Appendix — Watkins v. Sowders
Supreme Court brief1981
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sulin | MAY 27 {989
Pa HAEL RODAK, JR, CLERK
In the Supreme Court of the United States
OCTOBER TERM, 1979
Nos. 79-5949 and 79-5951
JOHN GREGORY WATKINS,
Petitioner,
—
DONALD E. BORDENKIRCHER, WARDEN,
Respondent ;
and
JAMES WILLARD SUMMITT,
Petitioner,
— |
DONALD E. BORDENKIRCHER, WARDEN,
Respondent.
ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
PETITIONS FOR CERTIORARI FILED JANUARY 17, 1980
CERTIORARI GRANTED MARCH 17, 1980
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INDEX
RE: JOHN GREGORY WATKINS
Chronological List of Relevant Docket Entries ..... ESN Dare
Motion Filed in Jefferson Circuit Court on June 13, 1977 for
Hearing Outside Presence of Jury Regarding Admissi-
bility of Identification Testimony ..............2.....:c2:ccceccceeeeeeseeeeee
Police Report of January 11, 1975, Defense Exhibit No. 2....
Excerpts from Transcript of- Trial Conducted in Jefferson
Cireuit Court on June 20 and 21, 1977:
Motion for Hearing Out of Presence of Jury on Identi-
I a salen lteleaennipneanliies
Excerpts from Testimony of Walter G. Smith ................
Excerpts from Testimony of Donald Leo Goeing, Sr. ......
Excerpts from Testimony of Officer Dennis Ferriell ......
Motion for Mistrial Based on Admission of Identifica-
tion Testimony Without Conducting a Hearing Out of
Rg RRR PEED Peper ey ey ane Uer Ore
Excerpts from Testimony of John Gregory Watkins ......
Judgment Entered by the Jefferson Circuit Court on July 15,
1977
PPT TrrrrrerrrreT TTT Tee ee
BREE. Woiisocickis viclpuntaded dadbtecsihanatereanarpyeaamncadunceedipiinnianstebinepuetisnainn
M norandum Opinion of the United States District Court for
the Western District of Kentucky Rendered on September
BE UIE cckccedeeckdaalcntstiss decduttianadh cichanibbdessepli lane uacaadideantacabetnaaembimtaaiantias:
Judgment Entered by the United States District Court for
the Western District of Kentucky on September 28, 1978..
Opinion of the United States Court of Appeals for the Sixth
Circuit Rendered on October 19, 1979 .....00.0.00cccccccccecccceeeeeeee ee
Judgment Entered by the United States Court of Appeals for
the Sixth Circuit on October 19, 1979 .....0.....c.c cece cc cecceceeeeeeeees
Order of the Supreme Court of the United States Granting
Motion for Leave to Proceed in forma pauperis and Grant-
ing Petition for Writ of Certiorari
RE: JAMES WILLARD SUMMITT
Chronological List of Relevant Docket Entries ..........00000.........
Excerpts from Transcript of Trial Conducted in Jefferson
Circuit Court on May 17 and 18, 1976:
Motion to Conduct Hearing Out of the Presence of the
Jury on the Admissibility of Identification Testimony..
60
ii INDEX
Excerpts from Testimony of Detective Rick Sanders....
Excerpts from Testimony of Donna Furgason ................
Excerpts from Testimony of James Willard Summitt....
Defense Objection to In-Court Display of Tattoos Worn
I istic cis casiincectesaueiiianeh sec dhieibabictuacesnnakewsivne
In-Court Exhibition of Tattoos Worn by Defendant ........
Excerpts from Testimony of Detective Rick Sanders ......
Judzment Entered by the Jefferson Circuit Court on June 4,
I a bc sdacanidiienshomiecesiniasenidi uaemnentiobnaes
Opinion of the Supreme Court of Kentucky Rendered on
I a seeesdnigcncnnttimnnbesiilssiivadsnconts
Memorandum Opinion of the United States District Court
for the Western District of ree Rendered on May 31,
I a mnespnmhanbennnileceiitleoenentonss
Judgment Entered by the United States District Court for
the Western District of Kentucky on May 31, 1978.............
Opinion of the United States Court of Appeals for the Sixth
Circuit Rendered on October 19, 1979 .0.00000.000.0cccccecceeee
Judgment Entered by the United States Court of Appeals for
the Sixth Circuit on October 19, 1979 ..000.0.0..0.0.ccceceeceeeeeeee ee
Order of the Supreme Court of the United States Granting
Motion for Leave to Proceed in forma pauperis and Grant-
ing Petition for Writ of Certiorari ......................00..:00:ccc00000
Page
60
71
98
99
100
100
111
112
117
121
122
1
JOHN GREGORY WATKINS
Vv.
DONALD E. BORDENKIRCHER
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
March 25, 1975—Petitioner John Gregory Watkins
was indicted by the Jefferson County Grand Jury for
first degree robbery and first degree assault committed
on or about January 11, 1975.
June 18, 1977—Petitioner John Gregory Watkins filed
a pretrial motion for a hearing to be conducted outside
the presence of the jury regarding the admissibility of
identification testimony.
June 20 and 21, 1977—Petitioner John Gregory Wat-
kins was tried by a jury and convicted of first degree
robbery and first de, ree assault.
July 15, 1977—Judgment was entered by the Jefferson
Circuit Court and the Petitioner John Gregory Watkins
was sentenced to concurrent sentences of twenty (20)
years.
May 2, 1978—Supreme Court of Kentucky rendered
its opinion and affirmed the petitioner’s conviction.
September 28, 1978—United States District Court for
the Western District of Kentucky entered summary judg-
ment and rendered its opinion dismissing a petition for
a writ of habeas corpus filed in behalf of John Gregory
Watkins.
October 19, 1979—United States Court of Appeals for
the Sixth Circuit entered judgment and affirmed the
United States District Court’s dismissal of the petition
for a writ of habeas corpus.
2
JAMES WILLARD SUMMITT
Vv.
DONALD E. BORDENKIRCHER
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
September 19, 1974—Petitioner James Willard Sum-
mitt was indicted by the Jefferson County Grand Jury
for rape committed on or about July 21, 1974.
May 17 and 18, 1976—Petitioner James Willard Sum-
mitt was tried by a jury and convicted of rape. Counsel
for the petitioner made an oral, pretrial motion for a
hearing out of the presence of the jury on the admis-
sibility of identification testimony.
June 4, 1976—Judgment was entered by the Jefferson
Circuit Court and the Petitioner James Willard Summitt
was sentenced to life imprisonment.
April 22, 1977—Supreme Court of Kentucky rendered
its opinion and affirmed the petitioner’s conviction.
May 31, 1978—United States District Court for the
Western District of Kentucky entered summary judg-
ment and rendered its opinion dismissing a petition for
a writ of habeas corpus filed in behalf of James Willard
Summitt.
October 19, 1979—United States Court of Appeals for
the Sixth Circuit entered judgment and affirmed the
United States District Court’s dismissal of the petition
for a writ of habeas corpus.
3
JEFFERSON CIRCUIT COURT
SIXTEENTH DIVISION
No. 153965
158242
COMMONWEALTH OF KENTUCKY, PLAINTIFF
Vv,
JOHN GREGORY WATKINS, DEFENDANT
MOTION FOR HEARING OUTSIDE PRESENCE
OF JURY
REGARDING ADMISSIBILITY OF
IDENTIFICATION TESTIMONY
Filed June 13, 1977
t * * *
Comes the defendant, by counsel, and in support of
the above motion states as follows:
I,
Defendant’s counsel has reason to believe that the
process by which the defendant was identified as the sus-
pect in this case was illegal and further that any in-
court identification would be tainted by the illegal out-of-
court identification and therefore inadmissible under the
rationale of United States v. Wade, 388 U.S. 218, 18
L.Ed.2d 1149, 87 S.Ct. 1926; Gilbert v. California, 388
U.S. 218, L.Ed.2d 1178, 87 S.Ct. 1951; and Stovall v.
Denno, 388 U.S. 2938, 18 L.Ed.2d 1199, 87 S.Ct. 1967,
interpreting the Sixth and Fourteenth Amendments of
the United States Constitution.
II.
For the above reason, it is respectfully moved that
the Court hold a hearing outside the presence of the
jury to determine the admissibility of both the out-of-
court identification and any in-court identification that
4
might be offered by the State by any witness in the trial
of this case.
WHEREFORE, the defendant prays that this Court
order a hearing out of the presence of the jury in ad-
vance of any testimony regarding the identification of
the person who allegedly committed the crime out of
which this case arises, and that said hearing be held prior
to jury selection in said cause in order that it not need-
lessly idle a jury during trial.
/s/ John B. Southard, Jr.
JOHN B. SOUTHARD, JR.
Assistant District Defender
Office of the Jefferson District
Public Defender
100 Republic Building
Louisville, Kentucky 40202
584-1211
CERTIFICATE OF SERVICE (omitted in printing)
5
POLICE REPORT OF JANUARY 11, 1975,
DEFENSE EXHIBIT NO. 2
CRIMINAL ATTEMPT-ASSAULT 1ST DEGREE—
WANTED D5 B512 Pl _ 00-0683
1-11-75 2331 HRS
7314% SOUTH HANCOCK STREET/
THOROUGHBRED LIQUORDS/ 1-11-75 2331 SAT
NO. 1—DONALD LEO GOEING SR. W/M/25
ADDRESS—4841 S. 4TH STREET
PHONE—363-5573
REPORTED BY VICTIM NO. 2—WALTER G. SMITH
B/M/48_ ADD—850 W. WALNUT ST
PHONE—589-5050
THE ABOVE VICTIM NO. 2 REPORTS THREE
COLORS MALES ENTRY THE STORE. NO. 1 COLOR
MALE ORDER A PACK OF CIGARETTE, WHEN
VICTIM RETURNED TO GIVE THE SUBJECT HIS
CIGARETTE, THE COLOR MALE HAD A GUN AND
SAID “HOLD IT RIGHT THERE”. AT WHICH TIME
HE TURN AND FIRED TWO SHOTS AT VICTIM
NO. 1 STRIKING HIM IN THE CHEST AND THE
LEFT WRIST. AT THIS TIME ALL THREE SUB-
JECTS RAN FROM THE ABOVE LOCATION.
VICTIM NO. 1 TAKEN TO GENERAL HOSP. IN
CRITICAL CONDITION.
HOMICIDE NOTICY.
WANTED/ NO. 1 C/M/35 5/9” 175 PDS WEARING A
DARK SLIP-OVER SHIRT. ARMED WITH A
SNUGNOE REV. BLACK STEEL.
NO. 2 C/M/30-31 5/9”
NO. 3 C/M NO DESCRIPTION
REPORTED BY DET. J. JOHNSON 0828
M. CLIFFORD 0107
W. KESSINGER 1468
L. CLAIN 0117
A. EMBRY 0167
CAR 963 B963 P4 1-12-75 0195
1-12-75 BRYSON 0130 HRS
6
EXCERPTS FROM TRANSCRIPT OF TRIAL
CONDUCTED IN JEFFERSON CIRCUIT COURT
ON JUNE 20 and 21, 1977
Motion for Hearing Out of Presence of Jury on
Identification Testimony
* * * *
[2] MR. SOUTHARD: Your Honor, I’ve made three
motions, the first one dealt with, I asked for an) out of
court hearing on the identification testimony that will
be heard by the jury. I based that upon the fact that
the original description given of the accused by the wit-
nesses is directly contrary to the description given now.
He was described at the time of the incident as a 35
year old black male, five foot nine inches tall. That is
not the description of this accused. It’s the defense’s
assertion that the show-up in the hospital room with
Mr. Goeing was suggestive, that actions and statements
made by the police officers at the time suggested that
the culprit was in hand and that this was the man.
Additionally the line-up involving Mr. White we would
suggest is too suggestive. I think that the testimony
will show that both the line-up was unfair and actions
just part of the line-up were unfair.
* * A *
[10] MR. SOUTHARD: Your Honor, I would only
submit that this whole case would not revolve [11] around
whether or not Mr. Goeing was shot or whether he was
robbed, but the identity of the perpetrator, and I think
the issue is serious, that there are serious questions in-
volved and we have a right to an out of court hearing
under Frances vs Commonwealth.
MR. ZOLLINGER: And I believe it’s serious ques-
tions, too, that the jury should resolve.
THE COURT: Overruled.
MR. SOUTHARD: Thank you, Your Honor.
THE COURT: All right.
* * * *
7
Excerpts From Trial Testimony Of
Walter G. Smith
* * * *
[20] WALTER G. SMITH, called as a witness by the
Commonwealth, having been first duly sworn, was ex-
amined and testified as follows:
DIRECT EXAMINATION
By Mr. Zollinger:
1 What is your name?
A Walter G. Smith.
2 Can you speak a little louder, Mr. Smith?
A Walter G. Smith.
3 Thank you. On January the 11th of 1975, where
were you working?
A At the Thoroughbred Liquors.
4 And what hours did you work there that night?
[21] A From 6:00 to 12:00.
5 Will you tell the jury what occurred there around
11:30 P.M.?
A Well, there were three men—there was four men
that came in the store and one of them came up to the
counter and asked me for a pack of cigarettes. I turned
to get the cigarettes and when I turned around he said,
“This is a hold-up.”
6 Now, just stop right there. Do you see the man
who did that in the courtroom today?
A Yes, I do.
7 Will you tell the jury where that man is?
A He’s sitting right over there.
MR. SOUTHARD: Your Honor, I’m going to object
to this in court identification based upon a motion I
previously made.
THE COURT: All right. Overrule the objection.
8 Can you tell a little more definitely, is it the man
with the coat or is it the man with the shirt on?
A The man with the shirt on.
MR. ZOLLINGER: Let the record show that he in-
dicated John Gregory Watkins.
* * * *
8
[24] MR. SOUTHARD: I’m 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 objection for the record to not
being allowed to have a hearing.
THE COURT: Overrule the objection. Go ahead and
proceed.
MR. SOUTHARD: I would submit in having to bring
out such testimony is grounds for a mistrial. Thank
you, sir.
(End of proceedings at bench. )
18 Now, prior to the night of this incident you had
never before seen any of the people that came in, is that
correct?
A Ican’t say that I have.
19 To your knowledge you’ve never seen them?
A No. . A .
[30] 50 Okay. And then Mr. Goeing was in a cooler
here?
A Right.
51 Was the cooler on the bar side or the wall side
of the store?
A The cooler faces the—in other words, the cooler
is right under the counter here. It faces the customer.
You know, as you open the box you’re facing the cus-
tomer.
52 I understand. Where would he have been getting
the warm drinks from?
A He had them on the floor. He already had them
on the floor.
53 On the wall side?
A Well, on the wall side is your liquor lined up on
the wall.
54 Okay. So, they would be on the floor here around
the cooler?
A Right.
55 So, Mr. Goeing had his attention on [81] the
cooler, am I correct?
A Yes.
9
56 And you were mancing, I presume this is the
cash register?
A Right. The cash register is right here.
57 Okay. And so when you turned to get the ciga-
rettes you were not aware of the gun?
A No. |
58 But when you turned back around you were aware
of the gun?
A Yes, right.
59 I understand. Now, you can be seated. What
happened after you turned back around? .
A Well, when I turned and he had the gun on me
Donny was making movement over there. Because I
was going to give him whatever he wanted, but Donny
was making movement over there and he said, “I said
don’t reach for anything. This is a hold-up.” And that’s
when, you know, he just fired it just like that. He didn’t
give him a chance to do anything.
60 Donny, you mean Mr. Goeing?
A Yes.
61 He was still putting in drinks?
A Yes.
[32] 62 When you say movement, this was his move-
ment?
A Yes.
63 In other words, reaching down to get a bottle of
pop to put in the cooler?
