U.S. ex rel. Fisher v. Driber

• Citation: 546 F.2d 18
• Decision Date: 13 December 1976
• Docket Number: No. 76-1264,76-1264
• Parties: UNITED STATES of America ex rel. Lee Royal FISHER # 46690, Appellant, v. Thomas DRIBER, Acting Principal Keeper, Trenton State Prison.
• Court: U.S. Court of Appeals — Third Circuit

Page 18

546 F.2d 18

UNITED STATES of America ex rel. Lee Royal FISHER # 46690, Appellant, v. Thomas DRIBER, Acting Principal Keeper, Trenton State Prison.

No. 76-1264.

United States Court of Appeals,

Third Circuit.

Argued Oct. 22, 1976.

Decided Dec. 13, 1976.

Steven H. Gifis, Princeton, N.J., for appellant; Martin C. Aronchick, Henry G. Klein, law students, Newark, N.J., on brief.

Joseph C. Woodcock, Jr., Bergen County Prosecutor, Hackensack, N.J., for appellee; James Mayer, Asst. Prosecutor, of counsel and on brief.

Before ALDISERT and GIBBONS, Circuit Judges, and McGLYNN, District Judge. ^*

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The central question for decision is whether one who makes a timely and nonfrivolous motion to suppress in-court identification testimony at a state criminal trial on the ground that it has been tainted by improper pre-trial identification procedures is entitled to have the motion heard and determined by the trial court outside the presence of the jury. After considering a habeas corpus petition which was based on the theory that impermissibly suggestive identification testimony was admitted at a state trial, the district court denied the petition. The relator has appealed. We reverse the judgment of the district court and remand these proceedings.

I.

On February 27, 1968, an armed robbery occurred at the Louis Wides Company, a real estate and insurance agency in Englewood, New Jersey. Helen Westervelt, secretary and office manager of the company, was an eyewitness to the incident. Appellant was accused of the crime and was brought to trial. At trial, the state prosecutor called Mrs. Westervelt as a witness to provide in-court identification of the accused. When the state prosecutor asked her to make the in-court identification, defense counsel immediately requested a voir dire examination of Mrs. Westervelt before she would be permitted to continue. The trial judge denied the motion.

Mrs. Westervelt subsequently identified appellant as the robber. She testified that she had watched the robber throughout the 15 minutes in which he took money from her pocketbook and from a cash box in an open safe drawer. She described him as wearing a blue woolen "navy helmet" which covered the sides of his face to the middle of his cheeks, as well as his chin. Although she indicated that the robber's eyes, nose, mouth, and part of his cheeks were visible, Mrs. Westervelt testified that the "helmet" prevented her from seeing whether the robber had a mustache.

During cross-examination, Mrs. Westervelt confirmed that she had testified before the grand jury that the robber wore a blue knitted glove on his left hand and held a gun in his right hand. She also revealed, in her exchange with defense counsel, that she had been shown a copy of appellant's photograph, which apparently was attached to the prosecutor's file, just moments prior to testifying.

Appellant was convicted and sentenced by the County Court of Bergen County, New Jersey. His conviction was affirmed by the Appellate Division of the New Jersey Superior Court, and the New Jersey Supreme Court denied certification on July 1, 1970. State v. Fisher, 56 N.J. 477, 267 A.2d 59 (1970).

On July 21, 1972, appellant filed a habeas corpus petition in federal district court. An evidentiary hearing was subsequently ordered. Because Mrs. Westervelt was unable to appear at the scheduled hearing due to illness, the district court permitted a deposition de bene esse to be taken at her home on December 21, 1972. In a Letter Opinion and Order dated January 22, 1975, the district court denied the habeas corpus petition, concluding that neither an impermissibly suggestive identification procedure nor a substantial likelihood of misidentification had tainted the challenged Westervelt testimony.

II.

Our analysis begins with the Supreme Court's pronouncements on tainted in-court identifications. The dangers inherent in the eyewitness identification of a criminal suspect were noted by the Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). There, the Court sketched the parameters of the problem:

The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. . . . A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. . . . Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.

Id. at 228-29, 87 S.Ct. at 1933 (footnotes omitted).

In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Court applied these observations to a state prosecution, finding it error of constitutional dimension to admit challenged in-court identifications without first determining that they were not tainted. And in 1968, the Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), further molded the contours of this body of law by directing that "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside . . . only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. at 384, 88 S.Ct. at 971.

Relying upon the Wade/Gilbert/Simmons trilogy, appellant contends that he is entitled to a new trial, free of the tainted Westervelt identification testimony. He argues that the federal habeas court should have found impermissible suggestiveness as a matter of law due to Mrs. Westervelt's examination of the photograph just moments prior to testifying.

The state challenges this argument by asserting that, after a review of the 1968 Westervelt trial testimony and her deposition taken at the federal habeas corpus proceeding in 1972, the district court could properly find that the pre-trial examination of the photograph was not impermissibly suggestive. ¹ Moreover, under this view, even if the photo viewing was improper, the reception of Mrs. Westervelt's testimony could be sustained if it were established by "clear and convincing evidence" that it stemmed from her view of appellant at the time the crime was committed and not from the tainted identification procedure. United States v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926, and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), are cited as support for the latter proposition.

These arguments prove too much. Both appellant and the state fail to perceive the limited role of the federal habeas corpus court under circumstances in which, as here, the appellant's major habeas corpus contention is that he was denied a hearing prior to reception of challenged identification testimony at a state criminal trial. The parties to this appeal have bypassed a threshold procedural question: whether it is for the federal or state court, in the first instance, to make the Wade/Gilbert/Simmons determinations when a state conviction is collaterally attacked. The resolution of this question is central to the proper disposition of this appeal.

III.

This court cannot satisfactorily review the state trial testimony on suggestiveness, for it was not received in the context of procedures mandated by Gilbert v. California, supra, and Jackson v. Denno, 378 U.S. 368, 392-93, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We follow the mandate of the Jackson Court in determining that Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1962), requires an evidentiary hearing at the state level to determine the factual complex in which the challenged identification was made.

Here, as in Jackson, the allegation is made that the state trial did not comport with constitutional standards. It is contended that it was error for Mrs. Westervelt's testimony to be adduced in the presence of a jury as part of its guilt determination process. The conceptual basis of a Jackson hearing is to permit a defendant to explore his legal contentions without the constraints imposed by the presence of a jury. The state procedures here did not satisfy the salutary rule announced in Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969), and United States v. Allison, 414 F.2d 407 (9th Cir.), cert. denied, 396 U.S. 968, 90 S.Ct. 449, 24 L.Ed.2d 433 (1969). Judge McGowan set forth the test for the District of Columbia Circuit in Clemons:

Where the prosecution intends to offer only an in-court identification, the defense may challenge its admissibility. The court should then, on facts elicited outside the presence of the jury, rule upon whether a pre-trial identification by the same eyewitness is violative of due process.

408 F.2d at 1237.

A similar test was formulated for the Ninth Circuit by Judge (now Chief Judge) Browning in Allison:

(W)here a timely and sufficient motion is made to suppress identification testimony on the ground that it has been tainted by pretrial photographic identification procedures, it must be heard and determined by the court outside the jury's presence in the same manner as any other motion to suppress evidence alleged to be inadmissible because unlawfully obtained.

414 F.2d at 410. Accord, United States v. Mitchell, 540 F.2d 1163 (3d Cir. 1976). See also United States ex rel. Phipps v. Follette, 428 F.2d 912, 913 n. 1 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970); United States v. Cranson, 453 F.2d 123, 125-26 (4th Cir. 1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1607, 31 L.Ed.2d 821 (1972); ...