James Ernest Lucas v. The State of Texas
451 F.2d 390
5th Cir.
1971
Check Treatment

*2 Atty. Gen., Walker, Alfred Executive inquiry independent ori on Atty. Flowers, Gen., Asst. Robert C. gin appropriately made is most Tex., Atty. Gen., Austin, for re- Asst. court, Wade, supra, at trial 388 U.S. spondent-appellee. opin 1926. The definitive 87 S.Ct. BELL, Before AINSWORTH and State, 437 ion in Martinez v. Judges. GODBOLD, Circuit (Tex.Cr.App.1969), recommends of the once the in-court identification

BELL, Judge: sought Circuit introduced and is to be accused apprised the identifica is appeal by This is an from the denial line questioned a tion on the basis of is corpus the District Court of habeas re- up, upon motion of prisoner lief to a state without an evi- hearing outside the should be conducted dentiary hearing. jury. points presence Martinez Petitioner was convicted in a Texas upon prosecu out that the burden is robbery by state court of assault awith by and convinc “clear tion to establish years. firearm and sentenced to 50 ing proof” not is ap- conviction was affirmed on direct made an earlier identification tainted peal. State, Lucas v. 444 S.W.2d 638 intelligent or of counsel the absence (Tex.Cr.App.1969). application No suggests counsel, waiver collateral relief was filed in state court. judge the identifica admits the trial In addition other matters raised findings evidence, he tion enter written petitioner presented by not on him reasons. or into the state appeal, the District Court considered the prior to Martinez. issue tried whether the in-court Lucas was prior appellant by effort, to offer- robbery no The state made victim was police scription given and the ac- identification, to show ing the in-court nor appearance of accused origin independent tual it was of of anoth- there Indeed, there was no men- tainted. person prior fail- er lineup. The witness was tion of a robbery prior identify the accused pistol placed ure to had a who is true that the witness him, by occasion. It according stomach, nothing pictures but several viewed However, defense counsel petitioner. *3 picture of that in fact a here indicates lineup of the question the addressed him, or to the was shown by call- examining victim and the cross iden- having procedure that affected such police officers ing as witnesses lapse appellant. The investigation of the tification knowledge the and of the lineup act the lineup the and of time between of the lineup. the facts Once here not sufficient identification is that developed, defense moved the were standing alone to render identifying of the the only factor to is lineup inadmissible and the petitioner stricken because be be considered. in of Wade conducted violation had been was overruled. The motion and Gilbert. assuming coun- there no “Even ruling. gave for no reason its The court any lineup nor there- waiver sel at the nothing that to indicate of there is parenthetically that had there noteWe suggestive. There confrontation was showing petitioner did no been nothing of a to indicate the notion or, is the at not have counsel did echoing dutifully susceptible victim not, How- he waived counsel. whether crystallized mistaken identification.” arguendo ever, there we can assume the Wade-Gilbert violation of was a adopted these con- district proceed dispose right to to counsel and its and relief. clusions as view denied ground. of the case another We affirm. in Wade Unlike the situation Ordinarily, to it is constitutional error Gilbert, record in and a full is available admit in-court identification circum- determining the this case for whether stances those before us without such as of inde in-court an determining first that the identification origin.1 pendent from We are convinced illegal lineup.2 by the was not tainted is review the record there am error, however, can harm- That found support following ple conclusions permits in- record an less where the judgment formed to of the as the source case, appeal petitioner’s on the direct identification. v. Cali- in-court Gilbert State, supra, Lucas v. 444 at conversely proposition fornia stated this 641: when the court remanded because “Considering guiding permit and test record did not informed judgment independent criteria set forth Wade and reiter- to 388 as source. ated Martinez observe at U.S. 87 In Rivers S.Ct. 1951. adequate oppor- Cir., witness Anderson States, had F.2d 5 400 during tunity to observe his assailant 941, this circuit made the test alleged two-pronged. criminal act under excel- harmless error The trier lighting Further, lent conditions. must find that the identification was nothing any there is independent indicate dis- origin, untainted crepancy prelineup further, between de- that the error harmless be- points identify times, 1. The Wade to the decision relevant ta the defendant other at perti- passage factors to be considered. at U.S. and the of time as well concerning 87 S.Ct. 1926. Those factors nent include facts conduct prior opportunity for the witness defendant, discrepancy observe be- Wade, supra, tween two or more identifications and Mar- United States inability tinez, supra. the same yond ground If a reasonable doubt. We find com- this was the it was an errone- undisputed plete States, ous one. See Rivers v. United (5th clearly convincingly prove 1968), holding F.2d Cir. an origin independent plain of the in-court iden- identification issue to be though tification. We believe that error error at all in the raised beyond committed a rea- trial court. In the instant case the issue presented sonable meets the test of was doubt. This trial court and at a deny Rivers. It was not error to relief when the facts had been made time on the record and without an eviden- known.

