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12/06/68 Malcus T. Clemons, v. United States of America

December 6, 1968

MALCUS T. CLEMONS, APPELLANT

v.

UNITED STATES OF AMERICA, APPELLEE. DAVID E. CLARK, APPELLANT,

v.

UNITED STATES OF AMERICA, APPELLEE. ALVIN C. HINES, APPELLANT, V. UNITED STATES OF



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

America, Appellee 1968.CDC.251

APPELLATE PANEL:

Bazelon, Chief Judge, and Danaher, Burger, Wright, McGowan, Tamm, Leventhal and Robinson, Circuit Judges. Leventhal, Circuit Judge, concurring. Wright, Circuit Judge, dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN

McGOWAN, Circuit Judge:

These three criminal appeals were, prior to final decision by the panels which initially heard them, placed en banc for hearing and disposition by the full court. This was because each case involved an identification issue growing out of the circumstances under which pre-trial identification had been made. Since several other appeals pending in this court involve the same kind of question, and since it is recurring in the District Court with great frequency, we thought that en banc consideration was desirable in the interest of sound judicial administration. Recognizing that no case is ever quite like another on its facts, we selected three cases typical of the class. Our disposition in each instance appears below, *fn1 after a discussion of the legal principles lately emerging in this field and an examination of the factual context for their application in each case. I

In three cases decided June 12, 1967, the Supreme Court brought into focus its concern with the manner in which pre-trial identifications are frequently made. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149; Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199. In the first two of these cases, which involved lineups held at substantial intervals after arrest, indictment, and appointment of counsel, but without counsel present, the Court found a violation of the Sixth Amendment right to counsel. It said in each instance that the lineup was a critical stage in the criminal proceedings at which the accused were constitutionally entitled to have their lawyers present. In rejecting the argument that pre-trial confrontations for identification are under no circumstances significant parts of the process of criminal prosecution, the Court adverted at length to the chronic uncertainties of eyewitness testimony. It prefaced its rehearsal of these problems with the statement that "the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial"; and it went on the remark that "[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification." 388 U.S. at 228, 87 S. Ct. at 1933.

On such premises the Court concluded that the presence of counsel at lineups was necessary in order (1) to minimize the likelihood of an unduly suggestive confrontation and (2) to enable an informed challenge to be made at trial to either the admissibility or the credibility of identification evidence. In Wade, a federal prosecution, the Government's case at trial had included only in-court identifications, and the lineup identifications had been brought out by defense cross-examination. The Court, saying that "on the record now before us we cannot make the determination whether the in-court identifications had an independent origin," sent the case back for a resolution by the District Court of that question, or for a determination of whether, in any event, the introduction of the evidence was harmless error under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

In Gilbert, a state case, where the in-court identifications had been unsuccessfully objected to as tainted by the uncounseled lineup confrontation, the Court said that a disposition similar to that in Wade would normally be appropriate since "as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial [guilt and penalty] had an independent source." But, since testimony describing the lineup identifications was given by certain prosecution witnesses as part of their direct examination in both stages of the trial, the Court said that the prosecution is "not entitled to an opportunity to show that the testimony had an independent source," and that only a per se exclusionary rule can effectively assure respect for the right to counsel. Therefore, said the Court, unless the California Supreme Court on remand could declare a belief under Chapman that the violation was harmless beyond a reasonable doubt, Gilbert must have a new trial.

Stovall was a federal habeas corpus attack upon a state conviction. The defendant, arrested within a day after a brutal assault committed in the course of a robbery, was the following day taken in police custody to the hospital room of the victim who was in critical condition after surgery. The only Negro in the room, manacled to one of five white policemen and accompanied by two prosecutors, and not yet represented by counsel although his preliminary hearing had been continued for that purpose, the defendant was identified after the police asked the victim if he "was the man." The victim recovered, and at trial made an in-court identification of Stovall and also testified on direct examination in the presence of the jury that she had identified the defendant at the hospital.

