Cooper v. Picard, 7543.

• Decision Date: 29 June 1970
• Docket Number: No. 7543.,7543.
• Parties: Charles F. COOPER, Petitioner, Appellant, v. Philip J. PICARD, Superintendent, Massachusetts Correctional Institution, Norfolk, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

428 F.2d 1351 (1970)

Charles F. COOPER, Petitioner, Appellant, v. Philip J. PICARD, Superintendent, Massachusetts Correctional Institution, Norfolk, Respondent, Appellee.

No. 7543.

United States Court of Appeals, First Circuit.

June 29, 1970.

John C. Cratsley, with whom Donald A. Kaplan, A. Van C. Lanckton, Jonathan Asher, and Eric Wallach, Cambridge, Mass., were on brief, for petitioner, appellant.

Ruth I. Abrams, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Criminal Division, and John J. Droney, Dist. Atty., Northern District, were on brief, for respondent, appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This is an appeal from the denial without hearing of a petition for a writ of habeas corpus and presents the narrow question whether petitioner was entitled to an evidentiary hearing. He claims that witnesses who identified him at trial were subject to impermissibly suggestive photographic and lineup-like identification procedures and that the Commonwealth failed to establish the independence of their in-court identification.

The case revolves about the armed robbery of a pharmacy in Cambridge, Massachusetts, in 1968, in which petitioner was alleged to have participated. On the day after the robbery the proprietor of the pharmacy went to the Cambridge police station to view photographs. After going through several boxes of pictures without making an identification, a detective threw a picture of petitioner, attached to a manila envelope, in front of the witness, who immediately identified petitioner. Apparently this was a last minute thought, the detective being about to go to Chicago to pick up the defendant on another charge. We do not consider this action unduly suggestive. Some latitude must be allowed to the police, at least in the absence of deliberate theatrics.

Some time later petitioner was arrested in Chicago by members of the Cambridge police department in connection with another charge and brought to Cambridge. While he was being held at the police station, the proprietor and his wife, also a witness to the robbery, were brought to the station where they observed petitioner through a one-way glass while he was in an adjoining room with several policemen, an undetermined number of whom were wearing uniforms. Both witnesses identified the petitioner as one of the robbers. Thereafter petitioner was brought before the witnesses alone, where he was again identified.

At trial in the Middlesex Superior Court, Jacobson, the proprietor of the pharmacy, identified petitioner as one of the men who robbed the store. Petitioner's objection was overruled by the trial judge on the ground that there had as yet been no showing of any improper identification. Later, on direct, Jacobson testified, without objection, that he had identified petitioner's photograph at the Cambridge police station. On cross-examination, counsel for petitioner brought out the fact that petitioner had been viewed at the police station in the absence of counsel. His motion to strike Jacobson's in-court identification was denied.

Mrs. Jacobson, wife of the proprietor, also made an in-court identification of petitioner. On cross-examination she verified that a confrontation had taken place at the police station. Counsel for petitioner, however, did not move to strike her in-court identification.

The Superior Court, sitting without a jury, convicted petitioner and the Supreme Judicial Court affirmed. Commonwealth v. Cooper, 1969, Mass.Adv.Sh. 857, 248 N.E.2d 253. The Supreme Judicial Court held that the denial of counsel at the police station confrontation was constitutional error under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), but affirmed the conviction on the grounds that petitioner did not complain of any unfairness in the confrontation¹ and that an independent basis for the in-court identification was established at trial. Petitioner subsequently brought a petition for a writ of habeas corpus in the district court which was denied without hearing. The district court, after an independent review, held that the state court record established an independent basis for the in-court identification.

In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Supreme Court established guidelines for determining whether an evidentiary hearing is required on a petition for a writ of habeas corpus by a state prisoner. We think that at least two of the Townsend criteria are applicable here and require a remand for an evidentiary hearing.

Under Townsend a federal district court must grant an evidentiary hearing if "the merits of the factual dispute were not resolved in the state court hearing; * * *" 372 U.S. at 313, 83 S.Ct. at 757. The issue of fact in this case is whether the in-court identifications made by the Jacobsons were independent of the pre-trial identification procedures. On this question the trial judge in the state court made no explicit finding.²

In the case of Mrs. Jacobson's testimony there is not only no explicit ruling on the question at hand, but the possibility of reconstruction of a ruling implicit in the proceeding is excluded by the failure of counsel to raise the question in the state court. In light of counsel's strenuous objections to the introduction of identification testimony of this nature, however, we think it clear that the failure to object to Mrs. Jacobson's testimony was inadvertent and does not amount to a waiver of the point under Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1967). Accordingly, the independence of her in-court identification requires an evidentiary hearing in the district court.

The state court finding on the independence of Mr. Jacobson's in-court identification cannot bar a federal evidentiary hearing for another reason, which is equally applicable to Mrs. Jacobson. In Townsend the Court held 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...