Israel v. Odom

• Decision Date: 04 September 1975
• Docket Number: No. 74-1519,74-1519
• Parties: Thomas R. ISRAEL, Warden of Illinois State Penitentiary, Menard, Illinois, Defendant-Appellee, v. Henry L. ODOM, Plaintiff-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1370

521 F.2d 1370

Thomas R. ISRAEL, Warden of Illinois State Penitentiary Menard, Illinois, Defendant-Appellee, v. Henry L. ODOM, Plaintiff-Appellant.

No. 74-1519.

United States Court of Appeals Seventh Circuit.

Argued Jan. 9, 1975.

Decided July 28, 1975.

Rehearing and Rehearing En Banc Denied Sept. 4, 1975.

Jerome J. Schlichter, East St. Louis, Ill., for plaintiff-appellant.

William J. Scott, Atty. Gen., Mark Glass, Asst. Atty. Gen., Springfield, Ill., for defendant-appellee.

Before FAIRCHILD, Chief Judge, TONE, Circuit Judge, and PERRY, Senior District Judge. ^*

FAIRCHILD, Chief Judge.

Petitioner Henry L. Odom brought this action seeking a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241-54. Odom is presently incarcerated in the Illinois State Penitentiary, Menard, Illinois, as a result of his conviction for burglary and rape. A direct appeal was taken from the judgment of conviction to the Illinois Appellate Court, Fifth Appellate District, which affirmed the conviction, People v. Odom, 123 Ill.App.2d 373, 259 N.E.2d 370 (1970). ¹ Odom's subsequent petition for a writ was denied by the district court and he appeals.

The complaining witness, Mrs. Marcia Buff, testified at trial that she was awakened during the early morning hours of May 21, 1967 by an intruder standing over her bed, holding a carving knife to her throat. She saw by a luminous clock that it was 5:00 a. m. She testified that it was "just dusk" at this time and that it was "just beginning to get light in the wee hours of the morning." In addition, there was a small night light burning in the bathroom and street light outside of her window. The parties stipulated that sunrise was at 5:44 a. m. on the morning in question. Mrs. Buff testified that she could see in the room, and described the intruder as being a Negro, with dark-rimmed glasses, a light beard, moustache, and wearing an overcoat, wash pants, and sports shirt. She testified that the outstanding feature of the intruder's appearance was his glasses.

The intruder forced Mrs. Buff to get out of her bed and, holding the knife at her side and walking behind her, took her into the living room, put her face to the wall, and kissed her shoulders. Remaining behind her, he then took her into a second bedroom, which was unlighted and forcibly raped her. During these events, the intruder questioned the victim concerning whether she had any money and the whereabouts of her husband. Mrs. Buff testified that her assailant left the house by 5:15 a. m.

Following her assailant's departure, Mrs. Buff ran to a neighbor's home and notified the police. Shortly thereafter, two patrolmen arrived. Mrs. Buff described her assailant to the police as follows: "He was colored; he was taller than I; he had a moustache; he was wearing a coat; dark rimmed glasses." Mrs. Buff is 5 feet 4 or 41/2 inches tall. Later that morning, a Detective Johnson of the East St. Louis police department brought a sketch of a man to her house. Detective Johnson exhibited the sketch to the victim and inquired: "Does this resemble the man?" Mrs. Buff testified that: "I recognized the picture . . . (a)s the man who attacked me. * * * It looked like him but . . . this man had wor(n) glasses." Detective Johnson then drew glasses on the sketch and she stated: "Yes, definitely, that's him." No other pictures or sketches were ever shown to the victim and the sketch was not available in the police files to be introduced into evidence. ²

The next day, May 22, 1967, Mrs. Buff went to the East St. Louis police station to view a lineup. No photographic record of the lineup was made or preserved and the police report, as reflected in the testimony of the officers present, was incomplete. It appears from the record, however that all five participants were Black and that no distinctive clothing was worn. Three of the participants were approximately six feet tall or taller while the petitioner was only 5 feet 51/2 inches. Only Odom wore glasses. A police officer testified that the victim identified Odom as her assailant although "she was somewhat reluctant at first." ³

After the lineup, Mrs. Buff and her parents were brought into another room, and Odom was also brought in. The purpose for this showup was apparently to obtain a voice identification. While in her presence, Odom was questioned by the authorities concerning the crime. The victim testified that she was able to identify the defendant's voice as that of her attacker. A police officer testified that the victim stated that she was "sure" that Odom was her attacker and became hysterical when they brought him into the same room with her.

