Petition — Summitt v. Sowders, (1979)

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

IN THE SUPREME COURT OF THE UNITED STATES

NO. 1G-5951. Misc., October Term 1979

RECEIVED

JAN 1 7 1980 -

OFFICE OF THE CLERK

SUPREME COURT, U.S.

JAMES WILLIAM SUMMITT,

Petitioner

DONALD E. BORDENKIRCHER, WARDEN,

Respondent

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR SIXIH CI°CUIT

~——~——"CAND APPENDIX) _

RANK EFT, JR. PAUL G. TOBIN

CHIEF APPELLATE DEFENDER OF THE JEFFERSON DISTRICT PUBLIC DEFENDER

JEFFERSON DISTRICT PUBLIC DEFENDER OF COUNSEL

200 CIVIC PLAZA

701 WEST. JEFFERSON STREET .-

LOUISVILLE, KENTUCKY .40202

(502) 587-3300

COUNSEL FOR PETITIONER

CERTIFICATE

¥ do hereby certify that a copy of this petition was

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

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

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

Counsel for Respondent, on Lowry 16 , 1980.

<4 CG

ee “ws, Alef)

FRANK W. HEFT, JR. ef

ee eee

TABLE OF CONTENTS

Page

OPINIONS BELOW 1

JURISDICTION | ‘ 1

QUESTIONS PRESENTED | 3 2

CONSTITUTIONAL PROVISIONS INVOLVED 2

STATEMENT OF THE CASE . | 3-4

REASONS FOR GRANTING TH™ WRIT _: So:

CONCLUSION . | 12

APPENDIX | attached

TABLE OF POINTS AND AUTHORITIES

Brown _v. Commonwealth, Ky.App., 564 S.W.2d 24 (1978) 6 |

‘Clemons v, United States, 408 F.2d 1230 (D.C. Cir.

1968) cert. denied, 394 U.S. 964, 89 S.Ct. 1318,

22 L,Ed.2d 567 (1969) 7

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

1970) 8

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 10

L.Ed.24 908 (1964) ) 7.4

Luckett v. Commonwealth, Ky., 550 S.W.2d 517 (1977) 6

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

53 L.Ed.2d 140 (1977) 6,10,11

Myers v. Commonwealth, Ky., 489 S.W.2d 277 (1973) . .6

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

L-Ed-2d GOT (1972) ‘a 6,10 °

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

. L-Ed.2d 31 (1967) | 9

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

967, 19 L.Ed.2d 1247 (1968) 6

Summitt v. Bordenkircher, 608 F.2d 247 (6th Cir, 1979) 1,4,9,10

Summitt v. Commonwealth, Ky., 550 S.W.2d 548 (1977) 1,4

Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 7

L.Ed.zad 908 (1964)

.United States ex rel, Fisher v. Driber, 546 F.2d 18 7.19

(3rd Cir. .1976) :

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

912 (2nd Cir.), cert.- denied, 400 U.S.908, 91 8

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

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

cert. denied, 396 U.S. 968, 90 S.Ct. 449, 24 L.Ed.2d | 7.8

433 (1969) ‘ ef

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

? 1969) cert. denied, 396 U.S. 1017, 90 S.Ct. 581, 8

24 L.Ed.2d 508 (1970) 7

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

1971), cert.denied, 406 U.S. 909, 92 S.€t. 1067,

31 L.Ed.2d 821 (1972)

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

1976)

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

cert. denied, 400 U.S. U.S. 959, 91 S.Ct. 358 8

27 L.Ed.2d 268 (1970) y

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

Cir. 1970) cert. denied, 409 U.S. 1078, 93 S.Ct.

698, 34 L.Ed.2d 668 (1972) 8

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

18 L.Ed. 2d 1149 (1967) vanene

STATUTE

28 U.S.C. §1254(1) 1

CONSTITUTIONAL PROVISIONS

Sixth Amendment 2

Fourteenth Amendment | 2

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

E SIXTH C

The petitioner, James Willard Summitt, prays

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Sixth Circuit

which was entered in this case on October 19, 1979.

OPIN®™ONS BELOW

The trial court did not render a written opinion

in this case. The judgment of conviction in the trial

court was entered on June 4, 1975 and is reproduced in the

Appendix at 20. The Kentucky Supreme Court affirmed the

judgment of the trial court in Summitt v. Commonwealth, Ky.,

550 S.W.2d 548 (1977). This opinion is reproduced in the

Appendix at 16-19.

A petition for a writ of habeas corpus was filed

in the United States District Court for the Western District

of tentacles at Louisville. The petition was dismissed in a

memorandum opinion. The opinion and judgment entered by the

United States District Court are reproduced in the Appendix

at 11-15. The United States Court of Appeals for the Sixth

Circuit affirmed the judgment of the United States District

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

The opinion and judgment of the United States Court of Appeals

for the Sixth Circuit are reproduced in the Appendix at 1-9.

JURISDICTION

The order of the United States Court of Appeals for

the Sixth Circuit affirming the judgment of the United States

District Court was entered on October 19, 1979 and this petition

for a writ of certiorari is timely filed within ninety days

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

§ 1254(1).

QUESTION PRESENTED

DOES CONSTITUTIONAL DUE PROCESS OF LAW REQUIRE

A STATE TRIAL COURT TO CONDUCT A HEARING OUTSIDE THE PRESENCE

OF THE JURY TO DETERMINE THE ADMISSIBILITY OF IDENTIFICATION

EVIDENCE?

CONSTITUTIONAL PROVISIONS INVOLVED

SIXTH AMENDMENT

In all criminal prosecutions the accused shall enjoy

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

of the state and district wherein the crime shall have been

committed, which district shall have been previously ascertained

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

accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for his defense.

FOURTEENTH AMENDMENT

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction hereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforece any law which shall

abridge the privileges or immunitites of citizens of the

United States, nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the law.

ee a

STATEMENT OF THE CASE

The petitioner, James Willard Summitt, was

indicted in the Jefferson Circuit Court on September 19,

1974 for the rape of Donna Jean Furgason (Transcript of

Record, hereinafter referred to as TR 2). The same day

Summitt waived arraignment and entered a plea of not guilty

to the offense charged (TR 3). On May 17 and 18, 1976,

a trial on the merits was held.

The evidence for the prosecution tended to establish

that, sometime between 11:30 p.m. on July 20.and 1:30 a.m. on July

21, 1974, the prosecutrix was forced out of her car and into

another vehicle (Transcript of Evidence, hereinafter referred

“to as TE 104), was driven to another location where she was raped,

and was then returned to her car (TE 62-63, 105-106, 124, 127-128).

The next afternoon, after a discussion with her stepfather,

the prosecutrix reported the rape to the police (TE 109, 111).

On the evening of July.21, 1974 and again on July 23, 1974, the

prosecutrix an her stepfather viewed police photograhs in

an attempt to identify her assailant (TR 52-53, 71). On the

second date, she identified the photograph of Summitt as her

assailant (TE 114). Although the photographs were requested

by defense counsel, they were not produced at trial (TE 237).

Therefore, it is impossible to determine whether the prosecutrix

identified Summitt at her first opportunity and whether

her photographic identification was made under highly suggestive

circumstances. Although there was no formal lineup identification,

Summitt was seen by his accuser in court on at least two

occasions before the trial (TE 141-142).

On the day of trial, prior to the time the first witness

took the stand, a motion was made to suppress any in-court

identification of Summitt (TE 36). The motion was overruled

(TE 37). Defense counsel then unsuccessfully asked for a

suppression hearing on the identification issue (TE 37). The

prosecutrix was the only witness who testified to the rape.

There was no corroborating testimony introduced by other

eyewitnesses, nor was any medical or scientific evidence

introduced in support of her claim. Moreover, Summitt testified

in his own defense and presented other witnesses in support of

his claim that he was elsewhere at the time of the crime.

Nevertheless, after hearing the evidence, the jury returned

a verdict of guilty and recommended a sentence of life

imprisonment (TE 270),

The judgment of the trial court was affirmed by the

Supreme Court of Kentucky in Summitt v. Commonwealth, Ky.,

550 S.W.2d 548 (1977). <A petition for a writ of habeas corpus was

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

District Court for the Western District of Kentucky at Louisville.

The petition for a writ of habeas corpus was dismissed by the

district court and the United States Court of Appeals affirmed

the dismissal in Summitt v. Bordenkircher, 608 F.2d 247 (6th Cir.

