Archie Nathaniel Biggers v. William S. Neil, Warden, Tennessee State Penitentiary, Nashville, Tennessee

448 F.2d 91, 1971 U.S. App. LEXIS 8455

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 18, 1971
• Docket: 20540
• Status: Published

Opinions

EDWARDS, Circuit Judge.

In this case we are asked by the State of Tennessee to review and reverse the issuance of a writ of habeas corpus sought by petitioner Biggers in the United States District Court for the Middle District of Tennessee. After a full hearing and after review of the full record of the proceedings in the state courts of Tennessee wherein Biggers had been convicted of rape and sentenced to 20 years in Tennessee’s State Vocational Training School, the District Judge found that identification procedures employed by Nashville police and subsequently made the subject of extensive testimony at trial had been so essentially unfair as to represent a deprivation of appellant’s federal constitutional right to due process of law. He ordered Tennessee either to retry appellant or release him.

The District Court found the facts pertinent to issuance of the writ as follows:

“On the evening of January 22, 1965, Mrs. Margaret Beamer was attacked at knife-point by an intruder who broke into her home. Mrs. Beamer’s screams aroused her thirteen-year old daughter who rushed to the scene and also began to scream. At this point, the intruder is alleged to have said to Mrs. Beamer, ‘You tell her to shup up, or I’ll kill you both.’ This Mrs. Bea-mer did, whereupon she was taken from the house to a spot two blocks away and raped. The entire episode occurred in very dim light and the rape itself occurred in moonlight. As a result, Mrs. Beamer could give only a very general description of her assailant, describing him as being fat and flabby with smooth skin, bushy hair and a youthful voice.

“Over a seven month period following the crime the police showed Mrs. Beamer various police photographs and had her attend several ‘line-ups’ and ‘show-ups.’ However, the victim was unable to identify any of the persons shown to her as being her assailant. Finally, on August 17, 1965, petitioner was arrested as a suspect in the rape of another woman. While petitioner was being detained in connection with that case the police asked Mrs. Beamer to come to the police station to ‘look at a suspect.’ The identification process employed at this point was called a show-up.

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“At the instant show-up Mrs. Bea-mer identified petitioner as being her assailant. As to what transpired at the show-up, there is some conflict between the testimony given by Mrs. Beamer at the trial and that given by her at thé evidentiary hearing held in this court on October 30, 1969. In testimony given at the trial, Mrs. Bea-mer testified that on viewing the petitioner the ‘first thing’ that made her think he might be her assailant was his voice. However, at the October hearing, Mrs. Beamer testified that she identified petitioner positively prior to having him speak the words spoken by Mrs. Beamer’s attacker more than seven months earlier during the crime — ‘You tell her to shut-up or I’ll kill you both.’ There is also conflict between the testimony given by police officers at the trial and that given by them at the October hearing as to whether or not identification of petitioner was made before or after he was asked to speak these words.

“At any rate, petitioner was identified at this show-up as being Mrs. Beamer’s attacker, and the subsequent indictment and conviction of petitioner was based almost exclusively upon this station house identification.¹

The District Judge reviewed this record on a legal standard recently reiterated by the United States Supreme Court in language which is directly applicable here:

“In 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), this Court held that because of the possibility of unfairness to the accused in the way a lineup is conducted, a lineup is a ‘critical stage’ in the prosecution, at which the accused must be given the opportunity to be represented by counsel. That holding does not, however, apply to petitioner’s case, for the lineups in which he appeared occurred before June 12, 1967. Stovall v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967). But in declaring the rule of Wade and Gilbert to be applicable only to lineups conducted after those cases were decided, we recognized that, judged by the ‘totality of the circumstances,’ the conduct of identification procedures may be ‘so unnecessarily suggestive and conducive to irreparable mistaken identification’ as to be a denial of due process of law. Id., [388 U.S.] at 302 [87 S. Ct. at 1972]. See Simmons v. United States, 390 U.S. 377, 383 [88 S.Ct. 967, 970, 19 L.Ed.2d 1247] (1968); cf. P. Wall, Eye-Witness Identification in Criminal Cases; J. Frank & B. Frank, Not Guilty; 3 J. Wigmore, Evidence § 786a. (3d ed. 1940); 4 id., § 1130.” Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 1128, 22 L.Ed.2d 402 (1968).

Employing the term “show-up” to refer to a situation where police bring a single suspect before a victim of crime for identification purposes, the District Judge held:

“On this basis the Court must conclude that the circumstances here present are not such as to warrant the show-up procedure and, consequently, that its use at petitioner’s trial denied him due process of law.