A Right.
64 So, it was quick enough after that that he still
didn’t understand what was going on, Mr. Goeing did
not?
A Well, he heard him, he heard him when he said
this is a stick-up, you know. But it was so quick, it
happened so quick that, you know, he didn’t have a
chance to do anything.
65 All right.
A Because he didn’t give me a chance to get any
money or anything out.
66 I understand. And there were two shots fired,
is that correct?
A Yes.
10
67 And immediately upon the shots being fired what
happened?
A They ran out the door.
68 They ran. Mr. Goeing slumped to the floor?
A Yes.
[33] 69 You yourself, what did you do?
A I called the police and then I called the other
owner of the store.
70 Just prior though at the time that the people were
running out what were you doing?
A When the people were running out?
71 Yes, sir.
A I can’t really—I was really so upset, that’s the
first time anything like that has ever happened to me in
my life.
72 It’s quite frightening, isn’t it?
A Yes, itis very frightening.
73 Now, when you, sir, turned around you said you
saw the gun. Did you see the gun or the face?
A I saw the face and the gun.
74 Could you describe the gun for the jury?
A Well, the only thing I know it was a short—
after I seen guns since then it was like a, maybe a 38,
that’s all I can say.
75 And almost upon seeing the gun shots were fired,
is that correct?
A Yes.
76 You said there were other people [34] that came
in with him?
A Yes.
77 Could you describe these other people?
A No, I can’t because they were back by the door
area and I can’t.
78 That’s about 20 feet away from you?
A Yes, he was standing right in front of me and I
can’t tell.
79 Was there anyone else in the store besides the—
A (Interrupting) No, there was not.
80 There was no regular customers or anybody?
A No.
11
81 Do you remember giving a description of what
happened to the police at the time that they arrived?
A Well, other than I—it’s been two and a half years
ago, I remember telling them what at the time, what I
thought he looked like.
82 Do you remember saying, sir, that he was a black
male, 35 years old, approximately five foot nine inches
tall?
A I don’t remember saying 35, but I remember say-
ing he was a black male, yes. And I [85] remember
giving the complexion of his skin. And the shirt, he
had on a light colored shirt, I remember that.
83 Do you remember describing any of the other
people?
A Other than they were black, but of darker skin.
84 Now, you reported to the police, I believe, that
there were two others?
A Yes, well, now there must have been—I don’t
know if there were anybody right at the door on the
outside, but I know there were two others in the store,
yes.
85 So there were two others or three others?
A There were two—there were two others—let’s see,
I think there were three other guys. J really couldn’t be ©
completely sure about that, because they were huddled
back by the door.
86 You said that the assailant said, “This is a hold-
up,” or what did he say?
A I remember hearing, “This is a hold-up”
87 Do you remember telling the police officers at the
time of their investigation that he said, “Hold it right
there’?
[36] A I remember then that he said, “Don’t reach
for anything”’.
88 You did make a description that night though to
the police officers as soon as they arrived, is that correct?
A The best I could, I was very upset.
89 Now, at the time you made your description did
you describe the voice, the tone of the voice or any par-
ticular type of accent?
A I don’t remember the voice, I don’t remember say-
ing about the voice.
12
90 Did you describe anything about the size or the
shape of his head or the type of hair cut that he had?
A I remember saying that he had on light colored
clothing and I don’t know whether I said he had on a
hat or not, I don’t remember.
91 But you don’t remember whether you described
any particular features about the size or shape of his
head, whether he had a beard or was clean shaven?
A I think I said he had a mustache at that time.
92 Ali right. Do you remember describing in any
' way the manner in which he walked or carried himself?
[31] A No.
93 Did he carry the gun in his right or left hand?
A I don’t remember that exactly which hand it was
in. And if I can remember correctly, remember now it
was in his left hand. But I don’t remember, all I re-
member is seeing the gun at my side, that’s all I can
remember.
94 Allright.
A Because he was standing close to the counter.
95 Do you remember the color of his eyes?
A I don’t remember the color of his eyes, but I re-
member what his eyes looked like at that time.
96 In other words, you were looking at him in the
eyes, is that what you’re saying?
A I was looking at his face and the gun, yes, if you
want to put it that way.
97 So you described the type of shirt, complexion
color, the height, the weight—
A (Interrupting) I didn’t say weight.
98 You didn’t say weight?
A No.
99 And a black male?
a. Ie.
[38] 100 Now, isn’t it correct that you said at the
time to the police officers it’s a black male, 35 years of
age?
A I don’t really remember whether I said 35 or not.
I don’t remember.
9
13
101 Could that be approximately what you said, an
age grouping?
A I might have said around 30, I don’t remember
exactly what I said about the age.
102 Do you remember at any time expressing to the
investigating police officers your desire that the assailant
be caught, apprehended?
A No, I don’t remember saying that.
103 Okay. Did you feel that way at the time?
A Well, sure, yes.
104 That’s a natural human reaction, isn’t it?
A Yes, right.
105 Do you remember the officers that were there in
_ particular, any of them?
A I remember the young officer that came in the door
first. I don’t know his name, but he’s the one that im-
mediately went over to Donny and, you know, tried to
see what he could do for him. °
[39] 106 How long were the officers there during their
investigation?
A Well, I don’t know how long they were there after
I left, but they had a time getting him over the counter
because they couldn’t bring him out either end. They
had to lift him over the counter.
107 Did you leave before he departed in the ambu-
lance?
A No, I was still standing there while they were
trying to get him out.
108 Could you describe for me or for the jury the
appearance of the officer that first went over the counter?
A Yes, he was a short officer and he had, his hair is
sort of reddish hair, and he was about four—about five
foot. He was short, sort of short about five foot. And
his hair was sort of reddish blonde or something like
that, it was 4 reddish cast.
109 Is this basically the type of description that you
gave of the assailant at the time?
A Gave to who?
110 Is this basically--the description that you gave
of the officer, is this basically the same type of descrip-
tion, the same characteristics that
* * * e
14
[40] 111 No, no, I’m talking about did you—the type
of characteristics you just described as far as the officers
are concerned, are they basically the same type of char-
acteristics you described as far as the assailant is
concerned?
A I don’t remember.
112 Can you describe any of the other officers with
any type of particularity?
A No, I cannot, just the one that first came in the
door.
118 Now, you’ve been to court before on this inci-
dent, have you not?
A Yes.
114 And Mr. Zollinger has been the prosecutor in all
these cases?
A I think so. I know it’s been like eight times we’ve
been down here.
115 And each time you came down you saw this ac-
cused John Gregory Watkins?
A No, not every time.
116 Most times, is that correct?
A Yes.
[41] 117 Do you remember whether the officers told
you anything about whether they would contact you in
the future if anything broke in the case or if they dis-
covered anything in the case?
A No.
118 Did they subsequently contact you?
A No, they did not.
119 After the robbery weren’t you contacted by the
police and asked to come down to the Police Station?
A Oh, for the line-up, yes.
120 Was it about two days later?
*
A Yes.
121 Okay. And did you go down to the Louisville
Police Headquarters?
A Yes.
15
122 Were you asked to view a line-up?
A Yes.
123 Prior to seeing a line-up were you shown at
any time any pictures of any individuals that may have
been participants in the offense?
A No.
124 When you went to see the line-up you were
expected to find the assailant in the group of people you
were shown, is that correct?
[42] A Right.
125 Now, there were only three people in this line-
up?
A I don’t know if it was three or four, I can’t re-
member exactly.
126 Wouldn’t it be true to state that they did not
look similar, they were not alike in their characteristics?
A Well, I can’t really say. What I was looking for
was the man that held up the whiskey store and that’s
what I was looking for.
127 All right. Wouldn’t it be true though to say
that one of the men in the line-up besides the accused
was a shorter and darker complexion?
A Idon’t remember, he may have been.
128 And the other was a taller man of darker
complexion?
A I don’t remember.
129 They were both—both of the other men were
black men, is that not correct?
A I don’t remember that.
130 Whether they were black or white?
A I know that—no, they weren’t white, I know that.
131 It is true that the accused was the [43] only
light skinned black male in the line-up, is that not right?
A I don’t remember whether he was the only light
skinned or not. All I know is what I was looking for.
132 At that time did you have any trouble making an
identification?
16
A Well, I remember at that particular time saying
that I wasn’t completely sure at that time. But later,
you know, later after I got myself together I knew that
I had made, you know, that he was the man.
133 What had the police officers told you about the
man that they had arrested?
A What did they tell me?
134 Yes.
A They didn’t tell me anything about him.
135 All right. When you picked out the accused in
the line-up did the officers seem pleased?
A I didn’t look at their reaction.
136 Now, sir, would it be correct to state that every
time you subsequently seen the accused in court your
identification has became more sure in your own mind,
is that correct?
A I can’t say that, that every time that [44] every
time that I have seen him, because after I got myself
together I knew that he was the man.
MR. SOUTHARD: Thank you, sir.
REDIRECT EXAMINATION
By Mr. Zollinger:
137 Just one question, Mr. Smith. Where is this
liquor store located again?
A It’s on Hancock between Finzer and Jacob on the
east side of the street.
138 And that’s in the City of Louisville?
A Yes.
139 Jefferson County?
A Right.
140 I’m going to ask you again is there any question
in your mind as to the identity of the man that came
in and put that gun on you in that store?
A No.
17
141 And would you say that it’s John Gregory
Watkins?
A Yes.
142 And you’re absolutely sure of that?
A Yes.
MR. ZOLLINGER: That’s all.
. * 7. *
Excerpts From Trial Testimony of
Donald Leo Goeing, Sr.
[46] DONALD LEO GOEING, SR., called as a wit-
ness by the Commonwealth, having been first duly sworn,
was examined and testified as follows:
DIRECT EXAMINATION
By Mr. Zollinger:
1 What is your name?
A Donald L. Goeing, Sr.
2 Donald M.—
A (Interrupting) L.
8 L.?
A L for Leo.
4 Goeing, Sr. Were you part owner of the liquor
store known as the Thoroughbred Liquor Store?
A Yes, I was.
5 And that was at Hancock and Gray, is that correct?
A No, it’s between Finzer and Jacob on Hancock
Street.
6 And right next door to that is a pool room?
A Oh, about, about 90 feet north of it.
7 90 feet north is the pool room?
A On the corner of Finzer and Jacob.
8 That’s Ponder’s Pool Room?
[47] A Yes.
18
9 Now, you were in the store, I understand, on Jan-
uary the 11th, 1975?
A Yes, I was.
10 Around 11:30 P.M.?
A Yes, between—it was closer to quarter till twelve,
twenty till twelve.
11 Will you tell the jury in your own words just
exactly what happened that night?
A The defendant, he walked in the store and ordered
a pack of cigarettes. Walter Smith and I were work-
ing behind the counter that night and he came up to
Walter Smith and asked for a pack of cigarettes. I was
stocking the soft drink cooler. The next thing I heard
the defendant say, “This is a hold-up”. And while I was
turning around he—I guess I took him by surprise and
he fired one shot and it went through my heart, right
vertical of my heart. And he fired another shot and it
hit my wrist and it went through my arm. And then
after that he took off running out the door.
12 All right. Is there any question in your mind
as to the identity of the man who did that?
A _ I'd know his face any place.
138 And would you indicate who that was, [48] Mr.
Goeing?
A John Gregory Watkins.
14 That’s the man sitting here?
A That’s the man sitting right at the table there.
MR. ZOLLINGER: Let the record show that he in-
dicated John Gregory Watkins.
15 Now, how long were you in the hospital?
A Twelve days.
16 And how long after that were you incapacitated?
A Three and a half months.
17 You say one shot went through your heart?
A Right ventricle.
18 And the other shot went through your arm?
A Yes.
MR. ZOLLINGER: That’s all. You may ask.
19
[49] CROSS EXAMINATION
By Mr. Southard:
19 Sir, you were a partner in the liquor store busi-
ness, is that right?
A Yes.
20 Were you working full time or part time there?
A Three nights a week.
21 Prior to this incident had you ever before seen
the defendant in this case?
A No,sir.
22 Prior to this incident had you ever before seen
any of the parties involved?
A That was the only boy that I saw, the two stand-
ing by the door I didn’t see their face.
23 Never saw them?
A No.
24 Now, sir, if I understand the testimony correctly,
you were filling the soft dring cooler?
A Yes.
25 Was that one of the Coca Cola that had the sliding
top?
A Sliding door, right.
26 You were picking drinks off the floor and putting
them in the cooler?
[50] A Yes.
27 Did you ever look up prior to the shots actually
being fired?
A I was standing right face to face with him. The
bullet came to my chest and went through my chest.
28 I understand. I’m talking about prior to that.
Prior to the statement being made, “This was a hold-up”,
or whatever was said, was there anything to bring your
attention away from the cooler, anything out of the
ordinary?
A When he said, “This is a hold-up,” when I turned
around I took him by surprise and he fired two shots
at me.
20
29 I understand. Okay. So you turned around when
he said this was a hold-up?
A I was facing—well, I wasn’t directly behind him. ©
The soft drink cooler is on the side of the cash register.
30 Now, so the request for cigarettes did not draw
your attention?
A No, it was just like any other customer coming
in asking for a pack of cigarettes.
31 I understand. Was there any other regular cus-
tomers in the store besides the young man [51] that
came in?
A Just those two by the door.
32 Were these regular customers?
A I didn’t see their faces. There’s a candy counter
on my right and that was blocking the view of the door.
33 And you heard the words hold-up and you made
a move in the direction of Mr. Smith, is that correct?
A Of Watkins.
34 All right. And the first shot was fired, is that
correct?
A Right.
35 Did you lose consciousness?
A Id say about five seconds after that. I knew he
hit me in a pretty good spot because I was losing air
like a balloon. You let the balloon out and the air sucks
right on it.
36 So, did you actually see the assailant run out the
door or did you slump behind the counter?
A Yeah, he ran out the door.
37 Did you see him do that or is that something you
heard happened later?
A Yes, he took off.
38 You fell to the floor?
[52] A Yeah.
39 Do you remember anything else that happened
inside the store after you were shot?
A After I was shot?
40 Yes.
A And dropping down on the floor?
21
41 Yes.
A An officer came in.
42 They put you in an ambulance, is that correct?
A I blanked out right then. When the officer came
in he said, “How many times you’ve been shot?” I told
him and then after that I blanked out.
43 All right. Sir, did you remember what the officer
looked like?
A No, my face was lying down on the floor.
44 Lying on your stomach?
A Yes.
45 It would be a normal human reaction, I’m sure,
that you were very much afraid and scared by all of
this, is that not correct?
A Yes.
46 Besides the physical injury?
A Yes.
[53] 47 It would be fair to say at that time you only
got a glimpse of the defendant, is that correct?
A No.
48 Did you describe for the police at any time the
type of clothing that the assailant was wearing?
A At the time of the shooting?
49 At any time, right afterwards?
A Yeah.
50 What did you describe?
A Light tan.
51 Did you describe his physical, the shape of his
face or the type of hair cut that he had?
A No.
52 Did you describe his skin coloring?
A Yes.
53 What was that?
A Light.
54 Did you describe his age?
A Young.
55 What hand did he hold the gun in?
A Right.
56 You were in the hospital, I think you told Mr.
Zollinger, twelve days, is that correct?
[54] A_ Right.
22
57 At the time this incident happened, at the time
you were in the hospital, did the name John Gregory
Watkins mean anything to you?
A No.
58 So, when you use the name now, so definitely
it’s the name you’ve acquired through all the court
appearances?
A By the face and that, right.
59 Now, John Watkins was brought to you in the
hospital, is that correct?
A Right.
60 Was he in handcuffs?
A I couldn’t say yes or no about that.
61 He was in the custody of two police officers, is
that correct?
