464 F.2d 1348 (3rd Cir. 1972), 71-1652, United States ex rel. Riffert v. Rundle

Docket Nº:71-1652.
Citation:464 F.2d 1348
Party Name:UNITED STATES of America ex rel. James R. RIFFERT, Appellant, v. Alfred T. RUNDLE, Superintendent.
Case Date:July 11, 1972
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1348

464 F.2d 1348 (3rd Cir. 1972)

UNITED STATES of America ex rel. James R. RIFFERT, Appellant,

v.

Alfred T. RUNDLE, Superintendent.

No. 71-1652.

United States Court of Appeals, Third Circuit.

July 11, 1972

Argued May 25, 1972.

Page 1349

Herbert K. Fisher, Bloom, Ocks & Fisher, Philadelphia, Pa., for appellant.

Michael Luber, Asst. Atty. Gen., Dante Mattioni, Deputy Atty. Gen., E. Pennsylvania, J. Shane Creamer, Atty. Gen., Philadelphia, Pa., for appellee.

Before STALEY, ALDISEXT and HUNTER, Circuit Judges.

OPINION

JAMES HUNTER, III, Circuit Judge.

James Riffert was convicted in the criminal courts of Clinton County, Pennsylvania, on charges of burglary, larceny, robbery, and assault and battery. After exhausting his state remedies, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. The petition was denied without a hearing.

In this appeal, Riffert raises three points of alleged error: (1) that the confrontation and identification procedure employed at his preliminary hearing

Page 1350

was violative of the due process standard enunciated in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); (2) that the admission of certain evidence was erroneous and warrants the granting of a new trial; and (3) that it was reversible error for the trial court not to instruct the jury that a unanimous verdict was required. We shall consider these points seriatim.

I

Riffert's preliminary hearing was held ten days after his arrest. At that time, he was led into the courtroom handcuffed and accompanied by two policemen and his attorney. It is undisputed that a number of the Commonwealth's witnesses-subpoenaed and present to testify on its behalf-saw appellant as he was led into the room. The handcuffs were removed prior to the commencement of the proceedings.

It has long been a recognized attack upon a criminal conviction that a defendant was subjected to a pretrial confrontation and identification "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to amount to a denial of due process. Stovall v. Denno, supra, 388 U.S. at 302, 87 S.Ct. at 1972; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). This basic principle was recently reaffirmed by the Supreme Court in its decision in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1970). There, while determining that 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), 1 required the presence of counsel at only those lineups conducted after the "onset of formal prosecutorial proceedings," Kirby v. Illinois, supra, 406 U.S. 690, 92 S.Ct. 1882, the Court nevertheless again stated that the "Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification." Kirby v. Illinois, supra, 406 U.S....

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