Smith v. Coiner

• Decision Date: 01 February 1973
• Docket Number: No. 71-1535.,71-1535.
• Citation: 473 F.2d 877
• Parties: Edward Lee SMITH, Appellant, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

473 F.2d 877 (1973)

Edward Lee SMITH, Appellant, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Appellee.

No. 71-1535.

United States Court of Appeals, Fourth Circuit.

Argued September 14, 1972.

Decided February 1, 1973.

William H. Ledbetter, Jr., Fredericksburg, Va. (Court-appointed counsel), for appellant.

Willard A. Sullivan, Asst. Atty. Gen. of West Virginia (Chauncey H. Browning, Jr., Atty. Gen. of West Virginia, and Richard E. Hardison, Asst. Atty. Gen. of West Virginia, on brief), for appellee.

Before WINTER and BUTZNER, Circuit Judges, and MURRAY, District Judge.

WINTER, Circuit Judge:

After exhausting available state post conviction remedies, Edward Lee Smith sought a federal writ of habeas corpus to set aside his state conviction for the rape of a seventy-two-year-old widow. The district court conducted a plenary hearing but found lacking in merit Smith's contentions that he had been denied due process of law. Smith argued that due process had been denied because (a) the trial jury had been coerced into finding him guilty, (b) he lacked counsel when the prosecutrix identified him as her attacker, and (c) the state's evidence in its direct case that the prosecutrix had identified him as her attacker in a one-to-one confrontation shortly after the commission of the offense was unduly suggestive under the circumstances surrounding the identification. As to the latter contentions, the district court, without passing on the validity of the one-to-one confrontation or the claimed denial of the right to counsel, concluded that an in-court identification by the prosecutrix was not tainted by the earlier identification and the in-court identification provided a valid basis upon which the jury could have found Smith guilty.

We disagree. We think that the one-to-one confrontation under the circumstances denied Smith's right to due process and that evidence of the prosecutrix's identification as part of the government's direct case fatally infected the trial. Since we cannot conclude that this evidence was harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 2d 705 (1967), we reverse the judgment of the district court and direct that the writ issue unless the state affords Smith a new trial within a reasonable period to be fixed by the district court. Because of our conclusion with respect to the evidence of the out-of-court identification, we do not reach Smith's other basic contention that the jury was coerced into finding him guilty. It arose from circumstances which are unlikely to recur if Smith is tried anew, and the issue we do decide is sufficient, standing alone, to warrant relief.

I.

On February 1, 1968, during the morning hours before dawn, the prosecutrix was awakened by an intruder and raped in the bedroom of her home in Franklin, West Virginia. The incident occurred in the dark although the prosecutrix saw her assailant for "two seconds" by using a flashlight that she had in her room. The prosecutrix wore glasses all of the time, and she had been under treatment for cataracts for two years, without improvement. She was not wearing her glasses when she saw her assailant and she subsequently described him as somewhat resembling another man in the community who, another witness testified, was about fifty years old.

About three hours after the incident, Smith was found asleep, partially undressed, in the prosecutrix's bed. He was discovered by the son of the prosecutrix and a police officer whom the son had summoned, both of whom had gone to her house after she had gone to her son's house to report what had happened. Smith was awakened and was immediately arrested. When he was dressed, he was advised that he had a right to remain silent, that he had a right to have a lawyer represent him, and that any statement he made could be used against him. He declined to make a statement. After he was booked, he was taken in handcuffs to a doctor's office where the prosecutrix was being examined and treated. In handcuffs and with a state policeman at each arm, he was exhibited to the prosecutrix who identified him as her attacker. He had been given no opportunity to obtain counsel or to request that counsel be appointed to represent him. Evidence of the identification at the doctor's office was part of the state's direct case at trial. At trial, the prosecutrix also made an in-court identification.

