Gissendanner v. Wainwright

• Decision Date: 17 July 1973
• Docket Number: 72-1565,72-1566.,No. 72-1311,72-1311
• Citation: 482 F.2d 1293
• Parties: Robert GISSENDANNER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee. Samuel CHOICE, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee. John Forest SMALLEY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.2d 1293 (1973)

Robert GISSENDANNER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

Samuel CHOICE, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

John Forest SMALLEY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

Nos. 72-1311, 72-1565, 72-1566.

United States Court of Appeals, Fifth Circuit.

July 17, 1973.

Fleet & Stone, J. Leonard Fleet, Hollywood, Fla., for petitioners-appellants.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Nelson E. Bailey, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, TUTTLE and INGRAHAM, Circuit Judges.

JOHN R. BROWN, Chief Judge:

In this consolidated appeal from the denial of federal habeas corpus relief, the petitioners (all three of whom were convicted in a Florida court on a charge of rape) contend that the decision was wrong for these reasons: (i) a car belonging to petitioner Smalley was illegally searched without a warrant or his consent with the damaging fruits being introduced against all, (ii) a statement made by petitioner Gissendanner at the time of his arrest was involuntary and, therefore, should have been suppressed, (iii) Choice and Smalley were unfairly incriminated by the hearsay testimony of a police officer who related Gissendanner's statement "that he was wanted in Broward County for an alleged rape, that he was with the other fellows but that he didn't do anything", (iv) the lineup identification of Choice and Gissendanner was the "fruit of the poisonous tree" in that it was made following the coerced and ultimately suppressed confession of Smalley in which he named his co-participants in the crime, (v) all three defendants were insufficiently identified by the prosecutrix, (vi) the trial court's instruction unfairly placed the burden of proof of alibi on the defendants and, finally (vii) the defendants, all Negroes accused of raping a white woman, were tried in an atmosphere of prejudice.

After oral argument and a careful review of the record as to each point, we conclude that each contention is lacking in merit. Except as to two matters, all are adequately discussed in the identical orders of the District Court involved¹ which we attach as an appendix. As the appendix reflects, there were, on the state court trial, substantial conflicts concerning most of these incidents, e. g., the search of the car, the interrogation of Gissendanner on the highway, etc. Credibility choices had to be, and were made. The state court record fully satisfied the requirements of 28 U.S.C.A. § 2254. The District Court was right in rejecting these.

Only two matters need be further discussed. First, petitioners are correct in assertion (vi) that the trial court's charge improperly placed the burden of proof of the alibi on the defendants, as we held in Smith v. Smith, 5 Cir., 1971, 454 F.2d 572. However, the instant case was tried in 1966, some five years before the decision in Smith v. Smith, supra. We have subsequently held that decision does not apply to trials conducted before December 14, 1968. Bassett v. Smith, 5 Cir., 1972, 464 F.2d 347.

The second point (iv) requiring our attention is petitioners Gissendanner and Choice claim that their identification in the lineup was—to once again put scars on an overworked cliche—the "fruit of the poisonous tree" since their identities were learned initially through the ultimately suppressed confession of Smalley. Thus, they claim that had he not implicated them, they would not have been in the lineup and their participation in the crime uncovered.

At first blush, this is a beguiling argument which might seem to flow from the Supreme Court's holding in Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. In that case, the Court stated:

Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers\' action in the present case is no less the "fruit" of official illegality than the more common tangible fruits of the unwarranted intrusion.

371 U.S. at 485-486, 83 S.Ct. at 416, 9 L.Ed.2d at 454 (footnote by the Court omitted).

The holding in Wong Sun stemmed in part from an earlier holding in Silverthorne Lumber Co. v. United States, 1919, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. The Court's rationale for excluding tainted evidence was:

The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the government\'s own wrong cannot be used by it in the way proposed.

