Allen v. Estelle

• Decision Date: 01 March 1978
• Docket Number: No. 77-1838,77-1838
• Citation: 568 F.2d 1108
• Parties: Bobby Ray ALLEN, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1108

568 F.2d 1108

Bobby Ray ALLEN, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 77-1838

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

March 1, 1978.

Bobby Ray Allen, pro se.

John L. Hill, Atty. Gen., Austin, Tex., W. Barton Boling, Asst. Atty. Gen., David M. Kendall, Jr., 1st Asst. Atty. Gen., Joe B. Dibrell, El Paso, Tex., Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, Chief Judge, RONEY and HILL, Circuit Judges.

JOHN R. BROWN, Chief Judge:

A jury convicted Bobby Ray Allen in Texas state court of robbery by assault. Under the Texas habitual offenders statute ¹ his sentence was enhanced to life imprisonment. After exhausting state remedies, Allen petitioned the United States District Court for a writ of habeas corpus, 28 U.S.C. § 2254. On November 9, 1976, without holding an evidentiary hearing, the District Court entered an order denying the writ. On appeal Allen contends (i) that a pretrial showup confrontation was so suggestive as to cause a misidentification in violation of the Fourteenth Amendment's due process clause, and (ii) that prior convictions were unconstitutionally used to enhance his sentence. We affirm the District Court's denial of habeas relief.

Shortly after 11:00 p.m. on March 13, 1973, two men entered a motel in Abilene, Texas and at gunpoint robbed the motel clerk, Charles C. Burke, taking his watch, wallet, television set, and money from the cash register. The robbers forced Burke into an adjoining room, threatened to kill him, and bound him with tape. Within minutes Burke managed to free himself and to observe his assailants fleeing in a red Thunderbird automobile. Burke then telephoned the police, providing a general description of the robbers, the stolen property, the escape vehicle, and the direction in which the men had fled. A patrol cruiser almost immediately intercepted a car matching Burke's description, discovered a television set in the back seat, arrested Allen and a companion, and transported the two men to the station house where they were confined in separate cells. The police then notified Burke that they had recovered his stolen merchandise and requested that he come to the station to identify the suspects.

Within an hour after the robbery, Burke entered the station house. Inside the station Burke saw his television sitting on a counter. He was taken to the detectives' quarters where he apparently remained for 15 to 30 minutes. An officer then led Burke downstairs into a restricted hall for the stated purpose of identifying the suspects. Once downstairs it is unclear exactly what transpired.

The suspects were apparently removed from their cells and, without being told anything, were taken for one suspect lineups (showups) in the hallway. The officer in charge of the investigation admitted that the police had no intention whatsoever of constructing a lineup. Allen was escorted by a policeman into the hall where he confronted Burke. According to Burke, the suspects were brought separately into the hallway. The officer in charge asked Burke whether he recognized anyone in the hall and Burke responded on each occasion by identifying both men as his assailants. While it is unclear exactly how many persons were in the hallway at the time, it is known that only authorized police personnel were permitted in this area.

In his pretrial Motion to Suppress In-Court Identification, Allen complained that "any In-Court Identification made by the complaining party, Charles Burke, is and would be impermissibly suggested to the complaining party by this out of court confrontation and therefore would not be admissible as an In-Court Identification even if the complaining party should testify that this were an independent recollection because of the impermissibly suggestive lineup and one on one confrontation." In accord with the practices established within this Circuit, ² the state trial judge held a suppression hearing immediately prior to trial with no jury present. The purpose of the hearing was to determine whether or not, in the wake of the suggestive showup confrontation, a substantial likelihood of irreparable misidentification existed which would warrant exclusion of any identification made by Burke at trial.

