Rudd v. State of Florida

• Decision Date: 30 May 1972
• Docket Number: No. 71-430-Civ-J.,71-430-Civ-J.
• Parties: Lamar RUDD, Petitioner, v. STATE OF FLORIDA, Respondent.
• Court: U.S. District Court — Middle District of Florida

343 F. Supp. 212

Lamar RUDD, Petitioner, v. STATE OF FLORIDA, Respondent.

No. 71-430-Civ-J.

United States District Court, M. D. Florida, Jacksonville Division.

May 30, 1972.

COPYRIGHT MATERIAL OMITTED

Kathryn L. Powers, Jacksonville, Fla., for petitioner.

Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, Fla., for respondent.

OPINION AND WRIT OF HABEAS CORPUS

CHARLES R. SCOTT, District Judge.

Petitioner, an inmate at the Belle Glade Correctional Institution, Belle Glade, Florida, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. Petitioner alleges that five in-court identifications admitted by the state trial court were violative of his rights as protected and guaranteed by the Sixth and Fourteenth Amendments to the Constitution. This Court agrees and hereinafter issues this writ of habeas corpus.

Lamar Rudd¹ initially filed his petition for relief in pro se form. Subsequent to the issuance of an order to show cause, the respondent filed a response. This Court then appointed Kathryn L. Powers, Esquire, of the Jacksonville Bar, to represent petitioner as court-appointed counsel and ordered an evidentiary hearing which was held before this Court on December 8, 1971. The Court heard testimony, entertained oral argument, perused the Court file and established a briefing schedule.

Petitioner alleged in his initial pleading that he had exhausted his state remedies, as required by 28 U.S.C. § 2254(b), by a direct appeal of his state court conviction to the District Court of Appeal of Florida, First District, by a motion for rehearing subsequent to that Court's affirmance of his conviction, and by a petition for writ of habeas corpus filed before the Supreme Court of Florida. Although the appeal to the First District Court of Appeal was affirmed by that Court in a per curiam opinion which discussed none of the issues raised, this Court notes that the appeal raised the issue of the admissibility of the in-court identifications. There has been no contention that the petitioner has failed to exhaust his state remedies, and this Court finds that petitioner herein has exhausted his state remedies. 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647 (1948); Thomas v. Decker, 434 F.2d 1033 (5th Cir. 1970); cf. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (Dec. 20, 1971).

Petitioner pled not guilty in the Criminal Court of Record of Duval County, Florida, to an information which charged him with robbery. The case went to a jury which returned a verdict of guilty and the defendant was thereinafter sentenced to a term of 40 years. The information charged, and the conviction stemmed from, an alleged robbery of a "7-11 Store" on December 7, 1968. That date is important. Consequently, each of the five in-court identifications of the defendant, hereinafter discussed, which were preceded by an out-of-court line-up, photographic display or show-up occurred between December 7, 1968, and July 31, 1969.

I. THE DEFECTIVE LINE-UPS

At the trial two witnesses were called by the State to identify Rudd as the person who had robbed each of them on separate occasions. These witnesses were called by the State in order to present evidence of a collateral offense and to show a general scheme, plan and design.²

Ernest Payne, a part-time employee and manager of the Jackson Minit Market, testified that the defendant Rudd was the person who robbed him on January 3, 1969.³ The witness testified that he had observed the bandit for a minute or a minute and a half which was "Not too long".⁴ The State failed to present evidence to the trial court, out of the presence of the jury, that Payne had earlier attended a line-up where he identified the defendant Rudd.⁵

Payne was called by petitioner as a witness at the evidentiary hearing held before this Court. Payne testified that he attended a line-up between the time of the January 3, 1969, alleged crime and the trial⁶ and that he could not remember that counsel representing Rudd was present at that line-up.⁷ Payne testified that he had had an opportunity to observe the perpetrator of the alleged crime for only two or three minutes⁸ and that, as to his recollection of the assailant's clothing, he could not remember definite things.⁹

