Kimbrough v. Cox

• Decision Date: 07 June 1971
• Docket Number: No. 14754.,14754.
• Citation: 444 F.2d 8
• Parties: Willie KIMBROUGH, Appellant, v. J. D. COX, Superintendent Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

444 F.2d 8 (1971)

Willie KIMBROUGH, Appellant, v. J. D. COX, Superintendent Virginia State Penitentiary, Appellee.

No. 14754.

United States Court of Appeals, Fourth Circuit.

Argued March 2, 1971.

Decided June 7, 1971.

Frank T. Read, Durham, N. C. (court-assigned) for appellant.

William P. Robinson, Jr., Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen., on brief) for appellee.

Before BOREMAN, WINTER, and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

Willie Kimbrough, serving a twenty year sentence for robbery committed in July, 1968, appeals the district court's denial of his petition for habeas corpus. Kimbrough's primary contention is that photographic pretrial identification procedures were so unnecessarily suggestive as to deprive him of due process of law. Applying the test of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), we reverse.

Two weeks after the robbery of a Western Union office, police received an unsolicited call from Kimbrough's estranged wife accusing him of the robbery. She also furnished the police with five or six photographs of Kimbrough. A detective went to the home of the money order clerk who had been robbed and exhibited the Kimbrough pictures, but no others, to her. She identified Kimbrough from his pictures as the robber. Later, immediately before the preliminary hearing, a detective again showed Kimbrough's pictures, but no others, to the clerk and to two of her co-workers. They identified Kimbrough from the pictures and again identified him personally at the hearing.

At Kimbrough's trial two months later, the same three witnesses made in-court identifications of Kimbrough. While being questioned by the prosecuting attorney on direct examination, two of the witnesses bolstered their in-court identifications by testifying that they had previously recognized Kimbrough from his pictures.

In Simmons, the Supreme Court noted the suggestive nature of pretrial identification from photographs.

"Even if the police * * * follow the most correct photographic identification procedures and show the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw." 390 U.S. at 383, 88 S.Ct. at 971.

Despite the hazards of photographic identification, the Court recognized that its use was often necessary to exonerate the innocent promptly as well as to implicate the guilty. Balancing necessity against the danger of misidentification, the Court held that:

"each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S.Ct. at 971.

Applying that test to the facts of Simmons, the Court found the identification admissible. There, on the day following the crime, the police showed the victim several group photographs portraying Simmons, his accomplice, and several others. The officers gave no indication that their investigation had led them to suspect Simmons. In such circumstances, the necessity for using this procedure overshadowed the danger of misidentification. It was important for the law enforcement officials to know whether they were on the right track, and this could be ascertained while the events of the crime were still fresh in the victim's memory.

The circumstances of Kimbrough's identification stand in stark contrast to those in Simmons. The display of pictures of Kimbrough alone was the most suggestive, and therefore the most objectionable, method of pretrial identification. Cf. Palmer v. Peyton, 359 F. 2d 199 (4th Cir. 1966). Even if the police investigator did not expressly say so, it was obvious that Kimbrough was the only suspect. On these facts, there can be no justification of necessity. It would have been a minor inconvenience for the investigating officer to have obtained other photographs of subjects generally fitting the robber's description. See Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176, 1182 (1969); cf. United States v. Butler, 405 F.2d 395, 396 (4th Cir. 1968), cert. denied, 396 U.S. 853, 90 S.Ct. 114, 24 L. Ed.2d 102 (1969).

The lapse of time between the crime and the identification, coupled with the rather unusual way in which the police focused upon Kimbrough, created a very substantial likelihood of misidentification. With the passing of two weeks, this was no...