359 F.2d 199 (4th Cir. 1966), 9609, Palmer v. Peyton

Docket Nº:9609.
Citation:359 F.2d 199
Party Name:Raymond PALMER, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
Case Date:April 06, 1966
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 199

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

Raymond PALMER, Appellant,

v.

C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

No. 9609.

United States Court of Appeals, Fourth Circuit.

April 6, 1966

Argued May 6, 1965.

Reargued Jan. 5, 1966.

Thomas F. Bergin, Charlottesville, Va. (Court-assigned counsel), for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.

Ronald P. Sokol, Charlottesville, Va., amicus curiae.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.

SOBELOFF, Circuit Judge:

Sentences of life imprisonment for rape and forty years for a five dollar robbery, to be served 'consecutively,' were imposed on Raymond Palmer in 1958. He had first been tried in 1957, but a mistrial was declared. His second trial, in 1958, ended with a hung jury. At his third trial later in the same year he waived jury trial and was found guilty. 1 He did not appeal. In 1962 Palmer's petition to the Supreme Court of Appeals of Virginia for a writ of habeas corpus was summarily dismissed. The United States Supreme Court denied certiorari in February, 1963. Palmer v. Cunningham, 372 U.S. 921, 83 S.Ct. 740 (1963). In April, 1963, a petition for federal habeas corpus relief was filed in the District Court, and dismissed after a hearing. From an order dismissing the petition Palmer appealed, and we appointed counsel.

Page 200

In this court Palmer's sole complaint is that his Fourteenth Amendment rights were infringed because of the manner in which the police secured an identification of his voice b y the prosecuting witness. In order to pass upon this question, it will be necessary to review in some detail the facts preceding the trial, as disclosed in the record and not disputed by counsel.

On Wednesday afternoon, March 27, 1957, Mrs. Martha Britt, a white woman, was in her home in Southside, Virginia, with her three and one-half year old daughter, JoAnn. Around two o'clock when she opened the back door to throw some bread to her dog, she saw a man standing just inside the door. Over his head was a heavy paper clothespin bag which she later testified 'fit snugly.' 2 She turned away quickly, but the man grabbed her around the neck preventing her from getting a close look at him. During the 15 to 30 Minutes that the intruder was in her home, she said he took five dollars from her and 'had an intercourse.' It appears that her three and one-half year old daughter was screaming during much of the time he was there.

Following the attack, Deputy Sheriff Raymond Early of Nansemond County was notified and an intensive investigation was begun. On arrival at Mrs. Britt's home, the Sheriff found her 'very nervous, upset and crying. She was just emotionally upset; all to pieces.' She was able to recall very little about her attacker; only that he was a Negro 'about the same height' as she; that he wore an 'orange-colored' sport shirt; 3 that he had 'been drinking;' and that while in her house, he spoke with a 'high, childlike voice * * * like a quiz kid or an M.C. asking questions.'

On Wednesday evening, a few hours after the attack, Mrs. Britt was brought to police headquarters to view a lineup of four or five Negroes, to test her ability to recognize voices. Petitioner was not in this group. The suspects walked back and forth before Mrs. Britt and each spoke, but no identification was made.

The following afternoon the police picked up Robert Flythe, an 18-year old Negro boy, for questioning. Sheriff Early and several other officers asked him if he knew of a woman having been raped. Flythe at first denied any knowledge of the crime, but after about an hour's questioning, he accused Palmer, his next-door neighbor. According to Flythe's story, Palmer had admitted raping a white woman the...

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