Spencer v. Turner

• Decision Date: 30 October 1972
• Docket Number: No. 72-1318.,72-1318.
• Parties: Kenneth Woodrow SPENCER, Petitioner-Appellee, v. John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

468 F.2d 599 (1972)

Kenneth Woodrow SPENCER, Petitioner-Appellee, v. John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.

No. 72-1318.

United States Court of Appeals, Tenth Circuit.

October 30, 1972.

John D. Pearce, Salt Lake City, Utah, for petitioner-appellee.

Gregory D. Farley, Asst. Atty. Gen. (Vernon B. Romney, Atty. Gen. and David S. Young, Chief Asst. Atty. Gen., on the brief), for respondent-appellant.

Before MURRAH, SETH and DOYLE, Circuit Judges.

PER CURIAM.

Appellant Warden here seeks reversal of a judgment granting the appellee's petition for a writ of habeas corpus. The issue is whether the constitutional rights of petitioner-appellee were violated when, following a robbery, the victim was allowed to identify appellee in the general area of the robbery within an hour after it occurred. The district court concluded that the circumstances of the identification tainted the subsequent in-court identification, whereby there was a violation of appellee's due process rights under the Fourteenth Amendment.

The incident in question occurred on October 2, 1969, at 9:00 p. m. A filling station in Salt Lake City was robbed, and the attendant stated that the robber wore a brown corduroy jacket, a light colored turtleneck sweater, brown shoes and also sunglasses. He carried a luger-style automatic pistol.

Approximately 35 minutes after the holdup, the police arrested appellee while he was driving his automobile and after he had stopped at an intersection. The inquiry was with reference to the robbery since appellee answered the description which had been given. However, the appellee refused to accompany the officer to the robbery scene and so mug shots of appellee were immediately shown to Hansen, the filling station attendant, who made an imperfect identification. Subsequently, Hansen was taken to the scene of the arrest and was allowed to view appellee. Hansen positively identified him as being the individual who had robbed him within the hour.

A search of the automobile yielded $30.00, two .22 shells and the empty gun box for a Colt Huntsman .22 pistol. The gun was not found, but a picture from the gun box taken from appellee was shown to Hansen who stated that the gun was similar to the one used by the person who robbed him.

A subsequent search of appellee's grandmother's home where he resided produced clothing which answered the description of that worn by the robber.

We conclude from a careful study of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), that the facts here presented are in no way parallel to those presented in Wade and Gilbert, definitive decisions in the area of invalid police identification.

In Wade, the lineup which was condemned occurred several months after the incident and several weeks following Wade's arrest, indictment and the appointment of counsel. Counsel was not present at the lineup. At trial the persons who identified Wade in the lineup testified as to the extrajudicial identification. The Supreme Court, on the ground that the post-indictment stage is a crucial and sensitive period in the trial process, condemned the actions of the officers. The Court relied on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). The crux of the holding was that there was a denial of counsel during proceedings which required the presence of counsel and that the pretrial identification or showup was carried out...