Ed. 946 (citations omitted). _

In Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct.

1868, 40 L.Ed.2d 431 (1974), the court intimated that a state-

ment by a prosecutor outside the record could very well in

a

and of itself constitute'a ¢enial of due process of law and

violate a defendant's right of confrontation,and such aggravated

misconduct by a prosecutor in his closing argument may amount

to a denial of a defendant's fundamental right to a fair trial.

Id. at Fn. 23, 416 U.S. 648-49, 94 S.Ct. 1873, 40 L.Ed.2d 431.

. The standard ie review with regard to allegations

of due process violations ir. habeas corpus proceedings was

set out in Donnelly at 416 U.S. 642, 94 S.Ct. 1871, 40 L.Ed,24_

431:

The Court of Appeals in this case noted,

as petitioner urged, that its review was "the

narrow one of due process, and not the broad

exercise of supervisory power that [it] would

possess in regard to [its] own trial court."

We regard this observation as important for

not every trial error or infirmity which might

call for application of supervisory power corre-

spondingly constitutes a "failure to observe that

fundamental fairness essential to the very concept

of justice."" Lisenbe v. California, 314 U.S. 219

236, 62 S.Ct. 280, 255, 86 L.Ed. 166 (1941).

-

ay

ie

Naturally, it is impossible to recreate, on the written

page, the full impact and emotion of the prosecutor's argument.

Nonetheless, the cumulative effect of the prosecutor's miscon-

duct denied Watkins a constitutionally fair trial and conse-

quently deprived him of due process of law.

The prosecutor's comments and conduct during closing.

argument were neither isolated nor ambiguous, as were the

statements in Donnelly v. DeChristoforo, supra. Rather, they

were intentionally designed to inflame the jury by bringing

before it matters outside the record. The prosecutor deliber-

ately strived to deflect the jury's attention from matter

legitimately before it.

In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629,

79 L.Ed. 1314 (1935), it was held that improper argument by

the prosecutor could preclude a defendant from receiving a —

~

fair trial anc thereby violate due process:

It is fair to say that the average jury, in

a greater or lesser degree, has confidence

that these obligations which so plainly rest

upon the prosecuting attorney, will be truth-

fully observed. Consequently, improper sug-

gestions, insinuations, and especially asser-

tions of personal knowledge are apt to carry

much weight against the accused when they

rproperly carry none. Id. at 295 U.S. 88,

55 8.Ct. 633, 79 L.Ed. 1321.

The unique role of the prosecutor as representing the

- gtate inherently lends substential credence to his words and

actions. Consequently, when the prosecutor during closing

argument embarxs on a course of conduct designed to create

prejudice against a defendan-, he renders the concept of fair

trial to be nothing more than fiction. See Viereck v. United

States, 318 U.S. 236, 63 S.Cc. 561, 87 L.Ed. 734 (1943).

Several federal courts have recognized.the growing :con-

stitutional problem of inflammatory summations by prosecutors. -

In Manning v. Jarnigan, 501 F.2d 408 (6th Cir. 1974), the court

PERRIS VE OT

stated that inflammatory cor=ents recuire an evidentiary hearing

on the issue in accordance with the fair trial standard set

forth in Donnelly v. DeChriszoforo, supra. Bruce v. Estelle, 483

F.2d 1031 (5th Cir. 1973) discusses the problem created when the

prosecutor makes personal speculations or impassioned pleas for .

safe streets:

We are mindful of the fact that federal courts

do not sit as courts of errors and appeals when

a state prisoner seeks federal? habeas corpus.

At the same time, we cannot ignore our :

responsibility to ins:re that an accused obtain

a fair trial by an ir>artial jury. As the Supreme

Court has reinteratec time ane again, "[e]xercise

of calm and informed judgment by...[a jury's]

members is essential =o proper enforcement of

law." Highly prejudicial remerks uttered by the

prosecutor jeopardize the jury's deliberative

process and hence infzinge upon an accused's right

to a fair hearing on <he merits of the case. . Id

at 483 F.2d 1040, [Footnotes omitted].

In United States v. Berker, 553 F.2d 1013 (6th Cir. 1977),

ra, noted that while the prosecutor

St>

ee ee

the court, citing Berger,

is allowed some latitude in summation, it is beyond the bounds

of propriety for him to suggest that unless a particular defen-

dant is convicted, maintenarze of law and order in-the community

would be impossible. In tha= case, the prosecutor said at 1025:

Mr. Barker's attorney admits that these defen-

dants are not desirable people, that they're

undesirable people. mow, I submit to you that

desirable people don't rob banks; undesirable

people do rob banks, end they admit that they re

undesirable. Because they're undesirable doesn't

mean they robbed this Dank, but you should consider

that also along with all this other evidence.

submit to you that i= you can't take this

a and fink these defendants guilty on

this evidence that we might as well open all

the banks and say, "Come on and get the money,

boys, because we'll never be able to convict

them."

The court found that, on the basis of these remarks,

the prosecutor failed to comply with the obligation set out

by the Supreme Court in Berge~, Supre.

Similarly, in Malley v. State of Connecticut, 414 F.Supp.

1115 (D.Conn 1976), the court held that a prosecutor who had

made pent ete To e associa ting the defendant with an unpop-

vlar or feared group, and who told the jurors that by convic-

ting the defendant they coule in effect stamp out the drug

problem, deprived the defendent of a fair trial consonant with

Fe -

due process of law. eae iguen 8 on nna

er Jg-e

In the case at bar, the prosecutor was allowed, over

objection, to make damaging comparisons and personal comments

about matters outside the record which were not subject to

cross-examination by the defense. By so doing, the prosecutor

deprived Watkins of his right of confrontation and his right

to a fair and impartial trial consonant with due process of

law. Specifically, this was accomplished by (1) commenting

on extraneous matters not properly before the court which |

were not subject to cross-examination, rebuttal or any form

of retaliation, (2) suggesting that the conviction of Watkins

will help clean up society of an undesirable criminal element,

(3) suggesting that the jury has a duty to "send a message"

on behalf of the citizens of Jefferson County to the "Governor _

on down" that people like Watkins are not wanted in this community,

(4) suggesting that the jury has a duty to the community and ©

their families to make an example of Watkins for the protec-

tion of society in general, and (5) attacking the ¢ase for the

defense by misstating the evidence on the record.

‘In its opinion, the district court held that Watkins

did not meet the burden of showing that the remarks of the

prosecutor so infected the trial with unfairness as to make

the resulting conviction a denial of due process. However,

the court did note that at Appendix 17.

In evaluating the remarks of a prosecutor, the

question of whether or not his conduct so infects

the trial with unfairness as to make the resulting

conviction the denial of due process is not always

easy of resolution. This is the case here, since

the prosecutor did make several rather emotional

remarks about the alleged duties of the jury to

cleanse the community of the criminal element who

"go around packing guns”.

The Sixth Circuit also noted the impropriety of

prosecutor's closing argument. Summitt and Watkins v.

Bordenkircher, supra 608 F.2d at 253.

In Malley, supra, the court said at 1120:

‘ While it is impossible to establish with certainty

whether, but for the misconduct of the prosecutor,

the jury would have returned a different verdict,

it is possible to state that, on its merits,. the

case against the petitioner was a close one. The

State's case consisted solely, of the testimony

of the two officers, and they disagreed on the

eritical issue of the time of the alleged sale

and were contradicted by their own report on their

identification of the petitioner's automobile

license number. On the other hand, the petitioner

was able to marshal impressive evidence on his own

behalf.

Likewise in the case at bar, the Qenmoraesith rested its’

case on the questionable identification testimony of two

prosecuting witnesses, while the defense introduced evidence

to substantiate both the fact that Watkins was elsewhere at j

the time of the robbery, and eyewitness testimony to the effect

that Watkins was not one of the individuals involved. The

fact that the jury returned e maximum sentence on all counts —

illustrates the impact of these comments. The prejudicial

and inflammatory nature of the closing argument by the pro-

secutor deprived Watkins of swbstantial constitutional rights.

Therefore, he must be granted relief from the ensuing convic-

tion.