1979). This petition for a writ of certiorari is from the order

of the United States Court of Appeals affirming the petitioner's

conviction.

ee. wd

TAP

REASONS FOR GRANTING THE WRIT

THIS COURT HAS NOT SPECIFICALLY ADDRESSED

THE QUESTION OF WHETHER CONSTITUTIONAL DUE PROCESS OF. LAW

REQUIRES A STATE TRIAL COURT TO .CONDUCT A HEARING OUTSIDE

THE PRESENCE OF THE JURY TO DETERMINE THE ADMISSIBILITY OF

IDENTIFICATION EVIDENCE. FURTHERMORE, THERE APPEARS TO BE A

CONFLICT BETWEEN CIRCUIT COURTS OF APPEALS ON WHETHER SUCH A

HEARING IS CONSTITUTIONALLY REQURIED. THE CASE AT BAR REFLECTS

THE NECESSITY TO RESOLVE THIS ISSUE.

‘

At trial, after the selection of the jury but prior

to the opening statement by the prosecutor, defense counsel

sought to exclude any in-court identification of Summitt

because of the possibly suggestive nature of the pretrial

procedures used to identify him (TE 37). Counsel also sought

a timely hearing to determine the admissibility of the

identification (TE 37). Both the motion to Suppress and the

motion for a hearing were denied. (TE 37).

The procedures to be used in determining the

admissibility of identification testimony have been developed

in a series of Supreme Court decisions, beginning with United

States v, Wade, 388 U.S. 218, 87 S.Ct, 1926, 18 L.Ed,2d 1149

(1967). If a hearing to determine the admissibility of an

identification is not held, the court noted in Wade, at

388 U.S, 240, 87 S.Ct. 1939;

The state may then rest upon the witnesses'

unequivocal courtroom identification, and not

mention the pretrial identification as part

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

in the predicament in which Wade's counsel found

himself - realizing that possible unfairness

at the lineup may be the sole means of attack

upon the unequivocal courtroom identification,

and having to probe in the dark in an attempt

to discover and reveal the unfairness, while.

bolstering the government witness' courtroom

identification by ae Teens out and dwelling

upon his prior identification,

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

19 L.Ed,2d 1247 (1968), an early case on photographic identifi-

cation, held at 88 S.Ct. 971:

- » » .convictions based on eyewitness

identification at trial following a pretrial

identification by photograph will be ‘set aside

on that ground only if the photographic

identification procedure was so impermissibly

suggestive as to give rise to a very substantial

likelihood of irreparable misidentification,

Refining this standard in Neil v. Biggers, 409 U.S. 188, 93 S.Ct, :

375, 34 L,Ed,2d 401 (1972),:the court said, at 409 U.S. 200,

93 S.Ct. 382:

- + » .the facts to be considered in evaluating .

the likelihood of misidentification include

the opportunity ef the witness to view the

criminal at the time of the crime, the witness’

degree of attention, the accuracy of the

witness’ prior description of the criminal,

' the level of certainty demonstrated by the

witness at the confrontation and the length

of time between the crime and the confrontation,

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

53 L.Ed.2d 140 (1977), the court reiterated that “reliability

tt ee

is the linchpin in determining the admissibility of identification

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

in Biggers.,

In the case at bar, when trial counsel contested the

admissibility of the identification, due process required a

reliable determination of the disputed facts, Procedurally,

the test of reliability has been interpreted as requiring a

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

preferred procedure has been enunciated in Luckett v. Common-

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

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

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

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

18 (3rd Cir. 1976), a case substantially similar to the case

at bar, the court felt obligated to "follow the mandate of the

Jackson*court in determining that Townsend v. Sain, 372 U.S.

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

evidentiary hearing at the state level to determine the factual

complex in which the challenged identification was made,"

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

The conceptual basis of a Jackson hearing is

to permit a defendant to explore his legal

contentions without the constraints imposed

by the presence of a jury. The state

procedures here did not satisfy the salutary

rule announced in Clemons v. United States,

133 U.S. App. D.C. . .

cert. denied, 394 U.S. 964, 89 S.Ct. 1318,

22 L.Ed.2d 567 (1969), and United States v. .

llison, 414 F.2d 407 (9th Cir.), ce:®. denied,

356 U.S. 968, 90 S.Ct. 449, 24 L.Ed. 2d G3s-

(1969). Judge McGowan set forth the test

for the District of Columbia Circuit in

Clemons:

Where the prosecution intends

to offer only an in-court identification,

the defense may challenge its admissibility.

The court should then, on facts elicited

outside the presence of the jury, rule

‘upon whether a pre-trial identification

by the same eyewitness is violative of

due process,

408 F.2d at 1237.

A similar test was formulated for the

Ninth Circuit by Judge (now Chief Judge)

Browning in Allison: ;

[W]here a timely and

sufficient motion is made to

suppress identification

testimony on the ground that

it has been tainted by pretrial

photographic identification

procedures, it must be heard

and determined by the court

outside the jury's presence

in the same manner as any

other motion to suppress

evidence alleged to be

inadmissible because unlawfully

obtained,

1. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908

(1964)

Bs og “A

Pen

aa eter

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

‘Mitchell, 540 F,2d 1163 (3d Cir. 19/76). see

also United States ex rel. Phipps v. FolTefte,

> . n. ix.), cert. denied,

400 U.S, 908, 91 S.Ct. 151, 27 L.Ed.2d 146

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

123, 125-26 Gth Cir. II71I), cert.denied,

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

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

1152, 1155 (th Cir. 1970), cert.denied,

409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668

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

‘1351, 1359 (7th Cir. 1367), cert.denied,

396 U.S, 1017, 90 S.Ct, 581,-24 L.Ed.Zd 508

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

836, 838-39 (10th Cir. I970). CE, United

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

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

27 L.Ed.Zd Zo8 (19/0).

In the case at bar, the prosecutrix identified the

_ defendant out of a book of photographs two days after the

occurence. However, the photograph in question was not

produced by the Commonwealth either before or at trial.

Thus, prior to his cross-examination of the prosecutrix at

“trial, it was impossible for defense counsel to know whether

she became aware of Summitt's physical characteristics at the

time of the rapé or whether she became aware of them for the

first time in viewing the ‘photograph. Moreover, defense counsel. °

established on cross-examination that Summitt may have been

viewed by the prosecutrix on at least two occasions at the

courthouse prior to the trial, with only a prosecutor and a

police officer in the room, and without benefit of counsel.

This may have bolstered the prosecutrix'’: identification at

trial (TE 142 -145).

The obvious uncertainty of the identification was

such that defense counsel could not afford to leave it

unexplored. However, in the absence of a hearing, the only

method available to him to uncover the taint and its prejudicial

repercussions was a "fishing expedition" at trial. Lacking

knowledge of the extent of the problem, he could not even

intelligently object to the introduction of the evidence.

Because defense counsel was unable to determine prior to

a es

trial the extent of the unfairness of the identification, he

was put in the untenable position of trying by cross-examination

cf the prosecutrix "to discover and reveal the unfairness,

while bolstering the courtroom identification by bringing out

and dwelling upon his prior identification." Cf, Wade, supra,

at 388 U.S. 240, 87 S.Ct. 1939. .

In disposing of this contention, the district court

below noted ‘at Appendix 11-12.

The prosecuting witness identified the

petitioner after viewing about 1200 photographs

at Jefferson County Police Headquarters. Her

testimony and the testimony of Detective Sanders,

the investigating officer, withstood vigorous

and extensive cross-examination on the possible

suggestive nature of the identification procedure.

Both the prosecuting witness and Sanders were

adamant in their assertion that the prosecuting

witness had identified petitioner without any

suggestion from Sanders,

The district court below also relied heavily on the

vigorous and extensive cross-examination of the prosecutxix and

police officer to reaffirm the lack of suggestiveness of the

identification, However, this forced cross-examination resulted

in the very type of bolstering which Wade condemns and which |

could have been avoided if a suppression hearing had been held,

Indeed, because no hearing was held, defense counsel was forced

to lead both the prosecutrix and the police officer into those

adamant assertions which the district court relies on in its

opinion,

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

Cir. 1979) the Court of Appeals concluded that:

‘ .as applied to identification

evidence, Jackson v. Denno, supra and Pinto

supra, only require that the trial court

‘ make an independent determination of the

reliability of the identification after an

adequate hearing. In each of these cases,

the state trial court had before it all of the

° facts concerning the reliability of the

identification evidence. The trial court

reached the conclusion, based upon these

facts, that the evidence was admissible.

Since both petitioners received an adequate

hearing and an independent determination of the

reliability of the identification evidence,

we cannot conclude that the procedure for

determining the admissibility of the identification

evidence violated due process.

