McGee v. Estelle

• Decision Date: 17 September 1980
• Docket Number: No. 79-2865,79-2865
• Citation: 625 F.2d 1206
• Parties: James Earl McGEE, Petitioner-Appellant, v. W. J. ESTELLE, Jr., etc., Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1206

625 F.2d 1206

James Earl McGEE, Petitioner-Appellant, v. W. J. ESTELLE, Jr., etc., Respondent-Appellee.

No. 79-2865.

United States Court of Appeals Fifth Circuit.

Sept. 17, 1980.

Paul G. Johnson, Staff Counsel for Inmates, Texas Dept. of Corrections, Huntsville, Tex., Erik S. Goodman, Sugar Land, Tex., for petitioner-appellant.

Charles A. Sharman, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before TJOFLAT, POLITZ and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge:

We must determine when an adversary judicial criminal proceeding begins in Texas. James Earl McGee, a Texas state prisoner serving a sentence for armed robbery, appeals a denial of his habeas corpus petition, 28 U.S.C. § 2254. McGee contends that his criminal prosecution began at the time of his pretrial lineup, held on the day of his arrest, and that he, therefore, had a constitutional right to have appointed counsel present at his lineup. He also contends that the pretrial identification testimony and in-court identification testimony was inadmissible. The trial judge denied McGee's habeas corpus petition, finding that no adversary proceedings had commenced at the time of the lineup, that McGee had no right to have appointed counsel at the lineup, and that the identification testimony was reliable and admissible. Because we hold that an adversary proceeding had not begun where prosecuting authorities were unaware of the arrest, we affirm.

On the night of May 22, 1967, two males robbed a service station in Fort Worth, Texas. Charles Smith was the service station attendant on duty at the time of the robbery. Smith testified that two men entered his service station and asked for a can in which to put gasoline. After a short conversation, the two men revealed their true intention to rob the service station. Both men were armed with .22 caliber revolvers. They took all the money out of the cash register, as well as a .38 caliber Berretta automatic pistol belonging to Smith. Neither of the two robbers were disguised; there was nothing over their faces, and Smith testified that he had a good look at both of their faces. After the robbery, the two men escaped and Smith called the police. The men were not apprehended.

Several weeks later, Smith went to the Fort Worth police department and viewed photographs of persons with criminal records. From those photographs, he identified McGee as one of the robbers.

On July 7, 1967, McGee was arrested along with three other men. The car in which they were riding was stopped by the Fort Worth police because it matched the description of a car involved in an offense. The officers observed a .22 caliber revolver thrown from the vehicle and discovered a .38 caliber Berretta automatic pistol inside the car. McGee and the three others in the car were taken to the police station and turned over to a detective, who recognized McGee from Smith's photographic identification. The detective took McGee before a Texas magistrate for the requisite statutory warnings. McGee was warned by the magistrate, both orally and in writing, and McGee indicated that he understood the warnings and his rights. At this time McGee did not indicate that he desired the assistance of counsel. Two hours later, a lineup was conducted which the complaining witness, Smith, attended. In the lineup were the three other men arrested with McGee in the automobile. Smith identified McGee as one of the two men who had robbed him on May 22, 1967.

At trial, Smith made an in-court identification of McGee, and also testified concerning the photographic identification and the pretrial lineup identification.

The pretrial lineup occurred on July 7, 1967. McGee was indicted on September 10, 1967, and signed a request for counsel form on October 27, 1967.

McGee now asserts that he had a right to appointed counsel at his pretrial lineup. Additionally, he claims that his pretrial identification lineup constituted a denial of due process, because it was so suggestive as to create a substantial risk of misidentification.

I

As to McGee's claim that he had a right to counsel at his pretrial lineup, the underlying and determinative issue is when does an adversary judicial proceeding commence in Texas. This is essential, because criminal defendants have a right to counsel at pretrial lineups conducted after the commencement of formal criminal proceedings of an adversary nature. This right is guaranteed by the Sixth Amendment to the United States Constitution. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1971, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1189 (1967). In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Supreme Court shed light upon the Wade and Gilbert decisions by stating:

In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time the adversary judicial proceedings have been initiated against him.

Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: 'The rationale of those cases was that an accused is entitled to counsel at any "critical stage of the prosecution," and that a post-indictment lineup is such a "critical stage." ' (Emphasis supplied.) Simmons v. United States, 390 U.S. 377, 382-383, 88 S.Ct. 967 (, 970), 19 L.Ed.2d 1247, 1252. We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.

406 U.S. at 688, 690, 92 S.Ct. at 1881-83.

Realizing that the critical determination is when the criminal prosecution began, McGee urges us to conclude that the adversary process commenced at the pretrial lineup. This we cannot do. Here, the lineup was conducted before the initiation of formal adversary proceedings. The lineup occurred on July 7, 1967, and the indictment was not returned until September 10, 1967. Only the police were involved in the lineup; the prosecution had no involvement. Moreover, the prosecution did not even know that the lineup was taking place. We hold that an adversary criminal proceeding has not begun in a case where the prosecution officers are unaware of either the charges or the arrest. Thus, this case falls under the rubric of Caver v. Alabama, 577 F.2d 1188 (5th Cir. 1978). There, this court held:

An arrest on probable cause without a warrant, even though that arrest is for the crime with which the defendant is eventually charged, does not initiate adversary judicial criminal proceedings, and therefore Caver had no constitutional right to counsel at the lineup conducted subsequent to his arrest but before he was formally charged.

577 F.2d at 1195.

To accept McGee's argument would mean that adversary proceedings would begin under Texas law at the time of arrest. Nothing in Texas procedures require such a conclusion. Likewise, such a conclusion would be antithetical to the result reached by the Supreme Court in Kirby and by this court...