Roper v. Beto, 31101.

• Decision Date: 01 February 1972
• Docket Number: No. 31101.,31101.
• Citation: 454 F.2d 499
• Parties: Jimmie Curtis ROPER, Petitioner-Appellee, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

454 F.2d 499 (1972)

Jimmie Curtis ROPER, Petitioner-Appellee, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellant.

No. 31101.

United States Court of Appeals, Fifth Circuit.

December 28, 1971.

Rehearing and Rehearing Denied February 1, 1972.

Dunklin Sullivan, Asst. Atty. Gen., Crawford C. Martin, Atty. Gen. of Tex., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Thomas W. Hathaway (Court-appointed), Johnson, Hathaway & Jackson, Tyler, Tex., for petitioner-appellee.

Before O'SULLIVAN,^* THORNBERRY and DYER, Circuit Judges.

Rehearing and Rehearing En Banc Denied February 1, 1972.

O'SULLIVAN, Senior Circuit Judge:

The State of Texas appeals from a judgment of the United States District Court for the Eastern District of Texas granting petitioner-appellee, Jimmie Curtis Roper, a writ of habeas corpus. Roper had been convicted of rape upon a jury trial had in the District Court of Smith County, Texas. The jury fixed his punishment at 75 years imprisonment. The United States District Judge determined that a voice identification of Roper by his alleged victim was made under such circumstances as to deny him due process. The District Judge held that notwithstanding a signed and voluntary confession of the crime by Roper, introduction of the voice identification evidence could not be considered as harmless error. The District Judge's opinion is reported as Roper v. Beto, 318 F.Supp. 662 (E.D.Texas, 1970).

The evidence established that Joan Sumner, a 27 year old secretary, returned to her apartment in Tyler, Texas, from work on October 26, 1962. As she opened and then closed the apartment door, she was grabbed from behind by an assailant holding a knife to her throat. He ordered her to place two pieces of adhesive tape over her eyes and mouth which he pressed firmly on. Her wrists were then bound with venetian blind cords and she was tied to her bed. The adhesive tape and the cord had been made ready for this planned assault. After disrobing and raping her, the rapist talked to complainant for some thirty or thirty-five minutes, removing the tape from her mouth at times for her to answer. Because of the nature of the attack, the prosecutrix was unable to make a visual identification of her attacker, but she was in a position to attempt identification of his voice.

Appellee was arrested as a suspect three days later and taken to the police station. Complainant was brought down to the station and positioned a few feet outside of the office in which appellee was being questioned. The door of the office had been left open. She identified the voice as that of petitioner Roper.

At trial, she testified as to this voice identification. The officer who participated in this identification verified her account of it. Also introduced was a confession signed by Roper which confirmed the details of the rape as testified by complainant, and told of his activity awaiting her arrival—equipping himself with a knife and preparing the tape and cutting the venetian blind cords. It also related that he was 24 years old, that his wife had gone visiting for a week, and that on the previous day he had watched the complainant, who lived in the same building, coming home from work about 5:00 o'clock and that he then decided he wanted to have intercourse with her. He stated that although he had seen her in passing several times, he had had no conversation with her. No challenge was made to the voluntariness of the confession, and the petitioner did not take the stand in his defense. Roper's confession is attached as Appendix A Admissibility of the voice identification evidence and Roper's confession were not questioned at trial. The only point raised on an original appeal to the Court of Criminal Appeals of Texas was the trial court's refusal to allow defense counsel to attempt an attack upon the previous chastity of the prosecutrix. In affirming the conviction, the Texas court, in Roper v. State, 375 S.W.2d 454 (Tex.Crim.App. 1964) said:

"We agree that when the issue of consent is raised, proof of specific instances of unchastity with appellant may be admissible, however, we cannot agree that the issue of consent is raised by a plea of not guilty in a cause in which rape by force is the offense. When the offense is rape by force and there is no issue of consent there is no defense that the woman was not a chaste female. Tyler v. State, 145 Tex.Cr.R. 315, 167 S.W.2d 755." 375 S.W.2d at 456.

In 1966, by petition for habeas corpus relief in the trial court—the District Court of Smith County, Texas—Roper challenged the admissibility of his confession, not on a claim of its involuntariness but on the asserted ground that he should have been provided a lawyer before he confessed. The state judge held a full evidentiary hearing, and in denying relief said:

"Jimmie Curtis Roper did not request and was not denied the assistance of counsel prior to making a written statement to a member of the District Attorney\'s staff on the morning of his arrest."

This ruling was affirmed on appeal to the Court of Criminal Appeals of Texas, Ex parte Roper, 408 S.W.2d 929 (Tex. Crim.App. 1966). The Texas Court said:

"Under the evidence, the court was warranted in finding that appellant did not request to see an attorney prior to making the confession.

"The fact that appellant was not advised that he had the right to consult with counsel did not render his confession inadmissible in his trial, which began February 21, 1963.

"The cases of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, have been held not to be retroactive" 408 S.W.2d at 930-931.

In September, 1967, Roper again went into the Texas trial court to challenge the admissibility of his confession. Relief was again denied, and it does not appear that an appeal was prosecuted to the Court of Criminal Appeals.

In November of 1969 petitioner made his first challenge to the admissibility of the voice identification evidence. This was done by another petition for habeas corpus relief in the District Court of Smith County, Texas. He was denied relief in the trial court and in the Texas Court of Criminal Appeals. On January 27, 1970, the present proceeding had its beginning by petition for habeas corpus relief in the United States District Court for the Eastern District of Texas, Tyler Division. This petition asserts:

"Petitioner further contends that in none of these prior attempts to secure post-conviction relief was the issue of this unlawful pre-trial confrontation raised, either directly or inferentially."

His petition further asserts that he "did in fact strenuously object to introduction of this unlawful evidence the voice identification." There is nothing in the record presented to this Court to sustain his claim of trial objection to the identification evidence.

We are called upon to determine whether on the "totality of the circumstances" surrounding the voice identification of Roper, the transaction was "so unnecessarily suggestive and conducive to irreparable mistaken identification" that Roper was denied due process of law by admitting into evidence testimony concerning it. Such is the rule of Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), in which the Supreme Court determined that pretrial identification procedures, conducted before its decisions in 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), such as the identification involved here, would be governed by due process standards and not by retroactive application of the right to counsel standard for lineups. It was made clear in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed. 2d 1247 (1968), that the Stovall rule means that a particular identification process must be more than somewhat suggestive and will be set aside only if "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.

One man showups have not been adjudged per se violative of due process. They have been condemned as suggestive, but whether a particular showup and identification violates due process is dependent on the "totality of the circumstances." The particular concern of the courts is whether the showup has produced reliable identification evidence or the likelihood of misidentification.

Cases finding that a particular showup did violate due process considered additional facts, beyond that of the one man factor itself, which pointed towards the unreliability of the identification. In Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966), the court set aside a one man showup involving essentially a voice identification. The night of the rape, a normal lineup was conducted and complainant heard and saw five men, but no identification was made. The following day, complainant was seated outside an open door to an office in which the suspect, unseen by her, was being questioned. She then identified the voice, but only after being told before listening to the voice that the police had a Negro suspect in custody and being shown the suspect's shirt which she later testified was about the same color as her assailant's. Moreover, the suspect was led to repeat certain phrases or "damning words" uttered by her assailant. The assailant had worn a closely fitting heavy paper bag over his head, which bag was not worn during the interrogation, but was in police possession.

In Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), the first lineup conducted by the police featured three men, but the suspect stood out from the other two because of his height and the fact he wore a...