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

-,* >/ <> 7

Since the defense counsel was forced te explore the reliability

of the identification on cross-examination in the presence

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

constituted an adequate hearing on the reliability and

admissibility of the identification evidecce. The utilization

of such a procedure places défense counsel in precisely the

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

trying to challenge the reliability of the identification

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

risk of causing irreparable prejudice to his client by

unavoidably\bolstering the courtroom identification through

cross-examination. This is an inevitable result of the

hearing deemed adequate by the Sixth Circuit in Summitt v.

Bordenkircher, supra.

The Third Circuit's decision in United States ex

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

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

Analogizing the principles enunciated in Jackson v. Denno,

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

trial court is constitutionally required to conduct a hearing out

of the presence of the jury on the reliability and admissibility

of identification evidence where the request for such a hearing

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

questic . of identification. By denying an in camera hearing

on the reliability of the identification evidence, the state

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

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

the maximum sentence imposed on the petitioner.

Defense counsel raised the issue of tainted identification

by requesting a hearing at the outset of the trial.(Tz 37) It was then

incumbent upon the court to determine the reliability of the

identification, To avoid compounding any impermissible suggestive-

. ness, the court should have mace the determination in a hearing

out of the presence of the jury. Alternatively, the court

should have recognized its duty to determine the reliability of

the identification at trial by those factors set out in Biggers.

In Manson v, Brathwaite, supra, the Supreme Court specifically

— ; SS OST, cyan ey

. s o- aD ;

enumerates the factors which must be considered when a challenge

to a pre-trial identification is raised, in order to determine

whether it was "so impermissibly deatenkive as to give rise to

a very substantial likelihood of irreparable misidentification,"”

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

e 6 .the opportunity of the witness to view

the criminal at the time of the crime,’ the

witness’ degree of attention, the accuracy

of his prior description of the criminal,

the level of certainty demonstrated at the

confrontation, and the time between the crime

and the confrontation. Against these factors

is to be weighed the corrupting effect of the

suggestive identification itself.

The court in Manson then proceeds to analyze these factors

individually, devoting a numbered paragraph to each, thus

demonstrating the manner in which this analysis is to be

conducted, There is less potential for prejudice to the

defendant if these factors are considered in the setting of ©

a suppression hearing. However, the fact that a hearing is

not held does not obviate the necessity for a reliable

determination of those factors, This determination must be

made at the trial level to afford the defendant his right to

eifactive counsel, as well as to insure his right to a fair

trial.

By contrast in the case at bar, the reviewing courts

below have attempted to determine the reliability of the

identification retrospectively. Such a retrospective ruling

‘can only hypothesize about questions which might have been

asked, but were not because of the presence of the jury.

Moreover, such a retrospective determination completely

ignores the prejudice to the defendant which results from

his being required to test the identification through blind

cross-examination at trial. It is virtually impossible at

the appellate level to determine what price the defendant has

paid for his efforts to expose a suggestive identification,

Consequently, post-conviction findings do not provide a reliable

substitute for a suppression hearing at the trial hearing.

Under the circumstances presented, nothing short of a -

contemporaneous hearing could have satisfied Summitt's right

to a fair trial consonant with due process of law.

ee a ee

CONCLUSION

For the foregoing reasons, it is respectfully

submitted, that this Court should issue a writ of certiorari

and review the rulings of the courts below.

Baad Ww.

CHIEF APPELLATE DEFENDER OF THE

JEFFERSON DISTRICT PUBLIC DEFENDER

200 CIVIC PLAZA

701 WEST JEFFERSON STREET

LOUISVILLE, KENTUCKY 40202

(502) 587-3800

COUNSEL FOR PETITIONER

PAUL G. TOBIN

JEFFERSON DISTRICT PUBLIC DEFENDER

OF COUNSEL

IN THE SUPREME COURT

OF THE UNITED STATES

JAMES WILLARD SUMMIT,

Petitioner

NO.

DONALD E. BORDENKIRCHER, WARDEN

Respondent

INDEX TO THE APPENDIX

Item Page

Opinion of the United States Court of Appeals

for the Sixth Circuit rendered on October 19, 1979 1-8

Judgment entered by the United States Court of Appeals

for the Sixth Circuit on October 19, 1979 )

Docket Entries in the United States District Court

for the Western District of Kentucky 10

Memorandum Opinion of the United States District Court

for the Western District of Kentucky rendered on

May 31, 1978 11-14

Order entered by the United States District Court for

the Western District of Kentucky on May 31, 1978 15

Opinion of the Supreme Court of Kentucky rendered on

April 22, 1977 16-19

Judgment entered in Jefferson Circuit Court on

June 4, 1976 20

SUMMITT v. BORDENKIRCHER

247

Che as 608 F.2d 247 (1979) "’

James Willard SUMMITT,

Pctitioner-Appellant,

‘’

Donald E. BORDENKIRCHER, Warden,

Kentucky State Penitentiary,

_Respondent-Appellee.

John Gregory WATKINS,

Pecitioner-Appellant,

Donald E. BORDENKIRCHER, Warden,

Kentucky State Penitentiary,

Respondent-Appellee.

Nos. 78-3415, 78-3587.

United States Court of Appeals,

Sixth Cireuit

Argued June 5, 1979.

Decided Oct. 19, 1979.

On appeals from orders of the United

States District Court for the Western Dis-

trict of Kentucky, Thomas A. Ballantine,

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

state prisoners’ petitions for writ of habeas

corpus, the Court of Appeals, Bailey Brown,

Chief Judge, held that it is not a denial of

due process for a state court in a criminal

trial to decline to conduct a hearing outside

the presence of the jury to determine the

admissibility of identification evidence,

even though a hearing outside the jury's

presence is preferable.

Affirmed.

Merritt, Circuit Judge, filed a dissent-

ing opinion.

1. Constitutional Law @=266(3.5)

It is not a denial of due process for a

state court in a eriminal trial to decline to

conduct a hearing outside the presence of

the jury to determine the admissibility of

identification evidence, even though a hear-

ing outside the jury's presence is preferable.

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

2. Constitutional Law ¢>266(3.2)

Criminal Law 641.2

A defendant is entitled to have counsel

present at any corporeal identifications

which occur after the initiation of criminal

proceedings, but even where the right to

counsel is not applicable, due process pro-

tects the accused against the introduction

of evidence of, or tainted by, unreliable

pretrial identifications obtained through

unnecessarily suggestive procedures. U.S.

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

3%. Criminal Law @339.9(1)

Whereas the admissibility of confes-

sions is determined without regard to relia-

bility, the admissibility of identification evi-

dence is entirely dependent on reliability.

4. Criminal Law @=339.9(2)

Amorg the factors relevant to the reli-

ability of identification evidence are the

opportunity of the witness to view the crim-

inal at the time of the crime, the witness’

degree of attention, the accuracy of his

prior description of the criminal, the level

of certainty demonstrated by him at the

confrontation, and the length of time be-

tween the crime and the confrontation.

5. Criminal Law @329.7(1)

Under some circumstances, the use of a

photograyaic display may enhance the pos-

sibility of misidentification, but cach case

must be considered on its own facts.

6. Criminal Law @339.7(1)

In respect to the pretrial photographic

identification of rape defendant, there was

no substantial likelihood of misidentifica-

tion by reason of the introduction at trial of

the victim's pretrial identification, since the

pretrial identification could not be charac-

terized as either suggestive or unreliable;

the victim had ample opportunity to study

her assailant, she provided the police with a

detailed and accurate description, and soon

after the xttack she identified defendant

from among a multitude of police photo-

graphs that were presented in a neutral

fashion

7. Criminal Law @=339,8(2)

A showup ia inherently suggestive.

248 608 FEDERAL REPORTER, 24 SERIES

8. Criminal Law o339.8(1)

When only one person is presented to a

witness, there is a natural tendency for the

witness to feel obligated to provide a posi-

tive identification, but in some cases a

showup becomes a necessary identification

procedure. —

9. Criminal Law ¢>339.8(5)

Identification of defendant by robbery

- Victim at showup was not so unreliable as to

create a substantial likelihood of misidenti-

fication, where the showup, rendered neces-

sary by the seriousness of hospitalized rob-

bery victim's wounds, was conducted in a

manner that did not take advantage or

augment its inherent suggestiveness, where

the victim had had a clear, albeit brief,

opportunity to view the person robbing the

liquor store, and where the identification at

the showup reflected an element of uncer-

tainty, but that element was very small.

