Marshall v. Rose, 73-1361.

• Decision Date: 25 June 1974
• Docket Number: No. 73-1361.,73-1361.
• Citation: 499 F.2d 1163
• Parties: Paul Henry MARSHALL and Roy Thomas Marshall, Petitioners-Appellants, v. Jim ROSE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

499 F.2d 1163 (1974)

Paul Henry MARSHALL and Roy Thomas Marshall, Petitioners-Appellants, v. Jim ROSE, Warden, Respondent-Appellee.

No. 73-1361.

United States Court of Appeals, Sixth Circuit.

Argued February 12, 1974.

Decided June 25, 1974.

Frank L. Flynn, Jr. (court appointed), Knoxville, Tenn., for petitioners-appellants.

Robert H. Roberts, Asst. Atty. Gen., Nashville, Tenn., for respondent-appellee; David M. Pack, Atty. Gen. & Reporter, of counsel.

Before EDWARDS, McCREE, and LIVELY, Circuit Judges.

McCREE, Circuit Judge.

This appeal from the denial of a petition for a writ of habeas corpus, 28 U. S.C. § 2241, requires us to determine whether a state trial court committed prejudicial constitutional error when it admitted a robbery victim's in-court identification of appellants without first finding that this identification had not been irreparably tainted by an unconstitutional showup conducted in the absence of appellants' counsel. The district court held that admission of this evidence violated the Constitution, but found the error harmless. We hold that the district court erred and reverse.

On June 22, 1967, a sixty-six year old man who lived alone in an isolated part of East Tennessee was robbed at gunpoint outside his home by two masked men, one of whom shot him in the abdomen. Before fleeing, the robbers took Six Thousand, Three Hundred dollars from his person and bound him hand and foot. Despite his severe injury, the victim was able to free himself and to walk a considerable distance to a neighbor's home for help. He was hospitalized for his wounds for twenty days.

On July 6, the appellants, Roy and Paul Marshall, who are brothers, were arrested in the adjoining county where they resided, after the police learned that they had been seen in the vicinity of the victim's home on the day of the robbery, and that the automobile driven by Roy Marshall that day had been found burned out on the next day. On July 7, a showup was conducted, and a neighbor of the victim identified the Marshall brothers as the men he had seen about three-quarters of a mile from the victim's home six hours before the robbery. Following this identification, the two brothers were formally charged with armed robbery. Shortly thereafter, they retained counsel.

On July 18, the day of the preliminary hearing, the victim was released from the hospital, and he proceeded to the jail where he identified appellants as his assailants after a showup was conducted without notice to and in the absence of the Marshall brothers' counsel.

The Marshalls were tried in Sevier County Circuit Court before a jury in November 1967, convicted of armed robbery, and sentenced to twenty-five years imprisonment. At trial, the neighbor identified them as two of the three men he had seen in the vicinity of the victim's home on the morning of the robbery; and the victim identified them as his assailants.¹ On appeal to the Tennessee Court of Criminal Appeals, their convictions were affirmed, one judge dissenting because constitutionally impermissible identification had been employed at the trial. The majority opinion did not discuss this issue. Thereafter, appellants sought post-conviction relief in the state court, and the petition was denied on February 22, 1971. The denial of the petition was affirmed on appeal on November 10, 1971, and the Tennessee Supreme Court denied their petition for certiorari on September 22, 1972. A month later, appellants filed a petition for a writ of habeas corpus in federal district court.