James P. Loos, Jr., was also called as a witness by the State. He testified that on the evening of January 3, 1969, he was a customer at a Jackson Minit Market when its manager, Mr. Payne, was robbed. Loos did not, however, know that a robbery had occurred until Payne told him that "That man just robbed me".¹⁰ Loos identified the defendant at trial as that man.¹¹ The State failed to present evidence to the trial court, out of the presence of the jury, that Loos had earlier attended a line-up at which he identified the defendant Rudd.¹² Counsel for the defendant was able to elicit testimony on cross-examination in the presence of the jury that Loos had identified Rudd at a pre-trial line-up.¹³

Loos was also called by petitioner at the evidentiary hearing held before this Court.¹⁴ Loos testified that he attended a post-arrest pre-trial line-up at which he identified the defendant Rudd¹⁵ and that to the best of his knowledge defendant Rudd's attorney was not present.¹⁶ Loos was not able to see the bandit's face completely at the crime scene and only observed it in part for about two and a half minutes.¹⁷ He never got ". . . a direct look in his face at all"¹⁸ and could not give any detailed description to the police.¹⁹

Petitioner Rudd was called as a witness at the evidentiary hearing before this Court.²⁰ Rudd testified that, subsequent to his arrest but prior to his trial, he had been placed in a line-up at the Duval County Jail for witness identification.²¹ Rudd testified that he had requested of police officials that his counsel be contacted and present at the line-up²² but that, when the line-up occurred, neither his counsel nor an appointed attorney was present.²³ Rudd testified that his counsel at that time was R. Hudson Olliff of the Jacksonville Bar²⁴ and that he did not waive his right to have counsel present at the line-up.²⁵ Rudd, in describing the line-up, testified that the men placed in the line-up were not of similar appearance²⁶, that most were not of the same height²⁷, that they were considerably heavier in weight²⁸ and that only one other man was partially bald.²⁹ Because of the light which was shining in his face, Rudd was unable to see those persons in the room who were viewing the line-up.³⁰

Judge R. Hudson Olliff³¹ was also called by the petitioner at the evidentiary hearing held before this Court.³² Judge Olliff represented Rudd³³ and never attended any line-up³⁴ or show-up³⁵ of his client. Judge Olliff had some recollection about a telephonic communication from the police about a line-up whereupon he advised the police that he had a previous commitment and suggested that any line-up be postponed until he could be in attendance.³⁶

On the basis of a careful and detailed study of the transcript of record of the proceedings in the trial court and, especially, on the basis of the live testimony taken at the hearing before this Court, the Court hereby makes and enters the following findings of fact with regard to the line-ups:

1. R. Hudson Olliff, Esquire, was at all pertinent times, and especially at the time of the line-ups, the attorney for Lamar Rudd.

2. R. Hudson Olliff, Esquire, never attended a line-up of Lamar Rudd during the period of his representation.

3. No attorney, retained or court-appointed, ever represented Lamar Rudd at a line-up between the time of arrest on January 6, 1969, and the time of trial on July 31, 1969.

4. Lamar Rudd was required to participate in one or more (perhaps simultaneous) line-ups during the aforementioned period.

5. Lamar Rudd requested counsel at such a line-up, but counsel was not provided.

6. Lamar Rudd did not waive his right to counsel at any line-up.

7. Ernest Payne attended a line-up during the aforementioned period at which he identified Lamar Rudd.

8. James P. Loos, Jr., attended a line-up during the aforementioned period at which he identified Lamar Rudd.

9. The trial court admitted the in-court identifications of both Payne and Loos without first determining whether such in-court identifications were tainted by the illegal line-ups.

It is well settled that the Sixth Amendment guarantee applies to "critical" stages of criminal proceedings and that a post-arrest line-up is such a critical stage. Consequently, a defendant and his counsel should be notified of a line-up; and, absent an intelligent waiver by the defendant, counsel's presence is a requisite to the conduct of a line-up. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In the instant case, the conduct of the two line-ups was without the presence of counsel and, as such, constituted a denial of petitioner's rights as guaranteed and protected by the Sixth Amendment to the Constitution.³⁷

However, in-court identifications of an accused subsequent to such a constitutionally defective line-up are not per se inadmissible, for the Supreme Court has held that such a per se rule would be unjustified. Wade supra at 240, 87 S.Ct. 1926. Once such a constitutionally defective line-up is established, as here, the burden is upon the State to show ". . . by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the line-up identification". Ibid. The Wade decision requires that courts apply the "Wong Sun" test which provides:

"Whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint".

Wong...