A Yes, two. Mr. Ferriell and other police officers
brought him up to the hospital.
62 Now, had they told you prior to coming into your
room that they were coming in?
A Yes.
63 Before Watkins entered the room what did they
tell you?
A They were going to let me see someone that I
could identify.
[55] 64 That you could identify.
A Yes.
65 So, when they brought him in the room you
thought you were going to see your assailant, is that
correct?
A He said he was going to bring somebody in and
he wanted to know if I could identify them or not.
66 And John Watkins was brought into the room, is
that correct?
A Right.
67 Did you identify him?
A Yes.
68 At that time?
A Yes.
23
69 Did you not state at that time that you weren’t
quite sure at first?
A I said it could have been close enough that it
could have been his twin brother, it could have been
somebody else.
70 How many appearances have you made in court
since this time, this time in the hospital?
A Nine or ten I guess, been a few.
71 And in almost every occasion you have seen John
Watkins sitting in the situation he is now?
[56] A About three of them I guess. They didn’t
bring him over a couple of times.
72 Would it be fair to say that at the time you
were lying in the hospital bed you expected the police
to bring your assailant in and confront you?
A Well, the only thing he told me he was going to
bring somebody in for me to identify. So I identified
the boy and that’s what it was.
73 Did the officer ask him to say anything?
A No.
74 What was the police officer’s reaction after the
confrontation at the hospital? Did they say anything
to you?
A No.
75 Now, you have discussed this case of Mr. Watkins
with Mr. Smith on several occasions since this, have you
not?
A You mean Mr. Smith and myself?
76 Yes.
A Yes.
77 You have been to court and sat several times and
waited and talked about this case?
A Yes.
[57] 78 You have discussed with him the identity of
John Gregory Watkins as being your assailant, is that
not correct?
A Yes.
MR.SOUTHARD: Thank you, sir.
MR. ZOLLINGER: That will be all. Thank you.
THE COURT: All right. Any further need of this
witness, gentlemen?
MR. ZOLLINGER: I would like him to stay around.
24
THE COURT: All right. Sir, would you remain
outside the courtroom and do not discuss your testimony
with any other witness.
(Witness excused)
MR. SOUTHARD: Your Honor, may we approach
the bench?
THE COURT: Yes.
WHEREUPON, counsel for the plaintiff and the de-
fendant, and the official reporter, approached the bench
where a conference was held in whispered tones out of
the hearing of the jury.
[58] MR. SOUTHARD: Your Honor, prior to the
testimony 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 mistrial.
THE COURT: I’m going to overrule you.
* a * ae
Excerpts From Trial Testimony of
Officer Dennis Ferriell
* * * *
[58] OFFICER DENNIS FERRIELL, called as a wit-
ness by the Commonwealth, having been first duly sworn,
was examined and testified as follows:
DIRECT EXAMINATION
By Mr. Zollinger:
1 What is your name?
A Officer Dennis Ferriell of the Louisville Division
of Police.
2 And how long have you been on the police force?
A Approximately seven and a half years now, sir.
3 On January the 11th of 1975 what was your
assignment?
ee
25
A I was Beat Officer assigned to the Fifth District
Beat 502.
[63] A After I had informed Mr. Watkins of his
constitutional rights and made sure that he understood
his rights, I asked him about his involvement of the hold-
up at Thoroughbred Liquor Store. Mr. Watkins told me
that he was not involved, that he had nothing to do with
the hold-up up there, but that he had heard that the
police were looking for him. I asked him why he thought
they were looking for him and he said that was just the
rumors on the street. I asked him—I questioned him
about his whereabouts on January the 11th, 1975, at
approximate-
18 All right. Now, I want you to tell the jury the
circumstances of your taking him up to the hospital.
Why did you take him up to the hospital to see Mr.
Goeing?
A Well, at that time there was some [64] question
as to whether or not Mr. Goeing was going to survive
the incident.
MR. SOUTHARD: Objection, Your Honor. I move
that that testimony be stricken.
THE COURT: Overruled.
A There was no way practical at that time that we
could put Mr. Watkins in a line-up for Mr. Goeing to
view other than that. It had to be a one on one con-
frontation. We took him to the hospital. I informed
Mr.—first I had to speak with the doctor and the doctor
said it was all right for Mr. Goeing to see the gentle-
man. I informed him that we had a suspect and we
would like for him to see the suspect. If he could identify
the man let us know, and if it was not the man let us
know.
19 Was he to let you know in the presence of the
man?
A No, I instructed Mr. Goeing to wait until he had
viewed the man and then we would take the man out of
the room and then he would indicate to me whether or
not this was the man that committed the robbery or not.
26
20 Isthat the way it happened?
A Yes, sir, that’s correct.
21 Did you take the man out of the room [65] and
then returned to see Mr. Goeing?
A Yes, sir, I did.
22 What did Mr. Goeing say at that time?
A He told me that that was the man that had the
gun that had shot him.
23 All right. Now, at some time you continued to
have an interest in the case, did you not?
A Yes, sir, I did. There was implications that other
people were involved and it was still under investigation.
24 Now, I’ll ask you if you later talked to Mr. Wat-
kins and the circumstances under which you talked to
him?
A Yes, sir, I did. Two days after the arrest, he was
arrested on the 13th of January, I received a call.
MR. SOUTHARD: Your Honor, I’m going to object
again, Your Honor.
THE COURT: Overruled.
MR. SOUTHARD: To the admission of any state-
ment.
THE COURT: Overrule the objection.
MR.SOUTHARD: Thank you, sir.
* * * *
[74] 46 You were present when both identifications
were made by both Mr. Smith and Mr. Goeing?
A Yes, sir, I was.
47 Was pictures of different accused—or possible sus-
pects shown to Mr. Smith before he viewed the line-up?
A No, sir.
48 There were three people in the line-up, is that not
correct?
A Yes, sir.
49 Both of the other two were dark skinned black
males, is that not correct?
A I would say one was a little darker, one was
medium. I think there are photographs available.
27
50 The accused is a very light skinned negro male,
is he not?
[75] A Yes, sir—not very light, if I may, if you
could understand it, it’s like everyone else. Some people
if they are light complected they are out in the sunlight
more they are apt to be just a shade darker. When they
are inside more they look lighter like anyone else, like
myself, you, even though the man might be a black man.
51 I see. You’re talking about sunburn, is that what
you’re talking about?
A Well, not exactly, but to some degree.
52 We’re talking about January, though, aren’t we?
A Yes, sir.
53 The young man sitting to my left is a light
skinned black male, is that correct?
A I would say he was, yes, sir.
54 Doyou have your files, sir?
A I believe they are on the table.
55 You took photographs of that line-up?
A I believe Detective Embry, C.1S., actually took
those.
56 These involve Mr. Smith, is that correct, Mr.
Walter Smith?
A Yes, sir.
MR. SOUTHARD: Would you mark this [76] De-
fense Exhibit No. 1?
(Said photograph marked Defense Exhibit No. 1
for purposes of identification. )
57 Is this the picture of the line-up as it happened
on the day that you testified to?
A Yes, sir, it is.
58 And does this accurately reflect the persons of the
three participants?
A Yes, sir.
MR. SOUTHARD: Your Honor, I would offer this
into evidence, Defense Exhibit No. 1.
THE COURT: All right.
(Defense Exhibit No. 1 entered into evidence and
filed herewith. )
28
59 Now, when you went to the hospital, am I cor-
rect, that Mr. Watkins was the only person present be-
sides the two police officers?
A With the exception of the medical staff.
60 The normal medical staff of the hospital?
A Yes, sir. Yes, sir.
61 Now, he was taken back to the Police Department
and he was incarcerated in the City Jail for three days,
two or three days?
[77] A Yes, sir.
62 And then you took the second—he called you over
and gave you the second statement, is that correct?
A Yes, sir, he did.
63 Did you re-advise him of his rights?
A Yes, sir.
64 And he made this statement to you?
A Yes, sir.
65 Sir, are you familiar with the word squawk?
A Yes, sir.
66 What does that mean?
A We refer to it as our reports. The squawk is a
field report that you take when an offense is committed.
It’s just a slang term for it.
67 A squawk, say if there was a hold-up at Citizens
Fidelity Bank and an officer went over there the squawk
subsequently put out would reflect what he saw and ob-
served at the time?
A Yes, sir.
68 Are you familiar with the squawk that was is-
sued on the Thoroughbred Liquor Store?
A Yes, sir, I have a copy of it.
69 Did you see it that morning when you [78] first
reported for duty, you said after, just after it happened?
A Yes, sir, I was aware of it that afternoon when
I reported for duty. I saw a copy of the squawk.
MR. SOUTHARD: Will you mark this Defense Ex-
hibit No. 2?
(Said squawk marked Defense Exhibit No. 2 for
purposes of identification. )
70 I will show you what I marked as Defense Exhibit
No. 2 for identification—
29
MR. ZOLLINGER: (Interrupting) Judge, we will
object to that being introduced, Your Honor.
THE COURT: On what basis?
MR. ZOLLINGER: On the basis that there is no
evidence that he acted on that squawk, or that he ever
saw it, or that it had any material relationship to his
investigation.
MR. SOUTHARD: Your Honor, he testified that he
saw it that morning.
THE COURT: Well, go ahead and ask a few more
questions and make for sure that that’s the squawk
relating to this particular crime.
71 Can you identify that document, sir?
A Yes, sir, that’s the copy of the field [79] report
relating to the incident of the Thoroughbred Liquor Store.
72 And is this the report that you read the morning
that you reported for duty?
A Yes, sir, I saw it that afternoon.
73 This is the copy of that report. This is not the
original report, it’s a copy?
A Yes, sir, right.
THE COURT: Okay.
MR. SOUTHARD: Your Honor, I would ask that it
be admitted and be given to the jury.
THE COURT: Okay, that’s all right.
(Defense Exhibit No. 2 entered into evidence and
exhibited to the jury and filed herewith. )
MR. SOUTHARD: Thank you, Officer Ferriell.
THE COURT: Anything further from this Officer?
MR. ZOLLINGER: No, Your Honor.
(Witness excused)
* ” a7 *
Motion for Mistrial Based on Admission of
Identification Testimony Without Conducting A
Hearing Out of The Presence of the Jury
” a * 7
[93] MR. SOUTHARD: I would renew my motion to
dismiss Count 2, in that I believe, number one, that the
assault is part and parcel of the robbery, same facts
30
and circumstances and it’s multiplicious and should be
dismissed. I believe that if you don’t believe that, that
if you believe the robbery was on Mr. Smith, then the
indictment has failed to charge the crime that Mr. Zol-
linger has proved and a directed verdict of acquittal
should be granted on the robbery charge. I would move
to dismiss the robbery charge on a directed verdict of
acquittal based upon the statement I just made, or in
the alternative dismiss the assault charge based on my
previous motion to dismiss. I would also move for a
mistrial based on the admission of the identity testimony
without allowing an out of court hearing as to that tes-
timony, especially since he was not represented at the
line-up by counsel after the arrest.
” * * ”
[98] MR. SOUTHARD: Your Honor, I have made
previously a motion for a directed verdict on the rob-
bery and also renewed my motion to dismiss the assault
in the alternative, and I made a motion for a mistrial
based upon the admission of the identification testimony,
which has not been ruled on yet.
THE COURT: All right. So, I’m going to overrule
you on that.
” ” s *
Excerpts From Trial Testimony of
John Gregory Watkins
oJ * * ”
[121] JOHN GREGORY WATKINS, called as a wit-
ness by counsel for the defense, having been first duly
sworn, was examined and testified as follows:
DIRECT EXAMINATION
By Mr. Southard:
1 Would you state your full name, please?
A John Gregory Watkins.
2 You’re the accused in this case?
A Correct.
8 John, how old are you?
A Twenty.
31
4 How old were you on January the 11th, 1975?
[122] A Seventeen.
5 John, do you go to school?
A Yes,
6 What do you study?
A English, social studies and mathematics.
7 You’re working for your GED certificate?
A Yes.
8 John, do you remember where you were on January
the 11th, 1975?
A Yes.
9 Do you remember where you were on January the
11th, 1974?
A No.
10 Why do you remember January the 11th, 1975?
A Because January the 11th, 1975, I was accused
of a robbery that I didn’t commit.
11 You say you were accused, were you subsequently
arrested?
A Yes.
12 Were you arrested by the officer sitting over here
on the opposite side of Mr. Zollinger?
A Yes.
[12] 18 At the time you were arrested did you make
type of statement to the officer when he picked you
up
A Yes.
14 What did you tell him?
A I told him where I was at the time that the rob-
bery was supposed to have occurred.
15 And what did you say?
A I told him that I was at 18th and Lee with two
— David English and Gerald Redman, shooting
pool.
16 David English is your cousin, is that correct?
A Correct.
17 And Gerald Redman is your friend?
A Right.
32
18 Where did you spend the night that night?
A Over at David English’s house.
19 Did Officer Ferriell take you to the hospital?
A Yes.
20 What did you see at the hospital?
A I-seen a man laying in a hospital bed, a white man,
and he was sick.
[124] 21 How could you tell he was sick?
A He had tubes running in his nose.
22 And do you know who that man was?
A (Witness shook his head in the negative. )
23 Do you know who that man is today?
A Yes, Goeing.
24 Mr. Goeing, the man who testified with the
mustache?
A Right.
25 Had you ever seen him prior to going into the hos-
pital with Officer Ferriell?
A No.
26 After going to the hospital did Officer Ferriell
bring you back and put you in the City Jail?
A Yes.
33
Judgment Entered by Jefferson Circuit Court
July 15,1977
JEFFERSON CIRCUIT COURT
CRIMINAL BRANCH
DIVISION NO. 16
No. 153965
COMMONWEALTH OF KENTUCKY, PLAINTIFF
v8.
JOHN GREGORY WATKINS, DEFENDANT
JUDGMENT
AT A COURT HELD JULY 15, 1977
This day, the defendant was brought into court by the
Sheriff. Comes his attorney Mr. Southard, Public De-
fender. This case being called on the defendants written
motion for a new trial herein, the court being advised,
overrules said motion herein. This case also being called
on the defendant’s 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 be-
cause the defendant is in need of Correctional treatment
that can be provided most effectively by his commitment
to a Correctional Institution. The defendant was ad-
vised of his legal right to appeal this judgment and if he
could not afford counsel, the court would appoint him
counsel and if indigent will be allowed to proceed in
forma pauperis, the defendant acknowledge receipt of
said information contained herein. The defendant was
34
asked if he had any legal cause to show why judgment
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 Correc-
tions at such location as the Department shall 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 proceed in forma pauperis, the
court being advised, sustains said motion herein. Or-
dered that the defendant be and is remanded to jail.
/s/ George H. Kunzman
Judge
35
Opinion Rendered by Supreme Court of Kentucky on
May 2, 1978
Watkins v. Commonwealth, Ky., 565 S.W.2d 680 (1978)
RENDERED: May 2, 1978
SUPREME COURT OF KENTUCKY
SC-554-MR
JOHN GREGORY WATKINS, APPELLANT
Vv.
COMMONWEALTH OF KENTUCKY, APPELLEE
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEORGE H. KUNZMAN, JUDGE
INDICTMENTS Nos. 153965 & 158242
OPINION OF THE COURT BY JUSTICE CLAYTON
AFFIRMING
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 robbery 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 entered 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
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. 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 314-month convalescence.
The evidence against the appellant was based on iden-
tifications made by Smith and Goeing. Defense counsel
ay i
36
submitted a written pretrial motion for a suppression
hearing on the identification testimony. Before any evi-
dence was heard, this motion was reasserted in court,
out of the presence of the jury, and was denied. 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 cir-
cumstances of the identification testimony in the presence
of the jury, but was overruled. The defense repeatedly
moved for a mistrial on this point and again was denied.
