Dupuie v. Egeler

• Citation: 552 F.2d 704
• Decision Date: 04 April 1977
• Docket Number: No. 76-1858,76-1858
• Parties: William L. DUPUIE, Petitioner-Appellant, v. Charles E. EGELER, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 704

552 F.2d 704

William L. DUPUIE, Petitioner-Appellant, v. Charles E. EGELER, Warden, Respondent-Appellee.

No. 76-1858.

United States Court of Appeals,

Sixth Circuit.

Argued Feb. 9, 1977.

Decided April 4, 1977.

William L. Dupuie, James T. Bilicki, Hall & Andary, P. C., Detroit, Mich., for petitioner-appellant.

Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Thomas L. Casey, Lansing, Mich., for respondent-appellee.

Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.

EDWARDS, Circuit Judge.

This is an appeal from denial of appellant Dupuie's petition for writ of habeas corpus entered by a District Judge in the Eastern District of Michigan, Southern Division. Appellant is serving a life sentence for murder committed in the course of a felony. His petition was denied, without evidentiary hearing, on the basis of the state trial record.

The facts of the crimes involved are in dispute. Appellant's claim is that constitutionally impermissible methods were employed to arrive at the testimony which convinced the jury that he was one of the two perpetrators, when in fact, he was not. He relies particularly upon Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). His retained counsel's brief also cites Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Appellant's pro se brief recites the following facts which (except for footnote 2) are not in question on this appeal:

Mr. and Mrs. Leftkowitz were an elderly couple who had returned to their apartment the day in question after having seen a dentist who had worked on Mrs. Leftkowitz. At approximately 9:45 p. m., that evening the telephone rang in their apartment. Mrs. Leftkowitz was lying down in their living room and her husband answered the telephone. Someone called and said they had some mail that belonged to the Leftkowitz (sic) and that they were sending their son over with it. Mrs. Leftkowitz became suspicious and called the manager of the complex, and asked her if anyone lived in the complex who had a boy old enough to deliver mail at that time of night. While she was on the phone with the manager, Mrs. Bernstein, two men broke into their apartment carrying guns. Of the two men, one was larger than the other. The smaller man was ultimately identified at the trial by Mrs. Leftkowitz as being petitioner.² The smaller of the two men forced Mrs. Leftkowitz to put down the telephone and ordered her into the bedroom. She testified that the two men ordered her and her husband to go into their bedroom where they were taped and forced to lay on the floor. Mrs. Leftkowitz testified that the smaller man rifled through the dresser drawers until he found an envelope containing the.$1000.00. At this point a knock came on the window of their bedroom. The robbers, having found the money, then fled the bedroom and left the apartment. Mrs. Leftkowitz also testified she then heard some shooting.³

Other testimony served to establish that when the smaller of the two robbers forced Mrs. Leftkowitz to put down the phone, the building manager, to whom she was talking, became alarmed and called Carl Lindberg, a Michigan State Trooper who lived in the same apartment complex, and asked him to investigate. After the two robbers had left the Leftkowitz apartment, shooting was heard. No eyewitness testified to seeing the actual murder, but Trooper Lindberg was found dead of a bullet wound.

Appellant's claims of constitutionally impermissible identification proceedings were stated as follows in connection with his habeas petition in the District Court:

(a) That the victim had been shown a picture of Petitioner prior to the lineup conducted by the Detroit Police Department but was not able to make an identification at that time. The victim's later in-court identification and testimony was unclear, contradictory, and rather uncertain as to the identity of Petitioner as the smaller man involved in the robbery.

(b) The victim was not able to identify anyone as being the smaller man. The police then employed a mask (after several alterations were made thereon) which was similar to the one used on the night in question. Based solely upon the mask furnished by the police, the victim made her identification. Petitioner was compelled to put on a mask which had been altered to police specifications.

(c) That on the evening before the lineup, the Detroit News carried a picture of Petitioner on the front page of its evening edition along with a headline story to the effect that a warrant had been issued for Petitioner in the slaying of trooper Lindberg. The victim saw this picture in the newspaper. In its ruling denying defense's motion to strike the victim's in-court identification and testimony, the trial court ruled that such testimony affected only the weight of her credibility as a witness and not the admissibility. Such suggestive identification procedures employed were so unnecessarily suggestive and conducive that Petitioner was thereby denied due process when the victim's later in-court identification was made and subjected only to the attack of credibility.

