465 F.2d 940 (5th Cir. 1972), 72-1303, Hamrick v. Wainwright

Docket Nº:72-1303.
Citation:465 F.2d 940
Party Name:Roger Edward HAMRICK, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.
Case Date:August 30, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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465 F.2d 940 (5th Cir. 1972)

Roger Edward HAMRICK, Petitioner-Appellant,

v.

Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.

No. 72-1303.

United States Court of Appeals, Fifth Circuit.

Aug. 30, 1972

Phillip A. Hubbart, Public Defender, 11th Judicial Cir. of Fla., Lewis S. Kimler, Asst. Public Defender, Miami, Fla. for petitioner-appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.

Before TUTTLE, MORGAN and RONEY, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Roger Hamrick was convicted of four counts of armed robbery in a Florida state court. At the trial three employees testified that Hamrick was one of the men who robbed the Flagler Finance Company. On this habeas appeal Hamrick contends 1 that the in-court

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identification by one of these witnesses should have been excluded from evidence because the witness had previously identified Hamrick's photograph which, Hamrick claims, was taken while he was being unlawfully detained under a vagrancy statute. The district court denied the petition. We affirm.

Hamrick's arrest came about in the following manner. On July 14, 1967, officer Harold J. Purcell observed Hamrick and two other black males driving around Coral Gables, Florida, in a rented automobile. Officer Purcell followed the automobile which was finally parked in a shopping center. One of the occupants got out of the automobile and Purcell recognized him as Oscar Valdez, a man who was wanted for armed robbery. Purcell approached Valdez and asked him for some identification. After producing a set of stolen identification cards Valdez admitted his true identity and Purcell arrested him for robbery. Officer Purcell then turned his attention to the automobile and the remaining two men, one of which was Hamrick. Upon request Hamrick and the other man produced proper identification and stated that they were at the shopping center to make some purchases. Nevertheless, Purcell placed both men under arrest for vagrancy in violation of Florida Statutes § 856.02, F.S.A., 2 and transported them to the station house.

As a part of the routine booking procedure Hamrick's picture was taken by the Coral Gables police department. This photograph was subsequently exhibited to three employees of the Flagler Finance Company who had been on duty when the company was robbed by three men. Although two of the employees were unable to recognize Hamrick's photograph, the third employee, William Brookhart, identified Hamrick as a participant in the robbery.

At Hamrick's trial all three employees made in-court identifications by testifying that Hamrick was one of the men who robbed the finance company. Hamrick contends before this court that the state trial judge committed reversible error by denying his motion to exclude witness Brookhart's in-court identification because Brookhart had previously identified a photograph of Hamrick which was obtained during detention which Hamrick alleges was unlawful.

Turning to the question of illegal detention, we observe at the outset that Hamrick does not argue that his arrest was unlawful because the Florida vagrancy statute is now...

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