Royce v. Moore
| Decision Date | 22 November 1972 |
| Docket Number | No. 72-1087.,72-1087. |
| Citation | 469 F.2d 808 |
| Parties | William E. ROYCE, Petitioner-Appellant, v. Robert J. MOORE, Superintendent, Respondent-Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Robert F. Corliss, Boston, Mass., by appointment of Court, for appellant.
Harvey F. Rowe, Jr., Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., and David A. Mills, Asst. Atty. Gen., Chief, Appellate Section, were on brief, for appellee.
Before COFFIN, Chief Judge, McENTEE and HAMLEY,* Circuit Judges.
William E. Royce, in custody in a Massachusetts penal institution under three consecutive sentences following separate convictions for bank robbery, escape and bank robbery, appeals from a district court order denying his application for a writ of habeas corpus addressed to his second bank robbery conviction. Royce's argument in this court centers around his contention that the testimony of the only witness who identified him at this state bank robbery trial as one of the robbers was unconstitutionally tainted by a show-up prior to the trial at which Royce was not represented by counsel, and which was impermissibly suggestive. For the reasons stated below we affirm.
The bank robbery in question occurred on August 30, 1968, and involved the Brigham's Circle office of the Charlestown Savings Bank, Boston, Massachusetts. During the late afternoon of that day two men, one rather small and one rather large, entered that bank, exhibiting guns, and conducted the robbery. The larger man, who was later identified as Royce, stationed himself near the front door, while the smaller man went from teller to teller collecting the money.
There were many eyewitnesses in the bank at the time. Among these, the acting bank manager, three tellers, and bank guard Thomas Ahearn, testified at the trial. Only Ahearn identified Royce as one of the robbers, although the other witnesses testified that the larger robber was about the height and weight of the man who was identified in court as Royce. At the time of the robbery, Ahearn, who was then sixty-eight or sixty-nine years old, and wore glasses, was stationed in his office at the back of the room. His office was equipped with a one-way glass which enabled him to see into the bank without being seen. The robber standing by the front door was about twenty-five feet away from Ahearn.
Both robbers were wearing false beards while they were in the bank. But Ahearn testified that the larger man's beard slipped down five or six inches three or four times, enabling Ahearn to see the robber's face. Ahearn testified that the robbers were in the bank seven or eight minutes and that he watched the large man about five or six minutes. Ahearn also testified that when the robbers left the bank, he saw the larger man on the street for about one minute from a distance of about twenty feet, after which Ahearn went back into the bank through the rear door.
A week after the robbery Ahearn was shown, at the bank, seventy-five to one hundred photographs from police files. No one was with Ahearn when he looked them over and selected one photograph as that of the larger of the two robbers. At the state trial Ahearn testified that he recognized Royce as the larger robber he observed in the bank and as the man shown in the photograph he had selected.
On May 5, 1969, which was more than eight months after the robbery, the police took Ahearn to the Superior Court for Plymouth County, Massachusetts, to view Royce for identification purposes. Royce was there for sentencing in connection with another bank robbery. Ahearn sat in the front row and, for some time, watched Royce, who was in shackles, and two other defendants in that case. At the noon recess he told the detective who had taken him to this court room that Royce was one of the Charlestown Savings Bank robbers.
There was an extensive voir dire inquiry at the state trial, in the absence of the jury, as to whether these photographic and show-up identification procedures had unconstitutionally tainted Ahearn's proposed trial testimony identifying Royce as one of the bank robbers. The trial court ruled that such identification testimony might be presented to the jury, and it was. Following Royce's conviction, he appealed to the Supreme Judicial Court of Massachusetts, arguing that the trial court erred in permitting Ahearn to identify Royce at the trial. However, the conviction was affirmed, the court holding that even assuming the show-up at the Plymouth court was improper, Ahearn's identification testimony was not tainted thereby since it was based upon an independent source, namely Ahearn's observations inside and outside the Charlestown Savings Bank. Commonwealth v. Royce, 266 N.E.2d 308 ( Mass.1971 ).
Royce then commenced this habeas corpus proceeding. The federal district court referred the matter to a Magistrate to serve as a Special Master, and counsel was appointed to represent Royce. A hearing was held on January 10, 1972, which was more than three years and four months after the robbery. Counsel for Royce called three witnesses at this hearing, including Ahearn, and respondent warden presented no testimony except to recall Ahearn briefly to the witness stand.
The next day the Special Master filed a twelve-page report summarizing the evidence he had received, pointing out inconsistencies between Ahearn's identification testimony at the trial and his testimony before the Special Master,1 expressing doubt as to Ahearn's opportunity to identify Royce at the bank in view of Ahearn's testimony before the Special Master, and expressing the view that the confrontation at the Plymouth court had not been adequately explored, but that it appeared to be extremely suggestive. The Special Master recommended that, in view of Ahearn's inconsistent testimony, "and new developments which apparently were not explored by counsel at the State Court level,"2 the state court should "be given the opportunity to reconsider the whole matter. . . ."3
When the Special Master's report came before the district court, on January 18, 1972, counsel for Royce asked that his client be permitted to testify because of the Special Master's observations quoted in footnote 3 herein. Royce then testified, but no other testimony was received on that day. The matter again came before the district court on February 8, 1972. At that time the district court announced that the court had "the transcript of the testimony which was given before Magistrate Davis." The court stated that, in the absence of objection, the court "assumed that the parties agreed that that record should be treated by the Court as though it were a deposition or as though it were a report of evidence taken by a Master or otherwise was available to the Court as part of the record in this case." Counsel for both parties indicated that the court's understanding was correct.4
The district court inquired whether either party desired to have further testimony from Ahearn. Counsel for the warden asked that Ahearn testify, and he did so. In the course of this testimony, Ahearn attributed the inconsistencies between his trial testimony and that given before the Special Master to the lapse of time between the two hearings and the resulting failure of recollection at the Special Master's hearing. Ahearn then testified that he observed the larger robber in the bank for five or six minutes. He again identified Royce as that person, stating that he did not need to go to the Plymouth court to reinforce his identification of Royce because there had never been any doubt in his mind.
Following this hearing, the district court denied the application for a writ of habeas corpus. Stating that it had held a de novo hearing, the court found that Ahearn had a recollection of the events and the participation of Royce in the robbery wholly independent of the Plymouth...
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