Crume v. Beto

• Decision Date: 13 September 1967
• Docket Number: No. 23742.,23742.
• Citation: 383 F.2d 36
• Parties: Ernest E. CRUME, Jr., Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

383 F.2d 36 (1967)

Ernest E. CRUME, Jr., Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.

No. 23742.

United States Court of Appeals Fifth Circuit.

August 11, 1967.

Rehearing Denied September 13, 1967.

Ernest E. Crume, Jr., pro se.

Sam R. Wilson, Asst. Atty. Gen., Houston, Tex., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for appellee.

Before RIVES and WISDOM, Circuit Judges, and CONNALLY, District Judge.

Rehearing En Banc Denied September 13, 1967.

WISDOM, Circuit Judge.

This case presents a close question: Was Ernest Crume, the petitioner, accorded due process of law in the procedures leading to his pre-trial identification¹ as one who had committed a robbery? We have resolved our nagging doubts in favor of affirming the district court's denial of his petition for habeas corpus.

December 10, 1956, an armed bandit wearing a hat and a blue corduroy jacket robbed a liquor store in Houston, Texas. Four days later the Houston police arrested Ernest Crume for drunkenness. Soon after his arrest, the police began to suspect Crume of the liquor store robbery. In pursuit of their suspicion, they questioned Crume at length and, in the next day or so, had him appear in several lineups.² As the result of one of these lineups, and later individual confrontation, the victim of the robbery identified Crume as the bandit.

Five men participated in the lineup here called in to question. The record³ discloses nothing of similarity or dissimilarity of the men's appearances, except that one man was Mexican or Latin-American. The victim of the robbery, Mrs. Lenormand, thought she recognized Crume as the robber, but indicated to the detective in charge that she could not be sure unless she could see him wearing a hat.⁴ The police required Crume to put on a hat. Mrs. Lenormand then requested the detective to have Crume say, "This is a stick-up." The police complied with her request.⁵

By this point Mrs. Lenormand's tentative identification of Crume had firmed up considerably. "I was quite sure," she testified, "but I didn't want to say something that wasn't right, so that's when we went to Mr. Hopper's the detective's office." Once the police had taken Mrs. Lenormand to a separate office, they picked up a blue corduroy jacket matching her description of the bandit's clothing, took it to the next room, and had Crume put it on. The police then required Crume, wearing the jacket and a hat, to walk alone past Mrs. Lenormand and to repeat the words, "This is a stick-up."⁶ At this point Mrs. Lenormand positively identified Crume.

I.

The most recent decisions of the Supreme Court declare that a suspect has the right to counsel at an identification lineup. United States v. Wade, June 12, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149; Gilbert v. State of California, June 12, 1967, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. The Court held that a lineup is a critical stage of the prosecution, at which counsel must be present. First, the presence of counsel is the only way to insure that irregularities tending to produce incorrect identification may be noticed and presented adequately at trial.⁷ Second, counsel may be able to prevent at least some irregularities from occurring.

Even though Crume did not have counsel at the lineup, he may not take advantage of Wade and Gilbert. The rules announced in those cases apply only to lineups taking place after Monday, June 12, 1967. Stovall v. Denno, June 12, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

II.

The Supreme Court recognized in Stovall that entirely aside from the right to counsel or the privilege against self-incrimination⁸ lineups must meet the due process standards of fundamental fairness in order to pass constitutional muster. It is by this rule that we must decide this case.

A. In each of these lineup cases the Supreme Court's concern was that irregularities might lead to incorrect identification and consequent conviction of the wrong person.⁹ Of the irregularities the Court noted, almost all were procedures by which the police might purposely or innocently influence the witness to identify the man the police thought to be guilty. Irregularities of this kind may rise to the dignity of due process violations. See Stovall v. Denno, supra, 87 S.Ct. 1973.