The Court ruled in Stovall that the Sixth Amendment right to counsel recognized on direct appeal in Wade and Gilbert would be given only prospective effect. Thus confined to pre-trial confrontations occurring after June 12, 1967, Stovall's conviction was unassailable on this ground. But the Court then, in the brief compass of one page, (1) identified, as a different and independent ground of attack, a claim that the pre-trial confrontation "was so unnecessarily suggestive and conducive to irreparable mistaken identification that [defendant] was denied due process of law," *fn2 (2) observed that "the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned," *fn3 and (3) held that, since "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it," the Court of Appeals had been right in finding no violation because a police station lineup had not been feasible under the circumstances. The opinion for the Court made no reference to the fact that the State at trial had buttressed the victim's in-court identification by eliciting the pre-trial confrontation on direct examination in the jury's presence.

Stovall is of primary importance to the cases before us for two reasons. First, its holding on the full prospectivity of the Sixth Amendment right to counsel eliminates that issue, and, second, it is, in strict contemplation, the sole source of Supreme Court doctrine on the contours of due process in the area of pre-trial confrontations for purposes of identification. As such, the illumination it provides is meager indeed, partly because of its brevity and partly because of the result reached. On two occasions since Stovall, however, the Supreme Court has addressed itself to due process in pre-trial identification, and we look to those cases for such help as they may give.

The more significant of these is Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). At trial the Government's case on identification consisted solely of in-court identifications made by five employees who witnessed the robbery of a bank. Simmons urged that this testimony was tainted by pre-trial identifications made through photographs under circumstances amounting to a denial of due process or at least requiring reversal in the exercise of the Court's supervisory powers. The Court characterized Simmons' claim, and disposed of it, as follows (at p. 383, 88 S. Ct. at p. 970):

"He asserts simply that in the circumstances the identification procedure was so unduly prejudicial as fatally to taint his conviction. This is a claim which must be evaluated in light of the totality of surrounding circumstances. See Stovall v. Denno, 388 U.S. 293, 302

The Court went on to recognize "that improper employment of photographs . . . may sometimes cause witnesses to err in identifying criminals." It identified various methods which it thought undesirable, but it concluded that it was "unwilling" to prohibit the use of pre-trial photographic identification "either in the exercise of our supervisory 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 identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967, 1972-1973, 18 L. Ed. 2d 1199, and with decisions of other courts on the question of identification by photograph." 390 U.S. at 384, 88 S. Ct. at 971.

The Court alluded to the urgent character of the circumstances in which the photographs were used. A serious felony had been committed, and the bandits were still at large. There were signs pointing to Simmons, but they were inconclusive. The help of identification was greatly needed. The Court noted that each employee had had a good opportunity to observe Simmons at the time of the crime; the photographs were shown to them only a day later when recollections were fresh; there was no evidence of verbal guidance by the police; and, lastly, the employees' in-court identifications were positively made and firmly adhered to under cross-examination. The Court concluded in these terms (at pp. 385-386, 88 S. Ct. at p. 972):

"Taken together, these circumstances leave little room for doubt that the identification of Simmons was correct, even though the identification procedure employed may have in some respects fallen short of the ideal. We hold that in the factual surroundings of this case the identification procedure used was not such as to deny Simmons due process of law or to call for reversal under our supervisory authority."

On the same day Simmons came down, the Court affirmed, by an equally divided court, Justice Marshall not sitting, a rape conviction before it on certiorari to the Tennessee Supreme Court. Biggers v. Tennessee, 390 U.S. 404, 88 S. Ct. 979, 19 L. Ed. 2d 1267 (1968). The facts, as stated in the dissenting opinion of Mr. Justice Douglas, are very similar to those in Palmer v. Peyton, note 2 supra, and indicate that (1) Biggers was arrested for another rape seven months after the crime in issue, (2) the victim was brought down to the police station where her identification was made by listening to Biggers speak in another room, (3) there was no in-court identification but only the victim's testimony (and that of police officers) about her voice identification at the station house, and (4) the victim's opportunity to observe her attacker at the time of the assault was limited. Justice Douglas stated that: "Of course, due process is not always violated when the police fail to assemble a lineup but conduct a one-man showup." But it was his view that, on the facts before him, an evaluation of the due process challenge to Biggers' conviction by reference to the governing Simmons standard of "the totality of surrounding circumstances" dictated the conclusion that the identification processes employed were "so unduly prejudicial as fatally to taint his conviction."

