Stroud v. Hall
| Decision Date | 20 December 1974 |
| Docket Number | Civ. A. No. 74-790-C. |
| Citation | 386 F. Supp. 24 |
| Parties | David L. STROUD v. Frank A. HALL et al. |
| Court | U.S. District Court — District of Massachusetts |
William A. Nelson, Malvine Nathanson, Mass. Defenders Committee, Boston, Mass., for petitioner.
Robert Quinn, Atty. Gen., Dennis J. LaCroix, Deputy Asst. Atty. Gen., for defendant.
This is a petition for a writ of habeas corpus. Jurisdiction of this court in invoked under 28 U.S.C.A. § 2241 et seq. Petitioner is presently an inmate at the Massachusetts Correctional Institution at Norfolk. Respondent Frank A. Hall is Commissioner of Correction, Commonwealth of Massachusetts, and respondent Larry Meachum is Superintendent of the MCI at Norfolk.
After a jury trial petitioner was convicted on May 20, 1971, of assault with intent to commit rape and was sentenced to a term of not less than 10 nor more than 25 years imprisonment. Prior to trial he moved to suppress certain physical evidence and identification testimony. The motion to suppress evidence was allowed in part and denied in part. The motion to suppress the identification was denied in toto. Petitioner saved his rights on these rulings and duly presented them to the Supreme Judicial Court which affirmed his conviction in an opinion reported as Commonwealth v. Stroud, 1972 Mass.Adv.Sh. 775, 281 N.E.2d 599. The record before this court includes a certified copy of the transcript of the trial, which took place in Franklin Superior Court before the Honorable Levin H. Campbell and a jury. It also includes a 14-page Findings of Fact and Rulings on Defendant's Motion to Suppress, filed by Judge Campbell on June 16, 1971, after a hearing on defendant's motion to suppress. The parties, who orally argued the matter briefly, have filed substantial memoranda of law on which they place their principal reliance. Neither party has sought an additional evidentiary hearing and they have indicated to the court that they are agreeable to the matter's being resolved on the basis of the state court record in the light of their memoranda of law.
A review of petitioner's memorandum suggests that he substantially adopts the facts of the case as found by the Superior and the Supreme Judicial Courts, although he alleges that he was not advised of his right to court-appointed counsel at a show-up. This contention has been resolved adversely to petitioner by a specific finding that State Police Officer Bruce E. Smith advised him that he had "a right to have an attorney present at the infirmary if he wished." This finding is supported by the testimony of Trooper Smith (Tr. 94-95). For that reason, this court will not conduct an evidentiary hearing on this allegation of petitioner. Cf. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
No evidence has been tendered herein suggesting that the findings of the state court are erroneous and, absent such evidence, those findings are accepted by this court. Cf. Leavitt v. Howard, 462 F.2d 992 (1 Cir. 1972), cert. den. 409 U.S. 884, 93 S.Ct. 175, 34 L.Ed.2d 140 (1972). See also, La Vallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L. Ed.2d 637 (1973). Accordingly, there remains for decision herein two separate legal issues raised by petitioner, (1) whether petitioner's sweatshirt and a pretrial confrontation between petitioner and the victim of the crime were the fruits of an illegal police intrusion into petitioner's room, and (2) whether the show-up or confrontation was conducive to mistaken identification. Both of these issues arise from the facts found by Judge Campbell, copy of which is attached hereto as Appendix A.
