Roper v. Beto

• Decision Date: 30 September 1970
• Docket Number: Civ. A. No. 5104.
• Parties: Jimmie Curtis ROPER v. Dr. George J. BETO, Director, Texas Department of Corrections.
• Court: U.S. District Court — Eastern District of Texas

318 F. Supp. 662

Jimmie Curtis ROPER v. Dr. George J. BETO, Director, Texas Department of Corrections.

Civ. A. No. 5104.

United States District Court, E. D. Texas, Tyler Division.

September 30, 1970.

Thomas Hathaway (court appointed), Tyler, Tex., for petitioner.

Dunklin Sullivan, Asst. Atty. Gen., Austin, Tex., for respondent.

MEMORANDUM OPINION

JUSTICE, District Judge.

This federal habeas corpus proceeding collaterally challenges the state criminal conviction of Jimmie Curtis Roper on the ground that his station house identification by the prosecutrix "was so unnecessarily suggestive and conducive to irreparable misidentification that he was denied due process of law." Stovall v. Denno, 388 U.S. 293 at 302, 87 S.Ct. 1967 at 1972, 18 L.Ed.2d 1199 (1967).

For the purposes of this action, the following facts are relevant:

On the afternoon of Friday, October 26, 1962, in Tyler, Texas, a young secretary returned to her apartment after work. Upon entering and closing the door, she was grabbed from behind by a man wielding a knife. She was then blindfolded and bound to the bed. After being disrobed and raped, she was engaged in conversation by her assailant. Because of the circumstances of the attack, the young secretary was unable even to attempt an identification of the person who raped her, but she was in a position to try to identify his voice. On Monday, October 29, 1962, at approximately 9:30 P.M., the petitioner was arrested as a suspect and taken to the police station. While being interrogated by Detective Richard Grimes at the station, petitioner unknowingly was being subjected to the identification procedure challenged in this action. A few feet away outside a door left ajar, the complainant was listening with Detective Herbert Isham to the interrogation going on in the office. She identified the voice of the petitioner, who was never advised that the prosecutrix was listening, and in court she unequivocally reaffirmed her pre-trial recognition. The following morning, Tuesday, October 30, 1962, petitioner gave a confession which, though attacked in a habeas corpus proceeding prior to the instant one, has been held to have been legally voluntary. Roper v. Beto, Civil No. 4810, Tyler Division (E.D.Tex. Jan. 12, 1968).

The two basic issues which the court must decide are succinctly stated in petitioner's memorandum brief as:

1. whether petitioner's constitutional rights were violated by the pre-trial identification process, thereby rendering testimony concerning the station house identification constitutionally inadmissable; and

2. assuming that a constitutional error was committed by the introduction of testimony concerning the pre-trial identification, whether such error was harmless under the rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705 (1967).

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) fashioned

"exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel." Stovall, supra, 388 U.S. at 297, 87 S.Ct. at 1970.

For identification procedures occurring before these decisions, the condition requisite for exclusion is whether "the confrontation resulted in such unfairness that it infringed * * * the defendant's right to due process of law." Stovall, supra, 388 U.S. at 299, 87 S.Ct. at 1971. In announcing this principle, the Supreme Court cited with approval Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966), a case remarkably comparable to the present one.

The identification process in Palmer, supra, as in the instant case, consisted of having the prosecutrix listen through a partially open door to the suspect being questioned in an adjoining room. The court in Palmer, supra, 359 F.2d at 201-202, noted that

"Where the witness bases the identification on only part of the suspect's total personality, such as * * * voice alone, prior suggestions will have most fertile soil in which to grow to conviction. This is especially so when the identifier is presented with no alternative choices; there is then a strong predisposition to overcome doubts and to fasten guilt upon the lone suspect.

* * * * * *

"Where the identification is by voice alone, the absence of some comparison involves grave danger of prejudice to the suspect, for as one noted commentator has pointed out:

`Even in ordinary circumstances, we must be cautious and accept only with reserve what a witness pretends to have heard. All the more must it be so if there are special difficulties in the way—if, for example, the voice comes from a great distance, if it is shrill, muffled, or presents any other peculiarity. The same is true if the person whose voice has been heard is of a different nationality from the listener, if he speaks another dialect, or is better or less educated. Criminal Investigation, Jackson ed. (5th ed. 1962), at 41-42'"

In Palmer, supra, as in the instant case, the prosecutrix did not see the face of an attacker who was in her presence for several minutes. Likewise, within a couple of days she was taken to the police station and asked to identify the voice of a lone suspect.