With higher authority in this slender state of development, generalization is more hazardous than usual. It would appear, however, that the Supreme Court has, at the least, cast an unmistakable shadow across those post-arrest single confrontations at the police station where formal lineups are a feasible alternative. For the future, of course, all such post-incarceration exposures, singly or in lineup, are subject to the protections of the Sixth Amendment right to counsel, and many of the problems we face today will be nonexistent. However, the resolution of due process claims, both past and future, remains for us, as it was for the Supreme Court in Stovall, Simmons, and Biggers, an inescapable duty. That affirmances were the result in all those cases may or may not be significant, but, in any event, we think the Court has formulated a broad standard of review which focuses upon the distinctive facts of each case in their totality, and which relies very heavily upon the special capacity and experience of judges, trial and appellate, to discriminate between real and fancied dangers of the miscarriage of justice.

In the conduct of trials involving post-Wade and Gilbert identifications, the mode of proceeding would seem to be as follows: Whenever the prosecution proposes to make eyewitness identification a part of its case, the defense is entitled to know, through disclosure by the prosecution or by evidentiary hearing outside the presence of the jury, the circumstances of any pre-trial identification. *fn4 If it was one where the court finds that the Sixth Amendment right to counsel existed but was not observed, the prosecution may not, under the per se exclusionary rule enunciated by the Supreme Court in Gilbert, offer such identification as part of its case; and the same rule would appear to be applicable with respect to prosecution evidence of post-Stovall pre-trial identifications found by the court to be violative of due process.

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 or the right to counsel. If a violation is found, the court should then decide whether the in-court identification is still admissible because it has an independent source; indeed, it would appear in the interest of expeditious judicial administration for such a ruling to be made in any event. If the judge regards only the in-court identification as admissible, in the trial to the jury thereafter, the defense may, as a matter of trial tactics, decide to bring out the pre-trial confrontation itself, hoping that it can thus detract from the weight the jury might otherwise accord the in-court identification.

There are, of course, many questions thus far left unanswered by the Supreme Court decisions as to the precise scope of the constitutional rights to counsel and to due process in pre-trial identification. In the case of photographs, Simmons makes clear that only a due process (or, in the case of federal prosecutions, an appellate supervisory power) issue can be involved where the police problem is one of getting leads to possible suspects. A due process violation in this area will largely be a function of the heed given by the police to the considerations alluded to in Simmons as relevant to the fair use of photographs. Any well-run department will presumably prepare -- and enforce -- careful regulations in this regard for the guidance of its personnel, as it will also do with respect to police station lineups. *fn5 Apart from photographic leads and the familiar post-arrest police station confrontation, there are possible variations in the circumstances of arrest and detention where the right to counsel, as well as the demands of due process, will have to be defined and measured from case to case by reference to the reasonableness of the police conduct under the particular circumstances.

We have referred above to the guidance which we think the Supreme Court has thus far afforded for determining whether a conviction following upon eyewitness testimony is or is not below the levels of tolerance of the due process concept. Equipped with that instruction, we turn to the cases immediately before us. II No. 21,249 -- Hines v. United States

Hines was convicted by a jury on six counts of robbery. 22 D.C.CODE 2901. The charges arose out of a holdup of the operators and customers of a beauty parlor at about 7:00 P.M., July 29, 1966. *fn6 Hines was arrested at about 1:00 A.M., July 30, 1966, with $98.00 in his pocket, an amount which he and a corroborating witness claimed he had won at a "crap" game the same evening. This was the only evidence brought out at trial, other than the identification of Hines by various of the ladies in the beauty parlor.

