Parker v. Swenson
| Decision Date | 30 August 1971 |
| Docket Number | No. 71 C 246(3).,71 C 246(3). |
| Parties | Lee Holden PARKER, Petitioner, v. Harold SWENSON, Warden, Missouri State Penitentiary, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
Lee Holden Parker, pro se.
John C. Danforth, Atty. Gen. of Mo., Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
Petitioner, presently in State custody, petitions this court for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner was convicted in the Circuit Court for the City of St. Louis of robbery in the first degree by means of a deadly and dangerous weapon. This conviction was reversed by Division No. 2 of the Missouri Supreme Court on September 14, 1970 (459 S.W.2d 241) and the case remanded for hearings on the applicability of the Second Offender Act. Petitioner's Motion for Rehearing was denied on October 12, 1970 and he was returned to the court of original jurisdiction and resentenced on November 12, 1970.
Petitioner asserts a number of grounds in support of his application. His principal contentions are that he was denied due process of law (1) by the introduction of certain photographs at trial, (2) by in-court identifications which he contends were "tainted" by constitutionally impermissible methods of pretrial identification and (3) by introduction of evidence which he contends was illegally seized. Petitioner was granted leave to proceed in forma pauperis. Respondent has filed a Response to this court's order to show cause why the petition for writ of habeas corpus should not be granted, and petitioner has filed his Traverse to that Response.
At approximately 9:45 P.M. on the evening of July 11, 1967, Rita Brockelman and George McQuade were seated in a convertible automobile parked in a well-lighted parking lot of a bank along 13th Street in St. Louis, Missouri. As they sat, a man approached their automobile and suddenly held a knife to Miss Brockelman's throat stating that he was going to take the car. The assailant handed a roll of tape to Miss Brockelman, instructed her to tape McQuade's wrists and taped hers when she had finished. The man thereupon asked instructions for raising the top of the car, and after raising it, drove West on Interstate 70, with his two victims sitting beside him in the front seat. At trial, McQuade testified that the assailant stated that he had a gun. Both victims testified that they saw what appeared to be "a small gun holster" protruding from the side of the assailant's waistband, but neither actually saw a gun. Miss Brockelman testified that the robber made no effort to cover his face or otherwise hide his identity. He was, however, wearing gloves. There was testimony to the effect that the robber stated that he was an escaped convict who had been in prison 17 years, that he had been recognized and that he had to get out of town.
After reaching a point West of St. Charles, Missouri on Interstate 70, the man drove onto a field, had McQuade get out of the car, taped McQuade's feet to his hands and left him on the ground. Then he took twenty-five dollars from Miss Brockelman's purse, told her to get out of the car, and bound her feet together with tape and some string. The assailant then took ten dollars from McQuade's wallet and drove away, leaving the two victims in the field. A short time later, McQuade freed himself, walked to a farmhouse with Miss Brockelman and called the authorities. They gave a description of their assailant to the St. Charles Police.
Detectives Edward Allers and John Lepping of the St. Louis Metropolitan Police Department were assigned to the case. The following day they accompanied the victims to the field and recovered some of the tape. During the next few days, on several different occasions, the detectives exhibited from fifty to two hundred photographs to the victims, roughly six or seven photographs at a time. At one time McQuade picked one photograph that he said resembled the assailant. This was not a picture of Parker. Miss Brockelman never indicated that any of the photographs exhibited to her during this time resembled the assailant.
On July 13, 1967, the automobile was found parked at the rear of 714 Cole Street in St. Louis approximately 1½ blocks from where petitioner resided at Dismas House, a halfway house for parolees, located at 903 Cole Street. No fingerprints were found on the car but Miss Brockelman's purse was found inside.
A police officer testified that the authorities subsequently received information from a confidential informant that petitioner was responsible for the offense. In the early afternoon of July 18, 1967, Detectives Allers and Lepping took a single picture of Parker to Miss Brockelman's place of employment. At trial she testified that she positively identified Parker as the assailant when shown this photograph. Afterwards, the police took a photograph of petitioner to McQuade's place of employment, and at trial, he testified as to being "almost positive" that he could recognize Parker as the assailant. The detectives testified that these witnesses' reaction to the photograph led them to believe they had only a tentative identification of petitioner at this time.