The appellant was then taken to the hospital in the
custody of two police officers and was identified by Goeing
from his hospital bed.
Appellant’s first assignment of error is that the re-
fusal 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. Commonwealth, Ky., 550 S.W.2d 482, 483
(1977): “Although we are of the opinion that the hold-
ing of such a hearing prior to the introduction of this
testimony would have been the preferred course to follow,
we are not persuaded the failure to have done so requires
reversal of appellant’s conviction.” We are persuaded
that the identification evidence fails to rasie any im-
permissible suggestiveness and the appellant was in no
way prejudiced. We are further convinced that under the
eo of the circumstances” appellant received a fair
trial.
Appellant’s next assignment of error is that the court
erroneously permitted the prosecutor to amend the in-
dictment at the close of the evidence and thereby ex-
posed the appellant to double jeopardy and denied him
a fair trial. At the close of the proof for the Common-
wealth, 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 Watkins a fair trial.
We see no prejudice in merely changing the names of
37
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
different offense is charged and if the substantial rights
of the defendant are not prejudiced. See also Block-
burger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed. 306 (1932).
The appellant’s next assignment of error is that the
admission into evidence of statements containing refer-
ences to other offenses deprived the appellant of a fair
trial. This court is, however, of the opinion that the
trial court did not err in permitting appellant’s previous
statements into evidence for purposes of impeachment.
See discussion in Jett v. Commonwealth, Ky., 586 S.W.2d
788 (1969). In an oral statement made to the investi-
gating officer on the night of the alleged offense, the ap-
pellant stated that he spent the entire night at his rela-
tive’s house. Subsequently he made a written statement
saying that he was at a pool hall in the area of the
Thoroughbred Liquor Store on the evening of the rob-
bery attempt. The testimony relating to other offenses
was actively unrelated to the appellant but was that of
other individuals not on trial.
Appellant’s final assignment of error is that the clos-
ing argument of the Commonwealth’s Attorney deprived
him of his right to a fair trial. We have studied the
evidence relating to this argument and find it to be
without merit and that the final argument of the Com-
monwealth’s Attorney was within the bounds of propriety.
The judgment is affirmed.
All concur.
ATTORNEYS FOR APPELLANT : ATTORNEYS FOR APPELLEE:
JOHN B. SOUTHARD, JR. ROBERT F’, STEPHENS
Assistant Public Defender Attorney General
TERRENCE R. FITZGERALD Victor Fox
Deputy Public Defender Assistant Attorney General
Office of the Jefferson Capitol Building
Public Defender Frankfort, Kentucky 40601
1000 Republic Building
Louisville, Kentucky 40202
38
Opinion of The United States District Court for The
Western District of Kentucky Rendered on
September 28, 1978
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
Civil Action No. C 78-0241 L(A)
JOHN GREGORY WATKINS, PETITIONER
Vv.
DONALD BORDENKIRCHER, Warden
Kentucky State Penitentiary, RESPONDENT
MEMORANDUM OPINION
This action is under submission on the motion of the
respondent to dismiss or, in the alternative, for sum-
mary judgment. In considering the motion, the Court
has had the benefit of the entire trial record in the Jef-
ferson Circuit Court, as well as the decision of the
Supreme Court of Kentucky, affirming petitioner’s con-
viction on May 2, 1978, Watkins v. Commonwealth,
Kentucky, —— S.W.2d ——.
The first issue raised by the petitioner relates to the
question of the methods of identification used by the
prosecution. Petitioner 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 announcement, Donald
L. Goeing, a part-owner of the store, who was stocking
39
a soft drink cooler, turned around and immediately there-
after 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 testi-
mony for the prosecution. Both were examined exten-
sively on cross-examination by counsel for petitioner, who
brought out the fact that the petitioner was brought to
the hospital and there was identified by Goeing as the
person who had fired the shots, and that this idenifica-
tion 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 plain-
tiff 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, al-
though 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. Like Goeing, he had also
seen petitioner several times after the line-up on the
occasion of various court appearances.
Petitioner contends that the failure of the trial court
to grant petitioner’s motion for an in-camera hearing
on the identification question deprived petitioner of a
fair trial, in accordance with due process of law. Pe-
titioner 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 jury, on the question of iden-
tification. In Ray v. Commonwealth, Kentucky, 550
S.W.2d 482, 483 (1977) and Watkins v. Commonwealth,
Kentucky, supra, (1978), the Supreme Court of Ken-
40
tucky has held that, although pretrial suppression hear-
ings are preferable, the failure to hold them does not
require the reversal of a conviction. We are, likewise
convinced that, although pretrial identification hearings
are much to be preferred over the method of presenting
the entire identification case to the jury without a pre-
trial 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 petitioner’s claim as to the witness Goeing.
Stovall, swpra, holds. that where a 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 ser-
iously injured, and we do not believe that the petitioner’s
constitutional rights were violated by the confrontation
at the hospital, although 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 respect to the testimony of Smith as to his out-
of-court identification, there is no showing of undue
suggestiveness such as occurred in Foster v. California,
394 U.S. 440 (1969) where the California witness iden-
tified the defendant only after two line-ups.
In the case of Neil v. Biggers, 409 U.S. 188, 198
(1972), the Supreme Court stated that “the primary
evil to be avoided is ‘a very substantial likelihood of ir-
reparable misidentification’ (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 misidentifica-
tion, 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 demon-
41
strated by the witness at the confrontation, and the
length of time between the crime and the confrontation.”
While applying these factors, we note that the crime
occurred 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 attention was
called by the announcement that there was a hold-up. We
note that witness Smith, in his first description of the pe-
titioner, believed him to be 30 to 35 years of age, where-
as 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 confrontations
took place only two days after the crime.
Applying these factors, and the totality of the cir-
cumstances and rule referred to in Neil v. Biggers, supra,
we are of the opinion that petitioner’s due process rights
were 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: “. . . 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. When they go to the peni-
tentiary 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 way 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.
42
Mr. Zollinger: “He belongs in a community of peo-
ple like himself, not out here where he’s confront-
ing 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 Governor on down, fhat
we don’t want this man or men like him in our com-
munity. 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 grandchildren 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 get them out of
here. This is your chance.” (Tr. 176).
Mr. Zollinger: “... don’t think this is being harsh.
This is the only way you 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 get them to behave is to get
tough with them.” (Tr. 178).
The Supreme Court has held in Donnelly v. DeChristo-
foro, 416 U.S. 687 (1974) 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 narrow one of due
process review, and not the broad exercise of supervisory
43
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 Man-
ning Vv. Jarnigan, 501 F.2d 408 (6th Cir, 1974). In that
case, the prosecutor referred to petitioner’s alleged prior
involvement in criminal acts not charged in the indict-
ment and not probative of either scheme or intent, and
also boasted that he knew his questions were objection-
able 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 clos-
ing argument. The court held that these facts, combined
with a possible violation of petitioner’s fourth Amend-
ment rights, entitled petitioner to a hearing in the dis-
trict court on his writ for habeas corpus.
United States v. Leon, 584 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. 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 guilt
of the accused.” See 534 F.2d at p. 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
guilt of the accused depended largely upon the testi-
mony of eye witnesses Smith and Goeing, which we
have previously discussed.
We have compared the closing statement of the prosecu-
tor with the closing statement he made in the case of
Morris E. Whiteside v. Donald E. Bordenkircher, 4385
F.Supp. 68 (W.D. Ky. 1977). There the prosecutor inti-
mated that the life of the only eye witness to the crime
44
might have been threatened because she might have
taken “her 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 sub-
stantiate those statements, and, in addition, the prosecu-
tor made many references to the rising crime in the
community and the inability of the courts to cope with
it. A complete description of his conduct is set out on
pages 69, 70 and 71 of 485 F.Supp.
We find that there is a substantial difference between
the language used by the prosecutor in the case at bar,
and that the petitioner has not met his burden of show-
ing 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 Donnelley v. DeChristoforo, supra, at p. 647, “(t)he
result reached by the Court of Appeals in this case leaves
virtually meaningless the distinction between ordinary
trial error of a prosecutor and that sort of egregious mis-
conduct held in Miller (Miller v. Pate, 886 US. 1
(1967) ) and Brady, supra, (Brady v. Maryland, 378 U.S.
88 (19638)) to amount to a denial of constitutional due
process.”
In evaluating the remarks of a prosecutor, the ques-
tion 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’. However, the
evidence is ample that the defendant was, in fact, point-
ing 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.
45
We note, in passing, that the prosecutor’s erroneous
remark concerning 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 prosecutor.
A summary judgment in accordance with this opinion
as has this day been entered.
Dated 9-28-78
/s/ Charles M. Allen
CHARLES M, ALLEN
United States District Judge
ec: Counsel of Record
46
Judgment of The United States District Court for
The Western District of Kentucky
Entered on September 28, 1978
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
Civil Action No. C 78-0241 L(A)
JOHN GREGORY WATKINS, PETITIONER
v.
DONALD BORDENKIRCHER, Warden,
Kentucky State Penitentiary, RESPONDENT
SUMMARY JUDGMENT
This action, having been submitted to the Court on
the motion of respondent, Donald Bordenkircher, for
summary judgment, and the Court, being of the opinion
that there are no genuine issues of material fact and
that respondent is entitled as a matter of law to sum-
mary 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 9/28/78
/s/ Charles M. Allen
CHARLES M. ALLEN
United States District Judge
ec: Counsel of Record
47
Opinion Rendered by United States Court of Appeals
For the Sixth Circuit on October 19, 1979
Summit and Watkins v. Bordenkircher, 608 F.2d 247
(6th Cir. 1979)
No. 78-3415
No. 78-3587
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
(No. 78-3415)
JAMES WILLARD SUMMIT, PETITIONER-APPELLANT
v,
DONALD E. BORDENKIRCHER, WARDEN,
KENTUCKY STATE PENITENTIARY, RESPONDENT-APPELLEE
and
(No. 78-3587)
JOHN GREGORY WATKINS, PETITIONER-APPELLANT
v.
DONALD E. BORDENKIRCHER, WARDEN,
KENTUCKY STATE PENITENTIARY, RESPONDENT-APPELLEE
Appeals from the United States District Court
for the Western District of Kentucky
Decided and Filed October 19, 1979
48
Before: LIVELY and MERRITT, Circuit Judges, and
BROWN,” District Judge.
Brown, Chief District Judge, delivered the opinion of
the Court in which LIVELY, Circuit Judge, joined. MER-
RITT, Circuit Judge, (p. 12) filed a separate dissenting
opinion.
BROWN, J. 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 hearing 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 evi-
dence in these cases did not violate due process stand-
ards. Accordingly, we affirm the decisions of the district
courts.
The petitioner, James Willard Summit, was indicted
for rape on September 19, 1974. The rape occurred in
Jefferson County, Kentucky late in the evening of July
20, 1974 when two men forced the victim, Donna Jean
Furgason, into their car. The incident took place over a
period of approximately forty-five minutes.
On July 21, 1974, Ms. Furgason reported the rape to
the police. She described 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 volumes 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 headquarters to review additional
volumes of photographs. At that time, she identified a
photograph 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 ad-
missibility 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
* Honorable Bailey Brown, Chief Judge, United States District
Court for the Western District of Tennessee, sitting by designation.
49
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 af-
firmed.
The petitioner, John Gregory Watkins, was indicted in
March, 1975 for armed robbery and assault. The robbery
took place at a liquor store in Louisville, Kentucky. Dur-
ing the course of the robbery, an employee in the store
was shot in the wrist and in the heart.
Donald Goeing, the employee who was shot, described
the robber as a young, black man with a light complexion.
Walter Smith, the other employee in the store, described
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 com-
plexion than either of the other two men in the lineup,
though none of them had a particularly dark complex-
ion. 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 identified Watkins, but at the same time
he stated 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 admissibility of the identification
evidence. The trial judge denied the motion.
At the trial, the prosecution relied on the in-court iden-
tification 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
conclusion of the prosecutor’s proof, the trial court denied
Watkins’ motion for a mistrial based on the introduction
of the identification evidence. The jury returned a verdict
50
of guilty and recommended the maximum sentence. On
appeal to the Kentucky Supreme Court, the conviction
was affirmed.
In both of these cases, the central dispute at triai was
over the identification of the person who committed the
crime. In every criminal trial, there exists some danger
of misidentification. That inherent danger, however, is
significantly increased whenever the identification is
tainted by unnecessary and unduly suggestive procedures.
To deter the use of suggestive identification procedures,
the Supreme Court has held that a defendant is entitled
to have counsel present at any corporeal identifications
which occur after the initiation of criminal proceedings.
United States v. Wade, 388 U.S. 218 (1967) ; Gilbert v.
California, 388 U.S. 263 (1967). See also Moore v.
Illinois, 484 U.S. 220 (1977) ; United States v. Ash, 413
U.S. 300 (1973) ; Kirby v. Illinois, 406 U.S. 682 (1972).
Even where the right to counsel is not applicable, how-
ever, “due process protects the accused against the in-
troduction of evidence of, or tained by, unreliable pre-
trial identifications obtained through unnecessarily sug-
gestive procedures.” Moore v. Illinois, supra at 227.
It is this later due process protection which the petitioners
claim was violated in their state trials.
The initial issue presented by these appeals is whether
the admissibility of identification evidence must be de-
termined 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 (1975). See also United States
v. Poe, 462 F.2d 195 (5th Cir. 1972), cert. denied, 414
U.S. 845 (1973) ; United States v. Cranson, 453 F.2d 123
(4th Cir. 1971), cert. denied, 406 U.S. 909 (1972) ; United
States v. Allison, 414 F.2d 407 (9th Cir.), cert. denied,
396 U.S. 968 (1969) ; Clemons v. United States, 408 F.2d
1230 (D.C. Cir. 1968), cert. denied, 394 U.S. 964 (1969).
An independent hearing on the admissibility of iden-
tification evidence, either before trial or at trial outside
the presence of the jury, would remove the dissadvantage
to defendant’s counsel of investigating the propriety of
51
the identification evidence in the presence of the jury.
In addition, it would protect the jury from being exposed
to evidence that might subsequently be determined in-
admissible. Kentucky state courts have apparently since
endorsed this procedure. See Brown v. Kentucky, 564
S.W.2d 24 (Ct.App. 1978). The issue in this case, how-
ever, is not whether a hearing outside the presence of the
jury is the preferable procedure but whether such a pro-
cedure is constitutionally mandated.
In Jackson v. Denno, 378 U.S. 368 (1964), the Su-
preme Court held that a defendant’s due process rights
were violated by a procedure which allowed the same jury
that determined the guilt or innocence of a defendant to
determine simultaneously 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 conviction is founded,
in whole or in part, upon an involuntary confession, with-
out regard for the truth or falsity of the confession.”
Jackson Vv. Denno, supra at 376. (Emphasis added.) A
jury that is considering the guilt or innocence of a de-
fendant is likely to allow the truthfulness of a confession
to influence its determination 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
determination of its voluntariness after an adequate hear-
ing on the issue. “(T]he purpose that a voluntariness
hearing is designed to serve has nothing whatever to do
with improving the reliability of jury verdicts.” Lego
v. Twomey, 404 U.S. 477, 487 (1972). Its purpose is to
protect the due process right against the introduction
of involuntary confessions, regardless of their reliability.
The basis of the due process right against suggestive
identification procedures is significantly different.
It is, first of all, apparent that the primary evil to
be avoided is “a very substantial likelihood of irre-
parable misidentification.” Simmons v. United States,
390 U.S. at 384. While the phrase was coined as a
standard for determining whether an in-court iden-
52
tification would be admissible in the wake of a sug-
gestive out-of-court identification, with the deletion
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 defendant’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 because they increase the
likelihood of misidentification, and unnecessarily sug-
gestive ones are condemned for the further reason
that the increased chance of misidentification is
gratuitous.
