United States ex rel. Harris v. State of Illinois

• Decision Date: 17 March 1972
• Docket Number: No. 71-1242.,71-1242.
• Citation: 457 F.2d 191
• Parties: UNITED STATES of America ex rel. Robert HARRIS, Petitioner-Appellant, v. STATE OF ILLINOIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

457 F.2d 191 (1972)

UNITED STATES of America ex rel. Robert HARRIS, Petitioner-Appellant, v. STATE OF ILLINOIS, Respondent-Appellee.

No. 71-1242.

United States Court of Appeals, Seventh Circuit.

March 17, 1972.

COPYRIGHT MATERIAL OMITTED

Robert Harris, pro se.

William J. Scott, Atty. Gen., Chicago, Ill., for respondent-appellee.

Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge, and DILLIN, District Judge.^*

PER CURIAM.

Petitioner applied for habeas corpus relief on several grounds, the principal one being that an in-court identification was unconstitutionally tainted by an earlier improper and suppressed line-up identification.

The district judge denied the application for a writ of habeas corpus. We affirm and adopt as the opinion of this court the memorandum opinion of the district court which follows in the appendix.

APPENDIX

Petitioner is presently incarcerated in the Illinois State Penitentiary, Menard Branch, serving a term of six to ten years imposed for the offense of armed robbery on June 25, 1968. He was tried and convicted by a jury in the Circuit Court of Cook County. He alleges as grounds for habeas corpus relief that his conviction is unconstitutional in that 1) an in-court identification was fatally tainted by an improper line-up, 2) there was a fatal variance between the indictment and the proof, 3) the trial court committed reversible error by refusing to allow petitioner to exhibit to the jury his lack of teeth without waiving his privilege against self-incrimination, and 4) the trial court committed reversible error by admitting into evidence proof of another crime.

Petitioner has presented these specific allegations to the Illinois Supreme Court in a direct appeal of his conviction. Because that Court believed these contentions to have no merit, People v. Harris, 46 Ill.2d 395, 263 N.E.2d 35 (1970), petitioner will be deemed to have exhausted his state remedies as required by 28 U.S.C. § 2254. Kemp v. Pate, 359 F.2d 749 (7th Cir. 1966). We will therefore consider petitioner's contentions on their merits.

I

The petitioner's first contention concerns an in-court identification of himself by a Mr. John Doyle, the pharmacist of the drug store which petitioner was charged with robbing. He asserts that the trial court used a constitutionally improper evidentiary standard in determining that Doyle's in-court identification of petitioner was based upon observations independent of, and not influenced by, a pretrial confrontation which the trial court did hold to be violative of the petitioner's constitutional rights.

The petitioner and his co-defendants in the criminal trial, two women, were arrested by police during the mid-afternoon of February 22, 1968, several hours after the robbery occurred. Mr. Doyle had been contacted by the police and was told that there were some suspects they would like him to see. The police positioned Doyle in an automobile outside the police station, where he witnessed petitioner's two co-defendants exiting from a squadrol. Later that evening, Mr. Doyle returned to the police station where he witnessed a show-up of six Negro persons, three men and three women, with petitioner and the two women whom Doyle had viewed earlier in the middle of the group. At this show-up, Doyle identified petitioner and his two co-defendants as the perpetrators of the robbery. No counsel was present at the time of this identification, nor at bond court where Doyle again witnessed the defendants.

The petitioner made a motion at his trial to suppress all identification testimony, both the out-of-court and any in-court identification on the basis of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), three decisions of the United States Supreme Court which indicate that Court's concern with the manner in which pretrial identifications are frequently made. These cases establish that a suspect has a Sixth Amendment right to counsel at a pretrial confrontation subsequent to June 12, 1967, and a Fourteenth Amendment right to be free from pretrial identification so unnecessarily suggestive and susceptible to mistaken identification as to deny due process of law.

