Cooper v. Picard, Misc. Civ. No. 69-64-F.

• Citation: 316 F. Supp. 856
• Decision Date: 31 August 1970
• Docket Number: Misc. Civ. No. 69-64-F.
• Parties: Charles F. COOPER v. Philip J. PICARD.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

316 F. Supp. 856

Charles F. COOPER v. Philip J. PICARD.

Misc. Civ. No. 69-64-F.

United States District Court, D. Massachusetts.

August 31, 1970.

John C. Cratsley, Cambridge, Mass., for plaintiff.

Lawrence P. Cohen, Asst. Atty. Gen., Mass., Boston, Mass., for defendant.

OPINION

WYZANSKI, Chief Judge.

This case is here on remand from the Court of Appeals. Cooper v. Picard, 1st Cir., 428 F.2d 1351, June 29, 1970.

Cooper is confined by Picard in the Massachusetts Correctional Institution at Norfolk, pursuant to a sentence of 5 to 7 years for armed robbery imposed by Mr. Justice Kalus of the Superior Court of the Commonwealth of Massachusetts, and affirmed by the Massachusetts Supreme Judicial Court. Commonwealth v. Cooper, 1969 Mass.A.S. 857, 248 N.E.2d 253.

His petition in this court for a writ of habeas corpus alleges that he is held in violation of the Sixth and Fourteenth Amendments to the United States Constitution because witnesses who identified him in court depended for their identification upon an impermissibly suggestive pre-trial showup of the defendant by the police at a time when, although he was in custody, he had no counsel.

Chronologically this opinion deals with the state court trial, the appeal to the state Supreme Judicial Court, the petition in this court, the decision of Judge Ford upon the petition for a writ of habeas corpus, the opinion of the Court of Appeals, and the trial in this court after remand.

Mr. Justice Kalus of the Superior Court of the Commonwealth, sitting without a jury, heard evidence with respect to a March 4, 1968 robbery by two men of a Cambridge pharmacy owned by Mr. Jacobson. Mr. Jacobson and his wife were the only witnesses of the robbery, and each of them testified as to his or her observations and each gave a courtroom identification of Cooper as one of the robbers. In addition, Mr. Jacobson testified as to a pre-trial identification, on the day following the robbery, of a photograph of Cooper as a photograph of one of the robbers. On cross-examination, Mr. and Mrs. Jacobson each testified in some detail State Tr. pp. 28-29, 38-39 that on March 20, 1968 they had separately viewed Cooper at the Cambridge police station, first through a one-way mirror, and then face-to-face. Defense counsel asked for "a hearing to be held on my motion to exclude the testimony of Mr. Jacobson and the testimony of Mrs. Jacobson * * * on the basis of the case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149". State Tr. p. 52, but see Cooper v. Picard, p. 1352 of 428 F.2d, last paragraph, third sentence. It does not appear that with respect to the March 20 police station confrontation counsel had evidence to offer in addition to the cross-examination. The Superior Court judge, without explicitly stating that he found the courtroom identifications had an origin independent of the March 20 police station showup, denied the motion. Cooper was convicted and he appealed to the Supreme Judicial Court "on the single contention that eyewitness testimony identifying Cooper as one of the robbers was inadmissible under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199." See the second paragraph of the opinion in Commonwealth v. Cooper, supra.

In a careful opinion, Mr. Justice Kirk, writing for a court composed of Wilkins, C. J., and Spalding, Whittemore, Cutter, and Kirk, JJ., first summarized the evidence. Then he said that the trial judge had entertained the motion mentioned above, "nevertheless consented to consider the issue of identification under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 in the event that the evidence elicited during the trial warranted it, that he did so consider the issue, and thereupon denied the motion." p. 862, 248 N.E.2d p. 258. Next, the Supreme Judicial Court held that because on March 20, 1968 Cooper was in custody, although not as yet indicted for the drugstore robbery, "he was entitled to be informed of the * * * prospect of a showup at the police station, and of his right to have counsel present." p. 865, 248 N.E.2d p. 259. Mistakenly (see Cooper v. Picard, 428 F.2d p. 1353, note 1), Judge Kirk said that Cooper did "not attribute any unfairness to the procedure resulting in his identification * * * at the station house". p. 865, 248 N.E.2d pp. 259-260. The opinion in its penultimate paragraph (p. 866, 248 N.E.2d p. 260) found that "The testimony revealed that both Jacobsons had more than adequate opportunity to observe the criminals and had ample capacity to remember what they observed. Further, when shown five or six boxes of photographs the day after the crime Jacobson did not pick out anyone as Cooper. When shown another photograph with a folder he identified it without hesitation as Cooper. There was no confusion of identity prior to the observation at the station house; there was no failure to identify Cooper at any time. On this evidence we are convinced beyond a reasonable doubt (see Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L.Ed.2d 705) that the Jacobsons' in-court identifications were based not on the confrontation at the police station, but rather on observations of the accused at the time of the robbery. There was no error in permitting the in-court identification to stand." Emphasis added. The judgment of conviction was affirmed.

