Taylor v. Swenson

• Decision Date: 06 April 1972
• Docket Number: No. 71-1365.,71-1365.
• Citation: 458 F.2d 593
• Parties: Arthur Lee TAYLOR, Appellant, v. Harold R. SWENSON, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

458 F.2d 593 (1972)

Arthur Lee TAYLOR, Appellant, v. Harold R. SWENSON, Warden, Appellee.

No. 71-1365.

United States Court of Appeals, Eighth Circuit.

Submitted February 14, 1972.

Decided April 6, 1972.

Ronald M. Sokol, Asst. Public Defender, W. D. Missouri, Kansas City, Mo., for appellant.

Kenneth R. Romines, Asst. Atty. Gen., John C. Danforth, Atty. Gen., Jefferson City, Mo., for appellee.

Before BREITENSTEIN,^* Senior Circuit Judge, HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

A jury in the Circuit Court of Jackson County, Missouri, convicted Arthur Lee Taylor, then age 17, on one count of an information which charged him with robbery, first degree, by means of a dangerous and deadly weapon. He was sentenced to imprisonment for five years. On appeal his conviction was affirmed by the Supreme Court of Missouri.¹ He then petitioned for habeas corpus in the United States District Court for the Western District of Missouri, claiming, as he had in the Missouri Supreme Court, (1) that his conviction was invalid because it was founded upon the admission of tainted identification evidence, and (2) that the State trial judge denied him Due Process by the manner in which he determined the merits of the motion to suppress this allegedly tainted evidence. A hearing was held² at which Taylor was represented by court-appointed counsel. The District Court (The Honorable Elmo B. Hunter) denied the application for the writ, 327 F.Supp. 1165, but issued the certificate of probable cause required by 28 U.S.C. § 2253. We must therefore review.³ For reasons now to follow, we affirm.

According to evidence given at trial, the events which led to the conviction were these. On the morning of November 24, 1968, Taylor and another negro man robbed James Robert Frizzell, a Kansas City Transit Company bus driver, of $53 at gunpoint. The victim testified that Taylor climbed aboard his bus, cocked a revolver, and demanded money by exclaiming "give me your money, mother f____." The robbery is said to have covered two to three minutes, during which time the victim was face-to-face with his assailant. After the robbers fled on foot, Frizzell drove his bus to the nearest telephone and reported the incident to police. A few hours thereafter, Frizzell was requested to come to police headquarters for the purpose of viewing photographs of possible suspects. This he did and from among approximately 200 "mug shots" he was shown, he identified Taylor as the man with the gun.⁴ That same evening Taylor was detained, arrested, and taken into custody.⁵

The evening of Taylor's arrest, but prior to the filing of formal charges against him, Frizzell again was called to the police station, this time to view a lineup. There were three negro men in the lineup. One was Taylor. He is 5'8½" tall and weighs 137 pounds. He bears a scar on his forehead which extends downward at an angle by his left eye. He has a front tooth which is "filed down." The other two men were of the same general height, weight, build, and age, but neither possessed the distinguishing facial characteristics of Taylor. After seeing this lineup, Frizzell was able positively to identify Taylor as the man who earlier that same day had robbed him at gunpoint. At trial, Frizzell testified to his identification of Taylor from the photographs and in the lineup, as summarized above. He also repeated his identification of Taylor in the courtroom. There was no other evidence against Taylor which connected him with the robbery. It is undisputed that the lineup was conducted without notice to and in the absence of Taylor's yet-to-be-appointed counsel. However, the record clearly reveals that before Taylor agreed to take part in the lineup, he signed the following form:

"I, Arthur L. Taylor, having been detained and suspected, do hereby freely waive my rights to have a/my lawyer present and request I be shown in a line-up, or otherwise, to such person or persons who can identify the individual who committed the crime in question."