tiary hearing. judge, It have been that the trial Affirmed. guidance without later to come from

Martinez, particularly because sequence evidence was' Judge (dissent- GODBOLD, Circuit developed, considered that the burden ing) : was on the defendant to establish I dissent. In this case of constitu- lineup1 the counsel-less in- tainted the *4 tional dimension all turns the facts. identification, rather than on the fact-finding yet No found has the state to that the in-court identifi- show facts. Nevertheless this court concludes Or, cation was free of taint. if he con- really any that doesn’t make differ- state, sidered the on the burden was he ence. may applied quantum not have the of anomaly, The case is an since it was convincing proof.” “clear and tried after Wade and Gilbert but before Appeals The Texas Court of Criminal established Martinez recom- sought problem by to resolve the review- procedure orderly presenta- mended for ing concluding trial record the and that tion of evidence when an in-court identi- the inde- identification was of questioned fication is on the basis of an origin. pendent court, The habeas with- allegedly improper lineup. The defense hearing, out that concluded the Court of objection made no to the identification Appeals Criminal was correct and denied what, pursued when made but instead Now, court, my in this writ. broth- time, state of the law at that was a they ers affirm on the that find basis approach. reasonable Defense counsel evidentiary support sufficient victim, cross-examined the then called as and, decision, of Court knowledge witnesses officers who of had by independent examination the trial investigation lineup. and the Once record, they convincing find clear and developed, the facts were the defense evidence that the in-court moved that the in-court identification be independent origin was and that stricken because the failed to error was harmless. comply Wade with and Gilbert. The stating court denied the motion without why The discloses record reasons. findings is entitled to have of fact made why No one fact-finding knows the motion to court, rather than a strike was It by reviewing courts, denied. have been series of reviews opinion the reason adverted why to none of which knows the in-court Texas Court of Criminal identification was admitted into evi- State, Lucas objection. v. 641 dence over defendant’s The (Tex.Cr.App.1969), robbery the defendant was a brief encounter. There object timely had failed to to the identi- one The victim. fication when Appeals correctly offered had failed to of Criminal stated delaying objection. show reasons for the victim said he stood “face-to- purposes analysis assume, majority, 1. For I do the the defendant did have coun- sel at the the cold agree on whether to unable are the victim But robber. with face” sup- in-eourt shows think some twice—and testified also convincing evidence ported clear consider—that must fact-finding court beyond reasonable and error “sideways” to him. the robber momentary. doubt. observe opportunity to robber testified The victim I dissent. reasons For these money, gun demanded presented a him turned movement then money from removed around taken he was pocket, after which back over the and struck store the back description to gave a head. robbery immediately after police and be- regaining consciousness (after hospital awith being taken fore with injury), was consistent

head TASBY, Appellant, Johnnie But the given at description trial. the consid- to have is entitled America, UNITED STATES finder a fact addressed eration of Appellee. he when of the witness fully have description, gave “I didn’t BURKHALTER, Appellant, T. Booker sure senses,” too my “I couldn’t be description],” that “I [of America, STATES UNITED pretty Detective kindly, addled.” well *5 testified, Boyd as the Court noted, four men that while FEGGETT, Appellant, Joe Willie “exactly the same were “pretty same they were near size” age.” America, STATES UNITED con- fact finder But some should Appellee. equivocal sider also this The victim on issue. victim himself BRYANT, Appellant, Paul Lawrence group close came that no one said size, one was a lot small- to Lucas’s America, UNITED STATES pretty close to er than and one Lucas size, almost Lucas’s that one Lucas’s Nos. 20357-20360. heavy, quite size and one not States Court describing them of then concluded Eighth Circuit. weights. various sizes Nov. 1971. might These matters as fac- viewed Rehearing Denied No. 20358 nit-picking in tual They some other context. Dec. 1971. proportion are of substantial Rehearing Rehearing En Banc facts, no court where found the has Denied Dec. possible where it is that the trial grounds denied the on motion strike revealed would have been erro-

neous, 50-year prison where a sen- single tence teeters of an fulcrum

following lineup, counsel-less suggestiveness dispute. which is clearly

No factor demonstrates more proper finding prop-

need fact at the judges appellate

er than level that three