U.S. ex rel. Moore v. People of State of Ill., 75-1697

• Decision Date: 26 May 1978
• Docket Number: No. 75-1697,75-1697
• Citation: 577 F.2d 411
• Parties: UNITED STATES of America ex rel. James Raymond MOORE, Petitioner-Appellant, v. PEOPLE OF the STATE OF ILLINOIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 411

577 F.2d 411

UNITED STATES of America ex rel. James Raymond MOOREPetitioner-Appellant, v.PEOPLE OF the STATE OF ILLINOIS, Respondent-Appellee.

No. 75-1697.

United States Court of Appeals Seventh Circuit.

May 26, 1978.

Patrick J. Hughes, Jr., Chicago, Ill., for petitioner-appellant.

Timothy B. Newitt, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before CUMMINGS, PELL, ^* and BAUER, Circuit Judges.

BAUER, Circuit Judge.

In Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424(1977), the Supreme Court of the United States reversed the judgment of this Court affirming the district court's denial of Moore's petition for a writ of habeas corpus.In its opinion, the Court held that petitioner's right to the assistance of counsel was violated by a corporeal identification of him made in the absence of counsel after the initiation of adversary judicial proceedings against him.Accordingly, the Court declared that testimony presented at trial concerning the victim's identification of Moore at the pretrial confrontation was per se excludable under Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178(1967).The Court then remanded the case here for a determination of whether the admission of the testimony about the pretrial identification of Moore was harmless constitutional error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967).In addition, the Court left us free to reconsider in the light of its opinion other issues we had resolved that the Court did not choose to pass upon: namely, whether the victim's in-court identification of Moore at trial was unreliable in view of the suggestive pretrial confrontation that had occurred, Manson v. Brathwaite, 432 U.S. 98, 109-114, 97 S.Ct. 2243, 53 L.Ed.2d 140(1977); whether the in-court identification at trial was based on a source other than the uncounseled pretrial confrontation, United States v. Wade, 388 U.S. 218, 239-42, 87 S.Ct. 1926, 18 L.Ed.2d 1149.(1967); and whether the failure to provide petitioner's counsel a transcript of the preliminary hearing at which the suggestive confrontation occurred constituted prejudicial constitutional error under Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41(1967).

Inasmuch as the relevant historical facts underlying petitioner's constitutional claims are not in dispute, ¹we have determined that a remand of this case to the district court is unnecessary to the resolution of the question presented to us on remand from the Supreme Court.For the reasons noted below, we hold that the admission of the testimony regarding the victim's pretrial identification of Moore was harmless beyond a reasonable doubt.Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967).Accordingly, we again affirm the district court's denial of Moore's petition for a writ of habeas corpus.

I.

For purposes of our review of the harmless error question presented, we have deemed ourselves bound by the statement of facts set out in the Supreme Court's opinion, as well as the Court's resolution of the ambiguity in the record as to whether the victim selected more than one photograph from the second photographic display presented to her.²SeeMoore v. Illinois,434 U.S. 220, 221-24 n. 6, 98 S.Ct. 458, 461-62 n. 6, 54 L.Ed.2d 424, 435(1977).

Given the undisputed facts of record, it seems to us that the harmless error question presented turns in large measure upon whether the victim's identification of Moore at trial was admissible notwithstanding the suggestive pretrial confrontation that had occurred and the failure to provide Moore counsel at that time.As we see it, the harmless error question is not a difficult one, assuming the admissibility of the in-court identification, because the testimony regarding the victim's pretrial identification of petitioner added little to her positive identification at trial.Especially in view of the fact that much of the suggestiveness inherent in the pretrial confrontation was exposed and vigorously argued to the jury at trial, we doubt that the jury, in assessing the reliability of the victim's identification of Moore at trial, attached any crucial significance to the bare fact that she had previously identified him.What, no doubt, was of critical import to the jury is that the victim testified at trial that she was "positive" Moore was her assailant, and that the victim's certitude was not dispelled by an exhaustive and withering cross-examination on the reliability of her identification.Given the extrinsic evidence linking Moore to the scene of the crime that corroborated the victim's doubt-free identification of him at trial, we are convinced beyond a reasonable doubt that the exclusion of the testimony regarding the victim's pretrial identification of Moore would not have affected the jury's verdict as long as her in-court identification was admissible at trial.