Neil v. Biggers, 409 U.S. 188 at 198 (1972). Thus,
whereas the admissibility of confessions is determined
without regard to reliability, the admissibility of identi-
fication evidence is entirely dependent on reliability.
We construe Pinto v. Pierce, 389 U.S. 31 (1967), as
holding that due process does not require that the hear-
ing 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 ques-
tion presented here. We conclude, however, that, by
analogy 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 (1967), that
trial counsel for defendant does bear an extra burden in
exploring the reliability of identification evidence in the
presence of the jury. However, we note that the issue
before us now was not the issue before the Court in
Wade, and, further, Pinto was decided shortly after
Wade. Moreover, it appears to us that the burden of
exploring the voluntariness issue before the jury would
be at least as great as the burden of exploring the re-
liability of identification evidence before the jury.
1 We also recognize that the decision is placed on the alternative
ground that trial counsel of defendant did not object to holding
such hearing in the presence of the jury.
53
The decision of the Third Circuit in United States v.
Driber, 546 F.2d 18 (1976), relied upon by the dissent,
does hold that due process requires that the court hold
the hearing to determine the admissibility of identifica-
tion evidence out of the presence of the jury if the re-
quest 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 re-
quest was frivolous without holding the hearing. Mores»
over, Driber relies on federal precedents which may well
be examples of the exercise of supervisory powers rather
than rulings on the requirements of due process.
We conclude, then, that as applied to identification evi-
dence, Jackson v. Denno, supra, and Pinto, supra, only
require that the trial court make an independent deter-
mination 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 re-
liability 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 admissi-
bility of the identification evidence violated due process.
Having determined the initial procedural issue, we turn
next to the substantive issue of whether the introduction
of identification evidence in these cases violated due proc-
ess standards. As we have previously indicated, reliabil-
ity is the key factor in determining the admissibility of
identification 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’ de-
gree of attention, the accuracy of the witness’ prior de-
scription of the criminal, the level of certainty demon-
strated by the witness at the confrontation, and the
length of time between the crime and the confrontation.”
Neil v. Biggers, supra at 199. These factors must be
weighed against the effect of the suggestive procedure to
determine whether the identification is so unreliable as
54
to create a substantial likelihood of misidentification. See
Manson v. Brathwaite, 432 U.S. 98 (1977).
The identification evidence introduced at the trial of
the petitioner, James Willard Summitt, consisted of both
an in-court identification and a pretrial photographic
identification. Under some circumstances, the use of a
photographic display may enhance the possibility of mis-
identification. Simmons v. United States, 390 U.S. 377
(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 (1977). The pretrial
photographic identification in this case cannot be charac-
terized as either suggestive or unreliable. Ms. Fergason
had ample opportunity to study her assailant. She pro-
vided the police with a detailed and accurate description.
Soon after 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 misidentifi-
cation. Since we find that introduction of the pretrial
identification was not improper, we need not consider
whether the in-court identification had an independent
basis.
At the trial of the petitioner, John Gregory Watkins,
the prosecution introduced 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 identifications,
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 tend-
ency for the witness to feel obliged to provide a positive
identification. But in some cases, a showup becomes a
necessary identification procedure. Stovall v. Denno, 388
U.S. 293 (1967). Given 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, opportunity to view the
55
person robbing the liquor store.? At the showup, Goeing’s
identification of Watkins reflected an element of uncer-
tainty, but that element was very small. Based on the
totality of the circumstances, we cannot conclude that
the identification at the showup ws so unreliable as
to create a substantial likelihood of misidentification.
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’ de-
scription, lightness of complexion, to set Watkins apart
from the other two persons in the lineup. Watkins, ac-
cording to the picture of the lineup, was of a somewhat
lighter complexion than the other two persons in the line-
up. Such an identification procedure probably could have
been avoided. But, even so, unnecessary suggestiveness
by itself does not require the exclusion of the identifica-
tion as long as it contains sufficient indicia of reliability.
Neil v. Biggers, supra at 198.
In addition to the suggestiveness of the lineup, there
are several facts which indicate 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 described the age of the robber
as approximately thirty to thirty-five, whereas Watkins
was significantly younger. These facts must be weighed
against the facts which reflect reliability. Smith had a
good opportunity to look at the person robbing the store.*
While his identification at the lineup contained a degree
of uncertainty perhaps greater than Goeing’s identifica-
tion at the showup, the degree of uncertainty was not
substantial. That initial uncertainty did not continue.
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 movements
evidently caused the robber to shoot him. Goeing lost consciousness
about five seconds later as the robber fled from the store.
8 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.
56
Moreover, Smith was not exposed to any additional sug-
gestive procedures. See Foster v. California, 394 US.
440 (1969).
The admissibility of the lineup identification presents a
very close question. But based on the totality of the
circumstances we believe that it was sufficiently reliable
that there was no substantial likelihood of misidentifica-
tion.
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 de-
nied due process only when the identification evidence is
so unreliable that its introduction renders a trial un-
fair. As long as there is not a substantial likelihood of
misidentification, it is the function of the jury to deter-
mine the ultimate weight to be given the identification.
Manson v. Brathwaite, supra. Given the limited focus
of our inquiry, we hold that the introduction of iden-
tification evidence in these trials did not violate due
process.
Finally, we consider the petitioner 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
4In his closing argument, the prosecutor stated:
. 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 iives 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
The only way that we can have any 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 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 Governor on down, that we don’t want this man or men
like him in our community.
. This is the only way you can get the message across. These
babies are tough. They don’t care about the life or dignity or
57
sufficient. Donnelly v. DeChristoforo, 416 U.S. 6386
(1974). ‘The prosecutorial argument must be so egreg-
ious so as to render the entire trial fundamentally un-
fair.” 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
prosecutor’s remarks were not so pervasive nor so preju-
dicial as to deny the petitioner due process.
Each of the issues raised in these appeals involve al-
leged violations of due process. Our scope of review,
therefore, is limited to whether the conduct complained
of was contrary to basic notions of fairness. Applying
this narrow standard of fairness, we conclude that the
judgments of the district courts must be and are
AFFIRMED.
have any respect for other people. The only way you can
get them to behave is to get tough with them.”
We have considered similar remarks concerning the defendant’s char-
acter and the threat to the community to be beyond the bounds
of propriety. United States v. Barker, 553 F.2d 1013 (6th Cir. 1977).
58
MERRITT, Circuit Judge, dissenting. In each of these
habeas corpus cases from Kentucky, there is a serious
question concerning the reliability of the courtroom iden-
tification of the defendant as the perpetrator of the
crime. In both, the identification testimony constitutes
the 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 presence
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 (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.”
Judgment of The United States Court of Appeals
for The Sixth Circuit Entered on October 19, 1979
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 78-3587
JOHN GREGORY WATKINS, PETITIONER-APPELLANT
Vv.
DONALD BORDENKIRCHER, WARDEN,
KENTUCKY STATE PENITENTIARY, RESPONDENT-APPELLEE
Before: LIVELY and MERRITT, Circuit Judges, and
Brown, District Judge.
JUDGMENT—Filed Oct. 19, 1979
APPEAL from :he United States District Court for
the Western District of Kentucky.
THIS CAUSE came on to be heard 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
/s/ IMllegible
Clerk
60
EXCERPTS FROM TRANSCRIPT OF TRIAL
CONDUCTED IN JEFFERSON CIRCUIT COURT ON
May 17 and 18, 1976
Motion to Conduct Hearing Out of Presence of Jury
On The Admissibility of Identification Testimony
* * * *
[36] MR. ZEMAN: I’d like to make a motion, Judge,
based on the out-of-court identification to suppress any
in-court identification under Wade, Stovall and Denno.
As I understand it apparently the identification was from
a picture of the defendant in possession [37] of the
County Police. And I think that that would be unduly
suggestive to base an in-court identification on that out-
of-court I.D.
THE COURT: We have had cases on that before.
It’s not, really.
MR. ZEMAN: But if the Court would, I would like
to know if the Court would entertain a hearing at least
as far as the witnesses are concerned as to that out-of-
court identification?
THE COURT: Well, off the record a minute.
(At this point there was an off record discussion. )
MR. ZEMAN: We are moving to suppress any in-
court identification with the County Police from the mug
shot that she would have seen two days after the alleged
incident.
THE COURT: Okay, that’s overruled.
End of proceedings in chambers.
Excerpts From Trial Testimony of
Detective Rick Sanders
” x * *
[48] A _ Detective Rick Sanders.
2 Where are you employed, Detective Sanders?
A Jefferson County Police Department.
3 And how long have you been employed there?
A Four and a half years.
61
4 Did you have occasion, Detective Sanders to inves-
tigate the allegations contained in this indictment?
A Yes, sir, I did.
5 Will you tell us in your own words as best you re-
member what you did and what your investigation re-
vealed?
A Yes, sir. On July 21, 1974, at approximately 11:30
P.M., in the evening, I was contacted in my office. I was
working Homicide at that time. I was contacted by
Louisville Detective Swencki who works City Homicide,
Louisville Police. He was in General Hospital at the
time.
MR. ZEMAN: Objection to whatever someone else
did or where someone else was. I think that that is
hearsay.
MR. STREPEY: Judge, it’s not verbatim conversa-
tion—
THE COURT: (Interrupting) Overrule [49] the ob-
jection. Go ahead. "
A Detective Swencki was at General Hospital. And
he called me asking if I could come to General to inter-
view a rape victim. I advised him that I could. I left
the office and went to General Hospital where I met
Donna Furgason, the victim.
Donna had gone to the Louisville Police Headquarters
thinking that that was the person—
MR. ZEMAN: (Interrupting) Object to what some-
one else thought. Of course, the prosecuting witness, he
doesn’t know what she thinks.
THE COURT: I will sustain the objection.
A We found that the offense happened in Jefferson
County, our jurisdiction rather than Louisville police. So
I then took the investigation and Detective Swencki then
stopped his investigation. The reason for her going to
General Hospital was that every time we have a sex of-
fense case, or a rape victim, we take them to General
Hospital where they are cared for, and seen by a gynecol-
ogist, to determine whether there are any trauma or
injuries to the victim. At the time I got to General
Hospital she was receiving treatment from a doctor
there.
62
After the investigation ceased at General Hospital,
after she had had her examination, I took her to County
Police Headquarters to our Homicide Office, [50] where
I took a statement from her, where she told me what had
happened. She said the rape—
MR. ZEMAN: (Interrupting) Objection. Can we
see the statement, please, if you are reading from some
notes?
MR. STREPEY: Let him introduce it first. He hasn’t
—she will be available for, of course, examination herself.
THE COURT: She is going to testify. Overrule the
objection.
MR. ZEMAN: Judge, at this time I’d like to make the
same objection as to any testimony based on the Cooke
versus Commonwealth case, which would be hearsay as
happening in the course of some days after the event.
THE COURT: Overruled.
MR. STREPEY: There’s been no testimony yet.
THE COURT: Overruled. Go ahead.
A After talking with Mrs. Furgason I learned that
the offense had happened on that date, earlier in the
morning in the A.M. hours, 1:30 A.M. I asked her
why the delay, why she waited to call the police. She
was very emotionally upset, crying, stated she had fear of
her life or her family’s life. She stated that after [51]
the incident happened she was threatened by the defend-
ant and he told her if she went to the police, or said any-
thing about this, that he would come back and harm her
and her family.
I learned that it happened in the Fairdale area, which
is in Jefferson County. It happened off Penile Road,
which is one-half mile off of Manslick Road in Fairdale.
After I took the statement from Donna she explained
to me fully what had happened. She was extremely upset.
I took her down to the second floor to our Criminal In-
vestigation Division, where I showed her numerous photo-
graphs.
6 Did she give you personally a description of her as-
sailant?
A Yes, sir. She said one subject—
63
MR. ZEMAN: (Interrupting) Objection continuing
on the basis of the Cooke case.
THE COURT: Overruled.
A I took the information from her so I could fill out
the original report. And the two subjects that we were
looking for, the driver of the automobile was just an
accessory to the thing, he wasn’t guilty of rape.
MR. ZEMAN: Objection as to someone’s [52] guilt
or innocence.
THE COURT: Sustained.
A The subject that had done the rape was supposed to
have been a white male, in his 30’s, approximately five
foot nine, 180 to 190 pounds, had a rough complexion and
had tattoos on both arms. She said that she heard him—
she knew that he went by the name of Jimbo, that was
his nickname, and that she had learned this during this
offense.
9 Now, did she view some photographs there?
A Yes, sir, she looked through numerous photographs,
all of our photographs at Jefferson County Police Head-
quarters, and advised me, she said, “The guy’s picture
is not in here, I cannot identify anybody out of these mug
shots.”
10 How many pictures did she look at, do you have
any idea?
A Hundreds.
11 All right.
A It was late at night. After my investigation, the
initial investigation, it was some 2:00 A.M. the next
morning. Due to her condition I told her and her step-
father to go home and to call me the next couple of days,
so they could come and get me, and I’d take them to
Louisville Police Headquarters where she [53] could look
through more photographs.
On the 23rd of July she came to County Police Head-
quarters where she met me. I took her to Louisville
Police Headquarters to the second floor, the Criminal In-
vestigation Division, where she looked through all their
photographs also trying to locate the subject that raped
her. She went through several of these photographs, and
64
after a short time she pointed to the defendant’s picture
and said, “This is the man that raped me. There’s no
doubt about it, this is Jimbo, the man that raped me.”
I then learned that the defendant was James Willard
Summitt, got his adress off of the photograph, looked
through our files, through the City’s files, and then tried
to locate the subject so I could place him under arrest or
for a line-up.
Myself and my partner, Detective Horine, looked for
the subject for several days, went to his probation officer,
and tried to determine where we could find him. We
didn’t have any luck, he was hard to locate. We learned
he was transient.
At that time I contacted the victim again and asked her
if she would come down and take a warrant out for
the subject because I thought he might be out of our ju-
risdiction. We had information he was in Indiana. This
is the reason we asked her to take the [54] warrant,
because if he was in Indiana we would need a warrant.
12 Do you recall the time delay between when you
advised her to take the warrant and the offense was
first reported?
A The offense was first reported on July 21, 1974, at
2300 hours, or at 11:00 P.M., and she took the warrant
on the 21st of the same night in the evening hours
after we had called her and told her we could not locate
the subject, we had information he might be in Indiana.
13. And at what time, if you know of your own knowl-
edge, did the offense occur according to her information?
A The offense happened approximately 1:00 A.M.,
on the 21st.
14 So what time was there then between the offense
and when it was first brought to your attention?
A Maybe 14 hours of so.
15 All right.
A The reason, she had gone to the police earlier than
that, but she had gone to the wrong department. She
went to the City department in the evening hours, maybe
four or five A.M., and they, thinking it was a City of-
fense, they started the investigation.
* * * sd
65
[65] 76 Did sne give you a description of the car?
A ’67 to ’69 white Chevrolet with black interior,
hardtop.
77 You just read from this. It doesn’t have a color
on it, does it?
A That paper doesn’t, no, sir.
78 No. And this is some notes you typed up after
the incident?
A Yes, sir.
79 Okay.
A But she told me at that time it was a ’67 to ’69
white Chevrolet with black interior, hardtop.
80 Now, did this young man give you any further
description of the car, as to the contents of the car,
anything unusual?
A She said it was not an automatic, it was a three
speed on the column, black interior. But the defendant
was not driving the car, he was a passenger in the car.
81 Okay. And approximately how long did she say
she was in this car?
A Approximately two hours, hour and a half.
82 Did she tell you a direct time?
[66] A _ No, sir, she did not.
83 She didn’t?
A She told me she was picked up at approximately
1:00 A.M., in the morning and she did not tell me any
other time.