10. Criminal Law e>339.8(2)

Unlike a showup, a lineup need not be

and should not be unduly suggestive.

11. Criminal Law o339,8(2)

Unnecessary suggestiveness in a lineup

does not, by itself, require the exclusion of

the identification as long as it contains suf-

ficient indicia of reliability.

12. Criminal Law @=339.8(4)

Based on the totality of the circum-

stances, lineup identification of defendant

by liquor store robbery victim was suffi-

ciently reliable that there was no substan-

tial likelihood of misidentification, even

though the lineup was suggestive in that

defendant was of a somewhat lighter com-

plexion than the other two persons in the

lineup.

13. Constitutional Law o>266(3.2)

A defendant is denied due process only

when the identification evidence is so unre-

liable that its introduction renders the trial

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

14, Criminal Law @741(2) -

As long ns there is not a substantia’

likelihood of misidentification, it is the

function of the jury to determine the ulti-

mate weight to be given identification evi-

dence.

15. Constitutional Law @=268(8)

While several of the prosecutor's clos-

ing remarks, concerning defendant's charac-

ter and the threat to the community, were

improper, they were not so pervasive nor so

prejudicia] as to deny defendant due proc-

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

16. Criminal Law e713 ©

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.

Terrence R. Fitzgerald, Chief App. De-

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

for petitioner-appellant.

John Gregory Watkins, pro se.

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

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

fort, Ky., for respondent-appellee.

Before LIVELY and MERRITT, Circuit

Judges, and BROWN,” District Judge.

BAILEY BROWN, Chief Judge.

[1] These two appeals were consolidated

for the purpose of considering whether it is

a denial of due process for a state court in a

criminal trial to decline to conduct a hear-

ing outside the presence of the jury to

determine the udmissibility of identification

evidence. We conclude that such a hearing

is not constitutionally required and that the

introduction of identification evidence in

these cases did not violate due process stan-

dards. Accordingly, we affirm the deci-

sions of the district courts.

The petitioner, James Willard Summitt,

was indicted for rape on September 19,

1974, The rape occurred in Jefferson Coun-

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

Tennessee, sitting by designation.

SUMMITT vy. BORDENKIRCHER 249

Cite as 600 F.24 247 (1979)

ty, Kentucky late in the evening of July 20,

1974 when two men forced the victim, Don-

na Jean Furgason, into their car. The inci-

dent took place over a period of approxi-

mately forty-five minutes.

On July 21, 1974, Ms. Furgason reported

the rape to the police. She described her

avsailant as a white male in his thirties,

approximately five feet nine inches, 180

pounds, with tattoos on both arms. She

looked through approximately twelve vol-

umes of photographs at the county police

headquarters in an attempt to identify the

person who had raped her. Two days later,

she was taken to the city police headquar-

ters to review additional volumes of photo-

graphs. At that time, she identified a pho-

tograph of James Willard Summitt.

Prior to trial, Summitt moved to suppress

any in-court identification by Ms. Furgason

and requested a hearing out of the presence

of the jury to determine the admissibility of

the identification evidence. That motion

and request were denied.

At trial, both the pretrial photographic

identification and an in-court identification

were introduced. At the conclusion of the

evidence, the jury returned a verdict of

guilty and recommended life imprisonment.

On appeal to the Kentucky Supreme Court,

the conviction was affirmed.

The petitioner, John Gregory Watkins,

was indicted in March, 1975 for armed rob-

bery and assault. The robbery took place

at a liquor store in Louisville, Kentucky.

During the course of the robbery, an cm-

ployee in the store was shot in the wrist and

in the heart.

Donald Goeing, the employee who was

shot, described the robber us a young, black

man with a light complexion. Walter

Smith, the other employee in the store, de-

scribed 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, Waiter

Smith viewed a lineup consisting of three

black men, one of whom was the petitioner

Watkins. Watkins had a lighter complex-

ion than either of the other two men in the

lineup, though none of them had a particu-

larly dark complexion. Smith identified

Watkins but admitted that he was not

“completely sure” that Watkins was the

person who robbed the store.

On the same day, Watkins was taken to

the hospital room where Donald Goeing was

recovering from his wounds. Goeing identi-

fied Watkins, but at the same time he stat-

ed that “it could have been close enough

that it could have been his twin brother, it

could have been somebody else.”

Prior to his trial, Watkins filed a motion

secking a pre-trial hearing on the admissi-

bility of the identification evidence. The

trial judge denied the motion.

At the trial, the prosecution relied on the

in-court identifications of Watkins by both

Smith and Goeing. On cross-examination,

the circumstances surrounding both the

lineup and the showup were brought out.

Moreover, both Smith and Goeing admitted

having seen Watkins in the courtroom on

several occasions prior to trial. At the con-

clusion of the prosecutor’s proof, the trial

court denied Watkins’ motion for a mistrial

based on the introduction of the identifica-

tion evidence. The jury returned a verdict

of guilty and recommended the maximum

sentence, On appeal to the Kentucky Su-

preme Court, the conviction was affirmed.

[2] In both of these cases, the central

dispute at trial was over the identification

of the person who committed the crime. In

every criminal trial, there exists some dan-

ger of misidentification. That inherent

danger, however, is significantly increased

whenever the identification is tainted by

unnecessary and unduly suggestive proce-

dures. To deter the use of suggestive iden-

tification procedures, the Supreme Court

has held that a defendant is entitled to have

counsel present at any corporeal identifica-

tions which occur after the initiation of

criminal proceedings. United States v.

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

L.Ed.2d 1119 (1967); Gilbert v. California,

888 U.S. 268, 87 S.Ct. 1951, 18 L.Ed.2d 1178

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

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

250

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

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

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

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

sel is not applicable, however, “due process

protects the accused against the introduc-

tion of evidence of, or tainted by, unreliable

pretrial identifications obtained through

unnecessarily suggestive procedures.”

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

S.Ct. at 464. It is this lat er due process

protection which the petitioners claim was

violated in their state trials.

The initial issue presented by these ap-

peals is whether the admissibility of identi-

fication evidence must be determined at a

hearing outside the presence of a jury. We

have no doubt that such a procedure is the

preferable one. See Nassar v. Vinzant, 519

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

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

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

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

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

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

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

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

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

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

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

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

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

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

independent hearing on the admissibility of

identification evidence, either before trial

or at trial outside the presente of the jury,

would remove the disadvantage to defend-

ant’s counsel of investigating the propriety

of the identification evidence in the pres-

ence of the jury. In addition, it would

protect the jury from being exposed to evi-

dence that might subsequently be deter-

mined inadmissible. Kentucky state courts

have apparently since endorsed this proce-

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

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

however, is not whether a hearing outside

the presence of the jury is the preferable

procedure but whether such a procedure is

constitutionally mandated.

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

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

608 FEDERAL REPORTER, 2d SERIES

preme Court held that a defendant's due

process rights were violated by a procedure

which allowed the same jury that deter-

mined 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 aue process of law if his convie-

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

involuntary confession, without regard for

the truth or falsity of the confession.”

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

1780. (Emphasis added.) A jury that is

considering the guilt or innocence of a de-

fendant is likely to allow the truthfulness

of a confession to influence its determina-

tion of the voluntariness of the confession.

To avoid this danger, Jackson established

the procedural requirement that, prior to

the admission of a confession, the trial

judge must make an independent determi-

nation of its voluntariness after an ade-

quate hearing on the issue. “[T)he purpose

that a voluntariness hearing is designed to

serve has nothing whatever to do with im-

proving the reliability of jury verdicts.”

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

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

is to protect the due proceas right against

the introduction of involuntary confessions,

regardless of their reliability.

[3] The basis of the due process right

against suggestive identification procedures

is significantly different.

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

mary evil to be avoided is “a very sub-

stantial likelihood of irreparable misiden-

tification.” Simmons v. United States,

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

L.Exl.2d 1247). While the phrase was co-

ined os a standard for determining

whether an in-court identification would

be admissible in the wake of a suggestive

out-of-court identification, with the dele-

tion of “irreparable” it serves equally

well a9 a standard for the admissibility of

testimony concerning the out-of-court

identification itself. It is the likelihood

of misidentification which violates a de-

SUMMITT v. BORDENKIRCHER ; 251

Che as 608 F.24 247 (1979)

fendant’s right to due process, and it is

this which was the basis of the exclusion

of evidence in Foster. Suggestive con-

frontations are disapproved because they

increase the likelihood of misidentifica-

tion, and unnecessarily suggestive ones

are condemned for the further reason

that the increased chance of misidentifi-

cation is gratuitous.