These cases further establish that, even if the State violates a suspect's rights in a pretrial confrontation, in-court identifications may nevertheless be made by witnesses who viewed the suspects at a tainted confrontation, but only if the State establishes that the in-court identification proceeded from a source independent of the prior illegal confrontation. Gilbert v. California, 388 U.S. at 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178; United States v. Wade, 388 U.S. at 240-241, 87 S.Ct. 1926, 18 L.Ed.2d 1149; see also, Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (en banc 1968), cert. denied 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).

The trial court, prior to admitting Doyle's in-court identification testimony, held a hearing on petitioner's motion to suppress during the course of Doyle's testimony, but out of the presence of the jury (Tr.¹ pp. 270-332) and suppressed the identifications made at the line-up, apparently concluding that the petitioner's constitutional rights under Wade had been violated (Tr. p. 325).

In considering the motion to suppress any in-court identifications, the trial court made several statements crucial to the issues herein. In response to a question by defense counsel as to whether the defendant had the burden of establishing that the improper line-up did in fact taint the in-court identification, the court responded, "It is the burden of the defense to do that." (Tr. p. 154). When counsel for both sides suggested at the hearing that the burden of proof was upon the other, the court stated, "The burden does lie on the person filing the petition." (Tr. p. 271). At the hearing, the State's sole case consisted of having Doyle identify petitioner. All of the facts concerning the robbery which indicated the circumstances under which Doyle had observed the suspect prior to his identification of petitioner at the line-up came forth on cross-examination by petitioner's counsel. In conclusion, the court stated, "Now as far as the in-court identification is concerned, the witness (Doyle) did make an in-court identification of (petitioner), and there is no evidence in the record that this was not an independent identification." (emphasis supplied) (Tr. p. 327)

These statements by the trial court necessitate the conclusion that it did utilize an improper evidentiary standard in determining whether the in-court identification was independent of the improper line-up. The court, as petitioner contends, in fact placed the burden on him to prove that the in-court identification was not of an independent nature, whereas Wade clearly states that the Government is the party that must go forward and sustain its burden of proof by establishing "by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification." United States v. Wade, 388 U.S. at 240, 87 S.Ct. at 1939.

The petitioner urged this error upon the Illinois Supreme Court, requesting a reversal of his conviction or, at the least, a remand for the trial court to hold a hearing on the independence of the in-court identification utilizing a proper evidentiary standard. The Illinois Supreme Court made no recognition of this contention other than by finding itself, after a brief review of the circumstances under which Doyle viewed the robber during the course of the crime, that Doyle's in-court identification had an origin completely independent of the pre-trial identification at the police station.

The issue presented by petitioner narrows to a determination of the role of a federal court in a habeas corpus proceeding in viewing a state supreme court's finding of independence of an in-court identification after the trier of fact utilized an improper evidentiary standard. Apparently because of the relatively recent nature of Wade, we can find no cases properly delineating this role of a federal court.

We must first note that petitioner will have been denied a constitutional right only if the in-court identification in fact was not of an origin independent of the tainted line-up. Conversely, no such deprivation to him accrued if the in-court identification was independent of the line-up irrespective of the trial court's error.

Because the Supreme Court of Illinois made such a finding of independence, this Court must determine if a reviewing court which does not hear testimony and which only has a cold record in front of it may properly make such a factual determination concerning the constitutional guarantee recognized by Wade. One Circuit has already faced and resolved this issue. The Court of Appeals for the District of Columbia Circuit has ruled that when the record is adequate, a reviewing court is itself entitled to resolve the issue of whether an in-trial identification of an accused is based on the witness' observations other than those made at an unconstitutional viewing. United States v. York, 138 U.S.App.D.C. 197, 426 F.2d 1191 (1969); Clemons v. United States, 133 U.S.App. D.C. 27, 46, 408 F.2d 1230, 1249 (en banc 1968), cert. denied 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969); Williams v. United States, 133 U.S.App.D.C. 185, 409 F.2d 471 (1969); Hawkins v. United States, 137 U.S.App.D.C. 103, 104, 420 F.2d 1306, 1307 (1969). We agree with this resolution primarily because of the fact that a Wade-Gilbert constitutional deprivation accrues solely when an in-court identification is not independent of a tainted line-up and does not accrue merely because one court as opposed to another makes that determination. While we believe that the trial court is the...