84 Picked up?
A Right.
85 You used the term picked up?
A Picked up by the defendant and forced into the
automobile by the defendant.
86 Well, did she say that she saw any weapon?
A She did not.
87 She didn’t mention a weapon one way or the
other, did she?
A No, sir, there was not a weapon. The only force
that was used was just the defendant slapping her,
hitting her several times.
88 Did she say how many times he hit her?
A No, sir, she did not.
66
89 Several times? Could it have been five?
A Could have been.
90 Could have been ten?
A Could have been.
91 But you didn’t notice any bruises on her face,
did you?
[67] A _ I noticed a puffy face. No bruises.
92 Now, you took the report on the 21st, okay, from
her?
‘A Correct.
93 And did you take that report at the County Police
Station?
A County Police Headquarters 208 South 5th Street.
94 Cxay. It’s no longer at 208, is it?
A Yes, sir, it’s still at 208 South 5th.
95 Thisisn’t the report you took, is it?
A No, sir, it’s not.
96 Okay. So these aren’t your original notes?
A No, sir, they are not. Those are the Grand Jury
notes that I used.
97 Now, did you show her some photographs?
A Yes, sir. She looked through all the photographs
at County Police Headquarters.
98 How many photographs is that? Give me an
estimate.
A There’s approximately 12 large books full of photo-
graphs. I’d have to estimate thousands of photographs.
Everyone that’s been arrested for a felony in Jefferson
County, their picture is in the mug book, [68] or the
photographs.
99 Okay. Now, you don’t have a copy of one of those
books, do you, with you?
A No, sir. They are all at County Police Head-
quarters.
100 Okay. And how long did it take her, if you can
recall, to look through these 12 books approximately?
A Maybe an hour, two hours.
101 Just an hour?
A Approximately.
102 How many photographs are in each book?
A Ican’t testify to that.
67
103 A hundred?
A More than that I would say.
104 Five hundred?
A I would guess maybe 150, 200.
105 And she looked at 12 hundred photographs for
a positive identification of a man who allegedly raped her
in an hour?
A That’s estimated time, an hour, two hours.
106 Well, there’s a difference. It was a short time,
wasn’t it, Officer?
A Couple of hours.
107 She couldn’t pick anyone out you say?
[69] A Correct.
108 Did she find anyone that resembled what she
thought might be her assailant?
A As she was going through the photographs I told
her, I said, “If there’s anyone there if his hair looks
the same, or the nose looks the same, or the ears, and
so forth, you can tell me that so I’ll know basically
what I’m looking for.” And she went through the photo-
graphs. And one subject had bad acne, or rough com-
plexion, and she said, “This is the kind of complexion
he has.” Another subject maybe had—
109 (Interrupting) Did you note down that photo-
graph, or do you have a copy of it?
A No, sir, I do not.
110 Okay. And isn’t it true after she went from
County Police Station you took her to the City Police
Station?
A This was two days after.
111 Two days later?
A She was emotionally upset that evening, it was
getting early A.M. hours the next day.
112 What time was it when she left the police
station?
A Approximately 3:00 A.M.
113 Was she with anyone else?
[70] A Her step-father, I believe.
114 Was he with her the whole time she looked at
the photographs?
A Yes, sir, he was.
68
115 Do you know his name?
A I can’t recall what it is right now. He is here
today.
116 Okay. He was with her the whole time?
A Yes, sir, the whole time she was at County Police
Headquarters.
117 All right, Officer. The next time you saw the
woman was two days later?
A Yes, sir.
118 Now, you state that that would have been the
23rd?
A Yes, sir, of July, 1974.
119 What time of day was that?
A Evening hours, 3:00 or 4:00 P.M.
120 3:00 to 4:00 P.M.?
A Approximately.
121 Where did she meet you?
A Approximately 3:00 to 4:00 P.M. She met me at
County Police Headquarters where I then took her to
the City Police Headquarters, Criminal Investigation
Section, where they have also a number of photographs
[71] there of people that had been arrested.
122. Okay. And did she look through a number of
books there?
A Yes, sir.
123 How many books did she look through there?
A Ican’t testify, I really don’t recall.
124 Did she look through two?
A Several. Many.
125 Twelve?
A Ican’t recall.
126 How long were you there?
A Couple of hours.
127 Was the woman’s step-father with her at that
time also?
A Yes, sir, he was.
128 He was, all right. Now, Officer, you didn’t per-
sonally know Jimmy Summitt, did you?
A No, sir, I had never met him.
. 0% Okay. And when was the first time you saw
im
69
A After the initial arrest. I can’t recall if it was
that next day or the next day. I did have contact with
him in order to question him about the offense.
* * * *
[74] 140 Now, Officer, did the woman give you a
description of the driver of the car, the second man?
A Yes, sir. That’s what I was going to tell you
earlier. There was supposed to have been a second per-
son involved in this thing, a subject by the name of
Willie. We had two nicknames for the defendant. She
called him Jimbo. And then the second subject, who we
have not located, who is the accomplice in the thing,
he went by the name of Willie.
141 Did she give you a better name than that? A
description of a man?
A She gave us a description of him.
142 What was that description?
A Approximately six foot one, light brown hair,
medium complexion, mustache, approximately 180 pounds,
medium length brown hair.
143 Medium length?
A Yes, sir.
[75] 144 Did she tell you what he was wearing?
A I don’t recall. I don’t think she did, no, sir. I
don’t recall.
145 Okay. Did she tell you about any identifying
marks on this man?
A No, sir. She just—she stated of the defendant
that he had tattoos on both arms that went by the name
of Jimbo, but nothing about the second subject except
the nickname of Willie. He was supposed to be the
driver of the white ’67 to ’69 Chevrolet with the defend-
ant as a passenger.
146 All right. And did she hear this driver speak?
A Yes, sir, I’m sure she did.
147 Did she tell you anything about his voice? Was
it deep? Was it high pitched?
A No individual characteristics that stood out, just
a normal voice.
148 Do you have any notes concerning this individual?
A No, sir.
70
149 None at all?
A No, sir. m : q
[78] 164 Okay. Now, Officer, do you have anywhere
written down any statements you made to the woman
while she was viewing the pictures in the picture book?
A No, sir, I do not.
165 So you don’t know if you asked her “Does this
look like the one”, or “could this be the one’”’?
A Yes, sir, I remember asking that.
[79] 166 And you did ask her that?
A I said, “If there’s anything noticeable about any
of these people that could look like the subject that raped
you just point them out to me and I'll take it into con-
sideration while looking for the subject.” But it was
not written down.
167 But you do have some written notes concerning
this case, don’t you, that you didn’t bring to court?
A That’s correct.
168 Are they in your office in Police Headquarters?
A Probably on the second floor of Criminal Investi-
gation Division, County Police Headquarters, where we
keep all of our files.
169 Did she describe the dress of the assailant?
A I don’t recall asking her anything about the cloth-
ing. She may have given me a clothing description but
I don’t recall what it is. I didn’t put much emphasis
on that because it’s so easy for them to change clothing.
And this was 20 hours after the offense occurred, they
could have very easily have changed clothing. I don’t
recall what she told me they had on at the time except
I do remember she said Jimbo had on a tank top.
[80] 170 Did she mention the color of that tank top?
A Ican’t recall.
171 Okay. Now, do you recall if the woman stated
that the assailant who raped her had a mustache?
A I don’t think she mentioned a mustache. She
mentioned the fact he had a very rough complexion, evi-
dence of acne.
172 Well, did she say he was unshaven, clean shaven,
what did she say?
71
A I don’t think she mentioned a mustache. She said
the number two subject, Willie, had a mustache, I can
remember that.
173 She did, okay. Did she state perhaps that this
man who assaulted her might have had a cast on his
leg?
A Ican’t recall.
174 Did she say he walked with a limp?
A Ican’t recall.
MR. ZEMAN: Okay, I don’t have any further ques-
tions at this time. I might wish to recall the officer.
” m * ~
Excerpts From Trial Testimony of
Donna Furgason
[104] DIRECT EXAMINATION
By Mr. Strepey:
1 Would you state your name, your age and your
address for the jury, please?
A My name is Donna Furgason, I’m 24, and I re-
side at 4312 Tuscarora.
2 Okay, Donna. Now, I know you are a little ner-
vous, so I just want you to relax if you can. And I want
you to tell the jury in your own words what, if any-
thing, happened to you on July the 21st, 1974.
A I just had gotten off from work and I went to a
phone booth on Taylor Boulevard and Bicknell. And when
I did a car pulled in behind me and a guy got out. And
he got in my side, on the passenger’s side, he got in my
ear. And he told me to get out of my car and get into
their car, which I did because I was afraid. All right.
And he told me to get in the front seat between him
and another guy.
38 Why were you afraid, Donna?
A Well, he had his hand in his pocket. He didn’t
say he had anything but I thought he did. I didn’t want
to take any chances.
12
4 Did you see anyone else around besides the two
men and yourself at that time?
A No.
[105] 5 Okay, go ahead.
A And then we drove out Taylor Boulevard and, I
don’t know, I’m not very familiar with that area, on
past there. We drove out there. And I know we went
into the Candelight—it used to be a bar and a lounge.
And they rode around and said they were looking for
somebody’s car, which they didn’t stop or anything. We
went back out onto the main highway, went down the
road a little way in front of Convenient, and we went on
up this gravel road. We went up there and turned
around at somebody’s house, and parked halfway down
the hill.
6 Before you go any further, Donna, would you tell
us what time of night this was?
A This was after midnight.
7 Okay. And what were you doing out this time of
night?
A Thad just gotten off from work.
8 And where were you working?
A At Parkside Restaurant.
9 Where were you going when you stopped?
A Iwas on my way home.
10 Okay. And was anybody with you in the car?
A No, sir.
11 Okay, go on.
[106] A And when we stopped they started talking
real vulgar to me and everything. And the guy over
there told me to take my clothes off and I refused, so he
started hitting me. And so I hit him back, and when I
did they both started calling me names, and they grabbed
me. Then he told the other guy to get out of the car
and then he raped me.
12 Now, Donna, when you say he raped you would
you tell us did he penetrate your body with his organ?
A Yes, he did.
138 Okay. Then what happened?
A Well, then he got out of the car and the other guy
come back and told me to put my clothes on. And then
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he went back there and they were talking, and he came
back and told me to take my clothes off. So I started
taking my clothes back off and then a car came. And so
they said, “Let’s get out of here.” They just jumped in
the car and they took me back to my car, which was
parked—
14 (Interrupting) Now, when you were parked in
the gravel road did you see anyone else around besides
the three of you? Was anyone there that could offer you
help or come to your aid?
A No, sir, we were out in the country [107] some-
where.
15 Okay. What happened after that, after you got
back in the car again?
A Well, he told me I had better not tell anybody about
it or I’d be sorry. He asked me where I lived and—
16 (Interrupting) Who told you this?
A The guy over there. And then he said that I’d be
sorry if I did, and he tried to find out where I lived and
everything, which I wouldn’t tell him. I just sat there
until they left.
17 Okay. I know you’re not looking in that direction
— you say that guy over there. Who are you referring
to
A Right there (indicating).
18 What is he wearing?
A He had on a tank—
19 (Interrupting) What is he wearing today so
we'll know who you are talking about?
A Oh. He’s got on a beige suit with a white shirt.
MR. STREPEY: Let the record show that she is
pointing to the defendant, James Summitt. Okay.
A At that time he had a mustache and he had longer
hair. But I know it’s definitely him.
sent 20 Okay. Now, you were driven back to your
car
A Uh huh.
21 Okay. What happened from that point?
A Well, that’s when they just told me I better not
tell anybody and he tried to find out where I lived. And
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he also told me that I had better meet them there the
next night.
22 How did he try to find out where you lived?
A Well, he went through my purse.
23 Did he find your address?
A No, I didn’t have my correct address on my license
at the time.
24 Did he ask you for your address?
A Yes, he did ask me.
25 And did you give it to him?
A No, sir.
26 Did he say anything particular to threaten you,
or what did he say, if you remember?
A No. To my knowledge the only thing he said was
I’d better not tell or I’d be sorry. He didn’t say what
he’d do, you know, he just said I’d be sorry.
27 Do you think he meant it?
A Yes, because I didn’t report it until [109] the next
day.
28 Okay. Now, what happened after you got back to
your car again?
A I went home to my sister’s house where I was liv-
ing. And I told my sister about it, and I told her I didn’t
want to tell anybody, you know, I just didn’t want to tell
it. And the next day my father came. And I was just
trying to avoid him because my face was a little swollen
and everything. And I knew he could tell, you know,
because I had been crying all night and everything. So
when he was getting ready to leave he talked to my
sister and asked her what was, you know, the matter, that
I was so upset, and she told him. And then my dad had
me go down to the police station.
29 Now, the man that you have pointed to a couple
of times, and you have identified as being your assailant,
James Summitt, had you ever dated him before that
night, or seen him?
A No, sir.
30 Did you willingly get in the car with him?
A No, sir.
31 Did you willingly submit to him?
A No, sir.
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32 Was this against your will?
A Yes, sir, it was.
[110] 88 Okay. Did you subsequent to that time take
a warrant against the man who raped you?
A I don’t understand the question.
34 Okay. When you finally reported it to the police
will you tell us what you did after that?
A After I called the report I went through some mug
books.
35 Do you remember if anybody was with you when
you looked at them?
A My father.
36 Anybody else there that you remember?
A Well, there was policemen around.
37 What police department was this, do you recall?
A This was the County.
38 How many pictures did you look at?
A I just looked at books full, that’s all I know.
39 Did you find anybody in those photographs in the
County that you recognized to be your assailant?
A No, I didn’t.
40 Okay. Did you look at any other pictures?
A Yes, we went to the City a couple of days later, or
the next day.
41 All right. Did you find any pictures [111] there
that you looked at?
A Yes, sir.
42 Did you recognize anybody that you saw in those
pictures?
A Yes.
43 Who did you see and what pictures did you see?
A It was James Summitt, and it was him. I knew,
you know, I just knew it was him right off.
44 Okay. I will ask you one more time, and then I
promise I won’t make you any more. Would you turn
around and look real good at that man over there?
A Yes, that’s him.
45 Is there any doubt in your mind that is the man?
A No.
46 Are you positive?
A Yes, sir, I’m positive.
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47 Absolutely positive?
A Yes, sir.
48 Okay. This area where you were raped, Donna, is
this in Jefferson County, Kentucky?
A Was the area in Jefferson County?
49 Yes.
A I believe so.
[112] 50 Okay, answer any questions Mr. Zeman may
have.
CROSS EXAMINATION
By Mr. Zeman:
51 Mrs. Ferguson, is it?
A Yes.
52 All right. What was your address?
A 4812 Tuscarora.
53 Who did you live there with?
A I lived there with my sister.
54 Did anyone else live there with you all?
A Her son.
55 Now, you stated that you were working that night.
And where did you work?
A Parkside Restaurant. It’s right up the street.
56 How long had you worked there?
A I think for about six months.
57 Six months?
A Uh huh.
58 Okay. What did you do there?
A Iwas a waitress.
59 Okay. And what shift were you working [113]
at that ‘ime?
A 1 went in at 4:30 and I got off approximately
11:30.
60 11:30?
A Well, we had to clean up and everything after-
wards, you know, it just varied what time we got off.
61 Okay. Were you all pretty busy that night?
A Pardon?
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62 Were you pretty busy that night?
A Idon’t recall.
63 You don’t remember?
A No,I don’t.
64 Okay. And you stated that you got in your car.
What kind of car do you have?
A What kind of car did I—I don’t have it any
longer. But I had a ’62 black Chevrolet.
65 ’62 black Chevy?
A That’s right.