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

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

Thus, whereas the admissibility of confes-

sions is determined without regard to relia-

bility, the admissibility of identification evi-

dence is entirely dependent on reliability.

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

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

ing that due process does not require that

the hearing upon which the trial judge

makes his independent determination of.

voluntariness, as is required by Jackson v.

Denno, supra, be held outside the presence

of the jury.'’ The Supreme Court has never

ruled on the precise question presented

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

ogy to the ruling in Pinto, due process does

not require a hearing outside the presence

of the jury on the issue of the reliability-of

iuentification evidence. We recognize, as is

pointed out in the dissent citing language in

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

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

counsel for defendant does bear an extra

burden in exploring the reliability of identi-

fication evidence in the presence of the

jury. However, we note that the issue be-

fore us now was not the issue before the

Court in Wade, 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 reliability of identification ev-

idence before the jury.

The decision of the Third Circuit in Unit-

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

relied upon by the dissent, dues hold that

due process requires that the court hold the

hearing to determine the admissibility of

1. We also recognize that the decision is, placed

on the alternative ground that triai counsel of

identification evidence out of the presence

of the jury if the request for such a hearing

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

note, however, that in many cases it would

be difficult, if not impossible, to determine

whether the request was frivolous without

holding the hearing. Moreover, Driber re-

lies on federal precedents which may well

be examples of the exercise of supervisory

powers rather than rulings on the require-

ments of due process.

We conclude, then, that as applied to

identification evidence, Jackson v. Denno,

supra, and Pinto, supra, only require that

the trial court make an independent deter-

mination of the reliability of the identifica-

tion after an adequate hearing. In each of

these cases, the state trial court had before

it all of the facts concerning the reliability

of the identification evidence. The trial

court reached the conclusion, based upon

these facts, that the evidence was admissi-

ble. Since both petitioners received an ade-

quate hearing and an independent determi-

nation of the reliability of the identification

evidence, we cannot conclude that the pro-

cedure for determining the admissibility of

the identification evidence violated due

process. ;

{4} Having determined the initial proce-

dural issue, we turn next to the substantive

issue of whether the introduction of identi-

fication evidence in these cases violated due

process standards. As we have previously

indicated, reliability is the key factor in

determining the admissibility of identifica-

tion evidence. Among the factors relevant

to reliability are “the opportunity of the

witness to view the criminal at the time of

the crime, the witness’ degree of attention,

the accuracy of the witness’ prior descrip-

tion of the criminal, the level of certainty

demonstrated by the witness at the con-

frontation, and the length of time between

the crime and the confrontation.” Neil v,

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

382. These factors must be weighed

against the effect of the suggestive proce-

dure to determine whether the identifica-

defendant did not object to holding such hear-

ing in the presence of the jury.

252

tion is so unreliable as to create a substan-

tial likelihood of misidentification. See

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

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

{5,6} The identification evidence intro-

duced at the trial of the petitioner, James

Willard Summitt, consisted of both an in-

court identification and a pretrial photo-

graphic identification. Under some circum-

stances, the use of a photographic display

may enhance the possibility of misidentifi-

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

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

But each case must be considered on its

own facts. United States v. Ayendes, 541

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

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

(1977). The pretrial photographic identifi-

cation in this case cannot be characterized

as either suggestive or unreliable. Ms, Fur-

gason had ample opportunity to study her

assailant. She provided the police with a

detailed and accurate description. Soon af-

ter the attack, she identified Summit from

among a multitude of police photographs

that were presented in a neutral fashion.

Under these circumstances, we cannot find

that there was a substantial likelihood of

misidentification. Since we find that intro-

duction of the pretrial identification was

not improper, we need not consider whether

the in-court identification had an indepen-

dent basis.

[7-9] At the trial of the petitioner, John

Gregory Watkins, ihe prosecution intro-

duced in-court identifications by the two

witnesses to the robbery, Walter Smith and

Donald Goeing. These identifications were

bused on a pretrial lineup and a pretrial

showup. Since we believe that there was

no independent source for the in-court iden-

tifications, the validity of their admissibility

is dependent on the validity of the pretrial

identification procedures.

A showup is inherently suggestive.

When only one person is presented to a

witness, there is a natural tendency for the

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

the prucess 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

608 FEDERAL REPORTER, 24 SERIES

witness to fee! obligated to provide a

tive identification. But in some cas

showup becomes a necessary identific: ;

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

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

en the seriousness of the wounds to Do

Goeing, a showup was necessary in j

case. That showup was conducted i

manner that did not take advantagr

augment its inherent suggestiveness. (

ing had had a clear, albeit brief, opport

ty to view the person robbing the lic

store? At the showup, Goeing’s identif

uncertainty, but that element was yv

small. Based on the totality of the circ:

stances, we cannot conclude that the ide,

fication at the showup was so unreliable

to create a substantial likelihood of misid.

tification.

tion of Watkins reflected an clement |

{10,11} Unlike a showup, a lineup ne

not be and should not be unduly suggest:

The lineup in this case, however, to sor

degree employed the key element of t

witness’ description, lightness of comple

ion, to set Watkins apart from the oth

two persons in the lineup. Watkins, accor

ing to the picture of the lineup, was of

somewhat lighter complexion than the ot

er two persons in the ligeup. Such an ide

tification procedure probably could ha:

been avoided. But, even 80, unnecessar

suggestiveness by itself does not require th

exclusion of the identification as long as;

contains sufficient indicia of reliability

Neil v. Biggers, supra, 409 U.S. at 198, 9

S.Ct. 375,

In addition to the suggestiveness of th

lineup, there are several facts which indi

cate possible unreliability. Walter Smit!

admitted that at the time of the lineup hi

“wasn't completely sure” that Watkins wa:

the robber. Moreover, Smith originally de-

scribed the age of the robber as approxi-

mately thirty to thirty-five, whereas Wat-

kins was significantly younger. These facts

must be weighed against the facts which

movements evidently caused the robber to

shoot him. Goeing lost consciousness about

five seconds later as the robber fled from the

store.

an octet does

SUMMITT v. BORDENKIRCHER 253

Cite as 6046 F.2d 247 (1979)

ect reliability. Smith had a good oppor-

ity to look at the person robbing the

‘e.* While his identification at the line-

contained a degree of uncertainty per-

S$ yrreater than Goeing’s identification at

showup, the degree of uncertainty was

substantial. That initial uncertainty

not continue. Moreover, Smith was not

osed to any additional suggestive proce-

es. Sve Foster v. California, 334 U.S.

, «9 S.Ct. 1127, 22 L.Ed.2d 402 (1969).

12) The admissibility of the lineup

atification presents a very close question.

+ based on the totality of the circum-

nces we believe that it was sufficiently

able that there was no substantial likeli-

4 of misidentification.

13,14) The issue with respect to each

: of the identifications in these cases is

ited to whether their introduction into

lence violated due process. A defendant

senied due process only when the identifi-

ion evidence is so unreliable that its in-

duction renders a trial unfzir. As long

there is not a substantial likelihood of

‘identification, it is the function of the

y to determine the ultimate weight to be

en the identification. Manson v. Brath-

ite, supra. Given the limited focus of

* inquiry, we hold that the introduction

identification evidence in these trials did

. Violate due process.

Smith was standing at the cash register when

saree inen walked in. One man approached

im and asked him for cigarettes. When Smith

urned back around, the man had pulled a gun

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

¢as face-to-face with the robber for the brief

ime that the robbery was in progress.

In his closing argument, the prosecutor st1t-

“. , , When they go to the penitentiary

Uiey are going to be in the same enclosure

with people like themsel.es who have no

re, ect for the lives and the rights of others,

for people who'll just as quickly take away

tus 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

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

tioner Watkins’ claim that the prosecutor's

closing argument deprived him of a fair

trial. There is little doubt that several of

the prosecutor’s remarks were improper.

But impropriety alone is not sufficient.

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

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

prosecutorial argument must be so egre-

gious so as to render the entire trial funda-

mentally unfair.” Cook v. Bordenkircher,

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

which improper argument amounts to a

constitutional deprivation can only be

defined by reference to the totality of the

circumstances of the particular case. In

this case, we are convinced that the prose-

cutor’s remarks were not so pervasive nor

80 prejudicial as to deny the petitioner due

process.

Each of the issues raised in these appeals

involve alleged violations of due process.

Our scope of review, therefore, is limited to

whether the conduct complained of was

contrary to basic notions of fairness. Ap-

plying this narrow standard of fairness, we

conclude that the judgments of the district

courts must be and are

AFFIRMED.