Judge Campbell ruled that the police entry into Stroud's room was justified by the exigent circumstances then existing, noting that while the police may have, prior to the entry, lacked probable cause to arrest petitioner, they did know that a serious felony had occurred on the relatively isolated school grounds and that they had good grounds to suspect the occupant of the room, having in mind that there was no other suspect. Alternatively, Judge Campbell ruled that the headmaster of the school had implied permission under the then prevailing circumstances to enter an employee's room. However, despite this alternative ruling, Judge Campbell, "for reasons of caution," treated the entry into the room as unjustified, and suppressed evidence as to what the police saw or found in petitioner's room in the period immediately after entry. Judge Campbell, however, denied petitioner's motion to suppress the admissibility of the orange and green sweatshirt, on the grounds that that was taken from Stroud's person, a considerable period of time after his arrest, as clothing worn by him at the time of the arrest. In so ruling, Judge Campbell noted that the sweatshirt was something freely and voluntarily put on by Stroud prior to his arrest, that it was not a product of the early entry into his room, and that its identification rested on facts and circumstances wholly apart from the fact that it was at one point observed by the police on a chair in Stroud's room. This court notes that the police did not arrest petitioner in his room, nor did they seize the orange and green sweatshirt at that time. In fact, the police specifically advised petitioner in his room that he was not under arrest and that he need not accompany them to the school infirmary if he elected not to do so. It should be noted that the state court record establishes that the petitioner made his own decision to accompany the officers to the infirmary after being advised that he had no legal obligation to go there, and the state court record also establishes that he selected the orange and green sweatshirt as part of the clothing he wore to the infirmary. No suggestion of a request that he wear the sweatshirt to the infirmary is contained in the state court record.
I rule that petitioner's voluntarily making a decision to accompany the officers, and voluntarily deciding to wear the sweatshirt while so doing, are two independent acts "sufficient to break the causal connection between the alleged primary illegality and the evidence found." United States v. Fike, 449 F.2d 191, 193 (5 Cir. 1971).
The facts of the instant case, assuming the original entry into petitioner's room to have been illegal, would nevertheless seem to fall within the observation of Judge Coffin, concurring, in Commonwealth of Massachusetts v. Painten, 368 F.2d 142, 144 (1 Cir. 1966):
"Even if the request to enter in this case was improper, it by no means follows that that conduct alone was so shocking as to taint evidence virtually handed to the officers on a silver platter."
Accordingly, I rule that no error of federal law has been shown in the admission into evidence of petitioner's sweatshirt, nor has it been shown that the pretrial confrontation between petitioner and the victim were fruits of any illegal police intrusion into petitioner's room.
With regard to petitioner's second contention, that the show-up confrontation between petitioner and the victim was conducive to mistaken identification, it should be noted that an on-the-scene confrontation is not per se unlawful. The Court of Appeals for the District of Columbia, in United States v. Wilson, 140 U.S.App.D.C. 331, 435 F.2d 403, at 405 (1970), ruled:
"The benefit of a prompt on-the-scene confrontation makes acceptable the necessary suggestiveness of presentation of a single subject."
The same court observed in an earlier decision, in Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, at 1106 (1968):
". . . Prudent police work would confine these on-the-spot identifications to situations in which possible doubts as to identification needed to be resolved promptly; absent such need the conventional line-up viewing is the appropriate procedure."
I rule that the facts of the instant case, involving a crime of violence at an isolated boarding school, presented a situation with a need for prompt resolution of doubts as to the identification of the assailant.
The Supreme Court has indicated the factors to be considered in deciding whether a show-up is so impermissively suggestive as to give rise to a very substantial likelihood of irreparable misidentification. In Neil v. Biggers, 409 U.S. 188, at 199-200, 93 S.Ct. 375, at 382, 34 L.Ed.2d 401 (1972), Justice Powell observed:
"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."
1. With regard to the "opportunity of the witness to view the criminal at the time of the crime," the record shows that the victim talked to her assailant for roughly one to two minutes, he was in her room for approximately five minutes, she got a good look at the man, the room was illuminated by both a hallway light outside the apartment door and a light in an adjacent hall of her residence.
2. With regard to the witness' "degree of attention," the nature of the offense involved herein obviously caused the victim to pay substantial attention to her assailant. The language of the Supreme Court in Neil v. Biggers, supra, is applicable to the victim in the instant case:
"She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes . . . a nurse by profession she had an unusual opportunity to observe and identify her assailant . . ." (pp. 200-201, 93 S.Ct. at pp. 382-383.
3. With regard to the "accuracy of the witness' prior description of the criminal," the record shows that she described her assailant as a black male, medium build, 5'6" or 5'7" in height, with short hair, wearing an orange sweatshirt...
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