CONCLUSION

For the foregoing reasons, it is respectfully

submitted, that this Court should issue a writ of certiorari,

and review the rulings of the courts below.

ow Y het

FRANK W. HEFT, UR. 7 I

CHIEF APPELLATE DEFENDER OF THE

JEFFERSON DISTRICT PUBLIC DEFENDER

200 CIVIC PLAZA P

701 WEST JEFFERSON STREET

LOUISVILLE, KENTUCKY 40202

(502) 587-3800

COUNSEL FOR PETITIONER

FP G. I

JEFFERSON DISTRICT PUBLIC DEFENDER

i OF COUNSEL

IN THE SUPREME COURT

OF THE UNITED STATES

JOHN GREGORY WATKINS,

Petitioner

NO.

),

)

)

)

)

)

)

)

;

DONALD E. BORDENKIRCHER, WARDEN, )

)

)

Respondent

INDEX TO THE APPENDIX

Item

Opinion of the United States Court of Appeals for the

Sixth Circuit rendered on October 19, 1979

Judgment entered by the United States Court of Appeals

for the Sixth Circuit on October 19, 1979

Docket Entries in the United States District Court

for the Western District of Kentucky

Memorandum Opinion of the United States District Court

for the Western District of Kentucky rendered on

September 28, 1978

Order entered by the United States District Court

for the Western District of Kentucky on September 2,

1978

Opinion of the Supreme Court of Kentucky rendered on

May 2, 1978

Judgment No. 153965 entered. in Jefferson Circuit Court

on July 15, 1977

Judgment No. 158242 entered in Jefferson Circuit Court

on July 15, 1977

11-17

18

19-20

21

22

ad

James Willard SUMMITT,

Petitioner-Appellant,

v.

Donald E. BORDENKIRCHER, Warden,

Kentucky State Penitentiary,

Respondent-Appellee.

John Gregory WATKINS,

Petitioner-Appellant,

v.

Donald E. BORDENKIRCHER, Warden,

Kentucky State Penitentiary,

Respondent-Appellee.

Nos. 78-3415, 78-3587.

United States Court of Appeals,

Sixth Circuit.

Argued June 5, 1979.

Decided Oct. 19, 1979.

On appeals from orders of the United

States District Court for the Western Dis-

trict of Kentucky, Thomas A. Ballantine,

Jr, J., and Charles M. Allen, J. denying

state prisoners’ petitions for writ of habeas

corpus, the Court of Appeals, Bailey Brown,

Chief Judge, held that it is not a denial of

due process for a state court in a criminal

trial to decline to conduct a hearing outside

the presence of the jury to determine the

admissibility of identification evidence,

even though a hearing outside the jury's

presence is preferable.

Affirmed.

Merri't, Circuit Judge, filed a dissent-

ing opinicn,

ee ane

1. Constitutional Law @ 266(3.5)

It is not a denial of due process for a

state court in uw criminal trial to decline to

conduct a hearing outside the presence of

c the jury to determine the admissibility of

; identification evidence, even though a hear-

i, ing outside the jury's presence is preferable.

' U.S.C.A.Const. Amends. 5, 14.

SUMMITT v. BORDENKIRCHER

Cite a6 608 F.24 247 (1979)

2. Constitutional Law %=266(3.2)

Criminal Law 641.2

A defendant is entitled to have counsel

present at any corporeal identifications

which oceur after the initiation of criminal

proceedings, but even where the right to

counsel is not applicable, due process pro-

tects the accused against the introduction

of evidence of, or tainted by, unreliable

pretrial identifications obtained through

unnecessarily suggestive procedures. U.S.

C.A.Const. Amends. 5, 14.

3. Criminal Law ¢339.9(1)

Whereas the admissibility of confes-

sions is determined without regard to relia-

bility, the admissibility of identification evi-

dence is entirely dependent on reliability.

4. Criminal Law o339.9(2)

Among the factors relevant to the reli-

ability of identification evidence are the

opportunity of the witness to view the crim-

inal at the time of the crime, the witness’

degree of attention, the accuracy of his

prior description of the criminal, the levei

of certainty demonstrated by him at the

confrontation, and the length of time be-

tween the crime and the confrontation.

5. Criminal Law @=339.7(1)

Under some circumstances, the use of a

photographic display may enhance the pos-

sibility of misidentification, but each case

must be considered on its own facts.

6. Criminal Law @339.7(1)

In respect to the pretrial photographic

identification of rape defendant, there was

no substantial likelihood of misidentifica-

tion by reason of the introduction at trial of

the victim's pretrial identification, since the

pretrial identification could not be charac-

terized as either suggestive or unreliable;

the victim had ample opportunity to study

her assailant, she provided the police with a

detailed and accurate description, and soon

after the attack she identified defendant

from among a multitude of police photo-

graphs that were presented in 4 neutral

fashion.

7. Criminal Law @=339.8(2)

A showup is inherently suggestive.

APP 1

248 608 FEDERAL REPORTER, 2d SERIES

8. Criminal Law ¢=339.8(1)

When only one person is presented to a

witness, there is a natural tendency for the

witness to feel obligated to provide a posi-

tive ulentification, but in some cases a

showup becomes a necessary identification

procedure.

9. Criminal Law = 339.8(5)

Identification of defendant by robbery

vietim at showup was not so unreliable as to

create a substantial likelihood of misidenti-

fication, where the showup, rendered neces-

sary by the seriousness of hospitalized rob-

hery victim's wounds, was conducted in a

manner that did not take advantage or

augment its inherent suggestiveness, where

the victim had had a clear, albeit brief,

opportunity to view the person robbing the

liquor store, and where the identification at

the showup reflected an element of uncer-

tainty, but that element was very small.

10. Criminal Law o=339,8(2)

Unlike a showup, a lineup need not be

and should not be unduly suggestive.

IL. Criminal Law o=339.8(2)

Unnecessary suggestiveness in a lineup

does not, by itself, require the exclusion of

the identification as long as it contains suf-

ficient indicia of reliability.

12. Criminal Law ¢=339.8(4)

Based on the totality of the circum-

stances, lineup identification of defendant

by liquor store robbery victim was suffi-

ciently reliable that there was no substan-

tial likelihood of misidentification, even

though the lineup was suggestive in that

defendant was of a somewhat lighter com-

plexion than the other two persons in the

lineup.

13. Constitutional Law ¢ 266(3.2)

A defendant is denied due process only

when the identification evidence is so unre-

liable that its introduction renders the trial

unfair. U.S.C.A.Const. Amends. 5, 14.

14. Criminal Law o=741(2)

As long as there is not a substantial

likelihood of misidentification, it is the

function of the jury to determine the ulti-

mate weight to be given identification evi-

dence.

15. Constitutional Law o> 268(8)

While several of the prosecutor's clos-

ing remarks, concerning defendant's charac-

ter and the threat to the community, were

improper, they were not so pervasive nor so

prejudicial as to deny defendant due proc-

ess. U.S.C.A.Const. Amends, 5, 14.

16. Criminal Law o=713

Point at which improper argument

amounts Lo a constitutional deprivation can

only be defined by reference to the totality

of the circumstances of the particular case.

Terrence R. Fitzgerald, Chief App. De-

fender, Louisville, Ky. (Court-appointed),

for petitioner-appellant.

John Gregory Watkins, pro se.

Robert F. Stephens, Atty. Gen. of Ken-

tucky, Vietor Fox, Asst. Atty. Gen., Frank-

fort, Ky., for respondent-appellee.

Before LIVELY and MERRITT, Circuit

Judges. and BROWN,* District Judge.

BAILEY BROWN, Chief District Judge.

{1] These two appeals were consolidated

for the purpose of considering whether it is

a denial of due process for a state court in a

criminal trial to decline to conduct a hear-

ing outside the presence of the jury to

determine the admissibility of identification

evidence. We conclude that such a hearing

is not constitutionally required and that the

introduction of identification evidence in

these cases did not violate due process stan-

dards. Accordingly, we affirm the deci-

sions of the district courts.

The petitioner, James Willard Summitt,

was indicted for rape on September 19,

1974. The rape occurred in Jefferson Coun-

* Honorable Bailey Brown, Chief Judge, United States District Court for the Western District of

Tennessee. sitting by designation.