MERRITT, Circuit Judge, dissenting.

In each of these habeas corpus c2ses from

Kentucky, there is a serious question con-

cerning the reliability of the courtroom

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 commu-

nity in which they belong and fix the sen-

tence long enough, so long that you tell ev-

erybody in connection with the prisons and

the authorities, from the Governor on down,

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

in our community.

. This is the only way 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.”

We have considered similar remarks concern-

ing the defendant's character and the threat to

the community to be beyond the bounds of

propriety. U'nited States v. Barker, 553 F.2d

1013 (6th Cir. 1977).

= oe: CR

254

identification of the defendant as the

perpetrator of the crime. In both, the iden-

tification testimony constitutes the only

substantial evidenve 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 Aldivert's opinion

for the Third Circuit in United States v.

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

process requires a hearing out of the pres-

ence of the jury where serious identification

questions are present, Otherwise, defense

counsel is paralyzed in his efforts to defend

his client. He is in the untenable position,

as the Supreme Court noted in United

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

1926, 1939, 18 L.Bd.20 1149 (1967), of trying

by cross-examination of the identification

witness “to discover and reveal unfairness,

while bolstering the courtroom

identification by bringing out and dwelling

upon his prior identification.”

In re ESTATE of B. Joseph

RATH, Deceased.

The DETROIT BANK AND TRUST COM.

PANY, Executor, and Catherine Rath,

Surviving Wife, Plaintiffs-Appellees,

UNITED STATES of America,

Defendant-Appellant,

No, 77-1403.

United States Court of Appeals,

Sixth Circuit.

Argued June 8, 1979.

Decided Oct. 19, 1979,

Beneficiary of life policy brought ac

tion to recover income taxes, The United

608 FEDERAL REPORTER, 24 SERIES

States District Court for the Eastern Dis-

trict of Michigan, Philip Pratt, J., enteret

judgment in favor of taxpayer and govern:

ment appealed, The Court of Appeals, Co-

cil, Senior Cireuit Judge, held that, under

the circumstances, the proceeds of the poli-

cy were ordinary income to the beneficiary

to the extent that they exceeded the

amount which she had paid to a corporation

to purchase policy from it, together with

the premiums which she had paid,

Reversed and remanded.

1, Internal Revenue @ 410.1

In the absence of any action on the

part of deceased insured whereby there was

& transfer of insurance policy from the cor-

poration to himself, under the terma of an

option which he held, and a subsequent

transfer from himself to his wife, even

though the husband may have given the

wife the money with which she made the

purchase from the corporation, where the

policy was transferred from the corporation

to the insured, the amounts received under

the policy following the insured’s death

were ordinary income to the wife to the

extent that they exceeded the amount

which she paid for the policy in the amount

of premiums which she subsequently paid.

26 U.S.C.A, (1.R.C.1954) § 101,

2. Internal Revenue #410.)

Fact that corporation placed a value of

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

conveyed to insured's wife, whereas the val-

ue of the policy for gift or estate tax pur-

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

transfer of the policy from the corporation

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

ration and in part a gift by the insured,

who had directed that the policy be a»

signed to his wife. 26 U.S.C.A, (1.R.C.1954)

§ 101.

3. Internal Revenue 410.1, 1202

Although private ruling and revenue

ruling supported the view that deceased

insured possessed incident of ownership in

policy for estate tax purposes because of his

right to purchase the policy from the corp

UNITED STATES COURT OF APPEALS

FOR THS SIXTH CIRCULT ' -« PJ LED

No. 78-3415 | OCT 19 1979

“HN P. HEHMAN, Cle

JAMES WILLARD SUMMITT, zs

Petitioner-Appellant,

Vv.

DONALD E. BORDENKIRCHER, WARDEN, ‘. ay

KENTUCKY STATE PENITENTIARY, ae. ° ie

P . Respondent-Appellee. -

Before: LIVELY and MERRITT, Circuit Judges, and’ BROWN, District _—

Judge. ; ,

JUDGMENT

APPEAL from the United States District Court for the Western

District of Kentucky... .

THIS CAUSE came on to be heard on the record from the United States

District Court for the Western District of rentucky

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 conse be

and the same is hereby affirmed.

No costs taxed.

ENTERED BY ORDER OF THE COURT.

Ejthee BM ebrrvm nm

Clerk

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

COSTS: None | Attest:

Filing fee.....++++- 0 oD cvcccccee

Printing § eccccccce

DOCKET ENTRIES IN THE UNITED STATES DISTRICT COURT

Summit vs. Sowders C 78-0165-1 (B)

NR,

PROCEEDINGS

5/2

5/19/78

5/24/78

6/1/78

6/27

6/27/78

7-12

Writ of Habeas Corpus tend to U. S. Magistrate.

ORDER signed by Judge Booth 5/1/78 that Petition ord filed w/out guepibnent

of fees, etc. RESPONDENT shall file ans w/in twenty (20) days from date of

ent of ord pursuant to Rule 5. Cys to Petitioner, Coun of Rec., AG-KY,.

Writ filed witenasantum of Law in Support thereof. Cy to Petitioner and AG-KY.

NOTION TO DISMISS or in the alternative for. s/} by respondent; memo. in support

order tend. Transcript of proceedings attached. ,

Traverse to response; response to mo. to dismiss; ‘mo. for s/} by petitioner.:

MEMORANDUM by Judge Ballantine. See order of this date.

ORDER by Judge Ballantine that petition for writ of habeas corpus is denied,

Ces: counsel.

NOTICE OF APPEAL filed from Order 6/1/78.

REQUEST for Certificate of Probable Cause filed.

Certificate of Probable Cause issued by Judge Ballantine. Cc to Mr. Fitzgerald

and Atty. Gen., Ky.

O34-n

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

ao—_—_—_- Soo ore’

JAMES WILLARD SUMMITT )

Petitioner ° )

)

v. ) NO. C 78-0165-L (B)

‘

DONALD BORDENKIRCHER, Warden. )

Kentucky State Penitentiary )

Respondent )

‘

MEMORANDUM

' This is a petition for a writ of heabeas corpus .

pursuant to Title 28 U.S.C. Section 2254. :

In May, 1976, a Jefferson Circuit Court Jury con-

victed petitioner of rape. He was sentenced to life

imprisonment and his conviction was affirmed by the

Supreme Court of Kentucky. Summitt v. Commonwealth,

Ky-, 550 5.W. 2d 448 (1977). °

Petitioner's conviction rested on the uncorroborated

testimony of the prosecuting witness. She identified

him as her assailant from Police "mug shots." At the

trial petitioner moved to suppress the in-court identi-

fication, asserting that the mug shot identification was

impermissibly suggestive. The motion to suppress was

denied, as was a motion for a hearing on the identification

issue.

The prosecuting witness identified the petitioner

after viewing about 1200 photographs at Jefferson County

Police Headquarters. Her testimony and the testimony of

Detective Sanders, the investigating officer, withstood

vigorous and extensive crdss-examination on the possible

suggestive nature of the identification procedure. Both

-_---——

the prosecuting witness and Sanders were adamant in their

, -

| om +s ‘——-: “agp = ee ee . eee a 2 - . » oe pe meee « —T

Po74-D

assertion that the prosecuting witness had identified

petitioner without any suggestion from Sanders.

Petitioner urges that Simmons v. U.S., 390 U.S. 377, 88

S.Ct. 967, 19 L.Ed.2a 1247 (1968), mandates that the writ be

granted. Petitioner quotes out of context a portion of the

Court's opinion. Apparently in transcribing from the

opinion, one line was omitted, and the Court finds that

the omission of that line produces a different effect

e ‘

_than was intended by the Court. In Simmons the Supreme

Court said: . ~

“We are unwilling to prohibit its employ~-

ment, either in the exercise of our super-

visory power or, still less, as a matter

of constitutional requirement. Instead,

we hold that each case must be considered

on its own facts, and that convictions

based on eyewitness identification at

trial following a pretrial identification

by photograph will be set aside on that

ground only if the photographic identi-

fication procedure was so impermissibly

suggestive as to give rise to a very

substantial likelihood of irrepara»le

misidentification.”

The emphasized language quoted above was omitted from

the petitioner's brief.

Petitioner also seeks comfort from Neil v. Biggers,. 409

U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). 7

In Neil, the Court adhered to its holding that if

the totality of the circumstances indicated that the

identification was reliable, suggestive confrontation

procedures would not render the identification constitu-

tionally invalid.