Cooper thereupon filed in this court the present petition for a writ of habeas corpus. He alleged that the penultimate paragraph of Justice Kirk's opinion was a mere conclusion of law unsupported by clear and convincing evidence in the record; that the record was barren of any detailed exploration of the circumstances of his illegal confrontation; and that he was entitled to be discharged from state custody or given a full evidentiary hearing either in this court or the Commonwealth Superior Court to determine whether the in-court identifications are independent or should, in fact, be excluded from use against the petitioner.

When the petition came before District Judge Ford he did not hold an evidentiary hearing but examined the state court record, wrote an opinion based thereon, and denied the writ. His view was that the record showed that the prosecution had borne the burden of proving by clear and convincing evidence that the in-court identifications had an origin independent of the police station confrontation. Judge Ford referred to the length of time the witnesses observed the robbers, the lighting of the place of observation, the proximity of the witnesses to the robbers, and Mr. Jacobson's identification of a photograph of Cooper on the day after the robbery. Judge Ford also said that the Jacobsons "noted distinctive characteristics such as sallow skin, pockmarked face and pulled in cheeks".

On appeal, the Court of Appeals reversed Judge Ford and held that the District Court could not deny the petition for a writ of habeas corpus without an evidentiary hearing.

The Court of Appeals opinion first dealt with Mr. Jacobson's identification of the photograph of Cooper on the day after the robbery—a point not raised by the petition for the writ of habeas corpus, but adverted to in the briefs. The court held that the March 5 photographic identification was not "unduly suggestive". 428 F.2d p. 1352.

The court then turned to consider whether under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, Judge Ford was required to hold an evidentiary hearing on the petition for a writ of habeas corpus. Unlike the Supreme Judicial Court p. 862, 248 N.E. 2d 253, the Court of Appeals 428 F.2d p. 1353 regarded Superior Court Kalus's denial of a motion to strike the testimony of Mr. and Mrs. Jacobson as not the equivalent of an explicit finding that their in-court identifications were independent of the pre-trial identification procedures. Then the Court of Appeals went one step further: despite what the Supreme Judicial Court said in its penultimate paragraph, and despite the Court of Appeals' own statement 428 F.2d p. 1353 that the Supreme Judicial Court had affirmed Cooper's conviction "on the grounds * * * that an independent basis for the in-court identification was established at trial"; the Court of Appeals said that "The Supreme Judicial Court did not hold that the in-court identification was independent of an impermissibly suggestive showing at the police station, for it assumed that the only objection to the showing was lack of counsel." 428 F.2d p. 1353, note 2 (emphasis added). It is difficult for this court to appreciate the significance of the last clause just emphasized. Both Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 and Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, apply to in-court identifications alleged to have their origin in impermissibly suggestive pre-trial showings the same standards and techniques as United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 applies to in-court identifications alleged to have their origin in pre-trial showings where defense counsel was absent.

On the basis of its construction of what the state trial and appellate courts did, the Court of Appeals ruled that the merits of the factual dispute as to the independence of the in-court identifications were not resolved in the state court hearing.

The Court of Appeals found that there was an additional reason why Judge Ford should have held an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, requires that if for any reason not attributable to the inexcusable neglect of petitioner evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing, a federal hearing is compelled. The Court of Appeals thought "that the failure of the record to demonstrate in more detail...