251 U.S. at 392, 40 S.Ct. at 183, 64 L. Ed. at 321. See also Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (Nardone II).² The basic doctrine then, is that evidence which is obtained illegally may not be used against the person from whom it is obtained. It is not only the physical or tangible evidence which is excluded, but also the verbal or intangible. Wong Sun, supra.

The basic exclusionary rule has been applied many times. In Williams v. United States, 5 Cir., 1967, 382 F.2d 48, this Court reversed a conviction for forgery of a government check where the defendant's car had been illegally searched, producing evidence that led to the store proprietor who had cashed the check. The defendant had not originally been under surveillance for the suspected theft and forgery of the check. It was only through the constitutionally impermissible search of the defendant's police-impounded automobile that the evidence was uncovered which led to the shopkeeper's identification of the defendant. The Court found the identification to be tainted because it was "apparent that the identification of the defendant by the storekeeper was an indirect product of the illegal search and not a product of independent activity of the postal inspectors," 382 F.2d at 51, citing Wong Sun and Silverthorne.

In a recent decision, United States v. Marder, 5 Cir., 1973, 474 F.2d 1192, this Court reaffirmed the general principle that if "the identity of a government witness and his relationship to the defendant are revealed because of an illegal search and seizure, the testimony of such witness must be excluded. Williams v. United States, 382 F.2d 48 (1967)." The issue there was whether a witness who could not have been located but for an illegal wiretap should be prohibited from testifying since his identity was the fruit of the poisonous tree. The Court affirmed the conviction on the ground that the evidence given by the witness discovered through an illegal search (the wiretap) had a "de minimis bearing on the question of guilt or innocence when viewed in light of the overwhelming evidence of guilt from other sources." 474 F.2d at 1197.

But, beguiling as it is, we resist the temptations of the serpent of another tree, not only to eat, but swallow the fruit or the fruit of the fruit, or the theory of the fruit, poisoned, palatable or forbidden. For these cases do not compel a holding that the identification of Choice and Gissendanner was the impermissible product of an illegal confession. In arriving at this result, we note two critical things which make it a non-Wong Sun case. First, Smalley's confession was suppressed and was never introduced into evidence against any defendant. The thrust of Wong Sun and Silverthorne is basically a rule of evidence being used on the trial to obtain conviction. It is fundamental that all relevant evidence is admissible unless excluded on some accepted ground. I Wigmore on Evidence, § 10 at page 293 (3d Ed. 1940); McCormick on Evidence, § 151 at page 314 (1954). While Smalley's confession was clearly a statement of probative value, it was suppressed at the outset on constitutional grounds³ and hence was never a part of the proof against any of the accused. For whatever reason, the fact remains that the confession was excluded from evidence and in no way was it used against Smalley, Choice or Gissendanner at the trial.

Since they do not complain that the poisoned fruit was set before the jury for its consumption, what Choice and Gissendanner seek in effect is an immunity from prosecution because the first finger was put on them by reason of the violation of a third party's constitutional rights. They claim the state should have arrived at their identities through some independent source other than the confession. The suggestion that the policeman's mind must be the tabula rasa is a fanciful one at best. The contention would mean that once the authorities have obtained the names of the others involved, not knowing that months or years later the source will prove to be invalid as to someone else, they would have to ignore this information and seek it from another independent source. Added to the problem would be the likelihood that if such a valid independent source were subsequently discovered, the coactors thus revealed could always assert that since the first source was "the poisonous tree" all subsequently discovered sources of the same names would be tainted. The effect of such a holding would be, of course, either to confer an immunity from prosecution on every person whose name was thus initially revealed or to impose on the prosecution not just the burden of establishing beyond a reasonable doubt the identity and culpability of those charged, but to prove as a part of the prosecution that the identification had come from independent sources without taint from the invalid initial revelation. Choice and Gissendanner cite us no cases where any court has adopted this palimpsest theory, elongating an essentially evidentiary rule into a new form of constitutional immunity.

In support of this...