APP 2

wie

Oe.

SUMMITT v. BORDENKIRCHER

249

Cite as 606 F.2d 247 (1979)

ty, Kentucky late in the evening of July 20,

1974 when two men forced the victim, Don-

na Jean Furgason, into their car. The inci-

dent took place over a period of approxi-

mately forty-five minutes.

On July 21, 1974, Ms, Purgason reported

the rape to the police. She deseribed her

assailant as a white male in his thirties,

approximately five feet nine inches, 180

pounds, with tattoos on both arms. She

looked through approximately twelve vol-

umes of photographs at the county police

headquarters in an attempt to identify the

person who had raped her, Two days later,

she was taken to the city police headquar-

ters to review additional volumes of photo-

graphs. At that time, she identified a pho-

tograph of James Willard Summitt.

Prior to trial, Summitt moved to suppress

any in-court identification by Ms. Furgason

and requested a hearing out of the presence

of the jury to determine the admissibility of

the identification evidence. That motion

and request were denied.

At trial, both the pretrial photographic

identification and an in-court identification

were introduced, At the conclusion of the

evidence, the jury returned a verdict of

guilty and recommended life imprisonment.

On appeal to the Kentucky Supreme Court,

the conviction was affirmed.

The petitioner, John Gregory Watkins,

was indicted in March, 1975 for armed rob-

bery and assault, The robbery took place

at a liquor store in Louisville, Kentucky.

During the course of the robbery, an em-

ployee in the store was shot in the wrist and

in the heart,

Donaki Gueing, the employee who was

shot, deseribed the robber as a young, black

man with a light complexion. Walter

Smith, the other employee in the store, de-

seribed the robber as a black man with a

light complexion, thirty to thirty-five years

old, and approximately five feet, nine

inches tall.

Two days after the robbery, Walter

Smith viewed a lineup consisting of three

black men, one of whom was the petitioner

Watkins, Watkins had a lighter complex-

ion than either of the other two men in the

lineup, though none of them had a particu-

larly dark complexion. Smith identified

Watkins but admitted that he was not

“completely sure” that Watkins was the

person who robbed the store.

On the same day, Watkins was taken to

the hospital room where Donald Goeing was

recovering from his wounds. Goeing identi-

fied Watkins, but at the same time he stat-

ed that “it could have been close enough

that it could have been his twin brother, it

could have been somebody else.”

Prior to his trial, Watkins filed a motion

seeking a pre-trial hearing on the admissi-

bility of the identification evidence. The

trial judge denied the motion.

At the trial, the prosecution reliee on the

in-~court identifications of Watkins by both

Smith and Goeing. On cross-examination,

the circumstances surrounding both the

lineup and the showup were brought out.

Moreover, both Smith and Goeing admitted

having seen Watkins in the courtroom on

several occasions prior to trial. At the con-

clusion of the prosecutor's proof, the trial

court denied Watkins’ motion for a mistrial

based on the introduction of the identifica-

tion evidence. The jury returned a verdict

of guilty and recommended the maximum

sentence, On appeal to the Kentucky Su-

preme Court, the conviction was affirmed.

{2} In both of these cases, the central

dispute at trial was over the identification

of the person who committed the crime. In

every criminal trial, there exists some dan-

ger of misidentification. That inherent

danger, however, is significantly increased

whenever the identification is tainted by

unnecessary and unduly suggestive proce-

dures. To deter the use of suggestive iden-

tification procedures, the Supreme Court

has held that a defendant is entitled to have

counsel present at any corporeal identifica-

tions which occur after the initiation of

criminal proceedings. United States v.

Wade, 388 U.S. 218, 87 S.Ct. 1926, 18

L.Ed.2d 1149 (1967); Gilbert v. California,

388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178

(1967). See also Moore vy. Illinois, 434 U.S.

220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977);

APP 3

i

250 $08 FEDERAL REPORTER, 2d SERIES

United States v. Ash, 413 U.S. 300, 93 S.Ct.

2568, 37 L.Ed.2d 619 (1973); Kirby v. IIli-

nois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.E¢.2d

411 (1972). Even where the right to coun-

sel is not applicable, however, “due process

protects the accused against the introduc-

tion of evidence of, or tainted by, unreliable

pretrial identifications obtained through

unnecessarily suggestive procedures.”

Moore v. Illinois, supra, 434 U.S. at 227, 98

S.Ct. at 464. It is this latter due process

protection which the petitioners claim was

violated in their state trials,

The initial issue presented by these ap-

peals is whether the admissibility of identi-

fication evidence must be determined at a

hearing outside the presence of a jury. We

have no doubt that such a procedure is the

preferable one. See Nassar v. Vinzant, 519

F.2d 798 (1st Cir.), cert. denied, 423 U.S.

898, 96 S.Ct. 202,-46 L.Ed.2d 132 (1975).

See also United States v. Poe, 462 F.2d 195

(5th Cir, 1972), cert. denied, 414 U.S. 845, 94

S.Ct. 107, 38 L.Ed.2d 83 (1973); United

States v. Cranson, 453 F.2d 123 (4th Cir.

1971), cert. denied, 406 U.S. 909, 92 S.Ct.

1607, 31 L.Ed.2d 821 (1972); United States

v. Allison, 414 F.2d 407 (9th Cir.), cert.

denied, 396 U.S. 968, 90 S.Ct. 449, 24

L.Ed.2d 433 (1969); Clemons v. United

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

(D.C. Cir. 1968), cert. denied, 394 U.S. 964,

89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). An

independent hearing on the admissibility of

identification evidence, either before trial

or at trial outside the presence of the jury,

would remove the disadvantage to defend-

ant’s counsel of investigating the propriety

of the identification evidence in the pres-

ence of the jury. In addition, it would

protect the jury from being exposed to evi-

dence that might subsequently be deter-

mined inadmissible. Kentucky state courts

have apparently since endorsed this proce-

dure. See Brown v. Kentucky, 564 S.W.2d

24 (Ct.App.1978). The issue in this case,

however, is not whether a hearing outside

the presence of the jury is the preferable

procedure but whether such a procedure is

constitutionally mandated.

In Jackson v. Denno, 378 U.S. 368, 84

S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Su-

preme Court held that a detendant’s due

process rights were violated by a procedure

which allowed the same jury that deter-

mined the guilt or innocence of a deferdant

to determine simultancously the issue of the

voluntariness of the defendant's confession.

The fundamental premise of Jackson was

that “a defendant in a criminal case is

deprived of due process of law if his convie-

tion is founded, in whole or in part, upon an

involuntary confession, without regard for

the truth or falsity of the confession.”

Jackson v, Denno, supra at 376, 84 S.Ct. at

1780, (Emphasis added.) A jury that is

considering the guilt or innocence of a «e-

fendant is likely to allow the truthfulness

of a confession to influence its determina-

tion of the voluntariness of the confession.

To avoid this danger, Jackson established

the procedural requirement that, prior to

the admission of a confession, the trial

judge must make an independent determi-

nation of its voluntariness after an ade-

quate hearing on the issue. “|T]he purpose

that a voluntariness hearing is designed to

serve has nothing whatever to do with im-

proving the reliability of jury verdicts.”

Lego v. Twomey, 404 U.S. 477, 486, 92 S.Ct.

619, 625, 30 L.Ed.2d 618 (1972). Its purpose

is to protect the due process right against

the introduction of involuntary confessions,

regardless of their reliability.

(3) The basis of the due process right

against suggestive identification procedures

is significantly different.

It is, first of all, apparent that the pri-

mary evil to be avoided is “a very sub-

stantial likelihood of irreparable misiden-

tification.” Simmons v. United States,

390 U.S. 377 at 384 [88 S.Ct. 967, 19

L.Ed.2d 1247]. While the phrase was co-

ined as a standard for determining

whether an in-court identification would

be admissible in the wake of a suggestive

out-ofvourt identification, with the dele-

tion of “irreparable” it serves equally

well as a standard for the admissibility of

testimony concerning the out-of-court

identification itself. It is the likelihood

of misidentification which violates a de-

APP 4

a iN al i wc -

SUMMITT v. BORDENKIRCHER

251

Cite as 608 F.2d 247 (1979)

fendant's right to due process, and it is

this which was the basis of the exclusion

of evidence in Foster. Suggestive con-

frontations are disapproved becau:. they

increase the likelihood of misidentifica-

tion, and unnecessarily suggestive ones

are condemned for the further reason

that the increased chance of misidentifi-

cation is gratuitous.