At the suppression hearing Burke was asked to identify his assailants. In an apparent effort to secure a positive response from Burke, the prosecutor stood behind Allen, who was seated at the defense table, and asked Burke whether he recognized Allen as his assailant. Burke then identified Allen stating that his identification was not enhanced by the pretrial confrontation and that he "wouldn't forget either (suspect) in a hundred years." Upon further examination Burke stated that he recognized Allen as a hotel guest from the previous night. Burke also testified that upon entering the office at the time of the robbery Allen stated, "I told you I would be back, your beds were so comfortable." The trial judge concluded that an in-court identification would be admissible as an independent identification untainted by the station house confrontation. At trial Burke made the in-court identification here challenged and the pretrial identification was never admitted before the jury. On direct appeal in an unpublished opinion the Texas Court of Criminal Appeals affirmed Allen's conviction. ³ Subsequently, under application for habeas relief, the District Court found no due process violation.

The Pretrial Confrontation

The Supreme Court established the due process standard against which police identification procedures are to be measured in Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. A violation of due process occurs when, under "the totality of the circumstances," a confrontation procedure is "unnecessarily suggestive and conducive to irreparable mistaken identification." ⁴ Within this Court the due process standard has developed into a bipartite inquiry. ⁵ United States v. Smith, 5 Cir., 1977, 546 F.2d 1275; Bloodworth v. Hopper, 5 Cir., 1976,539 F.2d 1382; United States v. Gidley, 5 Cir., 1976, 527 F.2d 1345. First, as a threshold inquiry, the Court must decide whether the identification procedure was unnecessarily suggestive. A finding of impermissible suggestiveness raises concern over the reliability of identification and triggers closer scrutiny by the Court to determine whether such a procedure created a substantial risk of misidentification. United States v. Smith,supra at 1279; United States v. Gidley, supra at 1350. ⁶

Undoubtedly, the confrontation procedure utilized by the police in this case was inherently suggestive. As pointed out by the Supreme Court in Stovall,

"(t)he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned." 388 U.S. at 302, 87 S.Ct. at 1972.

This Court, along with other Circuits, ⁷ has shown reluctance to encourage the use of showups. United States v. Abshire, 5 Cir., 1972, 471 F.2d 116, 120 (Judge Godbold specially concurring).

We seek to encourage police activity which will minimize and not aggravate the suggestiveness of identification procedures. Here, as must always be the case, the police should have made an effort to construct a lineup or explain why a lineup could not be constructed. Similarly, the police should avoid unduly influencing witnesses. In the present case Burke was first allowed to see his stolen property. The police also made comments which could only increase Burke's expectation of seeing his assailant. ⁸ Finally, the police could have avoided arranging a showup confrontation deep within the police building where the suspect would be surrounded only by law enforcement personnel. ⁹ Considered together as they occurred, these police practices heightened the suggestiveness of the confrontation.

The record offers some indication, however, that the confrontation was not unnecessarily suggestive. Exigent circumstances may afford some justification for the use of suggestive procedures. United States v. Abshire, 5 Cir., 1972, 471 F.2d 116, 120 (Judge Godbold specially concurring). See also United States ex rel. Kirby v. Sturges, 7 Cir., 1975, 510 F.2d 397, 403-04. Although on appeal the State offered no justification for the procedure utilized, at trial the officer in charge of the investigation indicated that "we wanted to make sure we had the right men." It has been recognized that showups prompted by the need for immediate identification may " promote fairness by enhancing reliability of the identifications and permit expeditious release of innocent subjects." United States v. Wilson, 1970,140 U.S.App.D.C. 331, 332-33, 435 F.2d 403, 404-405. ¹⁰ Additionally, where the innocent have been mistakenly apprehended, prompt identification allows the police to realize their error and to continue their search while the criminal is still within easy reach.

In the present case, the showup occurred within one and one-half hours after the crime. Consequently, some justification for the procedure utilized derives from the interests served by rapid crime solution. Although we fully commend prompt police action which leads to the quick and certain apprehension of the guilty, ¹¹ under the circumstances of this case due process considerations compel us to examine the reliability of the identification. Having concluded that the procedure used in this case was close to the mark as unnecessarily suggestive, which we assume without deciding, we turn now to determine the reliability of the identification.

The Reliability Of The Identification

In Manson v. Brathwaite, 1977, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140, the Supreme Court emphasized that "reliability is the linchpin in determining the...