The Government has confessed error on this appeal, and has asked that the case be remanded for a new trial. *fn7 We accede to that request. Nevertheless, both parties have agreed that important issues concerning the admissibility into evidence of identification testimony were raised in the District Court, and should now be considered by this court. Hines has also raised a serious question as to whether he has been denied his Sixth Amendment right to a speedy trial and has asked that, whatever the court's disposition of the identification issues may be, the indictment be dismissed with prejudice because of the long delays in bringing him to trial and in processing his appeal.

We recognize that appellate consideration of what may possibly become moot questions is generally undesirable. This is the only case of the three before us, however, in which the trial was held after the Supreme Court's opinion in Stovall, and it is, thus, the only one in which the District Court ruled at trial on the propriety of certain out-of-court and in-court identifications with a due process standard explicitly in mind. *fn8 It is, moreover, a case in which there was a great variety of identification testimony. The ladies differed not only in their opportunities to observe the robber before and during the robbery, but also in the manner in which, and the positiveness with which, they identified Hines after the robbery. Therefore, we think that, in the interest of efficient judicial administration, we are warranted in discussing the merits of the identification issues raised on this appeal. *fn9

Nine ladies were in the beauty parlor when the robbery took place. Three of them testified that they had seen the same man enter the shop earlier in the day, and two of these heard him ask for his mother when questioned about what he was doing in the beauty parlor. Eight of them had the opportunity to see the robber during the robbery (one hid in the bathroom throughout). Seven of them testified at trial. Six said that the robber had stolen property from them. Of the seven who testified, five saw photographs, four of them the same night as the robbery, one the next morning. Three identified Hines as the robber the following morning when he appeared before a magistrate at a preliminary hearing; the other four saw him on August 16, 1966, the day he was indicted by the grand jury, in a cellblock at the court house.

At the trial, which began June 15, 1967, after a hearing before the judge alone in which one of the three ladies who had seen the defendant at the preliminary hearing testified, all three were permitted to testify both that they had identified Hines as the robber at the preliminary hearing, and that they presently recognized Hines as the robber in the courtroom. Of the four who had viewed defendant in the cellblock, all of whom testified before the judge with the jury absent, two were not permitted to identify Hines at all, and two were not allowed to relate the circumstances of the cellblock identification on direct examination, but were permitted to make in-court identifications. Defense counsel, however, cross-examined both of the latter witnesses with respect to the cellblock confrontation.

Hines has raised three issues with respect to the propriety of the District Court's rulings on the admissibility of identification testimony, and the Government has raised two others. The three questions posed by Hines are:

(1) Was the trial court correct in holding that the confrontations at the preliminary hearing were not a violation of due process?

(2) Was the trial court correct in holding that two of the witnesses who had viewed defendant in the cellblock could nevertheless identify him in court?

(3) Was it error for the trial court to permit pre-trial identifications to be admitted where in-court identifications already made had not been impeached?

The two issues raised by the Government are:

(1) Was the trial court correct in holding that the cellblock confrontations were a violation of due process?

(2) If they were, was the trial court correct in excluding all identification testimony by two of the ladies who had viewed Hines in the cellblock?

The District Court, pursuant to Hines' motion to suppress identification testimony heard the testimony of four witnesses before the jury was called. They were: (1) Mrs. Aggrey, an operator of the beauty salon, who had talked to the robber when he entered the shop earlier, who had examined photographs the night of the robbery and identified Hines as the robber from them, *fn10 and who was taken to the cellblock two and a half weeks after the robbery and identified Hines there as well; (2) Mrs. Parker, also an operator, who had not seen, but only heard, the robber before 7:00 P.M., who had looked at photographs but had not been able to identify anyone, and who was taken to the cellblock and was able to identify Hines as the robber positively only after she had heard his voice; (3) Mrs. Grandy, a customer, who had seen the photographs and was unable definitely to pick out Hines from them other than to say that he was "one of two," but who had identified him as the robber at the preliminary hearing immediately *fn11 and positively; and (4) Detective Simmons, who described the happenings (a) when the ladies looked at the photographs, *fn12 (b) at the preliminary hearing, and (c) at the cellblock viewing.