Neil v. Biggers, 409 U.S. 188 at 198, 93 S.Ct.

375 at 381-382, 34 L.Ed.2d 401 (1972).

Thus, whereas the admissibility of confes-

sions is determined without regard to relia-

bility, the admissibility of identification evi-

dence is entirely dependent on reliability.

We construe Pinto v. Pierce, 389 U.S. 31,

88 S.Ct. 192, 19 L.Ed.2d 31 (1967), as hold-

ing that due process does not require that

the hearing upon which the trial judge

makes his independent determination of

voluntariness, as is required by Jackson v.

Denno, supra, be held outside the presence

of the jury. The Supreme Court has never

ruled on the precise question presented

here. We conclude, however, that, by anal-

ogy to the ruling in Pinto, due process does

not require a hearing outside the presence

of the jury on the issue of the reliability of

identification evidence. We recognize, as is

pointed out in the dissent citing language in

United States v. Wade, 388 U.S. 218, 240, 87

S.Ct. 1926, 18 L.Ed.2d 1149 (1967), that trial

counsel for defendant does bear an extra

burden in exploring the reliability of identi-

fication evidence in the presence of the

jury. However, we note that the issue be-

fore us now was not the issue before the

Court in Wade, an’, further, Pinto was

decided shortly aft ude. Moreover, it

appears to is that tne burden of exploring

the voluntariness issue before the jury

would be at least as great as the burden of

exploring the reliability of identification ev-

idence before the jury.

The decision of the Third Circuit in Unit-

ed States v. Driber, 546 F.2d 18 (1976),

relied upon by the dissent, dees hold that

due process requires that the court hold the

hearing to determine the admissibility of

1. We also recognize that the decision ts placed

on the alternative ground that trial counsel of

identification evidence out of the presence

of the jury if the request for such a hearing

is “not frivolous.” (Driber, at 22). We

note, however, that in many cases it would

be difficult, if not impossible, to determine

whether the request was frivolous without

holding the hearing. Moreover, Driber re-

lies on federal precedents which may well

be examples of the exercise of supervisory

powers rather than rulings on the require-

ments of due process.

We conclude, then, that as applied to

identification evidence, Jackson v. Denno,

supra, and Pinto, supra, only require that

the trial court make an independent deter-

mination of the reliability of the identifica-

tion after an adequate hearing. In each of

these cases, the state trial court had before

it all of the facts concerning the reliability

of the identification evidence. The trial

court reached the conclusion, based upon

these facts, that the evidence was admissi-

ble. Since both petitioners received an ade-

quate hearing and an independent determi-

nation of the reliability of the identification

evidence, we cannot conclude that the pro-

cedure for determining the admissibility of

the identification evidence violated due

process.

(4) Having determined the initial proce-

dural issue, we turn next to the substantive

issue of whether the introduction of identi-

fication evidence in these cases violated due

process standards. As we have previously

indicated, reliability is the key factor in

determining the admissibility of identifica-

tion evidence. Among the factors relevant

to reliability are “the opportunity of the

witness to view the criminal at the time of

the crime, the witness’ degree of attention,

the accuracy of the witness’ prior descrip-

tion of the criminal, the level of certainty

demonstrated by the witness at the con-

frontation, and the length of time between

the crime and the confrontation.” Neil v.

Biggers, supra, 409 U.S. at 199, 93 S.Ct. at

382. These factors must be weighed

against the effect of the suggestive proce-

dure to determine whether the identifica-

defendant did not object to holding such hear-

ing in the presence of the jury.

APP 5

252 608 FEDERAL REPORTER, 2d SERIES

tion is so unreliable as to create a substan-

tial likelihood of misidentification. See

Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct.

2243, 53 L.Ed.2d 140 (1977).

(5,6) The identification evidence intro-

duced at the trial of the petitioner, James

Willard Summitt, consisted of both an in-

court identification and a pretrial photo-

graphic identification. Under some circum-

stances, the use of a photographic display

may enhance the possibility of misidentifi-

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

377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

But each case must be considered on its

own facts. United States v. Ayendes, 541

F.2d 601 (6th Cir. 1976), cert. denied, 429

U.S. 1063, 97 S.Ct. 789, 50 L.Ed.2d 779

(1977). The pretrial photographic identifi-

cation in this case cannot be characterized

as either suggestive or unreliable. Ms, Fur-

gason had ample opportunity to study her

assailant. She provided the police with a

detailed and accurate description. Soon af-

ter the attack, she identified Summit from

among a multitude of police photographs

that were presented in a neutral fashion.

Under these circumstances, we cannot find

that there was a substantial likelihood of

misidentification. Since we find that intro-

duction of the pretrial identification was

not improper, we need not consider whether

the in-court identification had an indepen-

dent basis.

{7-9} At the trial of the petitioner, John

Gregory Watkins, the prosecution intro-

duced in-court identifications by the two

witnesses to the robbery, Walter Smith and

Donald Goeing. These identifications were

based on a pretrial lineup and a pretrial

showup. Since we believe that there was

no independent source for the in-court iden-

tifications, the validity of their admissibility

is dependent on the validity of the pretrial

identification procedures.

A showup is inherently suggestive.

When only one person is presented to a

witness, there is a natural Lendency for the

2. The liquor store was well-lit, Goeing was in

the process of filling a cooler with soft drinks.

When he heard the words, "This is a holdup,”

he turned and looked at the robber. Goeing's

witness to feel obligated to provide a posi-

tive identification. But in some cases, a

showup becomes a necessary identification

procedure. Stovall v. Denno, 388 U.S. 293,

87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Giv-

en the seriousness of the wounds to Donald

Goeing, a showup was necessary in this

case, That showup was conducted in a

manner that did not take advantage or

augment its inherent suggestiveness, Goe-

ing had had a clear, albeit brief, opportuni-

ty to view the person robbing the liquor

store? At the showup, Goeing’s identifica-

tion of Watkins reflected an element of

uncertainty, but that element was very

small. Based on the totality of the cireum-

stances, we cannot conclude that the identi-

fication at the showup was so unreliable as

to create a substantial likelihood of misiden-

tification.

(10, 11] Unlike a showup, a lineup need

not be and should not be unduly suggestive.

The lineup in this case, however, to some

degree employed the key element of the

witness’ description, lightness of complex-

ion, to set Watkins apart from the other

two persons in the lineup. Watkins, accord-

ing to the picture of the lineup, was of a

somewhat lighter complexion than the oth-

er two persons in the lineup. Such an iden-

tification procedure probably could have

been avoided. But, even so, unnecessary

suggestiveness by itself does not require the

exclusion of the identification as long as it

contains sufficient indicia of reliability.

Neil v. Biggers, supra, 409 U.S. at 198, 93

S.Ct. 375.

In addition to the suggestiveness of the

lineup, there are several facts which indi-

cate possible unreliability, Walter Smith

admitted that at the time of the lineup he

“wasn't completely sure” that Watkins was

the robber. Moreover, Smith originally de-

scribed the age of the robber as approxi-

mately thirty to thirty-five, whereas Wat-

kins was significantly younger, These facts

must be weirhed against the facts which

movements evidently caused ‘he robber to

shoot him. Goeing !ost cor .ciousness about

five seconds later as the robber fled from the

store.

APP 6

SUMMITT v. BORDENKIRCHER

Cite as 608 F.2d 247 (1979)

reflect reliability. Smith had a good oppor-

tunity to look at the person robbing the

store.’ While his identification at the line-

up contained a degree of uncertainty per-

haps greater than Goeing’s identification at

the showup, the degree of uncertainty was

not substantial. That initial uncertainty

did not continue. Moreover, Smith was not

exposed to any additional suggestive proce-

dures. See Foster v. California, 394 U.S.

440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).