During trial, in addition to testifying concerning the pretrial identifications of Odom, Mrs. Buff identified him as the perpetrator of the crime. ⁴

I.

Odom's primary claim here is that the pretrial identification procedures described above were unnecessarily and prejudicially suggestive and that, accordingly, the witnesses' testimony concerning these occurrences was improperly admitted and that the in-court identification of defendant by Mrs. Buff was irreparably tainted.

In Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), the Supreme Court held that if a pretrial confrontation "was so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny due process of law, a habeas corpus petitioner challenging the admissibility of testimony concerning the pretrial confrontation and a subsequent in-court identification, would be entitled to his requested relief. The Court cautioned, however, that a determination of this issue turns upon "the totality of the circumstances" presented by the particular case. This court, in United States ex rel. Kirby v. Sturges, 510 F.2d 397, 402-03 (7th Cir. 1975), identified three interrelated aspects of the "totality of the circumstances" which must be considered in a case such as the present. First, the court must determine whether the police procedures at issue in the case were, in fact, suggestive. If such suggestiveness is found, the court must next consider whether any unusual or exigent circumstances existed which might, at least in part, have justified the use of the faulty procedures. ⁵ Finally, and most critically, the court must examine the reliability of the identification, in spite of the suggestive nature of the confrontation. It is clear that the reliability issue is the determining factor in this examination and unjustified, suggestive procedures may be overborne when there are present sufficient indicia of reliability. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

A.

We have no doubt that the pretrial identification procedures utilized by the police in this case contained elements of suggestiveness, and that the fact that these procedures were consecutively applied increased the possible danger of misidentification.

First, on the day following the attack, the victim was shown a single sketch depicting a Black male and was asked whether "this resemble(s) the man." It is well established that "the display of pictures of (the suspect) alone (is) the most suggestive and therefore the most objectionable method of pre-trial identification." Kimbrough v. Cox, 444 F.2d 9, 10 (4th Cir. 1971). See also, Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176, 1182 (1969); Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1967). Even when the police refrain from expressly identifying the individual portrayed in the picture as the person They suspect as the criminal, compare Palmer v. Peyton, 359 F.2d 199, 200 (4th Cir. 1966), production of a single picture necessarily and implicitly suggests such a conclusion. Kimbrough v. Cox, Supra, 444 F.2d at 10. While photographic identification undoubtedly provides an effective and useful investigatory tool, especially in cases such as the present where the crime is fresh and the perpetrator still at large, Simmons v. United States, supra, 390 U.S. at 384-85, 88 S.Ct. 967, 19 L.Ed.2d 1247, there can be no doubt that use of a single picture compromises much of this advantage with improper suggestion. Id. at 383, 88 S.Ct. 967. ⁶

The following day, the victim viewed a lineup in the East St. Louis police station and selected Odom as her assailant. The police failed to preserve the event with photographs, see United States ex rel. Pierce v. Cannon, 508 F.2d 197, 201 (7th Cir. 1974), but the testimony at the hearing to suppress and during trial reveals the pertinent facts. Odom was the only person in the lineup to wear glasses, the outstanding feature of the assailant's appearance to the victim and an integral part of the description provided the police. Moreover, of the five men appearing, three were approximately six feet tall or taller while Odom's height was only 5 feet 51/2 inches. Lineups in which suspects are the only participants wearing distinctive clothing or otherwise matching important elements of the description provided by the victim have been severely criticized as substantially increasing the dangers of misidentification. United States ex rel. Pierce v. Cannon, supra, 508 F.2d at 201, n. 5 and authority cited therein; Cf. Foster v. California, 393 U.S. 440, 443 (1968). With respect to the matter of glasses, at least, and probably the variation in height as well, the lineup was suggestive for the purpose of the Kirby test. ⁷

After the lineup was completed, Mrs. Buff was taken to an interrogation room for a one-to-one confrontation with Odom apparently in order to obtain a voice identification. During this confrontation, the victim heard the accused undergo questioning concerning his involvement in the crime. The utilization of voice identification processes may provide significant advantage to both law enforcement personnel and to an innocent suspect in criminal detection and investigation. As with lineup identification,...