Souza v. Howard, 73-1099.

• Decision Date: 27 November 1973
• Docket Number: No. 73-1099.,73-1099.
• Citation: Souza v. Howard, 488 F.2d 462 (1st Cir. 1973)
• Parties: Anthony SOUZA, Petitioner-Appellant, v. Francis A. HOWARD, Warden, Adult Correctional Institutions, Respondent-Appellee.
• Court: U.S. Court of Appeals — First Circuit

488 F.2d 462 (1973)

Anthony SOUZA, Petitioner-Appellant, v. Francis A. HOWARD, Warden, Adult Correctional Institutions, Respondent-Appellee.

No. 73-1099.

United States Court of Appeals, First Circuit.

Heard September 7, 1973.

Decided November 27, 1973.

Ralph J. Gonnella, Providence, R. I., for appellant.

Donald P. Ryan, Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellee.

Before COFFIN, Chief Judge, and KILKENNY^* and CAMPBELL, Circuit Judges.

KILKENNY, Circuit Judge.

Appellant's claims grow out of his indictment, trial and conviction in the superior court of the state of Rhode Island and his five day incarceration in the Cumberland County jail in that state. He, with another,¹ was convicted of first degree murder in a jury trial. The conviction was affirmed by the supreme court of that state. R.I., 292 A.2d 214 (1972).

The germane facts, as supported by the record and as found by the Supreme Court of Rhode Island, are relatively simple. On the evening of August 4, 1964, two men, with handkerchiefs masking the lower half of their faces, entered a package liquor store in the city of Cranston. Two people were in the store at the time, the owner and his 14 year old part-time assistant, Michael Smith. One of the masked men pointed a gun at the owner and demanded the location of the money. The owner was shot when he responded, "What money?". The gunless robber inspected the cash register and reported that it was empty. The gunman for a second time demanded the whereabouts of the money and when he received no response, twice shot the owner. The robbers, taking a jug of wine, then left the store and Smith called the police. The owner died shortly after admission to a hospital.

About one year later, appellant Souza and his codefendant, Camerlin, were arrested and indicted for the murder of the owner. Shortly after the arrest, appellant was committed to the Men's Reformatory as a deferred sentence violator. On that day, he was taken to the office of the attorney general where Smith identified him as one of the two men who had entered the store on the night of the slaying. This was not a line-up identification. Instead, Smith, by use of a one-way mirror, first looked at appellant in an adjoining room. At that time, Smith said that appellant looked like the gunless robber, the one who pushed him aside going to the cash register. Appellant, said Smith, was not the one who did the shooting. Smith was then taken into the adjoining office where he confronted appellant. Again, he said that appellant looked like the man who had gone to the cash register and pushed him aside on the night of the slaying. Appellant, on request, then held a handkerchief over the lower portion of his face. Viewing appellant in this partial mask, Smith positively identified appellant as the one who did not use the gun. He said that appellant was the man who pushed him aside in going to the cash register, took a jug of wine from the shelf and ran out of the store with the gunman.

Smith had at least three minutes to observe the men involved in the holdup in a room that was well lighted by long fluorescent lights. He was pushed aside by the man who went to the cash register and who passed very close to him on his return. The record is clear that Smith was very alert in observing the appearance of both men. His description to the police immediately after the robbery identified the gunman Camerlin as wearing dark trousers, a T-shirt and a dark sweater with a red stripe running through it. Appellant was described as wearing a baggy T-shirt and dark trousers. On the trial, these descriptions were fully corroborated by appellant's ex-wife who described what her husband and Camerlin had been wearing that evening and by a woman sitting in a car opposite the store who was made suspicious by the manner in which the two men made entry. She made it a point to carefully observe their clothing as they left the store.

During the year following the crime, Smith participated in between 20 to 30 identification procedures on other persons before putting his finger on appellant. At no time during those procedures had he identified any of those presented as participants in the robbery. There is no substantial discrepancy between the description of appellant he gave to police at the time of the crime and the description he gave in the in-court identification of appellant.

