Patler v. Slayton

• Decision Date: 28 August 1974
• Docket Number: No. 73-1169,73-1169
• Parties: John PATLER, Appellant, v. A. E. SLAYTON, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 472

503 F.2d 472

John PATLER, Appellant, v. A. E. SLAYTON, Jr., Superintendent of the Virginia State

Penitentiary, Appellee.

No. 73-1169.

United States Court of Appeals, Fourth Circuit.

Argued April 1, 1974.

Decided Aug. 28, 1974.

Elise B. Heinz, Arlington, Va., for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit judges.

CRAVEN, Circuit Judge:

John Patler was found guilty by a jury in the Circuit Court of Arlington County, Virginia, of the first degree murder of George Lincoln Rockwell, the head of the American Nazi Party. Patler was apprehended about one-half hour after the homicide less than a mile from the scene of the crime. The complex, 'largely circumstantial' web of evidence upon which the jury verdict rested is set out in the opinion of the Supreme Court of Appeals of Virginia, which held that the verdict was based on sufficient evidence. Patler v. Commonwealth, 211 Va. 448, 452-456, 177 S.E.2d 618, 621-624 (1970). The United States Supreme Court denied a petition for certiorari on June 12, 1972.

On October 9, 1972, Patler sought a writ of habeas corpus from the United States District Court for the Eastern District of Virginia under 28 U.S.C. 2254. Three errors of constitutional magnitude were alleged: (1) that the identification testimony of two witnesses at petitioner's state trial was tainted by their presence at illegal show-ups and should have been excluded under 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); (2) that the seizure of certain inculpatory evidence from a farm owned by Patler's father-in-law constituted an illegal seizure in violation of his (Patler's) fourth amendment rights; and (3) that the state's failure to release the results of tests on physical evidence introduced at trial until late in the proceedings, which evidence tended to exculpate the petitioner, was prejudicial to his defense and contrary to the due process requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court, without a hearing, granted respondent's motion for summary judgment. Patler v. Slayton, 353 F.Supp. 376 (E.D.Va.1973). We affirm.

I.

At about noon on August 25, 1967, Mrs. Alma Kilpatrick was backing her car from a parking space at a small shopping center in Arlington, Virginia, when she saw a man appear on the brick wall in front of her. He jumped down, ran behind her car, looked toward the area of the parking lot where Rockwell's body was later found, turned and ran back over the wall. Upon being asked at trial if she could describe the person whom she saw, Mrs. Kilpatrick responded:

A. I believe that he was dark haired and he had either a brownish or a dark brown coat on, and he looked something like what Mr. Patler looks like.

Q. Where did you see Mr. Patler?

A. I saw Mr. Patler again in the courtroom.

Transcript 523. Mrs. Kilpatrick talked with police on the day after the shooting. Shown two different photographic spreads containing Patler's picture, she was unable to make a positive identification. It was then suggested that she attend Patler's preliminary hearing to obtain a view of the suspect. Failing to gain an unobstructed view of Patler, Mrs. Kilpatrick came to a second hearing. She at first declined to make a positive identification after the hearing, then changed her mind and informed the police that she could identify Patler, and finally concluded that she could not. On voir dire examination she stated: 'I have decided to say I can't positively because I know that would be a crime, that would be terrible. I can't do that.' Transcript 543.

On this same day and at about the same time, mrs. Nancy Thoburn was returning from Bon Air Park (located about four blocks from the shopping center where the shooting occurred) with her three children. As she walked up Liberty Street in the direction of the shopping center she saw a man running down the opposite side of the street in the direction of the park. Noticing him 'because of his hurry,' she testified that she described him to a detective who interviewed her that same day as having 'dark hair,' 'a dark complexion,' and 'was of medium build and height.' Transcript 628. She further described his clothing:

He was wearing a long coat of some type, although I can't exactly identify it in every detail, but it appeared to be a neutral color. Also, his pants impressed me as being a dark gray, and he wore a hat; and I noticed one thing that stood out was that his pants' legs were wet.