In the case before this Court the prosecuting witness

was in the presence of the petitioner for about 45 minutes,

She had ample opportunity to observe his physical charactor-

istics and her description to the police included the

observation that petitioner had tattooson both seis,

Petitioner, in fact, has tattoos,

OPl. WhO .2.78.190%.5890

c- .

awe eee _— - ae teil a ets a Reis ecpilenaiil

O24.

Given the totality of the circumstances, the Court |

cannot find that the identification procedure violated

any constitutional guarantees, “ad the refusal of the

trial court to grant an evident iary hearing was not

erroneous.

Petitioner's second argument is that two guestions

and answers impermissibly commented on his Silence. The

testimony was as follows:

"18 And did you advise him of his Miranda

rights before you talked ‘to him, or was he

advised of his rights? . ;

A Yes, sir, I advised him of his rights.

19 Did he give a statement to you of any

kind?

A. No, sir, he did not.” (TE p. 55).

No objection was made to this testimony and the Court

finds that Wainwright v. Sykes, __—sU.S. ee, 97 S.Ct.

2497 (1977), is dispositive of this position. There, the

Supreme Court said: |

"We therefore conclude that Florida

procedure did, consistently with the

United States Constitution, require

that petitioner's confession be challenged

at trial or not at all, and thus his failure

to timely object to its admission amounted

. to an independent and adequate state pro-

cedural ground which would have prevented

direct review here. See Henry v. Mississ—

ippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.

08 (1965). We thus come to the crux

of this case. Shall the rule of Prancis

v. Henderson, supra, barring federal ’

habeas review absent a showing of 'cause'

and 'prejudice' attendant to a state

procedural waiver, be applied to a waived

objection to the admission of a confession

at trial? (Footnote omitted). We answer

that question in the affirmative."

The Court finds that the failure to avail himself

of an independent and adequate state procedural ground

prevents direct review here.

. se.

: . ‘ ‘

MOD OR Pane SH + ok NE eR SH mee eee oF + mess ‘ ——me eet ee hee eee —_ po A ONES oe eet

An Order has been entered this date denying the

| : .

petition for writ of habeas corpus.

| This 3lst day of May, ‘1978.

me Sor AA f ADS ase Wr bin}

| THOMAS A. BALLANTINE, JR.

United States District Judge

Copies to:

Petitioner

Counsel of record ENTERED

Uh 4 1978

{JESSE W. GaIDEH, CLERK :

A. DEPUTY CLERK :

[irnhare Creasey /

».034-h ’ OF1. MIB. 2-7 0-430%,3008

fe ;

* - a

ei _* *

=. ~ oe Mas ELEN rene wee} SG 2

P-034-B

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

JAMES WILLARD SUMMIT?

Petitioner

NO. C 78-0165-L (B)

DONALD BORDENKIRCHER, Warden

Kentucky State Penitentiary

Respondent

ee eee ee ee ee ee

ORDER

For the reasons set forth in the Memorandum filed

this date,

It is ORDERED that the Petition for Writ of aapene

Corpus be ana it hereby is denied.

There is no just reason for delay, and this is a

final and appealable Order. .

This 3lst day of May, 1978.

Downs AebarFe

THOMAS A. BALLANTINE, sh

United States District Judge

Copies to: ENTER E D

Counsel of record “ati -

Petitioner dum 4 4978

tH Ww. GRIGEN, CLERK

i PuT mie

iZ _bE PUTTY. Y 4 os

, -Wi-—8-2-90-4900-8006

eee - a tl at oe

548 Ky.

Court, in view of section of State Constitu-

tion providing that appeal from judgment

of circuit court imposing a sentence of

death or life imprisonment or imprisonment

for twenty years or more shall be taken

directly to the Supreme Court. Const.

§ 110(2)b).

James Williams, pro se.

E. N. Venters, Judge, Pike Circuit Court,

pro se.

REED, Chief Justice.

The petitioner, James Williams, who

alleges that in September of 1953 he was

sentenced to life imprisonment for armed

robbery, has filed in this court for the third

time a petition for an order of mandamus

directing the respondent judge to have the

clerk of his court prepare a transcript of the

petitioner’s trial record. The previous ap-

plications were denied.

' [1,2] Section 110(2)(b) of the Kentucky

Constitution as amended effective January

1, 1976, provides that an appeal from a

judgment of the circuit court “imposing a

sentence of death or life imprisonment or

imprisonment for twenty years or more

shall be taken directly to the Supreme

Court.” A judgment or order denying a

postconviction motion, however, is not a

judgment “imposing a sentence.” Hence an

appeal from it is addressable to the Court

of Appeals. By parity of reasoning, so is a

petition for mandamus or prohibition seek-

ing to enforce or prevent an action by a

circuit judge in a postconviction proceeding.

Cf. Coffey v. Anderson, Ky., 371 S.W.2d

624, 625 (1963); Northcutt v. Shelton, Ky.,

436 S.W.2d 264 (1969).

The petition is dismissed.

All concur,

550 SOUTH WESTERN REPORTER, 2d SERIES

James Willard SUMMITT, Appellant,

o.2

COMMONWEALTH of Kentucky,

Appellee.

Supreme Court of Kentucky.

Apri) 22, 1977.

Defendant was convicted in the Jeffer-

son Circuit Court, Criminal Branch, Second

Division, Indictment No. 152462, John P.

Hayes, J., of rape and he appealed. The

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

although it was error to permit police offi-

cer, the first witness, to testify as to the

substantive details of description of assail-

ant given to him by victim, the error was

erased when the victim subsequently testi-

fied and was cross-examined, thus making

the testimony of the police officer admissi- .

ble to corroborate the victim's identification

of defendant; (2) victim was properly per-

mitted to make in-court identification of

defendant; and (3) any error in permitting

prosecutor to ask police officer if defendant

had made a statement after he was advised

of his Miranda rights was not prejudicial.

Atfirmed.

1, Criminal Law c421(6)

Testimony hy police detective, who was

the first witness called by the Common-

wealth, concerning the substantive details

of the report which prosecutrix had given

him before she looked through photographs

from which she identified defendant was

hearsay and inadmissible at that stage of

the trial.

2. Witnesses »411(2)

Once attack was made on credibility of

prosecutrix through cross-cxamination, tes-

timony by police officer to the effect that

the prosccutrix had accurately described de-

fendant before she saw photographie dis-

play from which she chose defendant's pho-

SUMMITT v. COMMONWEALTH

Ky. 549

Clie as, Ky., 550 S.W.2d $48

tograph was competent for corroborative

purposes,

3. Criminal Law ¢1169.4

Although it was error to permit police

detective, who was the first witness, to

testify at that point in the trial as to the

substantive details of description of assail-

ant given to him by prosecutrix before pros-

ecutrix examined photographic display

from which she picked defendant's photo-

graph, the error was erased when prosecu-

trix subsequently identified defendant and

was cross-examined as to her identification

of defendant, as the police officer's testimo-

ny then became admissible to corroborate

the testimony of the prosecutrix.

4. Criminal Law ¢=339.11(2)

Where ¢ross-examination of both prose-

cuting witness and police detective was

searching, tenacious, and thoroughly compe-

tent to test reliability of the prosecution

witness’ identification of defendant as her

assailant, trial court did not err in refusing

to conduct a pretrial hearing on motion to

suppress in-court identification of defend-

ant.

5. Criminal Law =339.11(7)

Testimony by prosecutrix that she got

a good look at her assailant while they were

standing in the light at a bar, that she was

sure that defendant was her assailant, that

she had given a description of defendant

prior to viewing mug shot files, and that

she had picked defendant out of the mug

shot files as soon as she saw his picture was

sufficient to permit the prosecutrix to make

an in-court identification of defendant de-

spite contention that the pretrial photo-

graphic identification procedure was unduly

suggestive.

6. Criminal Law ¢=698(1), 1169.12

In the absence of objection or other

prompt request for relief, it was not error

to permit police officer to testify that, after

defendant was given his Miranda rights, he

did not make any statement; even if the

interrogation did invade the defendant's

Fifth Amendment right of silence, it was

not prejudicial. U.S.C.A.Const. Amend. 5.

Terrence R. Fitzgerald, Deputy Public

Defender, David M. Lewis, Asst. Dist. De-

fender, Louisville, for appellant.

Robert F. Stephens, ‘Atty. Gen., Victor

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

lee.

PALMORE, Justice.

James Willard Summitt appeals from a

judgment sentencing him to life imprison-

ment pursuant to a jury verdict finding him

guilty of rape. KRS 435,090 (now supersed-

ed by the Kentucky Penal Code, eff. Janu-

ary I, 1975).

