*1
shоwing
questions
most,
minimum
of whether or not the
government
propounded
product
must make.
were the
illegal
tapping.
surveillance or wire
On
applica
In the case at bar the
court,
govern-
inquiry by
the district
duly
that “a
сonstituted
tion stated
responded
tapping
ment
that no wire
grand
presently
jury
inquiring into
was involved. Even those circuits which
alleged
37 of Title 18
violations of Ch.
grand jury
hold that
witnesses have
of
Attorney
In addition the
the U.S. Code.”
question,
to raise the
have held
the time
advised the court at
negative
representation
that such a
immunity
application
of the
that one
government
In Re
is sufficient.
being investigated
crimes
under
(D.C.
Fishlowitz,
Carol Evans and
40-71
Ch. 37 wаs 18
Subse
U.S.C.
793.
§
July
Egan,
23,1971);
Jacques
Cir.
In Re
quently, an indictment
returned
was
(3
28, 1971).
May
turn indictment JOHNSON, Charles Victor contempt proceedings. The moots Petitioner- Appellee, grand jury can is still session. We not assume that no further information apprоpriate inquiry SALISBURY,Superintendent, to their will be ob W. D. Chil Institution, licothe Correctional upon appellant Chilli the answer
tained cothe, Ohio, Respondent-Appellant. ing questions proposed. There No. 20258. may well be involved additional defend ants, or additional criminal acts shown United States Court of Ellsberg. to have been committed Sixth Circuit. functioning grand of a effective March 1971. jury seriously would be affected if it July 29, Denied required delay its return of an attempt indictment await an to obtain
evidence from a recalcitrant witness.
The contention is without merit.
III.
Standing Jury Grand Witness
Appellant contended he was enti evidentiary hearing
tled to an on the
Stephen Miller, Columbus, Ohio, M. respondent-appellant; for Paul W. Brown, Atty. Gen., Columbus, Ohio, on brief. Messerman, Rotatori, Gold,
Gerald A. Hanna, Ohio, Cleveland, Messerman and brief, petitioner-appellee. on for MILLER, Before BROOKS Cir- Judges, CECIL, cuit Senior Circuit Judge.
CECIL, Judge. Circuit Senior Salisbury, Superintendent, D.W. Chil- Institution, Respon- licothe Correctional dent-Appellant, appeals from an order of the United States District Court for the Ohio, Southern District of Divi- Eastern sion, granting petition of Charles Johnson, Petitioner-Appellee, Victor corpus. a writ of habeas Johnson, petitioner in the District Court, was convictеd the Common Portage County, Ohio, Pleas Court of on containing counts, an indictment two charging petitioner each with the rape person of a female in violation of Section 2905.01 Revised Ohio Code. He on sentenced each count to three twenty years in the Ohio State Peniten- tiary, consecutively. run terms The conviction was affirmed on direct appeal Portage County to the Court of Appeals appeal and a motion for leave Supreme to the Court of Ohio was de- petition Supreme nied. A Court corpus for a writ of habeas was also de- nied. petition
A to vacate filed in post the stаte trial court under Ohio’s remedy, conviction 2953.21 Section et seq., was dismissed. This dismissal was appeals sustained Ap- to the peals Portage County, Ohio and the Supreme (Case Ohio No. Court. Ohio, Seventh District Court Johnson, Stаte St.2d Ohio 236 N.E.2d judge The district held had exhausted required by his state remedies as Sec- tion Title U.S.C. While specific not clear that now appeal us on this was decided courts, hands, gagged accept her and her tied her any we state judge. No basement. district conclusion in re- served be purpose would offense, useful Immediately Karen after trial court. manding the state case to photographs numerous shown “mug did her book”. She not petition- judge denied The district among photographs. *3 these On attacker proc- denied due that he was claim er’s 10, Karen and Mrs. 1962 both October ap- by to reason of the failure of law ess Peаse, subject of other count of the the represent over him for to point counsel petition- indictment, identified the the the arrest. Since after his three months police headquarters by a er view at appeal this cross petitioner filed no through way Only pe- mirror. the a one us. question not now before is police or titioner and four white three us is principal before present the at the officers in room were totality considering the whether viewing. 