[12] The admissibility of the lineup

identification presents a very close question.

But based on the totality of the circum-

stances we believe that it was sufficiently

reliable that there was no substantial likeli-

hood of misidentification.

(13, 14} The issue with respect to each

one of the identifications in these cases is

limited to whether their introduction into

evidence violated due process. A defendant

is denied due process only when the identifi-

cation evidence is so unreliable that its in-

troduction renders a trial unfair. As long

as there is not a substantial likelihood of

misidentification, it is the function of the

jury to determine the ultimate weight to be

given the identification. Manson v. Brath-

waite, supra. Given the limited focus of

our inquiry, we hold that the introduction

of identification evidence in these trials did

not violate due process. ,

3. Smith was standing at the cash register when

three men walked in. One man approached

him and asked him for cigarettes. When Smith

turned back around, the man had pulled a gun

and stated, “This is a holdup.” Thus, Smith

was face-to-face with the robber for the brief

time that the robbery was in progress.

4. In his closing argument, the prosecutor stat-

ed:

When they go to the penitentiary

they are going to be in the same enclosure

with people like themselves who have no

respect for the lives and the rights of others,

for people who'll just as quickly take away

his humanity as he's willing to take that

away from other people. But, ladies and

gentlemen of the jury that's exactly the kind

of community he belongs in

608 F 2d—4

253

[15,16] Finally, we consider the peti-

tioner Watkins’ claim that the prosecutor's

closing argument deprived him of a fair

trial. There is little doubt that several of

the prosecutor's remarks were improper.‘

But impropriety alone is not sufficient.

Donnelly v. DeChristoforo, 416 U.S, 637, 94

S.Ct. 1868, 40 L.Ed.2d 431 (1974). “The

prosecutorial argument must be so egre-

gious so as to render the entire trial funda-

mentally unfair.” Cook v. Bordenkircher,

602 F.2d 117 (6th Cir. 1979). That point at

which improper argument amounts to a

constitutional deprivation can only be

defined by reference to the totality of the

circumstances of the particular case. In

this case, we are convinced that the prose-

cutor’s remarks were not so pervasive nor

80 prejudicial as to deny the petitioner due

process,

Each of the issues raised in these appeals

involve alleged violations of due process.

Our scope of review, therefore, is limited to

whether the conduct complained of was

contrary to basic notions of fairness. Ap-

plying this narrow standard of fairness, we

conclude that the judgments of the district

courts must be and are

AFFIRMED.

MERRITT, Circuit Judge, dissenting.

In each of these habeas corpus cases from

Kentucky, there is a serious question con-

cerning the reliability of the courtroom

The only way that we can have anv effect on

the commission of crimes is to put these

people in the community, off the street, out

of our community. Put them in the commu-

nity in which they belong and fix the sen-

tence long enough, so long that you tell ev-

erybody in connection with the prisons and

the authorities, from the Governor on down,

that we don't want this man or men like him

in our community.

This is the only way vou can get the

message across. These babies are tough

They don't care about the life or dignity or

have any respect for other people The only

Way you can yet them to behave is to pet

tough with them.”

We have considered similar remarks concern:

ing the defendant's character and the threat to

the community to be bevond the bounds of

propriety, United States v. Barker, 553 F.2d

1013 (6th Cir. 1977)

APP 7

254

identification of the defendant as the

perpetrator of the crime. In both, the iden-

tification testimony constitutes tho only

substantial evidence linking the defendant

with the crime. In both, the state trial

judge denied the request of defense counsel

for a hearing on the question out of the

presence of the jury. In such circumstances,

I would follow Judge Aldisert's opinion

for the Third Circuit in United States v.

Driber, 546 F.2d 18 (1976), holding that due

process requires a hearing out of the pres-

ence of the jury where serious identification

questions are present. Otherwise, defense

counsel is paralyzed in his efforts to defend

his client. He is in the untenable position,

as the Supreme Court noted in United

States v. Wade, 388 U.S. 218, 241, 87 S.Ct.

1928, 1939, 18 L.Ed.2d 1149 (1967), of trying

by cross-examination of the identification

witness “to discover and reveal unfairness,

while bolstering the courtroom

identification by bringing out and dwelling

upon his prior identification.”

In re ESTATE of B. Joseph

RATH, Deceased.

The DETROIT BANK AND TRUST COM.

PANY, Executor, and Catherine Rath,

Surviving Wife, Plaintiffs-Appellees,

v

UNITED STATES of America,

Defendant-Appellant.

No. 77-1403.

United States Court of Appeals,

Sixth Circuit.

Argued June &, 1979.

Decided Oct. 19, 1979

Beneficiary of life policy brought ac-

tion to recover income taxes. The United

608 FEDERAL REPORTER, 2d SERIES

!

States District Court for the Eastern Dis-

triet of Michigan, Philip Pratt, J., entered

judgment in favor of taxpayer and govern-

ment appealed. The Court of Appeals, Ce-

cil, Senior Cireuit Judge, held that, under

the circumstances, the proceeds of the poli-

cy were ordinary income to the beneficiary

to the extent that they exceeded the

amount which she had paid Lo a corporation

to purchase policy from it, together with

the premiums which she had paid,

Reversed and remanded.

1. Internal Revenue o=410.1

In the absence of any action on the

part of deceased insured whereby there was

a transfer of insurance policy from the cor-

poration to himself, under the terms of an

option which he held, and a subsequent

transfer from himself to his wife, even

though the husband may have given the

wife the money with which she made the

purchase from the corporation, where the

policy was transferred from the corporation

to the insured, the amounts received under

the policy following the insured’s death

were ordinary income to the wife to the

extent that they exceeded the amount

which she paid for the policy in the amount

of premiums which she subsequently paid,

26 U.S.C.A. (1.R.C.1954) § 101.

2. Internal Revenue 410.1

Fact that corporation placed a value of

$11,600 on life policy at the time that it was

conveyed to insured's wife, whereas the val-

ue of the policy for gift or estate tax pur-

poses was $17,500, did not show that the

transfer of the policy from the corporation

to the wife was in part a sale by the corpo-

ration and in part a gift by the insured,

who had directed that the policy be as-

signed to his wife. 26 U.S.C.A. (I.R.C.1954)

§ 101.

3. Internal Revenue 0410.1, 1202

Although private ruling and revenue

ruling supported the view that deceased

insured possessed incident of ownership in

policy for estate tax purposes because of his

right to purchase the policy from the corpo-

APP 8

UNITED STATES COURT OF APPEALS FILED

FOR THE SIXTH CIRCULT

OCT 29 1975

. 78-3587

”" “HN P. HEHMAN, Cler!

JOHN GREGORY WATKINS, :

Petitioner-Appellant,

DONALD BORDENKIRCHER, WARDEN,

KENTUCKY STATE PENITENTIARY,

Respondent~Appellee.

Before: LIVELY and MERRITT, Circuit Judges, and BROWN, District

Judge. . .

JUDGMENT

APPEAL from the United States District Court for the Western

District of Kentucky. .

: THIS CAUSE cane on’ to be heare on the record from the United States

District Court for the western District of Kentucky

and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by

this Court that the judgment of the said District Court in this cause be

and the same is hereby affirmed.

No costs taxed.

ENTERED BY ORDER OF THE COURT.

— Cron YW Heb

Clerk

Issued as Mandate: yovember 19, 1979 A True Copy.

COSTS: None Attest:

GO ae

Printing _ het -iaapy

| Total ©: seccsases a

. pet ile 8] oe

a ee a a a

ee re .

DOCKET ENTRIES IN THE UNITED STATES DISTRICT COURT

a

C78-0241 L(A) WATS y. BORDERXIRGCER

PROCEEDINGS are °

DATE NR.

128/67 Petition received and forwarded to Magistrate

$/29/78 |1. Oxder by Meg. Booth that Motion to proceed IFP grented, petition ordered £j

Resp. shall file answer'w/in 20 days. Notice

&/29/78 | 2. Petition filed.

| )

7/19/78 3. Return to Show Cause Order, Response, Motion to Dismiss and in altemative

for s/j by respondent w/memo in Support &.exhibits. Order tend.