Palmer v. Peyton, 4 Cir. 1966, 359 F.2d 199 (en banc), is an example of an outrageously improper identification. There the police told the rape victim that they and a suspect and wanted her to see if she could identify his voice. The implication was already clear that the voice she was about to hear belonged to a man the police thought was guilty. The police did not permit the witness to hear any other voices for comparison, but presented Palmer's voice alone. They forced Palmer to repeat "the damning words" used in the crime. And they showed the witness one of Palmer's shirts which approximately matched the victim's description of the shirt worn by her attacker. This cumulation of unfair suggestions overwhelmed the court:

In their understandable zeal to secure an identification, the police simply destroyed the possibility of an objective, impartial judgment by the prosecutrix as to whether Palmer\'s voice was in fact that of the man who had attacked her. * * * A state may not rely in a criminal prosecution * * * on an identification secured by a process in which the search for truth is made secondary to the quest for a conviction. 359 F.2d at 202.

The most serious irregularity in Palmer was to present a lone suspect. "When the identifier is presented with no alternative choices," the court observed, "there is * * * a strong predisposition to overcome doubts and to fasten guilt upon the lone suspect." 359 F.2d at 201. The Supreme Court agrees with the Fourth Circuit. In Stovall it noted 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." 87 S.Ct. 1972.¹⁰

While individual showings undoubtedly present the most serious danger of police suggestion, that vice may creep into multiple-suspect lineups whenever the police single out one suspect for attention. The Supreme Court in Wade catalogued a number of techniques for singling out one of a number of lineup participants:

"In a Canadian case * * * the defendant had been picked out of a lineup of six men, of which he was the only Oriental. In other cases, a black-haired suspect was placed upon a group of light-haired persons, tall suspects have been made to stand with short non-suspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a lineup with five other persons, all of whom were forty or over." * * * Other examples are that all in the lineup but the suspect were known to the identifying witness, that the other participants in a lineup were grossly dissimilar in appearance from the suspect, that only the suspect was required to wear distinctive clothing which the culprit allegedly wore * * that the suspect is pointed out before or during a lineup, and that the participants in the lineup are asked to try on an article of clothing which fits only the suspect. 87 S.Ct. 1935.

The fault common to all these practices is that the police single out one person and influence the witness by directing attention to some element known to be connected with the crime — the unique appearance of the suspect, the words spoken in the course of the crime, or clothing similar to the suspect's clothing. The necessary result of this singling out is to suggest to the witness that the suspect so isolated is in fact the one the police think is guilty. It is easy to see how such practices prejudice the reliability of the identification.

B. In this case the police singled Crume out at least three times — twice in the lineup when they had him put on a hat and when they had him say, "This is a stick-up," and once again in the Robbery Detail Office when they forced him to put on the blue jacket.

We have no doubt that there would have been a denial of due process had the police initiated these procedures without any prior indication from Mrs. Lenormand that Crume was the bandit. There would have been an impermissible suggestion that Mrs. Lenormand identify Crume rather than one of the other men in the lineup. In this case, however, the danger of suggesting a suspect to the witness was diminished because the witness had already settled firmly on Crume. Further, at least with regard to the procedures followed during the lineup, the police did not select incriminating items to single out Crume. Instead, to reduce the area of uncertainty in her mind, the witness suggested ways to insure the identification of Crume as indeed the armed bandit.

We are aware of opposing considerations. Once a faint glimmer of recognition strikes a witness, his tendency may be to do everything in his power to reinforce that recognition and come to a positive identification. To compensate, a fair practice might be to require the police to take every reasonable precaution to insure that the witness is not overly influenced by his original impression, and that he arrives at an objective and accurate identification. Thus even when the witness requests that the person he has tentatively identified be required to do or say something, all participants in the lineup should be required to act or speak. There is much to say for this practice. We think it is unquestionably fairer than singling out the tentative suspect.¹¹ When the witness' original identification is tentative or is for some other reason suspect, such a procedure could easily rise to the dignity of a due process requirement.

Nonetheless when the witness' original identification is as strong as it was here, we think the danger of suggestion so small as not to violate due process. Due process does not require the states to adopt the fairest possible...