U.S. ex rel. Pierce v. Cannon

• Decision Date: 31 December 1974
• Docket Number: No. 73-1059,73-1059
• Parties: UNITED STATES of America ex rel. Roger PIERCE, an inmate of the Illinois State Penitentiary, Petitioner-Appellant, v. Joseph G. CANNON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 197

508 F.2d 197

UNITED STATES of America ex rel. Roger PIERCE, an inmate of

the Illinois State Penitentiary, Petitioner-Appellant, v. Joseph G. CANNON, Warden, Respondent-Appellee.

No. 73-1059.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 13, 1974.

Decided Dec. 31, 1974.

John T. Moran, Kenneth N. Flaxman, Chicago, Ill., for petitioner-appellant.

William J. Scott, Atty. Gen., Charles H. Levad and Thomas Connors, Asst. Attys. Gen., Chicago, Ill., for respondent-appellee.

Before BARNES, Senior Circuit Judge, ^* and PELL and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

The issue in this case is whether testimony concerning an admittedly suggestive pre-indictment lineup should have been excluded from petitioner's state criminal trial.

I

Petitioner Roger Pierce brought this action seeking a writ of habeas corpus pursuant to 28 U.S.C 2241-2254. Pierce is presently detained at the Illinois State Penitentiary in Joliet, Illinois as the result of his conviction for attempted robbery of a Chicago taxi driver. This conviction was affirmed by the Illinois Supreme Court. People v. Pierce, 53 Ill.2d 130, 290 N.E.2d 256 (1972). Pierce's subsequent action for a writ was denied by the district court and he appeals.

While driving his cab at 3:00 a.m. on March 20, 1968, James Dotson saw two males standing behind a parked 1963 Pontiac with the hood up. The two men hailed him and believing that they were out of gas Dotson pulled around the corner to meet them. Dotson testified that when he picked up the two men the street lights were on and as they entered the cab the dome light went on automatically. Dotson also testified that he looked at the two men as they entered the cab. They asked to be driven to 63rd and Greenwood.

After driving approximately two blocks, Dotson heard one of the passengers say something. When he turned around he observed that one of the two men was holding a gun, which Dotson grabbed impulsively. After hitting the brakes, causing his cab to crash into a parked vehicle, Dotson flipped into the back seat and a struggle ensued. During the course of the fight both Pierce and the other passenger (Belmore) jumped from the cab. Just as the two men were making demands for Dotson's money a police squad car came around the corner. The two men left Dotson and ran into a gangway with two officers in close pursuit.

John O'Brien, one of the officers in the police squad car, testified that they had been attracted to the area by the sound of automobiles crashing which occurred when Dotson had slammed on the brakes. As he and his partner turned on Langley Avenue they saw three men struggling beside a taxicab. When O'Brien alighted from his car and announced his office Belmore and Pierce ran toward a gangway. Officer O'Brien pursued the two men through the dark gangway to a brightly lit alleyway. He testified that 'when they broke into the alley I was approximately eight to ten feet from them. It was a very brightly lit alley. Roger Pierce was one of the men I saw in the alley.' O'Brien apprehended Belmore and recovered a .32 caliber revolver lying on the ground near him. Dotson identified Belmore positively at that time. The other assailant escaped. The case report prepared shortly after the incident by O'Brien from his and Dotson's recollections described the escaped assailant as being 5 feet, 8 inches in height, weighing 170 pounds and wearing a three-quarter length black leather coat.

Detective George Rohrer testified that he was one of the officers who arrested Pierce later that morning. Rohrer's arrest report describes Pierce as being 6 feet tall, weighing 180 pounds and wearing a three-quarter length black leather coat.

Dotson was summoned to the police station following Pierce's arrest. He attended a lineup where at least one other taxi robbery victim, identified as Mr. Parker, was present together with a number of policemen. There was conflicting testimony as to whether the two men actually discussed the lineup prior to making their respective identifications, but the district judge assumed that they were able to do so. Dotson described the lineup as consisting of about six black males. Dotson identified Pierce by kicking him in the seat of his pants and Belmore by touching him with his hands. When asked why he had kicked Pierce, Dotson testified that it was because Pierce had hit him on the head and neck the night before.