7/21/78 | 4. TRAVERSE to response: RESPONSE to motion to dismiss and Motion for submary

i | ,

6/7/78 15. ORDER by Judge Allen that respondent file trenscript of evidence No. SC-55¢4

i of Suprere Court of Ky. w/in 15 days from date of order. Notice, *

i

th. 78 |6.° CERTIFIED COPY OF TRANSCRIPT OF EVIDENCE AND TRANSCRIPT OF RECORD by

responzent by order of Court. :

; & ie.

8/29/78 }7. MEMDRANDIM OPINION by Judge Allen re:motion to dismiss or, in alternative’, §

NOTICE. to counsel. '

6/29/78 8. SUMMARY JUDG=NT by Judge Allen that rotion of respondent Sustained and comp

ah dismissed w/prejudice. Final and appealable. Notice,

19/6/78 19. NOTICE OF APPEAL filed by petitioner,

10/6/78 |10.| . REQUEST for Certificate of Probable Cause filed; Order tend.’

—— 11{ CERTTEICATE OF PROBABLE CAUSE by Judge Allen.

——

7

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

JOHN GREGORY WATKINS,

Petitioner,

CIVIL ACTION

No. C 78-0241 L(A)

Vv.

DONALD BORDENXIRCHER, Warden

Kentucky State Penitentiary,

Respondent.

a ee ee ee et

MEMORANDUM OPINION

This action is under submission on the motion of the respondent

to dismiss or, in the alternative, for summary judgment. In con-

sidering the motion, the Court has had the benefit of the entire

trial record in the Jefferson Circuit Court, as well as the decision

of the Supreme Court of Kentucky, affirming petitioner's conviction

on May 2, 1978, Watkins v. Commonwealth, Kentucky, S.W.2d

The first issue raised by the petitioner relates to the questio

of the methods of identification used by the prosecution. Petitione

was charged with the attempted armed robbery of the Thoroughbred .

Liquor Store in Louisville, Kentucky, on January 11, 1975. The

robbery occurred at about 11:30 p.m., when four men came to the

store and one of them asked an employee of the store, Walter Smith,

for a pack of cigarettes.. When Smith turned to get the cigarettes,

one of the men said "this is a hold-up", Following this announce-

ment, Donald L. Goeing, a part-owner of the store, who was stocking

a soft drink cooler, turned around and immediately thereafter

two shots were fired by a person whom Goeing described as the

petitioner, one of which hit Mr. Goeing'’s heart and the other his

wrist and arm. Immediately thereafter the man who fired the shots

ran out the door.

Both Goeing and Smith made in-court identifications of the

petitioner during the course of their direct testimony for the

No. C 78-0241 L(A) a a

prosecution. Both were examined extensively on cross-examinatio

petitioner was brought to the hospital and there was identified

Goeing as the person who had fired the shots, and that this iden

tification was reinforced in Goeing's mind by having seen petitio

seyeral times while awaiting the call of the case, after the

hospital confrontation, Counsel for plaintiff also brought out on

©kOSS~examination. that Smith was called by the police to come to

@ line-up two days after the robbery and there was shown three or

four black males. He identified the petttioner at the line-up, :

although he admitted on cross-examination that he was not entirel

certain of his identification. at that time, but later said that a

he got himself. togéther, he knew that petitioner was the man, Li

Goeing, he had also seen petitioner several times after the line-

question deprives petitioner of a fair trial, in accordance with d

process of law. Petitioner further. contends that the failure to

suppress the identification, after its unreliability was discovered

at trial, denied Watkins a fair trial,

Petitioner has not cited, nor have we found, any cases which

hold that there is a constitutional requirement that a suppression

hearing be held prior to trial, and out of the presence of the jur

on the question of identification. In Ray Vv. Commonwealth, Kentuck

550 S.W,2d.482, 483 (1977) and Watkins y. Commonwealth, Kentucky,

supra, (1978), the Supreme Court of Kentucky has held that, although

pretrial suppression hearings are preferable, the failure to hold

them does not require the reversal of a conyiction. We are, likewi

convinced that, although pretrial identification hearings are much

to be preferred over the method of presenting the entire identifica

APP 12 ad B03, be 7

ek hal

No. C 78-0241 L(A) - 3 -

tion case to the jury without a pretrial hearing, the due process

rights of the petitioner have not been violated, inasmuch as he

had and exercised the opportunity to cross-examine thoroughly the

witnesses on identification.

As to the second prong of petitioner's argument with respect.

to identification, the Court is convinced that Stovall v. Denno,

388 U.S. 293, 302. (1967) is authority for rejecting petittoner's

claim as to the witness Goeing. Stovall, supra, holds that where

@ potential witness at a criminal trial is in serious physical

condition, it is not improper for the police to take a suspect to

the hospital for the purpose of asking the witness whether he can

identify the suspect. In the case at bar, Goeing was seriously

injured, and we do not believe that the petitioner's constitutiona

rights were violated by .the confrontation at the hospital, althoug

Goeing did testify that petitioner was not asked to utter any

words, whereas, in Stovall, supra, petitioner was asked to repeat

the words which were uttered at the hold-up. .

With respéct to the testimony of Smith as to his out-of-court

identification, there is no showing of undue suggestiveness such a

occurred in Foster v. California, 394 U.S. 440 (1969) where the

California witness identified the defendant only after two

line-ups. |

In the case of Neil vy. Biggers, 409 U.S. 188, 198 (1972), the

Supreme Court stated that ''the primary evil to be avoided igs °a

very substantial likelihood of irreparable mistdentification'

(citing) Simmons v. United States, 390 U.S., at 384." In Neil v.

Biggers, supra, at p. 199, the court set out the factors which are

to be considered in evaluating the likelihood of misidentification

which "include the opportunity of the witness to view the criminal

at the time of the crime, the witness' degree of attention. the

accuracy of the witness' prior description of the criminal, the

level of certainty demonstrated by the witness at the confrontatio

and the length of time between the crime and the confrontation.”

While applying these factors, we note that the crime occurred

APP 13

No. C 78-0241 L(A) =o @ ;

in a well-lit store, that the witness Goeing's attention was of

a very short duration but that he saw petitioner face-to-face and

that Smith's at-ention was called by the announcement that there

was a hold-up. We note that witness Smith, in his first description

of the petitioner, believed him to be 30 to 35 years of age, whereas

it developed that. petitioner was only 17 years old. We note that

Goeing was certain that the petitioner was the criminal at the time

of confrontation, and that Smith, although not absolutely certain,

became’ more so after the confrontation. We note also that the ‘con-

frontations took. place only two days after the crime.

“

Applying these factors, and the totality of the circumstances

and rule referred to in Neil v. Biggers,, ‘supra, we are of the opinion

that petitioner's due process rights vere not violated by the

identification procedures used.

. The second argument made by petitioner relates to the closing

statement of counsel for the Commonwealth. Over objections, he

made the following remarks:

Mr. Zollinger: ", 2 . I don't like to see anybody go

to the penitentiary. The reason,I don't like to see that

is because they have to be there with people exactly like

themselves. en they go to the penitentiary they are

going to be in the same enclosure with people like

themselves who haye no respect for the lives and the

rights of others, for people who'll just as quickly take

away his humanity as he's willing to take that away

from other people. But, ladies and gentlemen of the jury

that.'’s ounckiy the kind of community he belongs in. He

doesn't belong in the community where people go to work

every day. |

Mr. Southard: "Your Honor, I'm going to object. I think

this argument is out of the context of the evidence.

The Court: "Oyerrule the objection.

Mr. Southard: "Thank you,

Mr. Zollinger: "He belongs in a community of people like

himself, not out here where he's confronting people who

work for a living. That don't go around packing guns, that

aren't going into places where other people are working

and pointing a gun at them and confronting them with

death, That's strictly the conditions.

"The only way that we can have any effect on the

on the commission of crimes is to put. these people in

the community, off the street, out of our community. Put

them in the community in which they belong and fix the

sentence long enough, so long that you tell everybody in

connection with the prisons and the authorities, from the

No. € 78-0241 L(A) __ - § -

Governor on down, that we don't want this man or

men like him in our community. We want him out of

here. And the only way you can get that message across

is by fixing the sentences as long as you possibly can -

fix them. Fix those sentences so long that this man will

be off the streets as long as we possibly can keep him

off the streets." (Tr. 174-175).