While appellant's bill of exceptions was pending in the Rhode Island Supreme Court, he presented to that court a writ of habeas corpus. In the writ he alleged a violation of due process based on a suggestive identification procedure. He later asserted, in his brief, that it was constitutional error for the trial judge to admit the in-court identification without a prior evidentiary hearing. The supreme court treated the writ as a motion to enlarge the record and ordered a hearing before the superior court. A transcript of that hearing, now before us, was made a part of the record before the supreme court in connection with petitioner's still pending bill of exceptions. The Rhode Island Supreme Court held the out-of-court identification proceeding was unnecessarily suggestive and violative of due process. However, the in-court identification was sustained on the ground that there was clear and convincing evidence it was based on observations entirely independent of the alleged tainted show-up. The admission in evidence of the out-of-court identification was held to be harmless beyond a reasonable doubt.

ISSUES

I(a). Was the out-of-court identification constitutionally impermissible, and, if so, I(b) did the out-of-court identification so taint the in-court identification so as to make the latter inadmissible?

II. Should the district court have held an evidentiary hearing?

IDENTIFICATION

I(a). We commence our analysis with the statement that the facts in this case bear little, if any, resemblance to those in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), appellant's principal case. There, the Supreme Court held that the suggestive elements in the identification procedure made it all but inevitable that the witness would identify the accused whether or not he was, in fact, "the man" and held that the procedure so undermined the reliability of the identification as to violate due process. Foster, about six feet in height, was placed in the line-up with two other men, both six or seven inches shorter in height. The accused wore a leather jacket similar to one the witness said he observed under the overalls worn by the robber. When the witness could not identify the accused, the former was brought into a room and seated across the table from the witness in a one to one confrontation. The witness was still uncertain as to whether the accused was one of the robbers. Some seven to ten days later, the accused was again placed in a line-up of five men with neither of the shorter men in the previous line-up included. It was not until this time that the witness made the positive identification.

The question of whether suggestiveness alone requires the exclusion of identification evidence was not decided by the Supreme Court until presented in Neil v. Biggers, 409 U.S. 188, 198-199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), some time subsequent to the decision of the Rhode Island Supreme Court in the case before us. After reviewing its previous identification decisions of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and its then most recent case, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L. Ed.2d 387 (1970), it noted that Foster v. California, supra, was the only case to that date in which the Court found the identification procedures to be constitutionally impermissible. The Court in Biggers went on to hold that the admissibility of this type of evidence must be viewed in the light of the totality of circumstances and, if in such circumstances, the identification is reliable, then the evidence is admissible even though the confrontation procedure is suggestive. The factors to be considered in evaluating the likelihood of misidentification:

". . . Include the opportunity of the witness to view the criminal at the time of the crime, the witness\' degree of attention, the accuracy of the witness\' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." (409 U.S. 199, 93 S.Ct.).

Applying the Biggers formula to the record before us, we find ourselves in disagreement with the conclusion reached by the Rhode Island Supreme Court. We are of the view that the out-of-court identification in the Rhode Island Attorney General's Office was not in violation of applicable constitutional standards. When observed, with others in similar clothing, through the one-way glass, Smith said the appellant looked like the man who had pushed him. Smith then met appellant face to face and again said that he looked like the gunless intruder who passed him in the liquor store. Immediately following, Smith looked at appellant with a handkerchief over the bridge of his nose and the lower portion of his face, and then positively identified him.² This, with the precise description given by Smith to the police of the clothing worn by the robbers, particularly the clothing worn by appellant, together with his physical characteristics, was sufficient to make the pre-trial confrontation constitutionally permissible. We are confident that if the Supreme Court of Rhode Island had been aware of the Biggers guidelines, it would have arrived at the same conclusion.

I(b). Although, in our opinion, the out-of-court identification is not constitutionally violative of appellant's rights, we need not rest our decision on that ground. Smith's in-court...