66 Okay. And how far is the phone booth that you
were in where you parked your car from the restaurant?
A The phone booth is at Taylor Boulevard and Bick-
nell at the Hazelwood Shopping Center. Where I worked
was further down, I don’t know how many miles or
[114] anything, on Necut Road.
67 How long did it take you to get there?
A About five minutes.
68 Five minutes to get to the phone booth?
A Uh huh.
69 Driving in the car?
A Yes.
70 Okay. And you stated that you had never seen
up to that time James Summitt, is that correct?
A That’s right.
. r He didn’t come in the restaurant that night, did
e
A No, sir.
72 He had never been in that restaurant to your
knowledge, had he?
A No, sir.
73 And when you went to the phone booth who were
you calling?
A Iwas calling my husband.
74 You were separated at the time?
A Yes, we were.
75 And how long were you in the phone booth be-
fore—
A (Interrupting) I wasn’t. I never made it to the
phone booth.
78
(115] 76 You were never in the phone booth?
A I was never in the phone booth, no, I wasn’t.
77 Okay. Were you in your car when you were ap-
proached?
A Yes, I was.
78 Okay. Were you getting ready to get out of your
car?
A Ihad just pulled in and I was sitting there getting
my money out when he got in the passenger side.
79 The other side wasn’t locked?
A No, I did not have the car locked.
80 Okay. And you stated that he got in the passenger
side?
A Right. Yes.
81 Okay. And did this man call you by name?
A No, he didn’t.
82 Okay. What did he say to you?
A To my best knowledge from then he just told me to
get out and get in their car. !
83 Okay. He wasn’t driving the other car, was he?
A No, he wasn’t.
84 And you had never seen him before?
[116] A No.
85 Now, I realize this is difficult for you but, of
course, it has to be done. You got into the car. Did you
get into the back seat or the front seat of their car?
A I got in the front seat where he told me to get be-
tween the two of them.
86 Okay. And were there any other cars around or
any people at that time?
No.
87 Now, you say you drove through the Candlelight
Lounge?
A Yes, sir.
88 Where is that?
A I’m not sure. Like I said, I’m not familiar with
that area. I’m not sure if it’s on Third Street or where
it is.
89 How far was it from the phone booth? How much
time did it take you?
A Idon’t know.
79
90 Five minutes, ten minutes?
A It was a little over five minutes. I mean it was
over five minutes I know, because it was past where I
worked at.
91 So you had to go past your place of busi- [117]
ness?
<A Right.
92 From the restaurant?
A Right. |
93 Okay. Did you have any conversation with either
of the two men in the car?
A No, they were mostly talking among themselves.
94 Okay. What did they talk about?
A They were just talking. Like I said, they had been
drinking, and they were calling each other by name and
everything, and that’s how I knew they called him Jimbo.
And they were talking about—
95 (Interrupting) What was the other one called?
A Willie.
96 Okay. Had you ever met or do you know Willie
Meeks?
A No,I don’t
97 The name doesn’t ring a bell?
A Yes, it rings a bell.
98 Okay, now, wait a minute. You went with these
two men, and did they say they had been drinking?
A Well, they had it right there with them, they were
drinking at the time.
[118] 99 Was there any beer or any liquor evident in
the car?
A Both.
100 There was both?
A Yes.
101 Okay. Do you remember was it dark whiskey or
light whiskey, do you remember?
A I don’t know.
102 Did they ask you if you wanted anything to
drink?
A Yes, they did.
103 Okay. Did you drink anything?
A No,I didn’t.
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104 Now, you stated that they drove on further, is
that correct?
A Right.
105 Okay. And they went up to a house?
A At the end of this gravel road there was a house.
And they went up there and turned around and came
back down the hill. .
106 Wasit on ahill?
A Uh huh.
107 Did you know the area?
A No.
108 Had you ever been there before?
[119] A No, I haven’t.
109 Now, how long were you in the car until they
stopped the car? Just give me an approximation if you
can. One hour?
A No.
110 Ten minutes?
A About 15 minutes I’d say.
111 Now, you stated that one of these men struck
you. Is that true?
A He did.
112 Where did he strike you?
A In the face.
1138 Which side of the face?
A I’m not really sure, but I would say from where I
was sitting and where he was sitting it was on my left
side.
114 On the left side of your face, okay. And how
many times did he strike you?
A About three.
115 Did the driver strike you?
A No.
116 Okay. Now, you stated that after he struck you
he told you to remove your clothes, is that true? Now,
you just answer yes or no.
A No, it was—no.
[120] 117 Okay. And you stated that he was the only
one that struck you?
A That’s right.
81
118 Okay. You were in the front seat, is that cor-
rect?
A Yes.
119 Okay. And isn’t it true that the car itself was a
later model car?
A It was between a ’67 and a ’69 Chevy I’d say.
120 Okay. You can’t be sure, can you?
A No. I’m pretty familiar with cars, but I don’t
know the exact dates.
121 Had you ever seen that car before that incident?
A No. I mean I might have seen it but I mean it
didn’t mean anything to me if I did.
122 Okay. Isn’t it true that the interior of that car
was a dark color?
A I believe it was black, yes.
123 Could have been dark blue?
A Possibly.
124 Now, it was night, isn’t that correct?
A That’s right.
125 Okay. And isn’t it true that that car [121] was
a hardtop?
A No, that’s not true. It had a dark top but I did
not say it was a hardtop.
126 Could you say it was a convertible automobile,
or could you not be sure one way or the other?
A I really don’t know. I did not pay any attention
to the car.
127 Okay. Now, isn’t it true you said you struck this
man back?
A That is true.
128 Where did you strike him?
A In the face.
129 Okay. Did you hit him pretty hard?
A Hestarted bleeding.
130 He was bleeding?
A Yes.
181 Okay. Now, I realize, as I said, this is difficult
for you to go back on this, but it has to be done. All
right. After you hit him and he was bleeding did he
strike you again?
A No.
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132 He did not?
A No.
133 Okay. Did the driver of the car at that time
strike you?
(122] A No.
134 Did they then ask you to remove your clothes?
A No, then they both grabbed me, like I said, and
they were calling me names. And then he told the other
guy to get out of the car. And then he took my clothes
off.
135 He didn’t ask you to take your clothes off, he
took them off, is that true?
A No, he took them off. I refused to take them off.
136 And then you were in the front seat, isn’t that
correct?
A Yes.
137 And this is where you were allegedly raped, is
that correct?
A Right.
138 In the front seat?
(The witness nodded in the affirmative. )
139 And you stated that the other man was at the
back of the car, is that correct?
A To my knowledge. I don’t know exactly where he
was, but I would say he was behind the car.
140 Okay. Did you see at this time any other cars
or any other persons?
[123] A No.
141 And isn’t it true that after this alleged incident
occurred that the other man came back in the car?
A Did he come back in?
142 Yes.
A He came to the window and he told me to put my
clothes back on.
143 Okay. And then isn’t it true that they apparently
saw some car lights and then left the scene?
A No, not then. Then they went back there and
talked. He told me—and when he came back he told me
4 take my clothes back off, which I started doing, and
then—
83
144 (Interrupting) You had put them back on?
A Right.
145 And then he told you to take them back off but
you didn’t get a chance, did you?
A Because a car was coming.
146 And you left this area, is that true?
A Right.
147 Okay. Now, did you have a watch on?
A No.
148 Do you have any idea how long this took?
A Not really.
[124] 149 Would you say—
A (Interrupting) We weren’t up there a real long
time, no.
150 Five minutes, ten minutes?
A Id say about five minutes approximately.
151 Okay. And then you said that they took you
back in the direction of your car, is that correct?
A They took me back to my car.
152 When did they talk to you and state that they
wanted to see you again?
A When we were there—when we were there at my
car he told me to be there the next night, and I better
not tell anybody about it or I’d be sorry.
153 Okay. But you stated that these men asked you
for your address, is that correct?
A That’s right.
154 But you wouldn’t give it to them?
A No.
155 And you had no identification on you?
A I had my driver’s license, yes, but at that time I
had just moved from a previous address, and the address
wasn’t the one I lived at.
156 Okay. So you didn’t tell them, and apparently
they had no way of knowing where you resided, is that
correct?
[125] A _ Right.
157 Okay. Now, did you give a description of the
driver of that car to the police?
A Idid.
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158 Okay. What description did you give?
A He was tall, big built, and he was in”his 20’s.
159 Okay. And isn’t it true that these two men told
you to meet them at that same spot the next night?
A Yes.
160 Okay. Did they say what time?
A No, they just told me I better be there—no, they
said about the same time. They said, “Be here this time
tomorrow night.”
161 Okay.
A But they didn’t say it, he said it.
162 Just one of them?
(The witness nodded in the affirmative. )
163 Okay. Now, you are indicating that the defend-
ant told you—
A (Interrupting) The other guy, he didn’t bother
me except the one time I told you he grabbed me.
164 Okay. Now, I asked you before if you had heard
of a Willis Meeks?
[126] A _ Right.
165 And isn’t it true that you went to this spot the
next night with the police, and there was in fact a Willis
Meeks driving an automobile around there, the same
_— and model approximately as the vehicle you were
in
A No, that’s not true, cause I didn’t go back. My
father went back.
166 Your father was with the police?
q a Right, I wasn’t with them. I didn’t want to go
167 And was there a Willis Meeks—
MR. STREPEY: (Interrupting) Objection. That’s
hearsay. He can call the witness if he wants to.
THE COURT: Sustained.
168 Now, Mrs. Furgason, where did you go after the
incident when you were taken back to your car?
A I went to my sister’s.
85
169 Okay. And how much time approximately was
there from the time that this man first came up to you
when you were in the car, and when you left, got back
to your car and left the scene, approximately?
A From the time I got into his car back to my car?
170 Yes.
[127] A I'd say approximately 45 minutes.
171 Approximately 45 minutes?
(The witness nodded in the affirmative.)
172 Now, where did you go at that time?
A At what time?
173 When you got back to your car. Where did you
go?
A _ I went to my sister’s.
174 And that address was 4312 Tuscarora Way, isn’t
it?
A That’s right.
175 How much time did it take you to get to your
sister’s?
A About three minutes.
176 Three minutes. She lives very close?
A Right behind the shopping center.
177 And was she awake?
A Wasshe awake? No, she wasn’t.
178 Did you awaken her and tell her what had
happened?
A Yes, I did.
179 You did. She is not here today, is she?
A No, she isn’t.
180 Now, what time of night was this when you got
back to your sister’s house, if you know?
[128] A _ It was around 1:00 I'd say.
181 Okay. Around 1:00?
(The witness nodded in the affirmative. )
182 1:00 in the morning, correct?
A_ Right.
183 Okay. Of the next day?
A What do you mean of the next day? It was still
that morning.
86
184 Apparently the—you stated that you were work-
ing until 11:30?
A Right, okay. It was the next day then.
185 And you stated that you told your sister that,
what had happened?
A Yes.
186 When you got home you woke her up and told
her. Okay.
(The witness nodded in the affirmative. )
187 And isn’t it true that you didn’t go to the hos-
pital then or call the police?
A That’s true, I didn’t.
188 And isn’t it true that you waited in fact until
the next day when your father came home?
A That is true.
189 Okay. How long had you been living at your
sister’s?
[129] A _ I’d say—lI don’t know for sure.
190 Just an estimate.
A I’dsay a couple of months.
191 Now, when your father came by isn’t it true
that you didn’t tell him right away what had happened?
A No, I didn’t tell him.
192 And isn’t it true that he in fact asked you is
something wrong?
A_ No, he asked my sister.
193 He asked your sister?
A And she told him. And then he came and told me
what she told him.
194 Okay. So you’re saying that your sister told him
and then he asked you?
A Right.
195 Okay. Did you call the police right away when
he suggested it?
A We went right then to the police. We went right
and talked to the police, yes.
196 From your sister’s house that next day do you
have any estimate as to what time it was of the day
that you would have reported this?
A It was in the afternoon.
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197 Was it in the late afternoon or early [130] after-
noon?
A Id say about 3:30 or 4:00.
198 When you went to the police station?
A I believe so. That’s been two years.
199 And when you got to the police station what
happened?
A Well, we talked to these detectives. And they were
on the City, and they needed the County. So I was at the
hospital with the City Police Officer and they had to call
in the County Police.
200 Okay. Did they ask you to go back to the scene
with them, the City Police Officers?
A No, the City Police didn’t take care of it, it was
the County Police.
201 Okay. When you told them what happened they
said, “Well, we better call the County Police”?
A Right. And I was at the hospital at that time.
202 So you went from the police station after you
reported the incident to the hospital, is that correct?
A Right, I believe so.
203 Okay. And when you went to the hospital what
happened?
A Well, then they took us to the police—[131] I had
an examination.
204 Okay. Let me ask you this: Do you remember
the name of the doctor you saw?
A No, I’m sorry, I don’t.
205 Don’t remember, okay. Do you know if he was
a regular doctor there or a student or what?
A Ihave no idea.
206 Okay. Did they take a report from you at the
hospital?
A What do you mean by a report?
207 Did they write anything down that you told
them? Did they make you sign anything?
A Well, they had their report.
208 But did they run any tests on you?
A Yes, I had an examination.
88
209 Okay. Now, where did you go from the hospital?
Let me ask you this: How long were you at the hospital
approximately?
A Idon’t remember.
210 You can’t remember?
A Uh uh.
211 Okay. Where did you go after you were at the
hospital?
A That’s when we went down to the County I he-
lieve.
[182] 212 Tothe County Police Station?
A Yes, sir.
218 Okay. Did you talk to any police officer there?
A Yes, they took a report.
214 Did you see Detective Sanders there?
A Yes.
215 Was that the first contact you had with Detective
Sanders?
A Yes, sir.
216 Okay. And he took a report from you, isn’t that
true?
A Him and another detective.
217 Doyou remember that detective’s name?
A Horine, or Horen, or something.
218 Now, did they ask you at that time to look in
any picture books?
A No. At that time they drove me—some more offi-
cers drove me out to the location.
219 So you did go back to the location. Was it with
the County Police Officers?
A Uh huh.
220 Were they in uniform or plain clothes men?
A No, they were plain clothes men.
221 Was Detective Sanders one of them?
[133] A No, I don’t think so. No, he wasn’t.
222 What did these officers ask you?
A They were trying to find out where the location
was. And I gave'them a general idea. And so we started
driving around till we found it.
223 Okay. Did you get out of the car at that location?
A I don’t believe so.
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224 Did they get out of the car?
A I don’t remember.
225 Okay. Then after you went out to the location
where did you go from there, back to the County Police
Station?
A That’s when we looked at some mug books.
226 What time of night would that have been, do you
remember?
A I don’t have any idea.
227 Was it dark outside?
A I believe—I don’t know. I don’t remember, I
really don’t. Yeah, I think it was, because I think it was
dark when we were out in the car.
228 And when you got back to the police station you
can’t say what time it was, can you?
A No,I can’t.
229 Did you look at a lot of pictures?
[1384] A _ Yes, I looked at quite a few.
230 Who helped you look at them?
A AsI said, me and my father were looking at them.
231 Did Detective Sanders help you, or any other
police officer?
A Idon’t think so. They were just coming in and out,
you know, asking if we found anything. But nobody
really helped me.
232 Do you remember how you looked at the pic-
tures? Were they in a book?
A Yes.
233 Can you estimate how big, how thick, the books
were?
A Approximately they were different sizes. Some of
them were big and some of them were bigger, and there
were several pictures on each page.
234 Do you remember the number of books that you
looked at?
A No,I’m sorry.
235 It was a long time ago, wasn’t it?
A But I still know it’s him.
236 Now, when you looked at these books do you re-
member if it was ten books you looked at or 20 books?
[135] A It was more than ten I’m sure.
