United States ex rel. Rutherford v. Deegan, No. 164

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: LUMBARD, , MEDINA and WATERMAN, Circuit
• Citation: 406 F.2d 217
• Parties: UNITED STATES of America ex rel. Percy RUTHERFORD, Petitioner-Appellant, v. John T. DEEGAN, Warden of Sing Sing Prison, Respondent-Appellee.
• Docket Number: Docket 32751.,No. 164
• Decision Date: 14 January 1969

406 F.2d 217 (1969)

UNITED STATES of America ex rel. Percy RUTHERFORD, Petitioner-Appellant,
v.
John T. DEEGAN, Warden of Sing Sing Prison, Respondent-Appellee.

No. 164, Docket 32751.

United States Court of Appeals Second Circuit.

Argued November 7, 1968.

Decided January 14, 1969.

Matthew Muraskin, Mineola, N. Y. (James J. McDonough, Mineola, N. Y., on the brief), for petitioner-appellant.

Hillel Hoffman, Asst. Atty. Gen., New York City (Samuel A. Hirshowitz, First Asst. Atty. Gen., and Louis J. Lefkowitz, Atty. Gen., of the State of New York, New York City, on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, MEDINA and WATERMAN, Circuit Judges.

MEDINA, Circuit Judge:

On this appeal from an order denying a habeas corpus collateral attack on a New York State judgment of conviction for robbery the only substantial question concerns the identification of appellant Rutherford as one of the robbers.

The robbery occurred on October 29, 1965, Rutherford was identified as the robber at a police station showup conducted on November 9, 1965, he was later indicted by a Grand Jury on January 25, 1966, and then convicted, after a trial by jury, on September 15, 1966. He was sentenced on November 1, 1966.

The new rules applicable to cases of in-court identifications preceded by pre-trial identifications in lineups or showups without notice to or the presence of counsel were adopted by the Supreme Court on June 12, 1967 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

406 F.2d 218

L.Ed.2d 1178 (1967). In the companion case of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) the Court held the new rules were not retroactive but that cases involving "confrontations for identification purposes conducted in the absence of counsel" prior to June 12, 1967 were to be governed by the application of the principles of due process of law, which is said to involve an inquiry as to whether or not the confrontation in a particular case "was so unnecessarily suggestive and conducive to irreparable mistaken identification," as to make it unlawful, depending upon "the totality of circumstances surrounding" the confrontation. 388 U.S. at p. 302, 87 S.Ct. at p. 1972. In another case decided at the next Term of Court, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Stovall rule was paraphrased by indicating that it was a flexible rule and that the identification procedure will be set aside only when "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at page 384, 88 S.Ct. at page 971

The only violation of due process by identification confrontation cited in the opinion of the Court in Stovall was Palmer v. Peyton, 359 F.2d 199 (1966), a Fourth Circuit case, where the circumstances of the so-called confrontation were most outrageous.

Since the formulation of the new rules, as one would expect, this type of attack has become commonplace.¹ While essential fairness is the touchstone of due process, it is difficult to be sure that the guidelines as stated in Stovall and Simmons are being followed. We think it clear that the rule of Wade, applicable only prospectively and requiring a hearing and finding that "the in-court identifications had an independent source" based on "clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification" or a finding that the error was harmless, is clearly not the rule governing Stovall or other due process of law cases. To intermingle the two separate but analogous rules of Wade and Stovall can only result in confusion, some of which is already apparent in the opinions of the Courts of Appeals that have already considered a number of these pre-Wade due process of law situations. Indeed, Judge Bazelon, dissenting in Wright v. United States, 404 F.2d 1256 (D.C.Cir.1968), seems to favor a sort of per se rule in connection with all lineups or showups in order to afford the prisoner due process of law, except in emergency cases such as Stovall where the victim was in a hospital in a precarious situation due to the wounds inflicted by the perpetrator of the crime. This is supposed to be what is meant by the Stovall formulation.

406 F.2d 219

We do not not agree with this interpretation. We think it is clear that no per se rule governs the due process of law cases

The inquiry in all these due process of law identification cases arising before Wade is simple, direct and unequivocal: was the lineup or showup, without notice to or the presence of counsel, "on the totality of circumstances surrounding" the confrontation "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification"? We proceed to apply this test to the facts of the case before us. Since the critical identification...