18, of time this On October proce circumstances, the identification separately Pease 1962 Karen and Mrs. suggestive unnecessarily dure was so lineups picked pеtitioner in out of the irreparable mistaken to and conducive five six male ne- there were or which a due as denial of identification to be groes. had to Karen Previous this Denno, 388 process of Stovall v. law. identify- lineups at two looked without 1967, 301, 18 L.Ed.2d 293, U.S. 87 S.Ct. ing her It was testified that attacker. States, 1199; 390 United Simmons v. lineups. not in he these was 377, 967, 382, 88 19 L.Ed.2d S.Ct. U.S. that, judge held “con The district California, 1247; v. Foster sidering totality of circum the the 402; 442, 1127, 440, 22 L.Ed.2d 89 S.Ct. stances, identifi the Court holds that the Black, 412 United States v. See unnecessarily procedures so cation were 6) (C.A. den., cert. 396 suggestive irreparable to and conducive 509; 583, 24 L.Ed.2d to a denial mistaken identification as be Laker, 427 F.2d United States process This due of law.” conclusion of DeBose, 6); (C.A. United States largely petition on view the based 6); (C.A. Pettett v. 433 F.2d by up er the in one man show the vic (C.A. 434 F.2d rape. tims it not and conclude that was We yard the Karen her аttacker the saw therefore reverse a he came to the door. had Court. She District good during opportunity to observe year girl, Biltz, a old Karen seventeen telephone no dis- the incident. He had Frayer babysitting family the while guise and she him at observed close by Rootstown, Ohio, raped a ne- in was range and as he disrobed her committed gro August 7, man on 1962. About rape. wiped act of He then blood two-thirty in the afternoon Karen ob- person his her blouse with as de- negro walking around in served a male gagged by scribed her. He bound and yard. into the back walked She her and her in basement. She screen. The man kitchen and locked the grasp opportunity to did not the first then and he came to the door indicated photograph one from a or some do there to work for Mrs. some lineup. viewing photo- a Her Frayer. Frayer on Karеn called Mrs. give lineups ap- graphs and of the telephone and the man asked to pearance of one for whom she who knew opened speak to the screen and She her. looking. experience And her with phone. him the mumbled handed He justify attacker would conclusion her something phone and then appearance did know that his well she grabbed her around the neck. He dis- enough identify him. to exсeption her her robed with the raped in Pease was attacked shoes and and forced her Mrs. brassiere August At about then her home on have intercourse him. He with day having Pease an- Mrs. o’clock been released eleven recognizance pending appeal, her front door. a knock at She his swered own but found no one the knock answered is ordered that he surrender himself to the back of there. As rеturned re- she the Institution from which he was negro a male voluntarily she observed her house leased. If he does not sur- hallway in the middle of render to the ten Institution within days, what he When she asked house. it is ordered he be takеn into grabbed custody by he proper her the throat wanted authorities right attempted hand and with his returned to the Institution other- unless strug- left hand. A her with his competent disrobe wise ordered Court of gle jurisdiction. ensued and the mаn threw her floor tore off all her clothes. He threw
then Mrs. Pease on couch and On Petition for *4 forced her to have intercourse him. with PER CURIAM. he her in a Afterwards closet and left. upon This is case before the Court petition rehearing. for the One of Peаse, separately, Mrs. the made same petition claims in made is that identifications that Karen did. doWe erroneously Court any refused to consider not she photographs know that saw major presented a issue to lineups Court or the in which the by arguments briefs and oral of present. was not She was confronted parties: “(T)hat appellee denied due with him face to face she as saw process by of law to reason of the failure in the hall. She saw him at appoint represent range appellee counsel to for close as he disrobed her and car- period a of over three after his months riеd on the act of intercourse. He was arrest.” disguised. again not She saw him as he put her in the closet. We think she had Upon issue, consideration on this opportunity image an to form an his trial, the record in the cоnclude as we features sufficient him as judge did the district for the reasons she did. by stated him that is without issue merit. We conclude that the identification by both Karen and Mrs. Pease consider- ing totality argued petition It for circumstances is
procedure
unnecessarily sugges-
rehearing
was not
it
is not the function
tive and
irreparable
conducive to
this
consider
mistak-
Court to
de novo the factual
legal
en identification.
The
Dis
in-court
identifi-
determined in the
issues
finding
cation did not rest alone
trict Court
if
one man
and that
supported by
confrontation.
It has
is
been held
the District Court
substan
obligated
evidence,
in-court
identification is
admissible if
tial
this Court
is
indepеndent
origin.
finding.
has
affirm that
The
See
v.
issue
Fitts
518,
(C.A.
judge
United
406 F.2d
the district
one of mixed law
519
5);
Banks,
United States v.
and he
426 F.2d
fact
made his determination
292,
(C.A. 6);
transcript.
293
from a
United
v.
review of the trial
States
Wade,
judge’s
are not
district
We
bound
interpreta
generally,
granted. INC., Corporation,
TIME, York New Appellant-Cross-Appellee, JOHNSTON, Appellee-Cross-
Neil Appellant. 71-1070,
Nos. 71-1071.
United States Fourth Circuit. May 5,
Argued 1971. Sept.
Decided