At trial, Miss Brockelman identified State's Exhibit No. 12 as the photograph shown to her on July 18. This was a "mugshot" taken of petitioner at the Illinois State Penitentiary during a prior incarceration there and dated "12-6-66". McQuade identified State's Exhibit No. 13 as the photograph shown to him on July 18. The two detectives never testified as to which picture they remembered showing to the witnesses.
After the victims had identified Parker as their assailant, the two officers, without either a search warrant or an arrest warrant, went to petitioner's place of employment, placed petitioner under arrest and searched him. A knife was found in his pocket, but was never introduced in evidence. The officers testified that before being taken to the police station, petitioner requested that he be allowed to remove his belongings from his locker. The detectives accompanied him and examined the contents of a small bag he removed from the locker. The bag contained a small leather pipe holder, which the two officers took into their possession. After taking petitioner to the police station, the detectives went to Dismas House, obtained a key from the manager, opened Parker's locker there, searched and removed the contents, which were suppressed at a pretrial hearing on motion of defense counsel.
A photograph was taken of petitioner by the police on the date of his arrest, July 18, as routine police procedure. This photograph was introduced at petitioner's trial as State's Exhibit No. 11 and Defendant's Exhibit C.
Three days after petitioner's arrest, the two detectives took Brockelman and McQuade to witness petitioner's arraignment. There is evidence that the officers showed the July 18 photograph, State's Exhibit No. 11 and Defendant's Exhibit C, to the victims prior to the arraignment. During the arraignment, the officers and the witnesses sat together and watched as successive groups of four or five men were brought into the courtroom. Petitioner was in one of the groups called and he was charged with the crime in the presence and within the hearing of the victims. At this time both positively identified him as the assailant. There is no question but that at this time petitioner was without aid of counsel. As they were leaving the courtroom there is evidence that the detectives once again showed petitioner's July 18 photograph to the victims.
At trial, petitioner objected to the introduction of the pipe holder, identified as looking similar to the holster the man carried on the night of the assault, and the in-court identifications made by both Brockelman and McQuade, each of whom testified that they could recognize petitioner — as he sat at defense table — as the man who assaulted them on the night of July 11. Petitioner maintained that the recollection of these witnesses had been "tainted" by the improper use of petitioner's arraignment as a lineup. Petitioner also contended that the use by police of a single photograph at the time the victims identified him on July 18 was too suggestive.
In addition, petitioner also objected to the court permitting each juror to view the Illinois State Penitentiary "mugshot", State's Exhibit No. 12. Before admitting it, the court ordered the words "Illinois State Penitentiary" covered with adhesive tape so that only the numbers "12-6-66" were visible. Petitioner nonetheless maintained that the jury was able to recognize the photograph as a "mugshot", and thus evidence of his prior criminal record was introduced even though he did not take the stand. The trial court permitted introduction because it believed the photograph to be relevant evidence since witness Brockelman had referred to it as the photograph shown to her on July 18. The court ruled this photograph could not prejudice petitioner since the words "Illinois State Penitentiary" were kept from the jury's view.
Petitioner asserts a number of other contentions which will be discussed, infra.
In his Response to this court's show cause order, respondent contends that Parker may not properly petition this court for writ of habeas corpus as he has not yet exhausted all available state remedies. 28 U.S.C. § 2254(b). As indicated, supra, the Supreme Court of Missouri reversed and remanded Parker's original appeal. He was subsequently returned to the court of original jurisdiction and reconvicted. Respondent's point is that under Missouri law, petitioner may still seek post-conviction review of this second conviction under V.A.M.R. Crim. Rule 27.26.
While it is true that Parker's original conviction was reversed and remanded solely for hearings on the applicability of the Second Offender Act, the identification...
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... ... Four specific indicators have been identified, three of which apply to this case. See Parker" v. Swenson, 332 F.Supp. 1225 (E.D.Mo. 1971) for a summary of the four indicators identified by other courts and used in that case ... \xC2" ... ...
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