Both the Memorandum Opinion and Order of the District Judge, dated April 17, 1974, and the earlier Michigan Court of Appeals opinion in appellant's direct appeal (People v. Dupuie, 31 Mich.App. 14, 187 N.W.2d 260 (1971)) deal adequately with these contentions and we hereby incorporate them by reference.

We note that appellant (and codefendant Payne) had been represented by counsel at the line-ups where Mr. and Mrs. Leftkowitz first identified him and had voiced no objections to the fairness of the line-up. The prosecution relied only upon in-court identification of Dupuie by both Mr. and Mrs. Leftkowitz and did not introduce any line-up identification on direct examination. Although there was testimony that the smaller of the robbers was masked, and the Leftkowitzs' identifications were made only after they saw Dupuie wearing a similar mask, the same mask had been worn in turn by each of the line-up participants. Prior unsuccessful attempts at photo identification had occurred before appellant was arrested and the two Leftkowitzs denied (Mrs. Leftkowitz with some equivocation) that they had seen the Detroit News photographs of appellant published at the time of his arrest before their identifications at the line-up.

Like the District Judge and the Michigan Court of Appeals, we believe the facts in this case serve amply to distinguish it from Wade v. United States, supra; Stovall v. Denno, supra; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and Simmons v. United States,supra and warrant our affirmance as to all legal issues clearly identified.

What particularly concerned this court after briefing of this case and oral argument, however, was a somewhat different issue which we deem to be presented at least by implication. This is whether or not appellant's conviction could, within federal due process standards, rest wholly or in material part upon Mrs. Leftkowitz's vague and ambivalent identification of appellant while "his face (was) completely covered by a Halloween-type mask." This concern led to our calling for additional briefing, and our own examination of the entire transcript of the state court trial.

Such examination produced the following facts:

Mr. Leftkowitz's identification of appellant as the smaller bandit was positive:

(On Direct Examination)

Q Did they take any other money from the place?

A Yes, took a thousand dollars.

Q Anything else?

A And some dimes and quarters.

Q Do you see either of the two men that you are describing here in this courtroom?

A Yes, I do.

Q Will you point out and indicate the men that you recognize as being the men that did these things?

A The man sitting on that side, he taped my hands.

Q What did the other man do?

A The other man was going through the drawers.

Q Is that man in the courtroom?

A Yes, the small man sitting there alongside of him.

MR. WEISWASSER: Let the record show the witness has identified the defendants William Dupuie and James Payne.

Q (By Mr. Weiswasser): Now, you say that the man on the left here

A The man there, yes, he taped my hands.

Q He is the one that taped you up?

A He stood at me with a gun all the time.

Q And the other man is the one that went through the drawers?

A Yes, he did.

(On Cross-examination)

Q Now, there were six men in the line-up, do you remember that?

A Yes, I do.

Q Okay. These men were asked to place a mask on their face?

A Yes.

MR. BURKE: May I see that mask?

Q (By Mr. Burke): Does this look like the mask they were asked to place on their face?

A Yes.

Q All right. Now, you viewed them all without the mask on and you looked at them with the mask on, isn't that right?

A Yes.

Q I would estimate that the total time you and I were in there, or that you were in there, would be somewhere around fifteen minutes?

A Something like that, yes.

Q Okay, all right. Now, you were not able at that time to identify William Dupuie as the man who was wearing this mask in your apartment on the night of May 26th, isn't that right?

A I identified him, yes, I recognized him right away.

Q You say you recognized him right away?

A Yes.

No objection was made at trial as to this testimony and no issue is presented as to it upon this appeal. The record also discloses that in fact the face mask was not a mask which "completely covered" the smaller robber's face. It was a Halloween mask consisting of fake glasses without lenses and a fake nose, with fake eyebrows above and a fake moustache below. The eyes and much of the face were visible.

As noted above, appellant Dupuie was identified by the Leftkowitzs (positively by Mr. Leftkowitz) as the smaller of the two robbers who had rifled the drawers, pulling out papers until he found an envelope containing $1,000 of the Leftkowitz' savings.

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