Mr. Zollinger: "And the kind of community that you will

live in, that your children will live in, and your

Srandchildren will live in. . .I don't think you would

prefer to have a community with people like this in it.

‘This is your chance to pet them out of here. This is

your chance," (Tr. 176).

Mr. Zollinger: ". , don't think this is being harsh.

S is the only way eg can get the message across.

é - They don't care about the life

The Supreme Court has held in Donnelly v. DeChristoforo, 416

U.S, 637 974) that where a habeas corpus petitioner alleges a

deprivation of his due process rights by the improper conduct of a

prosecutor, such allegation grants to the federal courts only the

row.one of due process review, and not the broad exercise of supervisory

power that (it) would possess in regard to (its) own trial court’,"

See 416 U.S. at 642.

The petitioner here relies, to some extent, upon Manning vy.

Jarnigan, 501 F.2d 408 (6th Cir. 1974). In that case, the prosecu-

tor referred to petitioner's alleged prior involvement in criminal

acts not charged in the indictment and not probative of either scheme

or intent, and also boasted that he knew his questions were objec-

tionable but even if stricken the jury would not forget them. He

also made a prejudicial Statement before the jury when he realized

° he would not be able to make.a closing argument because petitioner's

counsel had waived closing argument. The court held that these

facts, combined with a possible violation of petitioner's Fourth

diasitbiintin rights, entitled petitioner to a hearing in the district

court on his writ for habeas corpus,

United States y. Leon, 534 F.2d 667 (6th Cir. 1976) was a case

involving the supervisory powers of the Court of Appeals and not the

narrow power of due process review involved in a habeas corpus action,

No. C 78-0241 L(A) » 6 «=

There the court held that it considers "the degree to which the

remarks complained of have'a tendency to mislead the jury and to:

prejudice the accused; whether they were isolated or extensive;

whether they were deliberately or accidentally placed before the

jury, and the strength of the competent proofs introduced to

establish the sodie of the accused." See 534 F.2d at » 679.

In the case at. bar, if we applied the tests set out in United.

States v. Leon, supra, we would hold that the remarks complained of

were irrelevant and that they did not communicate to the jury any

false information... They were fairly extensive and, of course, .

deliberately placed before the jury. The strength of the proof

as to the guilt of the accused depended largely upon the testimony

of eye witnesses Smith and Goeing, which we have previously discussed

We have compared the closing statement of the prosecutor with

the closing statement he made in the case of Morris E. Whiteside v.

Donald E, Bordenkircher, 435 F.Supp. 68 (W.D. Ky. 1977). There

the prosecutor_intimated. that the life of the only eye witness

to the crime night have been threatened because she might have taken

"hex life in her hands" and "her testimony ‘took courage’ and that

it was a problem getting victims of armed robberies to come into

court because they were ‘terrorized’." There was nothing in the

record to substantiate those statements, and, in addition, the

prosecutor made many references to the rising crime in the community

and the inability of the courts to cope with it. A complete descrip

tion of his conduct is set out on pages 69, 70 and 71 of 435 F.Supp.

We find that there is a substantial difference betwees the

language used by the prosecutor in the case at bar, and that the

petitioner has not met his burden of showing that the remarks of

. the prosecutor so infected the trial with unfairness as to make the

resulting conviction a denial of due process. We find particularly

pertinent in this context the statement made by the Supreme Court

in Donnelly v. DeChristoforo, supra, at p. 647, "(t)he result reache

by the Court of Appeals in this case leaves virtually meaningless

APP 16 can

sl er xy

No. C 78-0241 L(A) -.J -

the distinction between ordinary trial error of a prosecutor

and that sort of egregious misconduct held in Miller (Miller v.

Pate, 386 U.S. 1 (1967)) and Brady, supra, (Brady v. Maryland,

373 U.S. 83 (1963)) to amount to a denial of constitutional due

process.’

In evaluating the remarks of a prosecutor, _ the question of

whether or not his conduct : so infects the trial with unfairness as

to make the resulting conviction the denial of due process is not al-

ways easy of resolution. This is the case here, since the prosécutor

did make several. rather emotional remarks about the alleged duties

. Of the jury to. cleanse the community of the criminal element who

"go around packing guns". However, the evidence is ample that

the defendant was, in fact, pointing a gun at the witnesses and,

in fact, shot one of them, and since there is no reference made

by the prosecutor which was misleading as to any significant fact,

and no denial -of any specific rights under any specific

provision of the Bill of Rights, we hold that petitioner's

writ for habeas corpus must be denied.

We note, in passing, that the prosecutor's erroneous remark

corcerning whether or not the petitioner and his friends were with

a girl on the night of the crime was of Little or no’. significance,

and that no objection was.made to the comment made by the prose-

cutor,

A summary judgment in accordance with this opinion as

has day been entered.

Dated Oped? EF

LLL o LEZ

EAE

United States Bi serios Judge

cc: Counsel of Record EMTERED

2G: AF -

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF. KENTUCKY

AT LOUISVILLE

JOHN GREGORY WATKINS,

Petitioner,

CIVIL ACTION

‘et . No. C 78-0241 L(A)

DONALD BORDENKIRCHER, Warden

Kentucky State Penitentiary,

Respondent.

FF ae ad aed Sea Be Se

SUMMARY JUDGMENT

This action, haying been submitted to the Court on the

motion of respondent, Donald Bordenkixcher, for summary judgment,

and the Court, being of .the opinton that there are no genuine

issues of material fact and that respondent is entitled as a matte

. of law to summary judgment, and the Court, having, filed its memo-

randum opinion, ‘ |

IT is ORDERED AND ADJUDGED that the motion of the respondent

for. summary judgment be and it is hereby sustained, and the

complaint of the plaintiff is dismissed with prejudice,

This is a final and appealable judgment and there is no just

cause for delay.

Dated G-2 f- ih

Lila he GEA

Charles M. “Alten

meant States District Judge

ps

ENTERED ‘|

byt 20

cc: Counsel of Record

Fit —

630 Ky.

John Gregory WATKINS, Appellant,

v.

COMMONWEALTH of Kentucky,

- Appellee.

Supreme Court of Kentucky.

May 2, 1978.

Defendant was convicted before the

Jefferson Circuit Court, George H. Kunz-

man, J., of robbery in the first degree and

first-degree assault and he appealed. The

Supreme Court, Clayton, J., held that: (1)

failure to suppress identification testimony

did not prejudice defendant; (2) trial court

did not err in permitting prosecutor to

amend indictment at close of case to change

name of victim, and (3) use of defendant's

previous statements for impeachment pur-

poses was proper.

Affirmed.

= -

1. Criminal Law c>1168(1)

Denial of defendant’s pretrial motion

for suppression hearing on identification

testimony in prosecution for robbery and

assault did not require reversal of convic-

tion where testimony by victims failed to

show any impermissible suggestiveness in

identification of defendant which would

have prejudiced defendant's right to fair

trial.

2. Criminal Law 170, 1167(4)

Amendment of indictment at close of

prosecution’s case to change name of victim

of robbery did not prejudice defendant

where defendant testified he had not been

present at scene of crime; there was no

violation of protection against double jeop-

ardy and defendant was not denied a fair

trial. RCr'6.16.

3. Witnesses @380(2)

In prosecution for robbery and assault,

trial court did not err in permitting prior

statements made by defendant regarding

his whereabouts on night of offense into

evidence for purposes of impeachment.

565 SOUTH WESTERN REPORTER, 2d SERIES

John B. Southard, Jr., Asst. Public De-

fender, Terrence R. Fitzgerald, Deputy

Public Defender, Louisville, for appellant.

Robert F. Stephens, Atty. Gen., Victor

Fox, Asst. Atty. Gen., Frankfort, for appel-

lee.

CLAYTON, Justice.

The appellant, John Gregory Watkins,

was convicted of robbery in the first degree

and first-degree assault and was sentenced

to 20 years on each charge.

