Ernеst E. CRUME, Jr., Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
No. 23742
United States Court of Appeals Fifth Circuit
Aug. 11, 1967
Rehearing En Banc Denied Sept. 13, 1967
“We had several. We had a continuing investigation regarding Mr. Giuliano, we had other avenues of investigation regarding Mr. Giuliano, and we were seeking to get further corroboration of his guilt other than just the word of two defendants.”
We find no error arising out of this point.
We express the sincere thanks of the Court to the assigned attorney for appellant for his thorough, most competent representation of appellant.
The judgment of the District Court will be affirmed.
Sam R. Wilson, Asst. Atty. Gen., Houston, Tex., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for appellee.
Before RIVES and WISDOM, Circuit Judges, and CONNALLY, District Judge.
WISDOM, Circuit Judge.
This case presents a close question: Was Ernest Crume, the petitioner, accorded due process of law in the procedures lеading to his pre-trial identification1 as one who had committed a robbery? We have resolved our nagging doubts in favor of affirming the district court‘s denial of his petition for habeas corpus.
December 10, 1956, an armed bandit wearing a hat and a blue corduroy jacket robbed a liquor store in Houston, Texas. Four days later the Houston police arrested Ernest Crume for drunkenness. Soon after his arrest, the police began to suspect Crume of the liquor store robbery. In pursuit of their suspicion, they questioned Crume at length and, in the next day or so, had him appear in several lineups.2 As the result of one of these lineups, and later individual confrontation, the victim of the robbery identified Crume as the bandit.
Five men participated in the lineup here called in to question. The record3 discloses nothing of similarity or dissimilarity of the men‘s aрpearances, except that one man was Mexican or Latin-American. The victim of the robbery, Mrs. Lenormand, thought she recognized Crume as the robber, but indicated to the detective in charge that she could not be sure unless she could see him wearing a hat.4 The police required Crume to put on a hat. Mrs. Lenormand then requested the detective to have Crume say, “This is a stick-up.” The police complied with her request.5
By this point Mrs. Lenormand‘s tentative identification of Crume had firmed up considerably. “I was quite sure,” she testified, “but I didn‘t want to say something that wasn‘t right, so that‘s when we went to Mr. Hopper‘s [the detective‘s] office.” Once the police had taken Mrs. Lenormand to a separate office, they picked up a blue corduroy jacket matching her description of the bandit‘s clothing, took it to the next room, and had Crume put it on. The police then required Crume, wearing the jacket and a hat, to walk alone past Mrs. Lenormand and to repeat the words, “This is a stick-up.”6 At this point Mrs. Lenormand positively identified Crume.
The most recent decisions of the Supreme Court declare that a suspect has the right to counsel at an identification lineup. United States v. Wade, June 12, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, June 12, 1967, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. The Court held that a lineup is a critical stage of the prosecution, at which counsel must be present. First, the presence of counsel is the only way to insure that irregularities tending to produce incorrect identification may be noticed and presented adequately at trial.7 Second, counsel may be able to prevent at least some irregularities from occurring.
Even though Crume did not have counsel at the lineup, he may not take advantage of Wade and Gilbert. The rules announced in those cases apply only to lineups taking place after Monday, June 12, 1967. Stovall v. Denno, June 12, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.
II.
The Supreme Court recognized in Stovall that entirely aside from the right to counsel or the privilege against self-incrimination8 lineups must meet the due process standards of fundamental fairness in order to pass constitutional muster. It is by this rule that we must decide this case.
A. In each of these lineup cases the Supreme Court‘s concern was that irregularities might lead to incorrect identification and consequent conviction of the wrong person.9 Of the irregularities the Court noted, almost all were procedures by which the police might purposely or innocently influence the witness to identify the man the police thought to be guilty. Irregularities of this kind may rise to the dignity of due process violations. See Stovall v. Denno, supra, 87 S.Ct. 1973.
In their understandable zeal to secure an identification, the police simply destroyed the possibility of an objective, impartial judgment by the prosecutrix as to whether Palmer‘s voice was in fact that of the man who had attacked her. * * * A state may not rely in a criminal prosecution * * * on an identification secured by a process in which the search for truth is made secondary to the quest for a conviction. 359 F.2d at 202.
The most serious irregularity in Palmer was to present a lone suspect. “When the identifier is presented with no alternative choices,” the court observed, “there is * * * a strong predisposition to overcome doubts and to fasten guilt upon the lone suspect.” 359 F.2d at 201. The Supreme Court agrees with the Fourth Circuit. In Stovall it noted that “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” 87 S.Ct. 1972.10
While individual showings undoubtedly present the most serious danger of police suggestion, that vice may creep into multiple-suspect lineups whenever the police single out one suspect for attention. The Supreme Court in Wade catalogued a number of techniques for singling out one of a number of lineup participants:
“In a Canadian case * * * the defendant had been picked out of a lineup of six men, of which he was the only Oriental. In other cases, a black-haired suspect was placed upon a group of light-haired persons, tаll suspects have been made to stand with short non-suspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a lineup with five other persons, all of whom were forty or over.” * * * [Other examples are] that all in the lineup but the suspect were known to the identifying witness, that the other participants in a lineup were grossly dissimilar in appearance from the suspect, that only the suspect was required to wear distinctive clothing which the culprit allegedly wore * * * that the suspect is pointed out before or during a lineup, and that the participants in the lineup are asked to try on an article of clothing which fits only the suspect. 87 S.Ct. 1935.