According to Smith, he happened to be in the prosecutrix's bed under these circumstances: The afternoon before, Smith, who was working in the vicinity, began drinking with friends before returning to his home in Virginia. About 2:00 a. m., he began the journey home in his truck. He picked up a hitchhiker who was older and heavier than Smith. Shortly thereafter Smith stopped the truck because he was so sleepy. The hitchhiker left and Smith went to sleep. Later the hitchhiker returned, awakened Smith and took him to a house, subsequently determined to be the house of the prosecutrix. He was shown by the hitchhiker to a room with an empty bed. When the hitchhiker left the room, Smith partially undressed, went to bed and went back to sleep. Smith said that he did not know whose house it was nor the identity of the hitchhiker. The hitchhiker was not seen again, nor was any attempt made by the police to locate him. Smith remained asleep until awakened by the police officer. He denied seeing the prosecutrix or raping her.

Although, if Smith's version of the facts is true, this is a bizarre case, yet it cannot be said that Smith's version is inconsistent with the other facts of record. After being raped the victim left her bedroom, leaving her assailant in the bed, and locked herself in a downstairs bathroom for a period of time, where she dressed. She then walked about a quarter of a mile to her son's home to report the incident. The record is imprecise, but a considerable period of time may have elapsed between commission of the crime and Smith's discovery because the victim thought that the crime was committed about 4:30 a. m. and the son thought that his mother had arrived at his house about 7:00 a. m.

While the record shows that initial entry to the prosecutrix's house was obtained by someone's climbing on to a porch roof and breaking a second story window, Smith said that he entered by a door opened by the hitchhiker. The window broken was in another bedroom which did not connect with the bedroom in which the victim was sleeping except via the first floor. The prosecutrix testified that the doors were locked when she retired, but she was not asked if she left the door unlocked when she went to her son's house. The son testified that when he arrived with the police the door was ajar. Smith said that the porch light was on when he entered and the victim said that the porch light was turned on by the rapist before he came upstairs and attacked her.

According to Smith, he stated that he had been in the company of a hitchhiker immediately after he was awakened and learned that the crime had been committed, but the police and the son would not listen to him. The police deny that he mentioned a hitchhiker at that time, but one policeman admitted that a hitchhiker was mentioned as soon as Smith was taken to the police station before being taken to the doctor's office. No investigation was made of Smith's claim that he had been in the company of a hitchhiker, nor was any attempt made to locate the alleged hitchhiker.

Chemical tests disclosed the presence of sperm on the bed linens of the bed in which Smith was found asleep but not on Smith's underclothing in which he was sleeping nor on his handkerchief.

All witnesses agreed that Smith's truck was parked in plain view of the victim's house.

II.

Smith argues that under the per se exclusionary rule of United States v. Wade, 388 U.S. 244, 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), his conviction must be set aside because he neither had nor had he waived counsel when he was exhibited to the proscutrix in the doctor's office. This contention is severely shaken by Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), decided after Smith's brief was filed. In Kirby, it was held that an individual has no right to counsel at a pre-indictment lineup; therefore, the per se exclusionary rule of Wade and Gilbert would not apply to identification testimony based upon such a confrontation. Smith was not indicted until after he was identified by the prosecutrix. Although Kirby may be read to extend the right to counsel to points of time earlier than the indictment, i. e., "points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment" (emphasis supplied) (Kirby v. Illinois, 406 U.S. 682 at 689, 92 S.Ct. 1877 at 1882, 32 L.Ed.2d 411 at 417), we do not consider whether adversary criminal proceedings, other than an indictment, had been begun against Smith at the time of the confrontation because of the paucity of the record in this regard. Rather, we turn to a consideration of whether the confrontation was unduly suggestive, a valid due process objection which was recognized in Kirby.

III.

In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court, while holding that the Wade-Gilbert per se exclusionary rule should not be applied retroactively to confrontations which took place prior to the date of those decisions, nevertheless held that a confrontation, not barred by Wade and Gilbert, may be "so unnecessarily suggestive and conducive to irreparable mistaken identification that he defendant was denied due process of law." 388 U.S. at 302, 87 S.Ct. at 1972. Cited in support of the stated rule was our own decision in Palmer v. Peyton, 359 F.2d 199 (4 Cir. 1966). See also Simmons v....