Stanley v. Cox

• Decision Date: 16 October 1973
• Docket Number: 72-1584.,No. 71-1365,71-1366,71-1365
• Citation: 486 F.2d 48
• Parties: John Plummer STANLEY, Appellee, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellant (two cases). John Plummer STANLEY, Appellant, v. A. E. SLAYTON, Jr., Superintendent, Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

486 F.2d 48 (1973)

John Plummer STANLEY, Appellee, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellant (two cases).

John Plummer STANLEY, Appellant, v. A. E. SLAYTON, Jr., Superintendent, Virginia State Penitentiary, Appellee.

Nos. 71-1365, 71-1366, 72-1584.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 1973.

Decided October 16, 1973.

Ralph S. Spritzer, Philadelphia, Pa. court-appointed for John Plummer Stanley.

Burnett Miller, III, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., and C. Tabor Cronk, Asst. Atty. Gen., on brief) for J. D. Cox and A. E. Slayton.

Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

Convicted of armed robbery under three indictments charging separate robberies of the same ice cream store spread over a period of about a week, the petitioner, a Virginia prisoner, sought habeas relief, claiming that the identification testimony offered against him in his three trials was invalid constitutionally. After exhaustion of State remedies,¹ he filed separately for relief in connection with each conviction in the District Court. In two of the cases (Numbers 71-1365 and 71-1366) the District Court granted relief but in the third case (Number 72-1584) it denied relief. Both the petitioner and the State have appealed. We reverse the granting of relief in Numbers 71-1365 and 71-1366, and affirm the denial of relief in Number 72-1584.

There is little dispute over the essential facts. High's Ice Cream Company in Petersburg, Virginia, was robbed on successive occasions on December 10, December 13 and December 18, 1967. Each time, two employees were on duty in the store.² All employees who had been present at any one of the robberies testified at the trial involving any robbery at which they were present. All positively identified the petitioner as the robber. However, during the trial in two of the cases, store employees gave testimony about a pre-trial one-on-one identification of the petitioner made shortly after the robbery. At the time of such one-on-one identification the petitioner was a "suspect" but no actual charges had been made against him. He was at the time without counsel. In both of these cases, the District Court, relying on Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178,³ granted relief. In the third case, there was no testimony given during trial of any pre-trial identification of the petitioner. The petitioner asserts, though, that the in-court identifications given by the store employees at this trial were tainted by pre-trial improper "show-up" identifications. On this claim, the District Court held a hearing and, after weighing the evidence, concluded that the in-court identifications in the case had an independent source and were not subject to attack. It accordingly dismissed the claim for relief in this case.

The decisions of the District Court in the three cases preceded Kirby v. Illinois (1972) 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. That case limited the proscription, both of uncounseled identifications and of testimony relating thereto, under the authority of Wade and Gilbert, to pre-trial identifications had after adversary judicial proceedings have been initiated against the defendant. All of the pre-trial identifications in question occurred before any charges were made against the petitioner and before indictment and the failure to have counsel did not therefore represent violations of petitioner's Sixth Amendment rights under Kirby. This the petitioner concedes. But he argues that, though not invalid for want of counsel, the pre-trial one-on-one identifications were still invalid as violative of his due process rights. Because of such invalidity he contends, evidence of the pre-trial identifications were inadmissible in the two cases where the witnesses testified to such identifications. Accordingly, while the District Court may have been in error in grounding the grant of habeas relief in these two cases on want of counsel, petitioner argues its decision should be sustained on due process grounds. So far as the third case was concerned, his position was that the District Court was clearly erroneous in concluding that the in-court identifications of the petitioner were based on an independent source. It is thus petitioner's contention that the two cases in which the District Court granted him relief should be affirmed and the one in which he was denied relief the District Court should be reversed. We disagree.