After hearing argument from counsel, the District Court concluded that (1) the identifications at the preliminary hearing were not a violation of due process, (2) the cellblock viewings were a violation of due process, (3) Mrs. Aggrey would be permitted to identify Hines in court, but (4) Mrs. Parker would not. In upholding the preliminary hearing identifications, the trial court appears to have relied on the evidence that over one hundred people had been milling about the courtroom, that various people had come out of the same door as Hines, and that the ladies were not influenced in any way to identify Hines, were not even told the suspect's name, and had identified him even though he was wearing clothing different from that which the robber had worn. The court also apparently believed Mrs. Grandy's testimony that she had recognized the defendant instantly, and that she had not been influenced in her determination by the two ladies with whom she was sitting. Her testimony in this last respect was that: "We were sitting together and we said it ["that's the fellow"] together."

We are not prepared to reject the District Court's conclusion that the preliminary hearing confrontation survives due process challenge. We note in this regard that the presentment occurred promptly the morning after the arrest and that, in contrast with the cellblock confrontations, there was no lengthy intervening period of time in which a normal police station lineup could have been arranged. It is, of course, possible for a non-lineup confrontation to be held under conditions which assimilate it very closely to a lineup, and this is what the trial court essentially found was the case here. It must be evident, however, that the conditions of such a confrontation are much harder to control than those of a formal lineup, and that it is also much more difficult to establish by clear and undisputed testimony exactly what those conditions were. It is, at the least, a practice fraught with perils to a degree suggesting its sparing use as the part of prudence.

In finding that a violation of due process did occur at the cellblock viewing, the District Court stated that "in taking the situation in its totality" the confrontations were "unnecessarily suggestive." It reached its conclusion on the basis of these facts: (1) Hines was alone in custody, and standing in a screened-off section, when presented to the witnesses; (2) the witnesses knew that Hines had been arrested for the robbery and was considered by the authorities to be the culprit; (3) previous to testifying before the grand jury, the witnesses were asked to make certain that this was the man; (4) they were taken to the cellblock as a group and viewed defendant as a group; (5) at least one witness nodded her head affirmatively during the confrontation; and (6) after hearing Hines' voice, Mrs. Parker announced to the others that she believed him to be the man.

Again we cannot say that the trial court erred in its appraisal of the cellblock confrontation. It found in effect that the conditions which obtained on that occasion (which occurred weeks after Hines had been in custody and available for normal lineup viewing) did not approximate a lineup, and that, contrarily, they brought Hines into a focus unacceptably antithetical to the lineup principle. Thus, we do not disturb the trial court's determination that the Government's direct case could not profit from the cellblock confrontation.

Having found no fault with either of the trial court's holdings on due process, it remains for us to consider its conclusions that Mrs. Aggrey could identify defendant in court, and that Mrs. Parker could not. In finding that Mrs. Aggrey's in-court identification "was not the fruit of the illegal confrontation," the District Court relied on the circumstances that (1) she had seen the robber once prior to the robbery, as well as during the robbery itself, (2) she testified that she had paid particular attention to his appearance, and (3) she had been able to pick out Hines' photograph the night of the robbery. Mrs. Parker, on the other hand, was unable to give the police a description of the robber or to identify Hines' picture after the robbery, was told before going to the cellblock that the man to be viewed was the man identified earlier by the ladies at the preliminary hearing (Mrs. Aggrey testified that she did not know this), and was able to make an identification only on the basis of having heard Hines speak in the cellblock. Thus, it appeared to the trial court "that the witness' testimony certainly is a product of the illegal confrontation of August 16th."

The Supreme Court has, as noted above, expressly contemplated that in-court identifications may be found capable of standing on their own feet, even though preceded by deficient pretrial confrontations. It has also emphasized the key role which the trial court, because of its direct exposure to the witnesses, plays in any such determination. Examined against this background, we think the District ...


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