Detective Rohrer substantially corroborated Dotson's testimony. He stated that there were six black males of similar appearance, all casually dressed in the lineup. Apparently Pierce was still wearing the same clothes he had on during the attempted robbery a few hours earlier. The six men were brought into 4earlier. The six men were brought into the room, asked their name, address and occupation and then told to make a number of turns. Rohrer could not recall any details concerning the age, height or weight of the men in the lineup. No photograph was made of the lineup or its participants and the lineup report which had been prepared could not be produced at trial.

During the hearing on the motion to suppress identification both Pierce and Belmore testified as to the circumstances of the lineup conducted at the police station. Both stated that there were only four men in the lineup and that the other two subjects were dressed in beige or tan trenchcoats and that only they were wearing black leather coats. They maintained they were wearing handcuffs while the others were not. This was disputed by both Dotson who stated that 'I don't think any of the men in the lineup had handcuffs on,' and Detective Rohrer who stated 'none of the men in the lineup were wearing handcuffs.'

Both the Illinois Supreme Court and the district court concluded that in some respects the lineup was unduly suggestive. Both courts, however, concluded that a per se exclusion of identification evidence was not necessary and considering the 'totality of the circumstances' concluded that there was not a substantial likelihood that Pierce had been misidentified. ¹

II

Pierce's primary contention is that because certain aspects of his pre-indictment lineup were unnecessarily suggestive, that identification testimony stemming from that lineup was required to be per se excluded. The district court accepted as true the facts as found by the Illinois State Courts. ² The district judge stated:

Thus I find . . . the lineup was conducted in the presence of at least two robbery victims who were able to discuss the identification. I also find that only the two suspects, one being the petitioner, were required to wear the distinctive clothing worn by the robbers . . .. ³

The practice of allowing two identifying witnesses to be present during each other's identification has been severely criticized, because it is 'a procedure said to be fraught with dangers of suggestion.' United States v. Wade, 388 U.S. 218, 234, 87 S.Ct. 1926, 1936, 18 L.Ed.2d 1149 (1967); Note, Pretrial Identification Procedures-- Wade to Gilbert to Stovall: Lower Courts Bobble the Ball, 55 Minn.L.Rev. 779, 795 (1971). ⁴ Similarly, we disapprove of the fact that both Pierce and Belmore were the only two in the lineup wearing black leather coats, which coats had been an integral part of Dotson's description of his assailants. Requiring suspects to wear distinctive clothing during their participation in a lineup has also been extensively criticized. ⁵ Finally the fact that no photograph was taken of the lineup participants or the lineup itself and that no written record of the lineup could be produced at trial is not an approved procedure. ⁶

These procedures are disapproved for a number of reasons. All decrease unnecessarily the reliability of any identification made. In most situations, the purpose that law enforcement officials seek to accomplish can be achieved without increased burdens or decreased efficiency, while at the same time making any lineup identification more accurate. Thus, given the potential for error caused by group pressure, and the only minimal increased burden created by requiring all identifications to be made separately, there would seem to be no excuse for allowing a procedure which permits two or more witnesses to discuss their identifications. Similarly, with respect to clothing, there is no justifiable reason for not allowing the suspected individual to remove highly distinctive clothing or in the alternative to supply similar clothing to others in the lineup. This is especially true in a case where the clothing worn was an integral part of the description given and there exists the likelihood that a misidentification may occur because an identifying witness has his attention focused exclusively on the clothes worn and thereby distracted from other important physical characteristics. Finally, the extra burden on the police by requiring a complete set of lineup photographs is minimal when compared with the certain assurance of fairness that would be accorded defendants if such pictures were readily available to reviewing courts.

If we were formulating rules to be applied by federal courts in federal cases the foregoing considerations might very well compel us to adopt, in the exercise of our supervisory power for the courts in this circuit, the exclusionary rule petitioner suggests. In this case, however, we deal with the adequacy of state lineup procedures and the only question before us is whether the procedures employed violated petitioner's due process rights. The precise extent of those rights in the circumstances of this case can only be delineated by reviewing the relevant cases.

In 1967 the Supreme Court decided three landmark cases dealing with witness-suspect pre-trial confrontations. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18...