Biggers v. Neil, 20540.

• Decision Date: 18 August 1971
• Docket Number: No. 20540.,20540.
• Citation: 448 F.2d 91
• Parties: Archie Nathaniel BIGGERS, Petitioner-Appellee, v. William S. NEIL, Warden, Tennessee State Penitentiary, Nashville, Tennessee, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

448 F.2d 91 (1971)

Archie Nathaniel BIGGERS, Petitioner-Appellee, v. William S. NEIL, Warden, Tennessee State Penitentiary, Nashville, Tennessee, Respondent-Appellant.

No. 20540.

United States Court of Appeals, Sixth Circuit.

August 18, 1971.

Thomas E. Fox, Deputy Atty. Gen., Nashville, Tenn., for appellant.

Michael Meltsner, Jack Greenberg, New York City, Anthony G. Amsterdam, Stanford, Cal., Avon N. Williams, Jr., Z. Alexander Looby, Nashville, Tenn., on the brief; John P. Howland, Port Washington, N. Y., of counsel, for appellee.

Before EDWARDS, McCREE and BROOKS, Circuit Judges.

EDWARDS, Circuit Judge.

In this case we are asked by the State of Tennessee to review and reverse the issuance of a writ of habeas corpus sought by petitioner Biggers in the United States District Court for the Middle District of Tennessee. After a full hearing and after review of the full record of the proceedings in the state courts of Tennessee wherein Biggers had been convicted of rape and sentenced to 20 years in Tennessee's State Vocational Training School, the District Judge found that identification procedures employed by Nashville police and subsequently made the subject of extensive testimony at trial had been so essentially unfair as to represent a deprivation of appellant's federal constitutional right to due process of law. He ordered Tennessee either to retry appellant or release him.

The District Court found the facts pertinent to issuance of the writ as follows:

"On the evening of January 22, 1965, Mrs. Margaret Beamer was attacked at knife-point by an intruder who broke into her home. Mrs. Beamer\'s screams aroused her thirteen-year old daughter who rushed to the scene and also began to scream. At this point, the intruder is alleged to have said to Mrs. Beamer, `You tell her to shup up, or I\'ll kill you both.\' This Mrs. Beamer did, whereupon she was taken from the house to a spot two blocks away and raped. The entire episode occurred in very dim light and the rape itself occurred in moonlight. As a result, Mrs. Beamer could give only a very general description of her assailant, describing him as being fat and flabby with smooth skin, bushy hair and a youthful voice.

"Over a seven month period following the crime the police showed Mrs. Beamer various police photographs and had her attend several `line-ups\' and `show-ups.\' However, the victim was unable to identify any of the persons shown to her as being her assailant. Finally, on August 17, 1965, petitioner was arrested as a suspect in the rape of another woman. While petitioner was being detained in connection with that case the police asked Mrs. Beamer to come to the police station to `look at a suspect.\' The identification process employed at this point was called a show-up.

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"At the instant show-up Mrs. Beamer identified petitioner as being her assailant. As to what transpired at the show-up, there is some conflict between the testimony given by Mrs. Beamer at the trial and that given by her at the evidentiary hearing held in this court on October 30, 1969. In testimony given at the trial, Mrs. Beamer testified that on viewing the petitioner the `first thing\' that made her think he might be her assailant was his voice. However, at the October hearing, Mrs. Beamer testified that she identified petitioner positively prior to having him speak the words spoken by Mrs. Beamer\'s attacker more than seven months earlier during the crime — `You tell her to shut-up or I\'ll kill you both.\' There is also conflict between the testimony given by police officers at the trial and that given by them at the October hearing as to whether or not identification of petitioner was made before or after he was asked to speak these words.

"At any rate, petitioner was identified at this show-up as being Mrs. Beamer\'s attacker, and the subsequent indictment and conviction of petitioner was based almost exclusively upon this station house identification.1

"1. There is considerable doubt on reading the trial record as to whether or not Mrs. Beamer made a positive in-court identification of petitioner at the time of the trial."