90
237 Okay. And how long were you in the County
Police Station looking at these books?
A I don’t know.
238 Was it along time?
A It took three or four hours I’d say.
239 Could it have been more than four hours? You
looked at a lot of pictures?
A I don’t remember.
240 But your best estimate is three to four hours, is
that correct?
A Yes.
241 Now, did you see anybody in these books that
might have resembled your assailant?
A No.
242 Nobody at all?
A No.
243 Okay. And after you left the police station where
did you go?
A I think I went home.
244 Were you with your father still?
A Yes.
245 He was with you when you looked at the pic-
tures?
A Right.
[186] 246 The next day isn’t it true that you went
back to look at more pictures?
A No, I don’t think it was the next day, I think it
wes the day after.
247 So two days later you went and looked at more
pictures. Did you look at them in the County Police
Department?
A No, it was in the City this time.
248 Okay. Do you remember how many pictures or
how many books you looked at then?
A It was more than before.
249 Okay. So it was more than ten books and a lot
of pictures?
A I mean there was more books there, but I’m not
sure I went through that many. But I know I went
through quite a few before I found him.
91
250 And was anybody helping you look at these
pictures?
A My father was there also.
251 Your father was there then, too, wasn’t he?
A Yes.
252 Now, so the first time that you saw a picture
who resembled your assailant was in the City Police
Station, isn’t that true?
[137] A He didn’t resemble it, it was him.
253 But the first time you saw this picture was in
the City Police Station?
A It was in the City, yes.
254 And you had looked at a great number of pic-
tures before this, and during that day, isn’t that correct?
A That’s right.
255 Okay. And when you found this picture who did
you tell?
A I told my father, and then he went and got a
police officer.
256 And he brought the police officer in, didn’t he?
(The witness nodded in the affirmative. )
257 Okay. Now, this day——now, you say it would
have been two days after you went to the County Police
Station. All right?
A I think.
258 Okay. Did you at that time take out a warrant
for this man?
A At that time? I don’t know if I did then or not.
259 Okay. Do you want a minute to compose your-
self? Okay.
[188] MR. ZEMAN: Judge, should we call a recess?
I realize this is hard.
THE COURT: Get her a cup of water.
MR. ZEMAN: Wecan call a recess.
THE COURT: Do you want to go with her and get a
glass of water?
THE WITNESS: No, I'll be all right.
(At this point there was a short pause.)
92
260 Now, Mrs. Furgason, you stated that the other
man in the car was named Willis, or that’s how he
called himself?
A Willie.
261 And isn’t it true that you didn’t find any pic-
tures of him?
A That’s right.
262 Okay. Were you looking for both men or just
one?
A Iwas looking for both of them.
263 Okay. And isn’t it true that you stopped when
you found a picture of James Summitt?
A That is true.
264 You didn’t look any further for the other man,
did you?
A That’s right.
265 Now, so after you saw this picture your [139]
father brought in the policeman and said there’s the
picture, and it wasn’t at this time, was it, when you took
the warrant?
A Idon’t think so, no.
266 Okay. And wasn’t it in fact some ten days later
when you took the warrant?
A It seems like it.
267 Okay. Did you talk to any of the police officers
at that time about that picture that you had picked out?
A What do you mean by talk to them?
268 Did any of you, any of the police officers, ask
you if you were sure that was the man?
A Yes, I did positively identify, yes. They did want
to know if I was sure that was him.
269 Excuse me?
A Yes, they did want to know if I was sure it was
him.
270 Okay. And which detective asked you, if you
remember?
A I don’t remember.
271 Were there several of them?
A I don’t remember that, either.
93
272 Okay. Did Detective Sanders ask you if you
were sure that was the man?
[140] A At that particular time?
273 Yes.
A No, he wasn’t there.
274 Okay. After that did he ask you?
A Yes.
275 Now, after you saw this picture and you picked it
out where did you go?
A I don’t remember.
276 You don’t remember. Did you go back to the
County Police Station for more reports or did you go
home?
A I don’t remember.
277 Okay. Now, after you left the police station, and
you waited some time to take a warrant out for this
man, did you meet with Detective Sanders after you had
taken the warrant out?
A I don’t remember that.
278 You don’t remember. When was the next time
you saw the picture of the man?
A When is the next time?
279 Yes.
A I saw the picture?
280 Yes.
A I think it’s when I took the warrant out.
281 Okay. So some detective would have been [141]
with you when you took the warrant out, isn’t that true?
A I think so.
282 And would that detective have been Detective
Sanders?
A Yes. If it was anybody it was Rick.
283 You call him Rick?
(The witness nodded in the affirmative. )
284 Have you talked to him since—well, let me re-
phrase it. Did you see him after he took the warrant
out, Detective Sanders?
A At court.
285 And that was the next time you saw James
Summitt, wasn’t it?
A I think it was the next time.
94
286 Inthe Courthouse, isn’t that true?
A Right.
287 Okay. You never saw James Summitt at the
police station, isn’t that true?
A That is true.
288 Okay. Did you come down and talk to any de-
tective, Detective Sanders, after you took the warrant
out and before you went to court?
A No, I don’t believe so.
289 Did you talk to him on the phone?
A Idon’t think so.
[142] 290 You can’t be sure but you don’t think so,
is that true?
A This has been a long time, I don’t remember all
these details.
291 Okay. I have to ask these questions. I have to
ask them. Now, okay, going back, isn’t it true that the
first time you saw James Summitt after you picked this
picture out was in the Courthouse?
A No, the first time I saw him was in my car.
292 After you picked the picture out, Mrs. Furgason,
isn’t that true?
A Yes.
293 All right. Now, how many times after that did
you see James Summitt?
A Every time we went to court. I don’t know.
294 Okay. So you saw him a number of times after
that, isn’t that true?
A That’s right.
295 Was Detective Sanders with you?
A Yes. (Witness crying.)
296 Okay.
MR. ZEMAN: We can give her a minute, Judge.
[148] THE COURT: Okay.
(At this point there was a short pause in the pro-
ceedings. )
297 Now, Mrs. Furgason, I want you to go back, and
I’m going to ask you isn’t it true that the man who as-
saulted you had a limp?
95
A Idon’t remember. I never saw him walk.
298 Did he have a cast on his leg?
A I don’t remember that.
299 You don’t remember that, okay. And do you
remember on the times that you saw James Summitt in
the Courthouse did he have a cast on or did he walk
with a limp?
A I didn’t—I didn’t look at him that way.
300 Now, did you—excuse me, let me go back. Isn’t
it true that you were in the same room with James
Summitt in this Courthouse at one of the court appear-
ances?
A That is true.
301 Okay. And isn’t this true, that this was after you
had picked his picture out, and after you had been to
court a number of times on this case? Isn’t that true?
When you were in the same room with him.
A What do you mean by a number of times?
302 One time, two times. You said you had [144]
been to court a number of times against him and had
seen him in that courtroom.
A Yes.
303 Okay. Then after those number of times isn’t it
true that you were in the same room with him with a
prosecutor? Isn’t that true?
A Yes, we was in the same room.
304 Okay. And isn’t it true that after you were in
the same room with him at another court appearance you
had seen him again, isn’t that true?
A Would you repeat that, please?
305 After you were in the same room with James
Summitt—
A (Interrupting) Yes.
306 At one of the numerous court appearances after
you were in the same room with him—now, excuse me,
I don’t want to confuse you, it wasn’t a room like this,
it was a smaller room like a room like that size.
A Right.
307 That after that occasion you had even seen him
again in a court appearance?
A I believe so.
96
308 So you saw him a number of times and you were
even in a small room with him, that’s true, isn’t it?
[145] <A Yes, that is true. |
309 Now, I realize that it’s been two years, and as
you stated that’s a long time to remember some details,
but isn’t it true that you found his picture and said this
man was the one after you had seen a lot of pictures, and
been talked to by a lot of police officers, and had been
under a great deal of stress, isn’t that true?
A I had been through a lot of pictures and stuff, yes.
310 And isn’t it true that you were under a great
deal of distress as you are today?
A Yes, that’s true.
311 It’s not easy, is it, to come into court and say
that this happened, and there is the man that did it,
is it?
A Yes, it is easy, because that’s him.
312 Well now, let’s see. Isn’t it true that it’s easy if
you’ve seen him a number of times? Isn’t that true?
A I knew his face right away. No, it’s not, because
I picked him right out of there.
MR. STREPEY: He is arguing with the witness.
She’s answered the question two or three times.
THE COURT: Sustain the objection.
[146] 313 Allright, Mrs. Furgason.
MR. ZEMAN: Okay, I don’t have any further ques-
tions at this time.
MR. STREPEY: I just have a couple or three.
REDIRECT EXAMINATION
By Mr. Strepey:
314 Donna, how old were you in July of 1974 when
this happened?
A 22.
315 Can you estimate the length of time that you
were in the same automobile with these two men from
97
the time that you were abducted until the time they let
you out? —
A Approximately 45 minutes.
316 During this period of time did you get a good
look at the face of the man that raped you?
A Yes, I did.
317 Is there any doubt in your mind that’s the man?
A No. We were right in the light at first when we
went through that bar. We were in the light and I know
that was him.
[147] 318 So today when you say that James Summitt
is the man that raped you you are not saying it because
you saw the pictures, you are saying it because he was
the man in the car that night?
A Yes, he was.
319 Did you notice was he wearing a long sleeve
shirt or a short sleeve shirt, do you remember?
A He had on what they call a tank top, and he had
tattoos on his arms. That was one thing I’ll never forget.
320 Could you see the tattoos on the pictures that
you saw in the police station?
A Not to my knowledge, no.
MR. STREPEY: Thank you very much, Donna, that’s
all.
RECROSS EXAMINATION
By Mr. Zeman:
321 Mrs. Furgason?
A Yes.
322 Now, of course, we have been over this a number
of times, and I’m going to ask you just one question.
Have you ever seen anybody that you thought was some-
ss, else in your life? Has that ever happened to [148]
you
A Yeah, it happens to everybody.
323 Okay. If you’re honest you have to say yes,
wouldn’t you?
A That is true.
98
324 And isn’t it true that you may have seen some-
one you thought was someone else several times? Isn’t
that true?
A Not several times. I’d say a few times, a couple.
325 Cause that happens, doesn’t it?
A Yes, it does.
326 Okay. And when you stated that—when you
pointed to him and said he’s the man—
A (Interrupting) You don’t forget somebody—
327 (Interrupting) Isn’t it true that he is also the
man in the picture and who you had seen before, isn’t
that true?
A Yes, it is true.
MR. STREPEY: Judge, she has answered the ques-
tions before, the same line of questions before.
THE COURT: All right. Is that the case?
MR.STREPEY: That is the case, Judge.
THE COURT: Do you remember where the tattoos
were?
[149] THE WITNESS: On his arms. I know he had
them up here.
THE COURT: On the forearm?
MR. STREPEY: No, that’s the biceps.
THE COURT: Biceps, I mean. On both arms?
THE WITNESS: I believe so, yes. He had them on
both.
(Witness excused)
* * * *
Excerpts From Trial Testimony of
James Willard Swmmitt
([168] 79 Now, Jim, when you were in court these
last few times, and in that jury room with Donna Fur-
gason and those police officers, what did you have on?
[169] A _ I had on a shirt, a short sleeve shirt, and a
pair of Levis. I think—I know I had a short sleeve shirt
on because the prosecutor said, “Let me see your arms.”
99
80 Why did he do that?
A Because I had tattoos on my arms.
81 Okay, were you in custody then?
A Yes, I was.
82 Okay. And you faced that girl as close as you are
to that gentleman there in that front row?
A Yes, sir.
83 And in those prison clothes with the short sleeve
shirt on?
A Yes, sir.
te me tH
[180] 1384 Are you saying on direct, Mr. Summitt, that
the first time that you can recall, or that you want to
admit, that this young lady saw you with your arms
bare, and the tattoos, was in that conference room [181]
here in this Courthouse?
A Yes, sir. Right, correct.
135 And unless you raped her there’s no ay that
you know that she would have known before then that
you had tattoos on your arm, is that what you are
saying?
A What I’m saying is the lady seen the tattoos on my
arm in the jury room.
136 And you are claiming that is the first time that
she ever had an opportunity to see your arms?
A Well, I imagine. The prosecutor made me show
my arms to everybody in the room.
137 I’m asking before that, Mr. Summitt.
A No. The first time I ever seen the lady, like I told
everybody, was in County Police Court.
* * * +
Defense Objection to In-Court Display of
Tattoos Worn by Defendant
[188] MR. ZEMAN: The prosecutor has asked that
we put the defendant, James Summitt, back on the stand
for the purpose of displaying his tattoos to the jury.
And I am objecting to him displaying his tattoos to the
jury for the reason that the prosecuting witness did not
100
state what type or what the tattoos looked like on the
defendant’s arms. I am also objecting on the grounds that
the defendant has stated that he has tattoos, and that
without putting the prosecuting witness back on the
stand to state what type of tattoos, and what these
tattoos looked like, would be prejudicial to the defendant
to have [189] him display those tattoos to the jury.
THE COURT: Overruled. I will let the Common-
wealth go ahead and do it.
-_ * * *
In-Court Exhibition of Tattoos Worn
By Defendant
* * * *
[214] THE COURT: He can stand up where he is if
he wants to. (To the defendant.) Just roll your sleeves
up.
MR. ZEMAN: Take your coat off.
THE COURT: Take your coat off and roll your
sleeves up, Mr. Summitt, so we can see your arms.
MR. STREPEY: Let the record show that the de-
fendant was exhibiting tattoos on his forearms and
upper arms.
MR. ZEMAN: Roll up, if you would, Jimmy, your
right sleeve. And would the record show that the name
Jimmy is on the right biceps.
* # * &
Excerpts From Trial Testimony of
Detective Rick Sanders
* & & a
[228] A No, sir, I took the description the same eve-
ning at 2330 hours, 11:30 P.M. The offense happened at
approximately 1:30 A.M. that morning and I took a
description that afternoon.
17 Okay. And that’s how many hours?
A Approximately 20.
101
18 20 hours later?
A Yes, sir.
19 Okay. And isn’t it true that the description of the
assailant was a white male, 180 to 190 pounds?
A Yes, sir, it was.
20 And isn’t it true that the description stated that
the man called himself Jimbo?
A The description was that the subject was a white
male, in his 30’s, approximately 5 foot 8, 180 to 190
pounds. These are approximate figures.
21 It could be more, couldn’t it?
A It could very easily, could be less. We find a lot of
cases the descriptions are not perfect because the victim
is so shaken and so forth she can’t give a perfect de-
scription of the subject. She gave us a very good brief
description of him. A white male, in his 30’s, [229] ap-
proximately 5 foot 8, 180 to 190 pounds, had tattoos on
both arms.
22 Did she describe the tattoos?
A No, sir, she did not. Subject had rough complexion,
— type face, medium length hair, brown hair or dark
air.
23 Subject have any facial hair?
A Ican’t recall her saying that.
24 You can’t recall?
A Can’t recall.
25 Okay. And isn’t it true that you took the prose-
cuting witness and showed her various pictures in vari-
ous picture books?
A Yes, sir. As I stated before that evening we took
her to the second floor.
26 Just answer yes or no.
A And showed her various photographs. And two
days following that we took her down to City Police
Headquarters where she viewed numerous photographs
again, and positively identified defendant’s picture.
27 Okay. And isn’t it true that that picture that you
showed her was a picture that showed the defendant’s
a and was a picture that showed tattoos, isn’t that
true
A No, sir, I don’t believe it did.
102
[230] 23 Now, isn’t it true, Officer, that you stated
yesterday that she looked through perhaps as many as
12 books of pictures?
A Yes, sir, I estimated that.
29 And did you say that that was a two hou
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