* * * * * * [T]here is no indication that a truly concerted effort was made to produce suitable subjects for a line-up. Aside from a phone call to the juvenile home and a screening of Metro Jail inmates no other efforts were made. There are several other prison facilities in the area and there is no evidence that any effort was made to screen them for subjects. The Court sees no reason why this could not have been done in order to maximize the fairness of the identification process. Here, there was no evidence of any deathbed urgency as in Stovall which would have precluded the police from delaying the identification procedure until a suitable line-up could have been arranged. The crime was seven months old, the victim was fully recovered and well, and there are no other indications that the ends of justice demanded an immediate show-up rather than a much more reliable line-up. Furthermore, none of the other circumstances which the above discussed cases indicate may justify a show-up existed in the instant case. The evidence clearly shows that the complaining witness did not get an opportunity to obtain a good view of the suspect during the commission of the crime.²

Also, the show-up confrontation was not conducted near the time of the alleged crime, but, rather, some seven months after its commission.³ Finally

the witness in the instant case was unable to give either an independent photographic identification of the suspect or a good physical description of her assailant.⁴ The nature of the

show-up as conducted in this case— with the great lapse of time between the crime and the identification, the hesitancy of the witness in identifying the petitioner,⁵ the circumstances of

the stationhouse confrontation coupled with Mrs. Beamer’s knowledge that petitioner was thought by police to be her assailant, — tended to maximize the possibility of misidentification of the petitioner. True, it may have been more convenient for the police to have a show-up. However, in matters of constitutional due process where police convenience is balanced against the need to extend basic fairness to the suspect in a criminal case, the latter value should always outweigh the former. In this case it appears to the Court that a line-up, which both sides admit is generally more reliable than a show-up, could have been arranged. The fact that this was not done tended needlessly to decrease the fairness of the identification process to which petitioner was subjected.

“Due process of law and basic fairness demand that the most reliable method of identification possible be used in a criminal case. See, Simmons v. United States, supra, [390 U. S. 377 (1967)] at 383-384 [88 S.Ct. 967, 19 L.Ed.2d 1214], The conduct of the show-up in this case created an atmosphere which was so suggestive as to enhance the chance of misidenti-fication and hence constituted a violation of due process.

“Clearly, this identification did not amount to a harmless error, since the victim’s identification of petitioner was virtually the only evidence upon which the conviction was founded. See, Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1966).

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“Accordingly, judgment will be entered granting the application of Archie Nathaniel Biggers for a writ of habeas corpus, voiding the conviction obtained in the state court, and discharging the petitioner from custody after the state has had a reasonable time to retry him upon the same charge, any such new trial to be ‘unaffected by Mrs. Beamer’s station-house identification and the testimony of the police officers who were present when it took place.’ Biggers v. Tennessee, supra at 409, [390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968)].”

We too have reviewed the state trial court record and the appellate record above that, as well as the somewhat different transcript developed in the testimony before the District Judge. We believe the record does not allow us to find that the conclusions of fact of the District Judge are clearly erroneous.

In addition, we find no error in the District Judge’s understanding of the principles of due process of law as they apply to identification proceedings prior to decision of the Wade ¹, Gilbert² cases. Normally this would mean affirmance of the judgment on the careful opinion written by Judge Miller³ in the court below.

What divides our panel, however, is the effect of the direct appeal proceedings which preceded the instant federal habeas corpus case. These included af-firmance of appellant Biggers’ conviction by the Supreme Court of Tennessee, a grant of certiorari by the United States Supreme Court, and the subsequent affirmance of the decision of the Supreme Court of Tennessee by an equally divided vote of the membership of the United States Supreme Court. Our brother finds in the appellate proceedings which culminated with a 4-4 affirmance by the United States Supreme Court a final adjudication of all due process issues arising out of the pretrial identification measures employed in relation to appellant Biggers. As we understand the matter, he regards the 4-4 vote as the expression of a final federal view upon the critical due process question involved in this appeal, and believes that it precluded the District Judge from entertaining, taking testimony on, or making findings of fact in relation to the pretrial identification process in the course of appellant Big-gers’ petition for a federal writ of ha-beas corpus.

There are three reasons which compel our disagreement:

First, the District Judge decided a different question than that which had been presented to the United States Supreme Court on certiorari.

The question upon which certiorari was granted as stated in the Application for Certiorari was:

“The petitioner, a 16 year-old Negro boy, was compelled by the police, while alone in their custody at the police station, to speak the words spoken by a rapist during the offense almost eight months earlier for voice identification by the prosecutrix.

“Was the denial of petitioner’s right to personal dignity and integrity by the police, and the failure to give him benefit of counsel, provide him with a line-up, or with any other means to assure an objective, impartial identification of his voice by the prosecutrix a violation of petitioner’s Fifth, Sixth and Fourteenth Amendment rights?” (Emphasis added.)

