Sanchell v. Parratt
| Decision Date | 09 March 1976 |
| Docket Number | No. 75--1600,75--1600 |
| Parties | Joseph SANCHELL, Appellant, v. William PARRATT, Warden, Nebraska Penal and Correctional Complex, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert C. Sigler, Omaha, Neb., for appellant.
Paul L. Douglas, Atty. Gen., and C. C. Sheldon, Asst. Atty. Gen., Lincoln, Neb., filed brief for appellee.
Before MATTHES, Senior Circuit Judge, LAY and STEPHENSON, Circuit Judges.
Joseph Sanchell was convicted after trial by jury in Nebraska state court of one count of forcible rape and three counts of robbery. On direct appeal, the Nebraska Supreme Court first reversed the convictions, holding that one witness' in-court identification should have been excluded. State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504 (1974) (Boslaugh and Spencer, JJ., dissenting). On rehearing, however, the conviction was reinstated, 192 Neb. 380, 220 N.W.2d 562 (1974) (Clinton and McCown, JJ., dissenting). Sanchell's habeas petition was denied after an evidentiary hearing in an unreported memorandum opinion by the federal district court. This appeal followed.
Petitioner urges that the identification evidence should have been suppressed because it was derived from a series of pretrial identification confrontations so suggestive as to make identification of him inevitable. The State urges us to sustain the findings of the Nebraska Supreme Court and the federal district court that even if the confrontations were unduly suggestive, the in-court identifications were reliable in any event. We hold that the identification testimony of two of the three witnesses should have been excluded, and thus the petitioner is entitled to a new trial.
The charges against Sanchell stem from events in the early morning hours of January 22, 1972, when a black male broke into five separate sleeping rooms of a women's dormitory on the University of Nebraska's Lincoln campus. The intruder raped and robbed the young woman in the first room, and later robbed two other women students. Sanchell was arrested on these charges several weeks later after one witness had identified him at his arraignment on an unrelated charge.
The facts leading up to the identification are significant. On Saturday morning, January 22, 1972, the intruder entered the dormitory between 5:30 and 5:45 A.M. and remained inside until about 6:30 A.M. The sun did not rise that day until 7:43 A.M. so no early morning light would have been present during the crimes.
The intruder entered Renee's second-floor room first, and closed the door. Renee did not awaken until he placed his hand over her mouth while she lay in bed. He ordered her not to look at him, but at trial she testified that she did stare at his fact for about five seconds, then looked away, then stared at him again for another five seconds. At this time, the drapes and the door were closed and no lights were on in the room, so the only sources of illumination would have been light entering from the hall under the door or from the floodlit courtyard under the drapes. The intruder then blindfolded Renee and turned on a light. She could see his body from under the blindfold, but apparently she did not thereafter see his face again clearly. Renee was raped twice and robbed. The intruder remained in her room about 30 to 45 minutes and talked to her throughout that time.
Leaving Renee's room at 6:15 A.M., he entered Mary Ann's nearby room and robbed her, remaining in the room only a short time. Mary Ann had poor eyesight and never heard the intruder's voice nor saw him clearly, so she did not identify anyone later.
Next, the intruder entered Sharon's room. The sound of the opening door awakened Sharon, and she saw a tall black man silhouetted in her doorway, where he remained for about 10 seconds. She asked him what he was doing and he closed the door and left without answering. Sharon never identified the petitioner as the intruder.
The intruder proceeded up to the third floor, and opened the door of Ann's room. She awoke immediately and saw him silhouetted in the doorway for a second or two. He entered the dark room, closing the door behind him, then pulled her out of bed and walked behind her over to a light switch beside a mirror. When he turned on the light, Ann caught a brief glimpse of 'his eyes and his face, just the outline of his face' reflected in the mirror before she closed her eyes due to his threats. He left after ordering her to give him her money.