The District Judge reviewed this record on a legal standard recently reiterated by the United States Supreme Court in language which is directly applicable here:

"In United States v. Wade, 388 U.S. 218 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), this Court held that because of the possibility of unfairness to the accused in the way a lineup is conducted, a lineup is a `critical stage\' in the prosecution, at which the accused must be given the opportunity to be represented by counsel. That holding does not, however, apply to petitioner\'s case, for the lineups in which he appeared occurred before June 12, 1967. Stovall v. Denno, 388 U.S. 293 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). But in declaring the rule of Wade and Gilbert to be applicable only to lineups conducted after those cases were decided, we recognized that, judged by the `totality of the circumstances,\' the conduct of identification procedures may be `so unnecessarily suggestive and conducive to irreparable mistaken identification\' as to be a denial of due process of law. Id., 388 U.S. at 302 87 S. Ct. at 1972. See Simmons v. United States, 390 U.S. 377, 383 88 S.Ct. 967, 970, 19 L.Ed.2d 1247 (1968); cf. P. Wall, Eye-Witness Identification in Criminal Cases; J. Frank & B. Frank, Not Guilty; 3 J. Wigmore, Evidence § 786a (3d ed. 1940); 4 id., § 1130." Foster v. California, 394 U. S. 440, 442, 89 S.Ct. 1127, 1128, 22 L. Ed.2d 402 (1968).

Employing the term "show-up" to refer to a situation where police bring a single suspect before a victim of crime for identification purposes, the District Judge held:

"On this basis the Court must conclude that the circumstances here present are not such as to warrant the show-up procedure and, consequently, that its use at petitioner\'s trial denied him due process of law.

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There is no indication that a truly concerted effort was made to produce suitable subjects for a line-up. Aside from a phone call to the juvenile home and a screening of Metro Jail inmates no other efforts were made. There are several other prison facilities in the area and there is no evidence that any effort was made to screen them for subjects. The Court sees no reason why this could not have been done in order to maximize the fairness of the identification process. Here, there was no evidence of any deathbed urgency as in Stovall which would have precluded the police from delaying the identification procedure until a suitable line-up could have been arranged. The crime was seven months old, the victim was fully recovered and well, and there are no other indications that the ends of justice demanded an immediate show-up rather than a much more reliable line-up. Furthermore, none of the other circumstances which the above discussed cases indicate may justify a show-up existed in the instant case. The evidence clearly shows that the complaining witness did not get an opportunity to obtain a good view of the suspect during the commission of the crime.2

"2. The only other eye-witness, Mrs. Beamer\'s daughter could not identify Biggers. And see, the case of United States ex rel. Garcia v. Follette, supra 417 F.2d 709 (2d Cir. 1969) and accompanying text and cases.

Also, the show-up confrontation was not conducted near the time of the alleged crime, but, rather, some seven months after its commission.3 Finally

"3. See the case of United States ex rel. Williams v. LaVallee, supra, 415 F.2d 643 (2d Cir. 1969), cert. denied 397 U.S. 997, 90 S.Ct. 1139, 25 L.Ed.2d 406 (1971) and accompanying text and cases.

the witness in the instant case was unable to give either an independent photographic identification of the suspect or a good physical description of her assailant.4 The nature of the

"4. See the case of United States v. Thompson, supra, 417 F.2d 196 (4th Cir. 1969), cert. denied, 396 U.S. 1047, 90 S.Ct. 699, 24 L.Ed.2d 692 (1970) and accompanying text and cases.

show-up as conducted in this case — with the great lapse of time between the crime and the identification, the hesitancy of the witness in identifying the petitioner,5 the circumstances of

"5. See United States v. Gilmore, supra 398 F.2d 679 (7th Cir. 1968) and accompanying text." (Footnotes in quotation.)

the stationhouse confrontation coupled with Mrs. Beamer\'s knowledge that petitioner was thought by police to be her assailant, — tended to maximize the possibility of misidentification of the petitioner. True, it may have been more convenient for the police to have a show-up. However, in matters of constitutional due process where police convenience is balanced against the need to extend basic fairness to the suspect in a criminal case, the latter value should always outweigh the former. In this case it appears to the Court that a line-up, which both sides admit is generally more reliable than a show-up, could have been arranged. The fact that this was not done tended needlessly to decrease the fairness of the identification process to which petitioner was subjected.

"Due process of law and basic fairness demand that the most reliable method of identification possible be used in a criminal case. See, Simmons v. United States, supra, 390 U. S. 377 (1967) at 383-384 88 S.Ct. 967, 19 L.Ed.2d 1214. The conduct of the show-up in this case created an atmosphere which was so suggestive as to enhance the chance of misidentification and hence constituted a violation of due process.

"Clearly, this identification did not amount to a harmless error, since the victim\'s identification of petitioner was virtually the only evidence upon which the conviction was founded. See, Chapman v. California, 386 U.S. 18 87 S.Ct. 824, 17 L.Ed.2d 705 (1966).

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"Accordingly, judgment will be entered granting the application of Archie

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