As is clear from the quotation below from Judge Miller’s opinion, he expressly did not decide the effect of the voice identification, except perhaps as a portion of “the totality of circumstances” of an impermissibly suggestive show-up:

“[T]he Court finds it unnecessary to reach the issue of whether voice identification as used here amounted in itself to a violation of due process. It may be that the validity of such identification should normally be left to the jury. Since the voice identification took place during the show-up and the show-up procedure itself is unconstitutional as employed in this case, there is no reason to reach the specific issue raised concerning voice identification.”

While obviously four members of the court felt that the grant of certiorari opened the door for consideration of a broad due process question, it is entirely possible that some or all of the four members who voted against reversal did so solely on the voice identification issue squarely represented by the application for certiorari.⁴

Secondly, as we understand the controlling decisions of the United States Supreme Court, we believe that the doctrine of res judicata does not apply in the usual sense in federal habeas corpus proceedings. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

In Fay v. Noia the Supreme Court said:

“The breadth of the federal courts’ power of independent adjudication on habeas corpus stems from the very nature of the writ, and conforms with the classic English practice. As put by Mr. Justice Holmes in his dissenting opinion in Frank v. Mangum, supra, [237 U.S.,] at 348 [35 S.Ct. at 595]: ‘If the petition discloses facts that amount to a loss of jurisdiction in the trial court, jurisdiction could not be restored by any decision above.’ It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas proceedings, see e.g., Darr v. Burford, 339 U.S. 200, 214 [70 S.Ct. 587, 595, 94 L.Ed. 761] ; Salinger v. Loisel, 265 U.S. 224, 230 [44 S.Ct. 519, 521, 68 L.Ed. 989] ; Frank v. Mangum, 237 U.S. 309, 334 [35 S.Ct. 582, 589, 59 L.Ed. 969]; Church, Habeas Corpus (1884), § 386, is really but an instance of the larger principle that void judgments may be collaterally impeached. Restatement, Judgments (1942), §§ 7, 11; Note, Res Judicata, 65 Harv.L. Rev. 818, 850 (1952). Cf. Windsor v. McVeigh, 93 U.S. 274, 282-283 [23 L. ]. So also, the traditional characterization of the writ of habeas corpus as an original (save perhaps when issued by this Court) civil remedy for the enforcement of the right to personal liberty, rather than as a stage of the state criminal proceedings or as an appeal therefrom, emphasizes the independence of the federal habeas proceedings from what has gone before. This is not to say that a state criminal judgment resting on a constitutional error is void for all purposes. But conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review.” Fay v. Noia, supra 372 U.S. at 422-424, 83 S.Ct. at 840-841. (Emphasis added.) (Footnotes omitted.)

In Sanders, the Supreme Court discussed the same principle:

“At common law, the denial by a court or judge of an application for habeas corpus was not res judicata. King v. Suddis, 1 East 306, 102 Eng. Rep. 119 (K.B.1801); Burdett v. Abbot, 14 East 1, 90, 104 Eng.Rep. 501, 535 (K.B.1811); Ex parte Partington, 13 M. & W. 679, 153 Eng.Rep. 284 (Ex. 1845); Church, Habeas Corpus (1884), § 386; Ferris and Ferris, Extraordinary Legal Remedies (1926), § 55. ‘A person detained in custody might thus proceed from court to court until he obtained his liberty.’ Cox v. Hakes, 15 A.C. 506, 527 (H.L., 1890). That this was a principle of our law of habeas corpus as well as the English was assumed to be the case from the earliest days of federal habeas corpus jurisdiction. Cf. Ex parte Burford, 3 Cranch 448 [2 L.Ed. 495] (Chief Justice Marshall). Since then, it has become settled in an unbroken line of decisions. Ex parte Kaine, 3 Blatchf. 1, 5-6 (Mr. Justice Nelson in Chambers); In re Kaine, 14 How. 103 [14 L.Ed. 345] ; Ex parte Cuddy, 40 F. 62, 65 (Cir.Ct.S.D.Cal. 1889) (Mr. Justice Field); Frank v. Mangum, 237 U.S. 309, 334 [35 S.Ct. 582, 590, 59 L.Ed. 969]; Salinger v. Loisel, 265 U.S. 224, 230 [44 S.Ct. 519, 521, 68 L.Ed. 989]; Waley v. Johnston, 316 U.S. 101 [62 S.Ct. 964, 86 L.Ed. 1302]; United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 263, n. 4 [74 S.Ct. 499, 501, 98 L.Ed. 681]; Heflin v. United States, 358 U.S. 415, 420 [79 S.Ct. 451, 454, 3 L.Ed. 2d 407] (opinion of Mr. Justice Stewart) (dictum); Powell v. Sacks, 303 F.2d 808 (C.A. 6th Cir. 1962). Indeed, only the other day we remarked upon ‘the familiar principle that res judicata is inapplicable in habeas proceedings.’ Fay v. Noia, 372 U.S. 391, 423 [83 S.Ct. 822, 840, 9 L.Ed.2d 837].

