Workman v. Cardwell

• Decision Date: 07 March 1972
• Docket Number: No. C-71-1133.,C-71-1133.
• Parties: Scott S. WORKMAN, Petitioner, v. Harold J. CARDWELL, Warden, Respondent.
• Court: U.S. District Court — Northern District of Ohio

338 F. Supp. 893

Scott S. WORKMAN, Petitioner, v. Harold J. CARDWELL, Warden, Respondent.

No. C-71-1133.

United States District Court, N. D. Ohio, E. D.

March 7, 1972.

Paul Mancino, Jr., Cleveland, Ohio, for petitioner.

Jeffrey L. McClelland, Asst. Atty. Gen., Columbus, Ohio, for respondent.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

This is a petition for a writ of habeas corpus in which the petitioner raises numerous issues. He contends that the proceedings in state court constituted a deprivation of numerous constitutional rights and guarantees. He was indicted by the grand jury of Cuyahoga County, Ohio, alleging that he, while armed with a dangerous weapon, did rob a grocery store on or about January 9, 1969. He was found guilty of that offense by a court and jury of the Court of Common Pleas. That conviction was affirmed by the Court of Appeals, and the Supreme Court of Ohio dismissed his appeal as of right because they felt that no constitutional question was presented. The petitioner's contentions will be dealt with seriatum.

He first contends that the showing by a law enforcement officer of a mug shot of the accused to the victim of the crime singly with accompanying words of suggestion from the officer after the accused was charged with the offense without the presence of counsel or the waiver thereof by the accused denied accused the right to counsel and due process in that the identification procedure was unnecessarily suggestive. The day following the commission of the robbery an arrest warrant was issued for the petitioner. On the following day a police officer went to the victim and showed him a photograph (mug shot) of the petitioner. The victim identified the petitioner as the man who committed the offense. When the victim reported the offense, he examined twenty or more photographs at police headquarters and did not identify any as the robber. Only subsequently when he was presented with a single photograph did the victim identify the petitioner as the robber. The Court of Common Pleas denied petitioner's motion to suppress on this issue. The victim contended then that his in-court identification was in no way influenced by any police activity at the second trial. However, at the first trial it seems that he was influenced (Record, 138, 145-6).

This issue has never been squarely decided by the United States Supreme Court. 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) dealt with whether court room identifications of an accused at trial are to be excluded because the accused was exhibited to the witness before trial at a post-indictment lineup without notice to and in the absence of counsel. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) FBI agents obtained and showed separately to each of five bank employees who had witnessed a robbery the day before certain group photographs including petitioner and another, both of whom were subsequently indicted for the crime. At the trial none of the photographs were introduced, but each of the five eye witnesses identified the petitioner as one of the robbers.

Noting that the process of identification by photograph has certain hazards, the danger of a mis-identification is lessened by cross-examination at trial. The Court ruled, per Harlan, J.:

"We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972-1973, 18 L. Ed.2d 1199 and with decisions of other courts on the question of identification by photograph.

"Applying the standard to this case, we conclude that petitioner Simmons' claim on this score must fail. In the first place, it is not suggested that it was unnecessary for the FBI to resort to photographic identification in this instance. A serious felony had been committed. The perpetrators were still at large. The inconclusive clues which law enforcement officials possessed led to Andrews and Simmons. It was essential for the FBI agents swiftly to determine whether they were on the right track, so that they could properly deploy their forces in Chicago and, if necessary, alert officials in other cities. The justification for this method of procedure was hardly less compelling than that which we found to justify the `one-man line-up' in Stovall v. Denno, supra.

"In the second place, there was in the circumstances of this case little chance that the procedure utilized led to misidentification of Simmons. The robbery took place in the afternoon in a well-lighted bank. The robbers wore no masks. Five bank employees had been able to see the robber later identified as Simmons for periods ranging up to five minutes. Those witnesses were shown the photographs only a day later, while their memories were still fresh. At least six photographs were displayed to each witness. Apparently, these consisted primarily of group photographs, with Simmons and Andrews each appearing several times in the series. Each witness was alone when he or she saw the photographs. There is no evidence to indicate that the witnesses were told anything about the progress of the investigation, or that the FBI agents in any other way suggested which persons in the pictures were under suspicion.

"Under these conditions, all five eye-witnesses identified Simmons as one of the robbers. None identified Andrews, who apparently was as prominent in the photographs as Simmons. These initial identifications were confirmed by all five witnesses in subsequent viewings of photographs and at trial, where each witness identified Simmons in person. Notwithstanding cross-examination, none of the witnesses displayed any doubt about their respective identifications of Simmons. Taken together, these circumstances leave little room for doubt that the identification of Simmons was correct, even though the identification procedure employed may have in some respects fallen short of the ideal. We hold that in the factual surroundings of this case the identification procedure used was not such as to deny Simmons due process of law or to call for reversal under our supervisory authority." 390 U.S. 384-386, 88 S.Ct. 971 (footnote omitted).

While the facts of this case are slightly different from that of Simmons, the principle of that case is apposite. Showing a single photograph of the petitioner to the victim might be inherently prejudicial even when the victim had a sufficient opportunity to observe the petitioner at the time of the robbery. The practice used by the police in this case, however, is to be frowned upon. See United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970); Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969); United States ex rel. Rivera v. McKendrick, 448 F.2d 30 (2d Cir. 1971). But this Court cannot state as unequivocally as did the Ninth Circuit in United States v. Fowler, 439 F.2d 133 (9th Cir. 1971) that the showing of a single photograph to the victim amounts to a per se due process violation. An examination of the facts in each case is required. The use of a single photograph is undeniably suggestive, and seems to have been in this case, and therefor constituted a due process violation.

Petitioner's second claim is that the trial judge abused his discretion in not discharging a juror for cause, thereby forcing petitioner to use one of his limited peremptory challenges. The limitation on peremptory challenges is a matter of state law, and it cannot be held, under the circumstances, that the failure to dismiss a juror constitutes a cognizable claim in habeas corpus. See Pierce v. Page, 362 F.2d 534 (10th Cir. 1966).

The petitioner contends that his car was searched without a warrant, and not incident to his arrest, contrary to the strictures of the Fourth Amendment. The automobile bore only one California license plate, which had expired, and was lawfully parked on a side street directly across from the parking lot adjoining the premises that were robbed. It remained there for at least three hours. After the police were notified that a robbery was in progress, the automobile was placed under surveillance by the Parma Heights police. After the three hours had elapsed, it was towed by the police. Before towing, the police entered the automobile and found therein a brown manila envelope of the Ohio License Bureau lying on the front seat, which was found to contain license plates issued to the petitioner. Since the police had no reason to know who owned the automobile, they were permitted to open such an envelope in hopes of ascertaining the identity of the owner of this "abandoned" car. No cases are presented indicating that such a "search" is impermissible. In the instant case the search did not reveal any evidence except for the identity of the owner and as such falls within Cooper v. California, 386 U. S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). See also Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The cases cited by the petitioner are not apposite to these facts. Since the envelope was in plain view and the automobile was without Ohio license plates or any valid license plates and the examination of the plates merely indicated who was the owner of the car, this search does not fall within the prohibitions of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L. Ed.2d 564 (1971).

The petitioner...