The critical question thus becomes whether the victim's positive identification of Moore at trial was irreparably tainted by the unnecessarily suggestive pretrial confrontation and the failure to afford petitionercounsel at that confrontation.This, in turn, requires two analytically distinct, though related, inquiries, the first being whether the victim's in-court identification of Moore was reliable even though the pretrial confrontation was suggestive, Manson v. Brathwaite, 432 U.S. 98, 109-114, 97 S.Ct. 2243, 53 L.Ed.2d 140(1977), and the second being whether the identification at trial was based upon the victim's observations of Moore independent of the uncounseled pretrial confrontation, United States v. Wade, 388 U.S. 218, 239-42, 87 S.Ct. 1926, 18 L.Ed.2d 1149(1967).

Although we had previously decided that the victim's identification of Moore at trial was both reliable and based on a source independent of the pretrial confrontation, we have reconsidered these questions in the light of the Supreme Court's opinion, which invited us to do so.Having scrutinized the record afresh, however, we have arrived at the same conclusions for the reasons noted below.

II.

As the Supreme Court noted in its opinion in this case,

"It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case."Moore v. Illinois, 434 U.S. 220, 229, 98 S.Ct. 458, 465, 54 L.Ed.2d 424, 434(1977).

We concur fully in the Court's comment, as well as in its observation that some if not all of the suggestiveness inherent in the confrontation may have been avoided if counsel had been appointed for petitioner.Id.Nevertheless, as the Court has also recently observed, we are not free to suppress a witness's identification of a suspect at trial merely because the suspect had been exposed to the witness in a highly and unnecessarily suggestive manner.Rather, in assessing whether the suspect's right to due process of law has been violated by the admission of an in-court identification, we are bound to weigh the corrupting effect of the suggestive confrontation against indicia bearing on the reliability of the identification, for "reliability is the linchpin in determining the admissibility of identification testimony."Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140(1977).In the course of weighing the "totality of the circumstances" bearing on the question of whether the suggestive confrontation gave rise to a "very substantial likelihood of misidentification,"we must take into account many factors, including

"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."Neil v. Biggers, 409 U.S. 188, 198-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401(1977).

Having done so, we have concluded that the victim's identification of Moore at trial as her assailant was reliable even though her initial confrontation with him after the crime was suggestive.

We believe that the victim had a more than adequate opportunity to observe her assailant at the scene of the crime.Although she had been napping for between thirty and forty-five minutes before being awakened by a noise, the victim was "extremely alert" at the time she observed her assailant standing at close range in her apartment.³She saw the rapist's face for a full ten to fifteen seconds, during which time she"never took (her) eyes off him."⁴Moreover, during the actual deviate sexual assault and rape, the victim was able to catch brief glimpses of her assailant's eyes and the portion of his head uncovered by a bandana.⁵The record reflects that the room was adequately lighted to permit a clear viewing of the rapist, and that the victim's vision was good without glasses.⁶In sum, although the victim did not have an extensive period of time to study her assailant's features at the scene of the crime, what time she had was sufficient to provide a firm basis for subsequent identification, especially in view of the fact that she had seen her assailant the night before in a bar.That face-to-face encounter had lasted for several minutes and had included a purported "reading" of the victim's palm.⁷As even petitioner's able trial counsel had recognized at the state court suppression hearing, the fact that the victim had seen her assailant the night before weighed in favor of her being able to recognize and identify him despite having but ten to fifteen seconds to study his face at the scene of the crime.⁸

Another factor indicating the reliability of the victim's identification of Moore is that he fit the description of the assailant the victim gave the police immediately after the rape.To be sure, the victim's description of her assailant's...