The fault common to all these practices is that the police single out one person and influenсe the witness by directing attention to some element known to be connected with the crime — the unique appearance of the suspect, the words spoken in the course of the crime, or clothing similar to the suspect‘s clothing. The necessary result of this singling out is to suggest to the witness that the suspect so isolated is in fact the one the police think is guilty. It is easy to see how such practices prejudice the reliability of the identification.
B. In this case the police singled Crume out at least three times — twice in the lineup when they had him put on a hat and when they had him say, “This is a stick-up,” and once again in the Robbery Detail Office when they forced him to put on the blue jacket.
We are aware of opposing considerations. Once a faint glimmer of recognition strikes a witness, his tendency may be to do everything in his power to reinforce that recognition and come to a positive identification. To compensate, a fair practice might be to require the police to take every reasonable precaution to insure that the witness is not overly influenced by his original impression, and that he arrives at an objective and accurate identification. Thus even when the witness requests that the person he has tentatively identified be required to do or say something, all participants in the lineup should be required tо act or speak. There is much to say for this practice. We think it is unquestionably fairer than singling out the tentative suspect.11 When the witness’ original identification is tentative or is for some other reason suspect, such a procedure could easily rise to the dignity of a due process requirement.
Nonetheless when the witness’ original identification is as strong as it was here, we think the danger of suggestion so small as not tо violate due process. Due process does not require the states to adopt the fairest possible procedures, but only to avoid “offend[ing] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Commonwealth of Massachusetts, 1934, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674; accord, Spencer v. State of Texas, 1967, 385, U.S. 554, 87 S.Ct. 648 17 L.Ed.2d 606. We cannot say that in the circumstances of this case the failure of the police to require the four other participants in the lineup to wear hats and to repeat, “This is a stick-up” created such a risk of erroneous identification as to have violated a fundamental right and thus to require exclusion of the identification testimony. To be sure that failure bears on the credibility of the identification. But the defendant thoroughly explorеd that issue at his original trial.
C. At the lineup, at least, the witness viewed Crume along with four other men, even if the four were not required to wear hats or say “This is a stick-up“.12 In the Robbery Office viewing, however, there was no such opportunity for even limited comparison. There the police presented Crume alone, dressed in the incriminating blue jacket. This was just the practice the Fourth Circuit struck down in Palmer v. Peyton, supra, and that the Supreme Court admitted in Stovall has been highly criticized. The Robbery Office viewing raises the most difficult question we find in this case.
Despite the disfavored status of the single suspect presentation, the Supreme Court has upheld a highly untrustworthy isolated-viewing identification on the
Although there was no pressing necessity for a single-suspect viewing in this case, the circumstances indicate that this irregularity did not have the proscribed suggestive effect on the witness. Before the isolated viewing took place, Mrs. Lenormand said that she was “quite sure” Crume was the robber. It was only out of an abundance of caution thаt she wished to see him again. In these circumstances, we are unable to find a violation of due process.
III.
We have examined Crume‘s other allegations. We agree with the district judge that Crume failed to exhaust his state remedies with regard to three of his allegations.
*
As our discussion indicates, we regard this as an exceptionally close cаse. The strength of Mrs. Lenormand‘s original identification is the primary reason for our affirming the judgment of the district court.
RIVES, Circuit Judge (Specially Concurring in the Result Only):
Crume‘s objection to what occurred at the lineup in his state habeas petition (R. 224, et seq.) was that he “was forced to make an incriminating statement against himself and was forced to incriminate himself by being forced to put on a hat and coat and speak сertain words so as to enable a witness to ‘identify him better‘.” Similarly in his federal habeas petition (R. 156, et seq.), Crume complained that what he was required to do in the lineup violated his privilege against self-incrimination. Judge Ingraham, the Federal District Judge, made only one conclusion of law as to the occurrences at the lineup, viz: “5. Petitioner was not required to incriminate himself in the ‘show up’ at Houston policе headquarters.” The correctness of that conclusion is amply sustained by part I of the Supreme Court‘s opinion in United States v. Wade, June 12, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Upon that holding, I concur in the judgment of affirmance.
The question of whether the confrontation at the lineup “was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law“, or “that the confrontation resulted in such unfairness that it infringed his right to due process of law“, was left open to persons convicted prior to June 12, 1967, by Stovall v. Denno, June 12, 1967, 87 S.Ct. 1971. That question is not a ground as to which Crume has exhausted his state remedies.
I therefore concur specially in the result only.
PER CURIAM:
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, Rule 25a, subpar. (b), the Petition for Rehearing En Banc is denied.
RIVES, Circuit Judge (dissenting):
As indicated in my special concurrence to the original decision, I had thought the law was clear that what Crume was required to do in the line up did not violate his privilege against self-incrimination, and that that, insofar as here pertinent, was all that the district court had decided. The majority, however, considers that the question to be decided on appeal is: “Was Ernest Crume, the petitioner, accorded due process of law in the procedures leading to his pre-trial identification as one who had committed a robbery?” The majority continues: “We have resolved our nagging doubts in favor of affirming the district court‘s denial of his petition for habeas corpus.” If that were thе question, I would feel called upon to discuss some of the majority‘s factual conclusions with which I do not agree and would probably vote for reversal. However, I am firm in the view that that question should first be considered in a trial court, state or federal, and that to make the original decision here is to depart from our function as a court of appeals.
The majority does, however, consider аnd decide that broad issue, and thus, to some extent, prejudices any future presentation of that issue to a trial court. To me that issue seems so close and of such complexity and difficulty that due process required that Crume‘s persistent requests for counsel be granted both in the district court and on appeal.1
I therefore respectfully dissent.