UNITED STATES, EX REL. RAYMOND v. PEOPLE OF STATE OF ILL.

• Decision Date: 24 January 1972
• Docket Number: No. 71-1330.,71-1330.
• Citation: 455 F.2d 62
• Parties: UNITED STATES of America ex rel. Robert J. RAYMOND, Petitioner-Appellant, v. PEOPLE OF the STATE OF ILLINOIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

455 F.2d 62 (1971)

UNITED STATES of America ex rel. Robert J. RAYMOND, Petitioner-Appellant, v. PEOPLE OF the STATE OF ILLINOIS, Respondent-Appellee.

No. 71-1330.

United States Court of Appeals, Seventh Circuit.

December 10, 1971.

Rehearing Denied January 24, 1972.

Terrence K. Hegarty, Chicago, Ill., for petitioner-appellant.

Melbourne A. Noel, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and PELL, Circuit Judge.

SWYGERT, Chief Judge.

This is an appeal from the denial of appellant's petition for a writ of habeas corpus. Appellant, Robert J. Raymond, is imprisoned at the Illinois State Penitentiary pursuant to a conviction for rape and robbery. On July 26, 1962 the Circuit Court of Cook County sentenced him to concurrent terms of 20 to 40 years for rape and 15 to 20 years for robbery. The Illinois Appellate Court affirmed these convictions on March 24, 1965, People v. Raymond, 57 Ill.App.2d 292, 206 N.E.2d 740 (1965). Post-conviction relief was denied by the Circuit Court of Cook County on June 8, 1967 and that denial was upheld by the Supreme Court of Illinois on June 20, 1969, People v. Raymond, 42 Ill.2d 564, 248 N.E.2d 663 (1969).

Appellant filed a petition for a writ of habeas corpus on June 2, 1970 challenging the constitutionality of his conviction on two grounds: Raymond claims that he was denied due process of law by the state's use of identification procedures that were unnecessarily suggestive and conducive to irreparable mistaken identification and by the state's failure to disclose to the defense attorney material evidence favorable to the accused. The judgment of conviction is reversed. As to Raymond's second argument, Judge Pell and I agree that the nondisclosure of the result of the laboratory test to counsel for defendant requires reversal. However, I alone agree with Raymond's argument that the particular identification procedures used here constitute an alternative ground for reversal of the conviction.

The crime for which Raymond was convicted was alleged to have occurred at 6:00 p. m. on November 16, 1961. Mrs. Virgie Barger, a white woman, 58-years-old at the time, was walking down the street when a young, Negro man grabbed her, took three dollars from her purse and after dragging her into a nearby gangway, raped her. Apart from the victim and her attacker, there were no witnesses to the incident.

Police officer Mallder arrived at 6:10 and escorted Mrs. Barger to her apartment three blocks away. Mrs. Barger gave the officer a description of her attacker which he sent to the Central Communications room after 6:15.

Between 6:10 and 6:15 Raymond was arrested for an unrelated crime approximately five blocks from the scene of the rape. En route to the station house, the arresting officer heard the description of Mrs. Barger's assailant over the police radio and immediately brought Raymond to Mrs. Barger's apartment. Raymond, in handcuffs and accompanied by six uniformed policemen, confronted Mrs. Barger twice between 6:20 and 6:30. Mrs. Barger did not identify him at this time. Between 8:00 and 8:30 at the station house later that evening, Raymond, wearing the same clothes he wore when arrested, took part in a lineup of eight men. At this point, Mrs. Barger identified him as her assailant. The defendant points to these procedures —two "showups"¹ immediately after the alleged crime followed two hours later by a lineup—as constituting a violation of due process.

Defendant's second claim refers to a police laboratory test for spermatozoa made on Raymond's sweater, pants, and undershorts at 9:30 p. m. the evening of his arrest. On the following day the police station commander reported the results to Raymond saying, "The results of the test on your clothing came back and proved negative but that don't clear you." Raymond's attorney did not hear of this report until after his client had been found guilty. The state introduced the report only at the sentencing hearing following the trial.