I

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court held that a post-indictment lineup is a critical stage of the criminal process at which one accused of a federal crime is constitutionally entitled to the assistance of counsel. As a consequence, witnesses who now attend such a lineup held in the absence of counsel may not identify the accused in the courtroom unless the prosecution can show by clear and convincing proof that the courtroom identification of the accused was based upon an independent source and not upon the view of the accused at the lineup, pp. 240, 242 of 388 U.S. 87 S.Ct. 1926. In so holding, the Court specifically noted that the right could be negated by an "intelligent waiver." P. 237 of 388 U.S., 87 S.Ct. 1926. In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Wade principle was extended to State criminal proceedings. Additionally, the Court established a per se exclusionary rule as to evidence of prior out-of-court identification on the theory that such evidence is the "direct result" of the illegal lineup. Pp. 272-273 of 388 U.S., 87 S.Ct. 1951. Underpinning the constitutional rule announced in these decisions was the concern of the Court that the absence of counsel would severely limit the ability of the accused to assure, at the time of the lineup, that its conduct was fair, and that it would effectively deny the accused the opportunity to reconstruct the lineup circumstances and thus virtually eliminate his right to challenge the reliability of the identification at trial. 388 U.S., at 227, 230-232, 235-237, 87 S.Ct. 1926. Thus, the Wade-Gilbert rules are aimed both "at minimizing the possibility of mistaken identification by preventing the unfairness at the pretrial confrontation that experience has proved can occur and assuring meaningful examination of the identification witness' testimony at trial." Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967).

It now being axiomatic that a defendant in a criminal case is constitutionally entitled to have counsel present at post-indictment lineups, Taylor seizes upon the absence of counsel at his pre-information lineup as the principal ground for urging a reversal of his conviction. He argues that the State trial judge committed constitutional error (1) in the admission in evidence of his in-court identification by Frizzell, and (2) in the admission in evidence of Frizzell's testimony that he also identified Taylor at the lineup. The District Court, in agreement with the Supreme Court of Missouri, concluded that Taylor intelligently waived his right to have counsel present at the lineup and that the record conclusively established that the lineup procedure employed in this case was not such as to deny Taylor his constitutional rights.⁶ These findings of the District Court must be accepted unless Taylor can show that they are clearly erroneous.⁷

Taylor, in support of his claim that he did not knowingly and voluntarily waive his constitutional right to counsel before taking part in the lineup, emphasizes that he was then a 17-year-old Ghetto-Negro with a limited education. This may be so. The fact remains, however, that from the face of the waiver it is clearly revealed that the police offered and he declined counsel. There is no evidence that he was ignorant, feebleminded, illiterate, or the like, and there is no indication in the record or in either of his two appellate briefs that he could contradict the findings and testimony with respect to the waiver question through the use of witnesses or other competent proof. It is significant, too, in view of the purpose which is said to underlay the Wade-Gilbert doctrine, that despite the absence of counsel at the lineup, Taylor's court-appointed counsel was able vividly to reconstruct the pre-information lineup at trial and to interpose substantial defenses in connection with that procedure. The record does not disclose a single additional defense which might reasonably have been asserted on that issue. We are satisified that the material facts bearing upon the waiver issue are undisputed, except inferentially, and that they firmly indicate that waiver was made "knowingly and intelligently," without prejudice to Taylor's right to a fair trial.⁸ Thus, assuming, without specifically so deciding, that Taylor was constitutionally entitled to the presence of counsel at the pre-information lineup,⁹ we must conclude that the District Court properly found a waiver of that right.

Even conceding that the Wade-Gilbert principle is inapplicable because of the waiver, Taylor presses for reversal on the alternative ground that independent of any right to counsel claim, a procedure of identification may be "so unnecessarily suggestive and conducive to irreparable mistaken identification" that Due Process of Law is denied when evidence of the identification is used at trial. Stovall v. Denno, at 302, 87 S.Ct. at 1972.¹⁰ The claim that Frizzell's identification falls within this rule "must be evaluated in light of the totality of surrounding circumstances" with the view of determining if the procedure in Taylor's case "was so unduly prejudicial as fatally to taint his conviction." Simmons v. United States, 390 U.S. at 383-384, 88 S.Ct. at 970. So measured, we are unconvinced that the identification procedures utilized in the instant case were constitutionally defective.

This record discloses no factor which would impair Frizzell's ability to make an accurate identification; to the contrary, the evidence indicates that Frizzell had an excellent opportunity to observe his assailant face-to-face for as long as three minutes during the robbery. In the photo-identification session arranged by the police shortly after the robbery, Frizzell, at a time when his memory was fresh, identified Taylor as the perpetrator from among the...