Clemons v. United States

Decision Date06 December 1968
Docket Number21249.,21001,No. 19846,19846
Citation133 US App. DC 27,408 F.2d 1230
PartiesMalcus T. CLEMONS, Appellant, v. UNITED STATES of America, Appellee. David E. CLARK, Appellant, v. UNITED STATES of America, Appellee. Alvin C. HINES, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit



Mr. John Perazich, Washington, D. C., with whom Mr. William W. Greenhalgh, Washington, D. C. (both appointed by this court) was on the brief, for appellant in No. 21,001.

Messrs. Lawrence D. Hollman and Sherwood B. Smith, Jr. (both appointed by this court) for appellant in No. 21,249.

Messrs. James A. Strazzella, Lawrence Lippe, and James E. Kelley, Jr., Asst. U. S. Attys., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the briefs, for appellee. Mr. Seymour Glanzer, Asst. U. S. Atty., was on the brief for appellee in No. 21,001.

Miss Carol Garfiel, Asst. U. S. Atty., also entered an appearance for appellee in No. 19,846.

Mr. Foy R. Devine, Washington, D. C., with whom Mr. William W. Greenhalgh, Washington, D. C. (both appointed by this court) was on the brief, for appellant in No. 19,846.


McGOWAN, Circuit Judge:

These three criminal appeals were, prior to final decision by the panels which initially heard them, placed en banc for hearing and disposition by the full court. This was because each case involved an identification issue growing out of the circumstances under which pre-trial identification had been made. Since several other appeals pending in this court involve the same kind of question, and since it is recurring in the District Court with great frequency, we thought that en banc consideration was desirable in the interest of sound judicial administration. Recognizing that no case is ever quite like another on its facts, we selected three cases typical of the class. Our disposition in each instance appears below,1 after a discussion of the legal principles lately emerging in this field and an examination of the factual context for their application in each case.


In three cases decided June 12, 1967, the Supreme Court brought into focus its concern with the manner in which pre-trial identifications are frequently made. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1027; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. In the first two of these cases, which involved lineups held at substantial intervals after arrest, indictment, and appointment of counsel, but without counsel present, the Court found a violation of the Sixth Amendment right to counsel. It said in each instance that the lineup was a critical stage in the criminal proceedings at which the accused were constitutionally entitled to have their lawyers present. In rejecting the argument that pre-trial confrontations for identification are under no circumstances significant parts of the process of criminal prosecution, the Court adverted at length to the chronic uncertainties of eyewitness testimony. It prefaced its rehearsal of these problems with the statement that "the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial"; and it went on the remark that "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." 388 U.S. at 228, 87 S.Ct. at 1933.

On such premises the Court concluded that the presence of counsel at lineups was necessary in order (1) to minimize the likelihood of an unduly suggestive confrontation and (2) to enable an informed challenge to be made at trial to either the admissibility or the credibility of identification evidence. In Wade, a federal prosecution, the Government's case at trial had included only in-court identifications, and the lineup identifications had been brought out by defense cross-examination. The Court, saying that "on the record now before us we cannot make the determination whether the in-court identifications had an independent origin," sent the case back for a resolution by the District Court of that question, or for a determination of whether, in any event, the introduction of the evidence was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In Gilbert, a state case, where the in-court identifications had been unsuccessfully objected to as tainted by the uncounseled lineup confrontation, the Court said that a disposition similar to that in Wade would normally be appropriate since "as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial guilt and penalty had an independent source." But, since testimony describing the lineup identifications was given by certain prosecution witnesses as part of their direct examination in both stages of the trial, the Court said that the prosecution is "not entitled to an opportunity to show that the testimony had an independent source," and that only a per se exclusionary rule can effectively assure respect for the right to counsel. Therefore, said the Court, unless the California Supreme Court on remand could declare a belief under Chapman that the violation was harmless beyond a reasonable doubt, Gilbert must have a new trial.

Stovall was a federal habeas corpus attack upon a state conviction. The defendant, arrested within a day after a brutal assault committed in the course of a robbery, was the following day taken in police custody to the hospital room of the victim who was in critical condition after surgery. The only Negro in the room, manacled to one of five white policemen and accompanied by two prosecutors, and not yet represented by counsel although his preliminary hearing had been continued for that purpose, the defendant was identified after the police asked the victim if he "was the man."

The victim recovered, and at trial made an in-court identification of Stovall and also testified on direct examination in the presence of the jury that she had identified the defendant at the hospital.

The Court ruled in Stovall that the Sixth Amendment right to counsel recognized on direct appeal in Wade and Gilbert would be given only prospective effect. Thus confined to pre-trial confrontations occurring after June 12, 1967, Stovall's conviction was unassailable on this ground. But the Court then, in the brief compass of one page, (1) identified, as a different and independent ground of attack, a claim that the pre-trial confrontation "was so unnecessarily suggestive and conducive to irreparable mistaken identification that defendant was denied due process of law,"2 (2) observed that "the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned,"3 and (3) held that, since "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it," the Court of Appeals had been right in finding no violation because a police station lineup had not been feasible under the circumstances. The opinion for the Court made no reference to the fact that the State at trial had buttressed the victim's in-court identification by eliciting the pre-trial confrontation on direct examination in the jury's presence.

Stovall is of primary importance to the cases before us for two reasons. First, its holding on the full prospectivity of the Sixth Amendment right to counsel eliminates that issue, and, second, it is, in strict contemplation, the sole source of Supreme Court doctrine on the contours of due process in the area of pre-trial confrontations for purposes of identification. As such, the illumination it provides is meager indeed, partly because of its brevity and partly because of the result reached. On two occasions since Stovall, however, the Supreme Court has addressed itself to due process in pre-trial identification, and we look to those cases for such help as they may give.

The more significant of these is Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). At trial the Government's case on identification consisted solely of in-court identifications made by five employees who witnessed the robbery of a bank. Simmons urged that this testimony was tainted by pre-trial identifications made through photographs under circumstances amounting to a denial of due process or at least requiring reversal in the exercise of the Court's supervisory powers. The Court characterized Simmons' claim, and disposed of it, as follows (at p. 383, 88 S.Ct. at p. 970):

"He asserts simply that in the circumstances the identification procedure was so unduly prejudicial as fatally to taint his conviction. This is a claim which must be evaluated in light of the totality of surrounding circumstances. See Stovall v. Denno, 388 U.S. 293, at 302 87 S.Ct. 1967; Palmer v. Peyton, 359 F.2d 199. Viewed in that context, we find the claim untenable."

The Court went on to recognize "that improper employment of photographs * * * may sometimes cause witnesses to err in identifying criminals." It identified various methods which it thought undesirable, but it concluded that it was "unwilling" to prohibit the use of pre-trial photographic identification "either in the exercise of our supervisory power, or, still less, as a matter...

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