"When she was asked if she could identify the voice, the only voice that was submitted for identification, the highly suggestive atmosphere that had been generated could not have failed to affect her judgment.

* * * * * *

"In their understandable zeal to secure an identification, the police simply destroyed the possibility of an objective, impartial judgment by the prosecutrix as to whether Palmer's voice was in fact that of the man who had attacked her. Such a procedure fails to meet `those canons of decency and fairness' established as a part of the fundamental law of the land. A state may not rely * * * on an identification secured by a process in which the search for truth is made secondary to the quest for a conviction." Palmer, supra, 359 F.2d at 201, 202.

Just as testimonial untrustworthiness is a reason for excluding coerced confessions, so the likelihood of testimonial error is a basis for proscribing irregularly obtained identifications. The principles enunciated in Palmer illuminate a number of factors which lead to the inescapable conclusion that, in the light of "the totality of the circumstances surrounding", Stovall, supra, 388 U.S. at 302, 87 S.Ct. at 1972, his identification, petitioner was deprived of the fundamental fairness that due process demands.

For example, the record does not reveal either that the complainant volunteered or that the police sought any characterization of the voice of the assailant; thus reliance was placed on the prosecutrix' memory, rather than on a description contemporaneous with the attack. See 3 Wigmore (3rd ed. 1940) 164, § 786a. Also, it should be noted that since the prosecutrix was English, some of the dangers of voice identification, referred to in the material quoted above from Palmer, were inherent in this situation. Moreover, the complainant was brought to the station in an expectant frame of mind. The police had a suspect whose voice they wanted her to identify. Such singling out necessarily suggested that the suspect was thought by the police to be the culprit. In addition, no countervailing compulsion for the adoption of a hasty and objectionable identification process existed. Unlike Stovall itself, there was no danger here that the victim would die without having identified or exonerated a prime suspect. Nor, as was the case in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), where photographs of suspects were shown to witnesses of an armed bank robbery, was there any danger that the alleged perpetrator of a serious felony would escape.

There is no doubt that the instant case is, as Judge Wisdom said of "Palmer v. Peyton, 4 Cir. 1966, 359 F.2d 199 (en banc), * * * an example of an outrageously improper identification." Crume v. Beto, 383 F.2d 36 at 39 (5th Cir. 1967).

An additional factor that compounds the unconstitutional impropriety of petitioner's identification should be highlighted. Wade and Gilbert, supra, were in fact lineup situations, which turned upon the meaning of the Sixth Amendment's confrontation clause. In Simmons, supra, which applied the Stovall standards, as in two cases cited in the State's brief, United States v. DeLeo, 422 F.2d 487 (1st Cir. 1970) and United States v. Zeiler, 296 F.Supp. 224 (W.D. Pa. 1969), photographs of suspects were shown to witnesses. In the instant case, as in Palmer, supra, there was not only nothing approximating a lineup, there was also no semblance of a confrontation of the suspect by the complainant. Moreover, unlike the cases involving the exhibition of photographs, where at least the whole physiognomy was subject to scrutiny, in the present case the complaining witness' attention was concentrated on the one and only "mark" by which the prosecutrix could hope to identify the assailant. See 2 Wigmore (3rd ed. 1940) 385-358, § 411, and 3 Wigmore (3rd ed. 1940) 163, § 786a.

The inherent unreliability of a single suspect confrontation, which Justice Douglas described in an opinion dissenting from the judgment of an equally divided court in Biggers v. Tennessee, 390 U.S. 404 at 407, 88 S.Ct. 979 at 981, 19 L.Ed.2d 1267 (1968)—

"Whatever may be said of lineups, showing a suspect singly to a victim is pregnant with prejudice. The message is clear; the police suspect this man. That carries a powerfully suggestive thought. Even in a lineup the ability to identify the criminal is severely limited by normal human fallabilities of memory and perception. When the subject is shown singly, havoc is more likely to be played with the best intended recollections." —

is aggravated in the circumstances of a single suspect voice identification. The Supreme Court...