Webb v. Havener

• Decision Date: 14 April 1977
• Docket Number: No. 75-2374,75-2374
• Parties: Walter WEBB, Jr., Plaintiff-Appellant, v. Joseph H. HAVENER, Superintendent of Southern Correctional Facility, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1081

549 F.2d 1081

Walter WEBB, Jr., Plaintiff-Appellant, v. Joseph H. HAVENER, Superintendent of Southern Correctional Facility, Defendant-Appellee.

No. 75-2374.

United States Court of Appeals Sixth Circuit.

Argued Oct. 20, 1976.

Decided Feb. 18, 1977.

As Modified April 14, 1977.

Walter Webb, Jr., pro se.

Albert S. Rakas, Dana F. Castle, Margery B. Koosed, Akron, Ohio, for plaintiff-appellant.

William Brown, Atty. Gen. of Ohio, Simon B. Karas, Columbus, Ohio, for defendant-appellee.

Before CELEBREZZE, McCREE and ENGEL, Circuit Judges.

McCREE, Circuit Judge.

This appeal from the dismissal of a petition for a writ of habeas corpus requires us to determine whether the admission of out-of-court identification of appellant violated his constitutional right to a fair trial.

Appellant attacks his state conviction of armed robbery on two constitutional grounds. First he contends that the out-of-court identification that two witnesses made of him was made under such suggestive circumstances that its admission into evidence denied him due process of law. He also argues that a gun was illegally seized in a warrantless search and that its admission was a violation of his Fourth Amendment rights. Because we hold that evidence of the challenged identifications should not have been admitted at trial, we need not consider appellant's Fourth Amendment claims. ¹

The evidence offered at trial reveals that in the early morning of August 16, 1973, a black man and a white woman in a light blue Chevrolet automobile stopped for gasoline at a station owned by Howard Baker in Cuyahoga Falls, Ohio. The man went into the station, purchased a cup of coffee from the vending machine, exchanged a few words with Mr. Baker, returned to the car and drove off. About one-half hour later two black men approached Baker, who was then servicing a customer's car outside the station, and asked him where the restroom was. A few moments later, after Baker had gone inside, they reappeared and Baker met them in the doorway. Baker was forced back into the station at gunpoint and ordered to give over the money he had in his pockets. Then both Baker and Franklin Harry Leach, a customer who was in the station at the time, were forced to lie down in the back room. While they were still lying down the robbers left.

When the police arrived, Baker and Leach provided descriptions of their assailants in general terms. One man was described as about five feet eight inches to six feet tall, 180 to 200 pounds, with a squint in his left eye. The second man was described as about six feet tall, over 200 pounds, with long sideburns. Baker also mentioned the earlier visit to his station by the couple in the blue Chevrolet. Nevertheless, in his testimony, Baker stated that the man in the Chevrolet was not one of his assailants.

Early the next morning, Officer Goodwell, who was on general traffic duty, saw a blue Chevrolet of the general description mentioned by Baker. He stopped the vehicle and discovered that its temporary registration had expired. He thereupon took its occupants, James Lenzy, Richard Bentley, and Wanda Burt, to the police station.

Although the testimony about what happened at the police station is incomplete, and in some details contradictory, it reveals that Baker and Leach were asked to come to the station to try to identify Lenzy and Bentley as the men involved in the robbery the day before. Bentley agreed to participate in a show up, but neither Baker nor Leach identified him. Lenzy refused to participate in a show up, but was seen and recognized by Baker and Leach together as he was attempting to use a telephone.

Meanwhile, Wanda Burt had told police officers that the Canton police were looking for appellant, and that he and Cindy Johnson, his co-defendant at trial, could be found at a nearby motel. ² After confirming that a warrant had issued in Canton for appellant's arrest, Akron police officers went to the motel to execute the warrant. Baker and Leach were asked to remain at the station while the police went to bring in another suspect.