“It has been suggested, see Salinger v. Loisel, supra, 265 U.S. at 230-231 [44 S.Ct., at 521-522, 68 L.Ed. 989] that this principle derives from the fact that at common law habeas corpus judgments were not appealable. But its roots would seem to go deeper. Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged. If ‘government [is] always [to] be accountable to the judiciary for a man’s imprisonment,’ Fay v. Noia, supra, 372 U.S. at 402 [83 S.Ct. at page 829] access to the courts on habeas must not be thus impeded. The inapplicability of res judicata to habeas, then, is inherent in the very role and function of the writ.” Sanders v. United States, supra, 373 U.S. at 7-8, 83 S.Ct. at 1072-1073. (Emphasis added.) (Footnotes omitted.)

Thirdly, we do not believe that logically or historically a 4-4 division of the United States Supreme Court can be held to represent any federal adjudication of appellant’s federal constitutional claims on the merits.

An equal division of an appellate court does not settle any principle of law or issue of fact for that court. It represents affirmance of the judgment appealed from because there were insufficient votes for reversal.

Supreme Court opinions which we believe to be settled law demonstrates both principles:

“In the very elaborate arguments which have been made at the bar, several cases have been cited which have been attentively considered. No attempt will be made to analyze them, or to decide on their application to the case before us, because the judges are divided respecting it. Consequently, the principles of law which have been argued cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it.” Etting v. Bank of United States, 11 Wheat. 59, 24 U.S. 59, 76, 6 L.Ed. 419 (1826). (Emphasis added.)

“In cases of appeal or writ of error in this court, the appellant or plaintiff in error is always the moving party. It is affirmative action which he asks. The question presented is, shall the judgment, or decree, be reversed? If the judges are divided, the reversal cannot be had, for no order can be made. The judgment of the court below, therefore, stands in full force, it is indeed, the settled practice in such case to enter a judgment of affirmance; but this is only the most convenient mode of expressing the fact that the cause is finally disposed of in conformity with the action of the court below, and that that court can proceed to enforce its judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed.” Durant v. Essex Co., 7 Wall. 107, 74 U.S. 107, 112, 19 L.Ed. 154 (1868). (Emphasis added.)

“Four members of the Court would reverse. Four members of the Court would dismiss the writ as improvidently granted. Consequently, the judgment of the United States Court of Appeals for the Sixth Circuit remains in effect.” Anderson v. Johnson, Warden, 390 U.S. 456, 88 S.Ct. 1194, 20 L.Ed.2d 27 (1968). (Emphasis added.)

As we read these decisions, the equally divided vote of the United States Supreme Court in Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968), means only that “the judgment of [the Supreme Court of Tennessee] remains in effect.” Anderson v. Johnson, supra, 390 U.S. at 456, 88 S.Ct. at 1194. There is, of course, no doubt that federal habeas corpus allows for subsequent federal review of claims of federal constitutional violations after final state court judgment. And it is clear from the opinion of the Supreme Court of Tennessee, 411 S.W.2d 696 (1967), that it neither considered nor decided the federal constitutional validity of the “show-up” which the District Judge on habeas found invalid.

The judgment of the District Court is affirmed.

1 “1. There is considerable doubt on reading the trial record as to whether or not Mrs. Beamer made a positive in-court identification of petitioner at the time of the trial.”

2 “2. Tlie only other eye-witness, Mrs. Beamer’s daughter could not identify Biggers. And see, the case of United States ex rel. Garcia v. Follette, supra [417 F.2d 709 (2d Cir. 1969)] and .accompanying text and cases.

3 “3- See the case of United States ex rel. Williams v. La Vallee, supra, [415 F.2d 643 (2d Cir. 1969), cert. denied 397 U.S. 997, 90 S.Ct. 1139, 25 L.Ed.2d 406 (1971)] and accompanying text and cases.

4 “4. See the case of United States v. Thompson, supra, [417 F.2d 196 (4th Cir. 1969), cert. denied, 396 U.S. 1047, 90 S.Ct. 699, 24 L.Ed.2d 692 (1970)] and accompanying text and cases.

5 “5. See United States v. Gilmore, supra [398 F.2d 679 (7th Cir. 1908)] and accompanying text.” (Footnotes in quotation.)

1 . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

2 . Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

3 . Judge William E. Miller is now a member of the United States Court of Appeals for the Sixth Circuit.

4 . Since certiorari was granted on the issue of voice identification, the briefs presented before the Supreme Court (quoted at length in Judge Brooks’ dissent) could not expand the scope of the Supreme Court’s consideration merely by discussing broader due process questions.