On January 11, 1975, an attempted rob-

bery occurred at Thoroughbred Liquor

Store in Louisville, Kentucky. Walter

Smith and Donald L. Goeing, Sr., were

working in the store when at approximately

11:30 p. m., three or four black males en-

tered the store. Smith testified that one of

them walked up to the counter and asked

for a pack of cigarettes. When Smith

turned around, the man said, “This is a

holdup.” Goeing was refilling the soda ma- .

chine at this time and when the assailant

saw some movement in that direction, he

stated, “I said, don’t reach for anything,”

and fired two shots at Goeing. One shot hit

Goeing in the arm and the other went

through the right ventricle of his heart.

Goeing was hospitalized for 12 days and

recovered after a 34%-month convalescence.

The evidence against the appellant was

based on identifications made by Smith and

Goeing. Defense counsel submitted a writ-

ten pretrial motion for a suppression hear-

ing on the identification testimony. Before

any evidence was heard, this motion was

reasserted in court, out of the presence of

the jury, and was denied. Prior to testimo-

ny and identification by Smith and Goeing,

defense counsel objected to not being al-

lowed an in-camera hearing, since it forced

him to explore the circumstances of the

identification testimony in the presence of

the jury, but was overruled. The defense

repeated!y moved for a mistrial on this

point and again was denied. The appellant

was then taken to the hospital in the custo-

dy of two police officers and was identified

by Goeing from his hospital bed.

- —-——— ~

BLAIR v. GENERAL ELEC. co.

Ky. 631

Chie as, Ky., 565 S.W.24 631

{1} Appellant's first assignment of error

is that the refusal of the trial court to

conduct a suppression hearing to review the

procedures by which the appellant was

identified and the failure to suppress such

identification testimony deprived him of a

fair trial. This court stated in Ray v. Com-

monwealth, Ky., 550 §.W.2d 482, 483 (1977):

“Although we are of the opinion that the

holding of such a hearing prior to the intro-

duction of this testimony would have been

the preferred course to follow, we are not

persuaded the failure to have done so re-

quires reversal of 2ppellant’s conviction.”

We are persuaded that the identification

evidence fails to raise any impermissible

suggestiveness and the appellant was in no

way prejudiced. We are further convinced

that under the “totality of the circumstance.

es” appellant received a fair trial,

{2} Appellant’s next assignment of error

is that the court erroneously permitted the

prosecutor to amend the indictment at the

close of the evidence and thereby exposed

the appellant to double jeopardy and denied

him a fair trial. At the close of the proof

for the Commonwealth, the prosecutor

moved to amend the indictment to charge

the appellant with the robbery of Walter

Smith instead of Donald Goeing. As stated

by the appellant in his brief, the question is

whether the amendment of the indictment

violated the constitutional protection

against double jeopardy and denied Wat-

kins a fair trial. We see no prejudice in

merely changing the names of the victims.

The appellant testified that he was not even

present at the scene of the crime. How

could he have been prejudiced? RCr 6.16

permits the court to amend the indictment

prior to the verdict if no additional or dif-

ferent offense is charged and if the sub-

stantial rights of the defendant are not

prejudiced. See also Blockburger v. United

States, 284 U.S, 299, 52 S.Ct. 180, 76 L.Ed.

306 (1932),

[3] The appellant’s next assignment of

error is that the admission into evidence of

statements containing references to other

offenses deprived the appellant of a fair

trial. This court is, however, of the opinion

ADD AA

that the trial court-did not err in permitting

appellant’s previous Statements into evi-

dence for purposes of impeachment. See

discussion in Jett y, Commonwealth, Ky.,

436 S.W.2d 788 (1969). In an oral state.

ment made to the investigating officer on

the night of the alleged offense, the appel-

lant stated that he Spent the entire night at

his relatives’ house, Subsequently he made

& written statement saying that he was ata

pool hall in the area of the Thoroughbred

Liquor Store on the evening of the robbery

attempt. The testimony relating to other

offenses was activity unrelated to the ap-

pellant but was that of other individuals

not on trial.

Appellant's final assignment of error js

that the closing argument of the Common-

wealth’s Attorney deprived him of his right

to a fair trial. We have studied the evi-

dence relating to this argument and find it

to be without merit and that the final argu-

ment of the Commonwealth's Attorney was

within the bounds of propriety.

The judgment is affirmed, e

Elmer L. BLAIR, Movant,

All concur,

Vv.

GENERAL ELECTRIC COMPANY and

Workmen's Compensation Board of

Kentucky, Respondent,

Supreme Court of Kentucky.

May 2, 1978,

In workmen's compensation case,

claimant, a die setter, appealed from a

judgment of the Jefferson Circuit Court,

Common Pleas, First Division, Michael O.

McDonald, J., which affirmed award of

EE Se se SJ EFFERSON CIRCULT COURT

CRIMINAL BRANCH

oy A es, ; DIVISION NO. 16

COMMONWEALTH OF KENTUCKY _ | PLAINTIFF ©

vs : JUDGHENT

JOHN GREGORY WATKINS DEFENDANT

AT A COURT HELD JULY 15, 1977

- This day, the defendant was brought into court by the

Sherife. Comes his attorney Mr. Southard, Public Defender. This

case being called on the defendants written motion for anew tri

herein, the court being advised, overrules said motion herein. T

case also being called on the defendants motion to ‘withhold the

‘rendition of, judgment heretofore entered herein, ie court havin

received a presentencing report and having considered same and

further having provided the defendant with information contained

therein, overrules said motion because the defendant is in need ’

of Correctional treatment that can be provided most: effectively

by his committment to a Correctional Institution. The defendant \

advised of his legal right to appeal this judgement and if he cou

not afford counsel, the court would appoint him counsel and if

indigent will be allowed to proceed in forma pauperis, the defen

acknowledge receipt of said information contained herein, The |

defendent was asked if he had any legal cause to show why judgme

should not be pronounced against him; upon advise of counsel,

none being shown, it is ordered and adjudged that the defendant

being years of age, be taken by the Sheriff ‘of Jefferson

County to the jail of Jefferson County and from there by the

Sheriff of said County and transferred to the custody of the

Department of Corrections at such location as the Department sha

designate and remain in their custody for a period of not more °

than twenty years as to each count to run concurrent. Comes the

Defendant and files his written notice of appeal herein, Comes

the defendant by counsel, and filed his written motion to procee

in forma pauperis, the court being advised, sustains said motio

_ herein. Ordered that the defendant be and is remanded to jail.

WNU. LUOLES JEFFERSON CIRCUIT

CRIMINAL BRANCH .

DIVISION NO. 16

COMMONWEALTH OF KENTUCKY . | PLAINTIFF

VS * JUDGMENT

JOHN GREGORY WATKINS DEFENDANT

wt te tk 3 ve tet de 4

AT A COURT HELD JULY 15, 1977

This day, the defendant was brought into court by

the Sheriff. Comes his attorney Mr. Southard, Public Defender. Th

case being called on the defendants written motion’ for a new tria

herein, the éourt being advised, overrules said motion herein. Th

case also being called on the defendants motion.to withhold the |

rendition of judgment heretofore entered herein, the court having

received a presentencing report and having considered same and

further having provided the defendant with information contained

therein, overrules said motion because the defendant is in need

of Correctional TReatment that can be provided most effectively

by his committment to a Correctional Institution. The defendant w

advised of his legal right to appeal this judgment and if he coulc

not afford counsel, the court would appoint him counsel and if

indigent will be allowed to proceed in forina pauperis, the defend

acknowledged receipt of said information contained herein. The

defendant was asked i* he had any legal catise to show why judgmen

should not be pronounced against him; upon advise of counsel,

none being shown, it is ordered and ad judged that the defendant

being __ years of age, be taken by the Sheriff of Jefferson”

County to the jail of Jefferson County and from there by the

Sheriff of said County and transferred to the custody of the |

Department of Corrections at such location as the Department shal

designate and remain in their custody for a period of not more

than five years to run consecutive with #153965. Comes the

defendant and files his written notice of appeal herein. Comes

the defendant by counsel, and files his written motion to proceed

in forma pauperis, the court being advised, sustains said motion

herein. Ordered that the defendant be and is remanded to jail.