The fifth and final room entered was Patricia's, next door to Ann's. Patricia awoke in her dark room when the intruder placed his hand over her mouth. No lights were on and her drapes were closed, although she testified at trial that the courtyards were floodlit and that her light-colored drapes did admit some light at the time. When Patricia awoke, she saw the intruder's profile for 'perhaps three seconds', but she had no chance to see his full face or body at any time because he blindfolded her almost immediately. He remained in her room about five minutes, talked to her from time to time, robbed her, and then left the dormitory without being apprehended.
These events were reported soon thereafter to the University Campus Security Department. Security Officer Edmunds interviewed the witnesses about 12 hours later. The record does not show what if any description the witnesses other than Renee were able to provide at that time. Renee helped Officer Edmunds prepare a composite picture of the suspect using overlay foils. The composite was circulated to the Lincoln, Nebraska Police Department that evening, and one officer noticed that the picture and the description generally fit Joseph Sanchell, who had then rencently been arrested and released on an unrelated robbery charge. 1
Over the next few days, Officer Edmunds showed each of the witnesses photographs of possible suspects, with a very recent mug shot of Sanchell included in a spread of eight. The photograph display was fairly conducted and is not challenged on appeal. None of the witnesses was able to make a positive identification at this point. Patricia picked out three photos as resembling the intruder, none of which was Sanchell. Ann similarly picked out several photos which she said resembled the intruder, but did not include Sanchell's picture among them. Only Renee included the petitioner's photo along with three others that she chose as possible suspects.
On February 7, Renee told Officer Jacobson of the Lincoln Police Department that she was not sure she would be able to identify her assailant's face, but that perhaps she would be able to recognize his voice.
The next day, February 8, 1972, the first of the challenged showups occurred. Either the police or the security officers called Renee and arranged for her to contact the other witnesses to ask them all to appear at the County Courthouse house in Lincoln to identify someone. At the Courthouse, an officer ushered the five young women into a courtroom, telling them to watch the proceedings and not talk among themselves. Then in progress was Joseph Sanchell's arraignment on the unrelated robbery charge for which he had previously been arrested. Sanchell, who was not then represented by counsel and had not yet been arrested for or charged with the January 22 rape-robberies, 2 sat at the counsel table with his back to the witnesses and did not speak. He was the only tall heavy black male in the room. After the arraignment, the witnesses were separately interviewed. Of the five, only Renee positively identified Sanchell after the arraignment. Two of the young women, Sharon and Patricia, told the officers at that time that Sanchell was not the intruder.
On the strength of Renee's identification, Sanchell was arrested and charged with the January 22 rape-robberies. Despite the uncertainty of the other witnesses, Sanchell was never placed in a lineup to see if the young women could pick him out from others fitting the general description, nor was he ever asked to speak for the witnesses to see if, given the chance to hear his and other black male voices clearly, they could identify him on that basis. Strangely enough, during his custody, the police did place Sanchell in other lineups for other unrelated crimes.
Three weeks after the arraignment, on March 1, 1972, he was again shown singly to the witnesses. On that date, two preliminary hearings were held, one for the November robbery charge and another for the January rape-robbery charges with which we are concerned. The five witnesses to the January crimes were present from the beginning. Since the November charge was to be heard first, defense counsel asked that the rape-robbery witnesses be excluded. The prosecutor resisted this motion, however, and the court denied it. As a result, the five witnesses watched while another university student, Doris Todd, positively identified Joseph Sanchell as the man who had robbed her in a dark Lincoln alley the preceding November.
Twenty minutes after the petitioner was bound over for trial on that offense, the preliminary hearing on the rape-robbery charges commenced. At this point, the court granted the defense motion to sequester the witnesses. All five testified. Renee again positively identified Sanchell as her assailant, based on his appearance. Patricia first testified only that she could not be sure, but 'he fits what I saw.' When the hearing was continued the next day, she said that based on her view of the petitioner's profile the day before, she believed he was the man. On cross-examination, however, she admitted she was not sure, but repeated '(H)e fits the description of what I saw.' Voice identification was never mentioned. The other three witnesses, Ann, Mary Ann and Sharon, were all unable to identify Sanchell at the preliminary hearing.
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