The district court conducted an evidentiary hearing and concluded, on the basis of that hearing and the records of the state proceedings, that: (1) the first showup, at which the Marshall brothers were identified by the victim's neighbor, did not violate their right to the assistance of counsel because they had not yet been formally charged, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and did not violate their right to due process of law; (2) the second showup, at which the Marshall brothers were identified by the victim, was unconstitutional because they had been formally charged, and their retained counsel was given no notice of or opportunity to be present at the confrontation, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967); (3) the state trial court's admission of the victim's in-court identification was constitutional error because it did not make a prior determination that these identifications were not tainted by the showup and were of independent origin; and (4) admission of the in-court identification was not prejudicial because the victim "was very specific in his testimony" at the evidentiary hearing "that his in-court identifications of the petitioners was based upon his observations of them at the scene of the crime; and not upon his observations of them during the show-up (or show-ups)." Accordingly, the failure of the state trial court to conduct the hearing required by the Wade case was harmless beyond a reasonable doubt.

On appeal it is contended that the constitutional error complained of was not harmless beyond a reasonable doubt because the in-court identification did not have an origin independent of the show-up and because "`there is a reasonable possibility'" that this identification "`might have contributed to the conviction.'"² Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L. Ed.2d 705 (1967), citing Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963).

Although the danger inherent in eyewitness identification has long been a subject of grave concern,³ it was not until 1967, a few weeks before the challenged showup in this case, that the Supreme Court, in the Wade-Gilbert-Stovall trilogy⁴ established standards and procedures for conducting pretrial confrontations between an eyewitness to a crime and the accused. In United States v. Wade, supra, the Court held that when a criminal prosecution has been initiated, the accused must be permitted to have counsel present during a pretrial confrontation with an eyewitness to the crime. If a confrontation is conducted in the absence of counsel and without a waiver by the accused, the eyewitness may not make an in-court identification of the accused unless the state can demonstrate by "clear and convincing evidence" that the witness' identification has an origin independent of the pretrial confrontation. Id., 388 U.S. at 240, 87 S.Ct. 1926.

In this case, it is undisputed that the Marshall brothers, although formally charged, were not informed of their right to have counsel present during the showup at which the victim identified them as his assailants, and it is also undisputed that their retained counsel was given no notice of the show-up. Accordingly, as the district court held, the showup was unconstitutional, and the victim's in-court identification of appellants should not have been admitted unless the state had demonstrated by "clear and convincing evidence" that the in-court identification had an origin independent of the showup. Id. at 240, 87 S.Ct. 1926.

Determination of the existence of an independent origin for an in-court identification

requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any prelineup description and the defendant\'s actual description, any identification prior to the lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup. Id. at 241, 87 S.Ct. at 1940.

In this case, the district court, instead of the trial court as mandated by Wade, held an evidentiary hearing at which evidence of these factors was adduced, and appears to have based its conclusion that the victim's in-court identification was not tainted by the illegal showup solely upon the victim's answers in the following colloquy:

Q. Mr. Miller, when you identified these two men at the trial as the ones who robbed you, did you do it on the basis of what you had seen at the jail or what you saw out there at the time of the robbery?

A. I fixed it on the basis at the time they shot me and robbed me.

Q. And not at the time you saw them in jail?

A. No.

Whether the trial judge who was unaware of the requirements of Wade would have made the same determination can only be a matter of speculation. And, if he had undertaken this inquiry, he might have developed evidence different from and additional to that considered by the district court. Also, despite the response of the victim to obviously leading questions, the record does not show by "clear and convincing evidence" that the identification had an origin independent of the showup.

In making this determination, we consider the vagaries of eyewitness identification that concerned the Supreme Court in the Wade-Gilbert-Stovall trilogy, and we observe that whenever an eyewitness is summoned by the police to make an identification in a pretrial confrontation, it is not unlikely that he believes that the police have apprehended, or, at least, think that they have apprehended, the perpetrator of the crime that he has witnessed. Moreover, a showup in which an eyewitness is asked only to indicate whether "this is the man" is inherently more suggestive and more conducive to misidentification than is a fairly conducted lineup in which the suspect is placed among persons of similar size and description. Cf. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). See generally, N. Sobel, "Eye-witness Identification: Legal and Practical Problems" (1972). Accordingly, a lineup is a preferred method of eyewitness...