Transcript 628. Later that same day Mrs. Thoburn went to the police station. She was seated on a bench together with three other potential witnesses outside of the room in which Patler was confined. Patler, handcuffed and escorted by several policemen, was led by the bench as he was transferred from one room to another. ¹ The state trial judge, describing the show-up as 'the worst possible kind,' refused to allow Mrs. Thoburn to testify as to 'any identification subsequent to that made at the police station.' Transcript 622-23. But the following testimony by Mrs. Thoburn was allowed:

Mr. Hassan: (Commonwealth's Attorney) Did there come a time when you made any statement to the police officers concerning what you have just described and its relationship to any picture or live viewing of Mr. Patler?

Mr. Harrigan: (Patler's Attorney) Objection, Your Honor.

The Court: The objection is overruled.

Mr. Harrigan: Exception.

The Witness: I had an opportunity to see Mr. Patler at the police station the same day, August 25th.

Mr. Harrigan: I object to that, Your Honor.

Mr. Hassan: What she told the police.

The Court: We just want to know what you told the police officer about your impressions of Mr. Patler.

The Witness: At that time I recall seeing-- when I say seeing-- when I was asked if I could make an identification, I said that there wasn't any conflict in his appearance to the man I had seen, that there was nothing about him that conflicted my mental picture of what I had seen earlier that day.

Transcript 630-31.

The Commonwealth argues that because the testimony of Mrs. Kilpatrick and Mrs. Thoburn was inconclusive and did not rise to the level of positive identification and because counsel was at all times present at (although admittedly uninformed of) the challenged show-ups, the Wade-Gilbert exclusionary rule does not apply and the testimony must be tested only under the 'totality of the circumstances' as prescribed in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and explained in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

The contention that the presence of counsel at these show-ups is enough to satisfy Wade and Gilbert flies in the face of the sixth amendment right sought to be protected. Both Wade and Gilbert speak in terms of informed presence, i.e., notice. ² 388 U.S. at 237, 269, 87 S.Ct. 1967. The fact that Patler's counsel was present both in the hallway at the police station where Mrs. Thoburn and the other potential witnesses were seated and at the preliminary hearing which Mrs. Kilpatrick attended does not enable the Commonwealth to escape the strictures of the Supreme Court's mandate.

The state argues further that since Patler had not been indicted and the Commonwealth had not 'committed itself to prosecute' (Kirby v. Illinois,406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)) him, the Wade-Gilbert rule should not apply. The plurality opinion in Kirby does not set forth an 'indictment' test but refers only to 'the initiation of adversary judicial criminal proceedings-- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' 406 U.S. at 689, 92 S.Ct. at 1882. In a concurring opinion the Chief Justice added: 'I agree that the right to counsel attaches as soon as criminal charges are formally made against an accused and he becomes the subject of a 'criminal prosecution."406 U.S. at 691, 92 S.Ct. at 1883. There is no question but that Patler had already been served with a warrant charging him with first-degree murder, that he had been confined several hours and that his attorney was present at the police station at the time the show-up viewed by Mrs. Thoburn occurred. Mrs. Kilpatrick's viewing did not come until several weeks later. As to the show-ups viewed by both witnesses we find that 'adversary judicial criminal proceedings' had been initiated and that Patler was entitled to the informed presence of counsel under Wade and Gilbert. ³ United States v. Roth, 430 F.2d 1137, 1140-1141 (2d Cir. 1970), cert, denied, 400 U.S. 1021, 91 S.Ct. 584, 27 L.Ed.2d 633 (1971). Cf. Stanley v. Cox, 486 F.2d 48 (4th Cir. 1973).

Although the failure of a witness to make a positive, in-court identification cannot be used by the state to insulate its improper identification procedures from scrutiny, it is entirely possible, we think, for a skilled trial judge to separate the tainted matter from what the witness actually observed at the scene of the crime and thus avoid an unnecessarily blunt application of the exclusionary rule of Wade or Gilbert. That is what occurred here.

We need not decide whether the improper show-ups might have suggested or strengthened Mrs. Kilpatrick's and Mrs. Thoburn's testimony in court, even to the point of positive identification, because the capable trial judge, alert to the problem, made certain that the questioning was limited to eliciting only what they saw at the scene and an inconclusive comparison with Patler's physical appearance. As to the latter he barely skirted constitutional error, for if there is a line between 'resemblance' and 'identification' testimony it is admittedly thin. But see United States v. Brooks, 146 U.S.App.D.C. 1...