434 U.S. 220 (1977), 76-5344, Moore v. Illinois

Docket Nº:No. 76-5344
Citation:434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424
Party Name:Moore v. Illinois
Case Date:December 12, 1977
Court:United States Supreme Court
 
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Page 220

434 U.S. 220 (1977)

98 S.Ct. 458, 54 L.Ed.2d 424

Moore

v.

Illinois

No. 76-5344

United States Supreme Court

Dec. 12, 1977

Argued October 3, 1977

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

After petitioner had been arrested for rape and related offenses, he was identified by the complaining witness as her assailant at the ensuing preliminary hearing, during which petitioner was not represented by counsel nor offered appointed counsel. The victim had been asked to make identification after being told that she was going to view a suspect, after being told his name and having heard it called as he was led before the bench, and after having heard the prosecutor recite the evidence believed to implicate petitioner. Subsequently, petitioner was indicted, and counsel was appointed, who moved to suppress the victim's identification of petitioner. The Illinois trial court denied the motion on the ground that the prosecution had shown an independent basis for the victim's identification. At trial, the victim testified on direct examination by the prosecution that she had identified petitioner as her assailant at the preliminary hearing, and there was certain other evidence linking petitioner to the crimes. He was convicted, and the Illinois Supreme Court affirmed. He then sought habeas corpus relief in Federal District Court on the ground that the admission of the identification testimony at trial violated his Sixth and Fourteenth Amendment rights, but the court denied relief again on the ground that the prosecution had shown an independent basis for the identification, and the Court of Appeals affirmed.

Held:

1. Petitioner's Sixth Amendment right to counsel was violated by a corporeal identification conducted after the initiation of adversary judicial criminal proceedings and in the absence of counsel. United States v. Wade, 388 U.S. 218; Gilbert v. California, 388 U.S. 263. It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case at the preliminary hearing, and if petitioner had been represented by counsel, some or all of this suggestiveness could have been avoided. And the prosecution could not properly buttress its case-in-chief by introducing evidence of a pretrial identification made in violation of petitioner's Sixth Amendment rights, even if it could prove that the pretrial [98 S.Ct. 461] identification had an independent source. Pp. 224-232.

2. The case will be remanded, however, for a determination of whether

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the failure to exclude the evidence derived directly from the violation of petitioner's Sixth Amendment right to counsel was harmless constitutional error under Chapman v. California, 386 U.S. 18. P. 232.

534 F.2d 331, reversed and remanded.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, and REHNQUIST, JJ., joined. REHNQUIST, J., filed a concurring opinion, post, p. 232. BLACKMUN, J., filed an opinion concurring in the result, post, p. 233. STEVENS, J., took no part in the consideration or decision of the case.

POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

Petitioner was convicted of rape and related offenses. At trial, the complaining witness testified on direct examination by the prosecution that she had identified petitioner at a preliminary hearing at which he was not represented by counsel. The State Supreme Court affirmed petitioner's convictions, and the Federal District Court and Court of Appeals denied habeas corpus relief. We granted certiorari because of an apparent conflict between the decisions below and our holdings with respect to the right to counsel at corporeal identifications in United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); and Kirby v. Illinois, 406 U.S. 682 (1972). We reverse.

I

The victim of the offenses in question lived in an apartment on the South Side of Chicago. Shortly after noon on December 14, 1967, she awakened from a nap to find a man standing in the doorway to her bedroom holding a knife. The man entered the bedroom, threw her face down on the bed, and

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choked her until she was quiet. After covering his face with a bandana, the intruder partially undressed the victim, forced her to commit oral sodomy, and raped her. Then he left, taking a guitar and a flute from the apartment.

When police arrived, the victim gave them a description of her assailant. Although she did not know who he was, and had seen his face for only 10 to 15 seconds during the attack, she thought he was the same man who had made offensive remarks to her in a neighborhood bar the night before. She also gave police a notebook she had found next to her bed after the attack.

In the week that followed, police showed the victim two groups of photographs of men. From the first group of 200 she picked about 30 who resembled her assailant in height, weight, and build. From the second group of about 10, she picked two or three. One of these was of petitioner. Police also found a letter in the notebook that the victim had given them. Investigation revealed that it was written by a woman with whom petitioner had been staying. The letter had been taken from the woman's home in her absence, and petitioner appeared to be the only other person who had access to the home.

On the evening of December 20, 1967, police arrested petitioner at his apartment and held him overnight pending a preliminary hearing to determine whether he should be bound over to the grand jury and to set bail. The next morning, a policeman accompanied the victim to the Circuit Court of Cook County (First Municipal District) for the hearing. The policeman told her she was going to view a suspect, and should identify him if she could. He also had her sign a complaint that named petitioner as her assailant. At the hearing, petitioner's name was called and he was led before the bench. The judge told petitioner that he was charged with rape and deviate sexual behavior. The judge then called the victim, who had been in the courtroom waiting for the case to be called, to come before the bench. The State's Attorney stated

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that police had found evidence linking petitioner with the offenses charged. He asked the victim whether she saw her assailant [98 S.Ct. 462] in the courtroom, and she pointed at petitioner. The State's Attorney then requested a continuance of the hearing because more time was needed to check fingerprints. The judge granted the continuance and fixed bail. Petitioner was not represented by counsel at this hearing, and the court did not offer to appoint counsel.

At a subsequent hearing, petitioner was bound over to the grand jury, which indicted him for rape, deviate sexual behavior, burglary, and robbery. Counsel was appointed, and he moved to suppress the victim's identification of petitioner because it had been elicited at the preliminary hearing through an unnecessarily suggestive procedure at which petitioner was not represented by counsel.1 After an evidentiary hearing, the trial court denied the motion on the ground that the prosecution had shown an independent basis for the victim's identification.

At trial, the victim testified on direct examination by the prosecution that she had identified petitioner as her assailant at the preliminary hearing. He also testified that the defendant on trial was the man who had raped her. The prosecution's other evidence linking petitioner with the crimes was the letter found in the victim's apartment. Defense counsel stipulated that petitioner had taken the letter from his woman friend's home, but he presented evidence that petitioner might have lost the notebook containing the letter at the neighborhood bar the night before the attack. The defense theory was that the victim, who also was in the bar that night, could have picked up the notebook by mistake and taken it home.

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The defense also called witnesses who testified that petitioner was with them in a college lunchroom in another part of Chicago at the time the attack was committed.

The jury found petitioner guilty on all four counts, thus rejecting his theory and alibi. The trial court sentenced him to 30 to 50 years in prison. The Illinois Supreme...

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