I

The standard to be applied in judging a due process claim involving pretrial identification procedures derives from Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). While the Court in Stovall refused to give retroactive application to the rule announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U. S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), requiring counsel at pretrial identification confrontations, it did present as an alternative ground of attack the claim that the identification procedures were "so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law." 388 U.S. at 302, 87 S.Ct. at 1972. Defendant claims that the identification procedures used here fall under this standard either because of the holding of a showup immediately after the crime or because of the combined use of two showups and a lineup within two hours of each other.

The showup in the instant case can be supported under Stovall. In Stovall, the Court held that while "the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned," any particular claimed violation of due process must depend on the "totality of circumstances surrounding it." 388 U.S. at 302, 87 S.Ct. at 1972. The circumstances considered there pointed to the necessity for the showup where formal lineup procedures would have been impractical: Since the only witness was in the hospital in imminent danger of dying, a direct confrontation between the witness and her alleged assailant was the only "feasible" procedure. Showups have been sustained in other situations when the state's interest in an expeditious identification could be shown, as in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247 (1967), where the defendant's photo was presented to witnesses the day after a serious felony had been committed when the memory of the incident was still fresh and while the perpetrators remained at large, or in Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104 (D.C.Cir. 1968), where the defendant was apprehended shortly after the crime and returned to the scene of the crime to confront the complaining witnesses. See Wise v. United States, 383 F.2d 206 (D.C.Cir. 1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L. Ed.2d 1164 (1968); Harris v. Dees, 421 F.2d 1079 (5th Cir. 1970); cf. United States v. Gilmore, 398 F.2d 679 (7th Cir. 1968). In the instant case, where there were two reports of attacks in the same five block area, within fifteen minutes of each other, the police sought to determine quickly if they had apprehended the right man, and an immediate showup twenty minutes after the crime, rather than a formal lineup, was justified.

But this determination is not dispositive since the showup alone did not yield an identification of Raymond as Mrs. Barger's assailant; it is the combination of procedures—two showups and a lineup—that finally resulted in a positive identification. However justified a single showup or a single lineup is at the outset, the rationale of Stovall suggests that they are alternative procedures. Their use in combination is highly suspect. In Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1968), the complaining witness observed a police station lineup involving three men—the defendant, who was approximately six feet tall, and two very much shorter men. The witness could not identify the defendant at this time and instead asked to speak to him. A one-to-one confrontation was immediately arranged, but the witness remained uncertain. About a week later, at a second lineup in which the defendant was the only person who had also appeared in the first, the witness was "convinced" that the defendant was the robber. The Court found that the pretrial identification evidence was inadmissible on the ground that "the pretrial confrontations clearly were so arranged as to make the resulting identifications virtually inevitable." 394 U.S. at 443, 89 S.Ct. at 1129.

The facts of the instant case fit even more squarely under the ruling of Foster. The identification procedures began with a one-to-one showup which, as Stovall states, is itself a highly suggestive procedure. 388 U.S. at 302, 87 S.Ct. at 1967. The defendant, handcuffed and accompanied by six uniformed policemen, confronted Mrs. Barger at her apartment twenty minutes after the alleged crime, wearing the same leather jacket and brim hat that had fit the description she had given of her assailant. The witness did not identify him at this time, nor did she ask to see him again as the complaining witness in Foster had. The lineup held only two hours later at the police station was solely at the police's initiation. Furthermore, there is some dispute as to whether Raymond was the only man in the lineup wearing a leather jacket and brim hat. It is clear that he was wearing the very same clothes he had worn at the confrontation with the plaintiff a short time before, and that he was the only member of the lineup to have participated in a prior showup. I believe that these procedures "so undermined the reliability of the eyewitness identification as to violate due process."² Foster v. California, supra at 443, 89 S.Ct. at 1129.

The instant case can be compared to cases attacking the conduct of lineups when police officers have in some way drawn attention to the suspect during the lineup. E. g., United States ex rel. Stevenson v. Mancusi, 409 F.2d 801 (2d Cir. 1969).³ In Wade for example, several witnesses testified that they saw the suspect through an open door outside the courtroom before he was joined by other prisoners and before the lineup formally began. Indeed, the finding in Wade that lineups require the presence of a lawyer was based in...