Shortly after midnight of July 20-21,

1974, Donna Jean Furgason was abducted

by two men and raped by one of them.

Some 20 hours later, after having reviewed

over 1200 “mug shots” at the headquarters

of the Jefferson County and Louisville po-

lice, she identified a photograph of the ap-

pellant as the man who raped her. In due

course he was arrested and brought to trial.

His defense was a denial that he was the

guilty party. 4

The first contention on which Summitt

relies for a reversal is that the trial court

erred in permitting a police detective to

relate substantive details of the report Don-

na had given him before she looked through

the photographs. He stated, for example,

that she was fearful because her assailant

had warned her that if she rep rted the

incident to the police he would do harm to

her and her family, and that she described

him as follows:

“The subject that had done the rape was

supposed to have heen 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 the of-

fense.”

The detective was the first witness called

by the Commonwealth, and when he began

to testify from his report Summitt's counsel

objected on grounds of the hearsay rule. In

overruling the objection the trial court com-

mented, “She is going to testify.”

550 Ky.

[1-3] We agree that from the stand-

point of this witness the statement received

from the victim was purely hearsay and at

this stage of the trial was inadmissible. As

it developed, however, and in our opinion

would inevitably have developed, the trial

focused on the reliability of the, identifica-

tion. Even had Donna testified before the

detective, the only avenue of defense was to

discredit her initial identification of Sum-

mitt from the police photograph. Once

that attack was made through cross-exami-

nation, evidence that she had accurately

described him before she saw the photo-

graph was competent for corroborative pur-

poses. Cf. 4 Wigmore, Evidence §§ 1130,

1132 (Chadbourne rev. 1972); Preston v.

Commonwealth, Ky., 406 S.W.2d 398, 403

(1966). So, while the detective should not

have been allowed to give the details of

what Donna said to him during their first

interview until after she had appeared as a

witness and had been cross-examined, the

error was erased by subsequent legitima-

tion of the incompetent testimony.

Before the first witness was introduced,

counsel for the appellant unsuccessfully

sought an evidentiary hearing on his motion

to suppress or exclude Donna’s in-court

identification of Summitt. United States v.

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

L.Ed.2d 1149 (1967), is cited for the proposi-

tion that the denial of such a hearing is

constitutionally fatal. As the Common-

wealth points out, however, the pertinent

decision with reference to photographic

identification is Simmons v. United States,

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

(1968), which says:

“Despite the hazards of initial identifica-

tion by photograph, this procedure has been

used widely and effectively in criminal law

enforcement, from the standpoint both of

apprehending offenders and of sparing in-

nocent suspects the ignominy of arrest by

allowing eyewitnesses to exonerate them

through scrutiny of photographs. The dan-

ger that use of the technique may result in

convictions based on misidentification may

be substantially lessened by a course of

cross-examination at trial which exposes to”

550 SOUTH WESTERN REPORTER, 2d SERIES

the jury the method's potential for error.

We are unwilling to prohibit its employ-

ment, either in the exercise of our supervi-

sory power or, still less, as a matter of

constitutional requirement. Instead, we

hold that each case must be considered on

its own facts, and that convictions based on

eyewitness identification at trial following

a pretrial identification by photogruph will

be set aside on that ground only if the

photographic identification procedure was

so impermissibly suggestive as to give rise

to a very substantial likelihood of irrepara-

ble misidentification.” 390 U.S. at p. 334,

88 S.Ct. at p. 971.

[4,5] Before viewing the mug-shot files

Donna had described the appellant as hav-

ing a “rough” complexion and tattoos on his

biceps. Under cross-examination she

strongly resisted the insinuation that her

in-court identification was influenced by

her having seen Summitt several times dur-

ing pretrial court appearances. She said

that she got a good look at him “right in

the light at first when we went through

that bar. We were in the light and I know

that was him,” and “I knew his face right

away . . . I picked him right out of

there.” Although the particular photo-

graph from which she identified him was

not available at the trial, the detective was

positive that it did not show his arms.

Counsel's cross-examination of both Donna

and the detective was searching, tenacious

and thoroughly competent to test the relia-

bility of the identification. We find no

error in the trial court’s refusal to conduct

a suppression hearing and no semblance of

impermissible suggestiveness in the identi-

fication procedure.

The last claim of error relates to the

following testimony elicited from the detec-

tive:

Q—“Were you present at any time with

the defendant after he lad been placed

under arrest?”

A-—"“Yes, sir, | went with him to talk to

him to try to determine if there was a

second party involved.”

HENDRICKS v. COMMONWEALTH Ky. 551

Cite as, Ky., 550S.W2d55)

Q—"And did you advise him of his Miran-

da rights before you talked to him, or was

he advised of his rights?”

A—"Yes, sir, I advised him of his rights.”

Q—"Did he give a statement to you of

any kind?”

—"No, sir, he did not.”

[6] As the appellant had not made any

statement, there was of course no occasion

to inquire whether he had been advised of

his right to remain silent. Hence it might

not be altogether unreasonable for one with

a nasty mind to suspect that the prosecu-

tor’s design was to get it across to the jury

that he did not deny his guilt. As it is,

_ however, appellant's trial counsel must not

have thought it hurt, because he did not

voice any objection. In the absence of an

objection or some other prompt request for

relief there was no possible error on the

part of the trial court.

Nevertheless, appellant contends that this

alleged invasion of his Fifth Amendment

protection was so egregious in view of the

closeness of the case and the severity of the

penalty that a reversal is mandatory any-

way. We do not regard the evidence as all

that ¢lose. The identification, for all that

counsel may denigrate it, was positive and

convincing. The witnesses referred to in

the appellant’s brief as having corroborated

his testimony were not able to render much

help. His story that his leg was in a cast

broke down when the hospital bill indicated

that the accident in which it was hurt hap-

pened on the night of July 23-24, 1974,

three days after the rape. Moreover, al-

though we wish to discourage the type of

questioning here under discussion, and to

warn against its possible consequences, we

are not ready to hold that in this particular

instance it was all that bad. Certainly it

was innocuous in comparison with the ex-

ample in Niemeyer v. Commonwealth, Ky.,

533 §$.W.2d 218 (1976). The prosecuting

attorney did not allude to it in his cross-ex-

amination of the appellant, nor did he men-

tion it in his summation to the jury. There

having been no objection, there was no er-

ror on the part of the trial court. If the

APP 19

interrogation invaded the appellant’s Fifth-

Amendment right of silence (which we do

not decide), we find beyond a reasonable

doubt that it was not prejudicial.

The judgment is affirmed.

All concur.

' Jewell Wayne HENDRICKS, Appellant,

. COMMONWEALTH of Kentucky,

Appellee.

Supreme Court of Kentucky.

April 22, 1977.

Defendant was convicted in the Madi-

son Circuit Court, James S. Chenault, J., of

first-degree manslaughter and he appealed.

The Supreme Court, Sternberg, J., held

that: (1) it was not necessary to give in-

struction on theory of accident, where, in

order to find defendant guilty, jury neces-

sarily had to negate explanation of acciden-

tal killing; (2) trial judge did not abuse

discretion in permitting evidence of defend-

ant’s threats against life of the victim, his

wife, and her family; and (3) trial judge did

not ‘abuse discretion in allowing testimony

of defendant’s three children, who were 13,

eight and seven years of age when the

killing took place.

Affirmed.

1. Homicide 125

That killing was purely accidental is

not “defense” which must be negated if

there is evidence to raise it, but is simply

denial that act was done with required cul-

pable state of mind.

mans,

a oe

JUDGMENT ENTERED IN JEFFERSON CIRCUIT COURT

ON JUNE 4, 1976

This Gay, the cefencent was trovght into court vy the

Shevifl. Cones his attorney Mr. Zemen. This case being called on

the dcfendants motion for a new trial herein, the court being

acvised, overrules said motion herein. The defendant was advised

of his. legal right to appeal this judgment and if he coul¢ not

efford counsel, the court would appoint him counsel and if indigent

Will be allowed to proceed in forma pauperis, the defendant

acknowlecge receipt of said information herein. fhe defendant was

asked if he had any legal cause to show why judgment should not be

pronounced ageinst him; upon edvise of counsel, none being shown,

it is ordered end adjudged thet 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 Count

and: transferred to the custody of the Department of Corrections

at such locaticn es the Department shall designate and remain in

their custody for a period of not more than life.Ordered that he be

and is remanded to jail.

a i a NN eee

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