Appellant and Johnson were in bed at the motel when the police arrived. Appellant was arrested and then both were taken to the police station. After arrival, appellant, still handcuffed, was escorted by police officers into a room where Baker and Leach were waiting. They identified him.

The Supreme Court has on many occasions disapproved of police practices that involve unnecessarily suggestive identifications. In Wade v. Gilbert, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Court, recognizing that "the annals of criminal law are rife with instances of mistaken identification," held that by recognizing the right of an arrested suspect to the assistance of counsel when he is compelled to participate in a lineup, this danger would be minimized. The Court established a clear rule that evidence of lineup identification of suspects who did not have the benefit of counsel at the lineup was inadmissible even without a showing of improper action by the police that created any likelihood of misidentification. However, even though the admission of improper out-of-court identification was forbidden, the Court held that an in-court identification by the same witness could be made if a basis for the identification independent of the improper lineup could be established. ³ This approach is consistent with the doctrine that permits the admission of evidence different from but related to other evidence obtained by constitutionally impermissible means to be admitted if its proponent can show that it is not "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), a case argued and decided with Wade, although the Court held that the exclusionary rule announced in Wade should not be applied retroactively, nevertheless, it stated that a pre-Wade identification made during a one-on-one confrontation may be so unnecessarily suggestive and conducive to irreparable mistaken identification that its use at trial would amount to a denial of due process of law. Relying on the right to due process, instead of the right to counsel, the Court in its brief opinion did not elaborate upon the factors that would require a decision that due process had been denied. It recognized, however, that necessity can be a factor in determining identification procedures that may be used by the police. On the particular facts of Stovall, where the identifying witness was in grave condition in a hospital and there was no practical opportunity to employ a less suggestive method of identification than the one-on-one hospital room confrontation, the Court found no violation of due process. ⁴

The Court again expressed its concern about mistaken identification in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In that case, the defendant challenged in-court identification made by witnesses who had previously identified the defendant during claimed unnecessarily suggestive photographic displays. The Court held that each case involving "convictions based on eyewitness identification at trial following a pretrial identification by photograph" must be considered on its own facts, and that such convictions will be set aside "only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S.Ct. at 971. In Simmons, as in Wade and Coleman, the Court recognized that, despite an intervening impermissible identification, an eyewitness may retain a clear image of his assailant based upon observations at the time of the crime. This image may be so strong that in-court identification can be considered "independent" of, and not the product of, the impermissible procedure. This independent basis must be determined on the facts of each case. ⁵

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Court considered a habeas corpus challenge to a state conviction which occurred before the Wade and Stovall decisions. It was based in part on evidence introduced at trial of a station-house identification by the victim. The Court stressed that in such cases the "primary evil" to be avoided was the "substantial likelihood" of misidentification. 409 U.S. at 198, 93 S.Ct. at 375. The Court indicated that the evidence of that out-of-court identification need not have been excluded simply because "the police did not exhaust all possibilities in seeking persons physically comparable" to the defendant. It expressly refused to apply in that case "a strict rule barring evidence of unnecessarily suggestive confrontations" because the purpose of such a rule, "to deter the police from using a less reliable procedure where a more reliable one may be available" could not be served by its application in a case in which "both the confrontation and the trial preceded Stovall . . . when (the Court) first gave notice that the suggestiveness of confrontation procedures was anything other than a matter to be argued to the jury." 409 U.S. at 199, 93 S.Ct. at 382.

There has been considerable debate whether Biggers should be read as rejecting a strict rule that would emphasize control of police behavior in favor of a rule, to be applied not only in pre-Stovall but also in post-Stovall cases, that would require an examination of each case limited to the possibility of misidentification. The Second Circuit, in Brathwaite v. Manson, 527 F.2d 363, 371 (1975) (Friendly, J.), cert. granted, 425 U.S. 957, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976), indicated that it views Biggers as only affecting pre-Stovall cases, and that a "stringent" rule excluding all "evidence of an identification unnecessarily obtained by impermissibly suggestive means" is necessary to "give fair assurance...