The real issue in all three cases turns on whether the one-on-one pre-trial identifications of the petitioner were violative of due process. Although pre-trial show-up identifications have been criticized under some circumstances, as the petitioner contends, there is no per se rule that they are violative of constitutional rights.⁴ There are, however, very definite due process standards, which such show-ups should meet, if they are to avoid a finding of constitutional invalidity. A show-up identification meets those due process standards, as established under the Fifth and Fourteenth Amendments if, taking into consideration the "totality of circumstances" surrounding it, it is found to be not "so unnecessarily suggestive⁵ and conducive to irreparable mistaken identification" as to deny the defendant fundamental fairness.⁶ One of the show-up situations consistently found to satisfy these due process standards and not be a case of "undue suggestiveness" is the confrontation had promptly after the crime.⁷ Such a confrontation has been stated to have "great merit".⁸ Thus, in United States v. Wilson (1970) 140 U.S.App.D.C. 220, 435 F.2d 403, 404-405, the Court said:

"Though suggestiveness is inherent in the situation, a prompt showup identification we think the case is not one of undue suggestiveness, in view of the countervailing considerations, that prompt, on-the-scene identifications are likely to promote fairness, by enhancing reliability of the identifications, and permit expeditious release of innocent subjects."⁹

But whether a particular showup satisfies the requirements of a reliable prompt confrontation under due process depends on the consideration of a number of factors. These have been authoritatively stated to be "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."¹⁰

There has been some diversity in the decisions in applying these standards thus stated by Justice Powell in Neil v. Biggers. This is particularly true in connection with the time element. Certain courts have established an extremely strict requirement of promptness in holding the show-up confrontation. In Russell v. United States, supra (408 F.2d at 1284, n. 20), the Court stated that the rule approving one-on-one identifications covered only confrontations held "within minutes of the witnessed crime." In keeping with this ruling, that Circuit found in McRae v. United States (1969) 137 U.S.App.D. C. 80, 420 F.2d 1283, evidence of a show-up identification held four hours after the crime inadmissible.¹¹ On the other hand, the same Court in United States v. Cunningham (1970) 141 U.S. App.D.C. 177, 436 F.2d 907, 908, held that evidence of a show-up held an hour after the crime was acceptable. Other Courts have not been so rigid in applying the time standard. In Kirby,¹² the show-up occurred the next day after the robbery; in United States v. Quarles (4th Cir. 1967) 387 F.2d 551, 555, it took place six days after the robbery; in United States Ex Rel. Carnegie v. MacDougall (2d Cir. 1970) 422 F.2d 353, cert. denied 398 U.S. 912, 90 S.Ct. 1711, 26 L.Ed.2d 74, the show-up was three months after the crime; and in United States Ex Rel. Rutherford v. Deegan (2d Cir. 1969) 406 F.2d 217, cert. denied 395 U.S. 983, 89 S.Ct. 2145, 23 L.Ed.2d 771, the show-up was eleven days after the crime. In all these cases, evidence of the show-up was found admissible. Another factor, which it was suggested in argument in these cases is important, concerns the place of confrontation. The petitioner would regard whether the confrontation takes place on-the-scene or at police headquarters to be significant. The decisions, however, do not apparently regard that fact to be decisive. In Neil v. Biggers, Kirby v. Illinois, United States v. Frazier, Roper v. Beto and Johnson v. United States, the confrontations were all "station house" identifications and they were found admissible under the Stovall rule. In United States Ex Rel. Cummings v. Zelker (2d Cir. 1972) 455 F.2d 714, 715-716, cert. denied 406 U.S. 927, 92 S.Ct. 1800, 32 L. Ed.2d 128 and Bates v. United States (1968) 132 U.S.App.D.C. 36, 405 F.2d 1104, 1106, the suspect was in a police car when the confrontation occurred. After all, whether on-the-scene or at police headquarters, the suspect is equally in custody and restrained. It is the fact that he is in police custody that is generally thought to provide the indicia of suggestiveness. The circumstances of the confrontation, the period of observation of the suspect, the reliability of the identification as indicated by the character of the witness' vision, are, also, to be examined, as our recent decision in Smith v. Coiner (4th Cir. 1973) 473 F. 2d 877, illustrates.¹³ In sum, what all these cases demonstrate is that, in weighing the several relevant factors suggested by Neil v. Biggers, Courts will recognize that "Due process does not require that every pretrial identification of a witness must be conducted under laboratory conditions of an approved lineup"¹⁴ or show-up, that every case must be resolved on its own unique facts, and that, where after a weighing of all relevant facts surrounding the...