Terry Holland v. E. P. Perini, Superintendent of Marion Correctional Institution

512 F.2d 99, 1975 U.S. App. LEXIS 15635
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 17, 1975
Docket74-1610
StatusPublished
Cited by13 cases

This text of 512 F.2d 99 (Terry Holland v. E. P. Perini, Superintendent of Marion Correctional Institution) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Terry Holland v. E. P. Perini, Superintendent of Marion Correctional Institution, 512 F.2d 99, 1975 U.S. App. LEXIS 15635 (6th Cir. 1975).

Opinions

CELEBREZZE, Circuit Judge.

This is an appeal from the District Court’s denial of Appellant’s petition for a writ of habeas corpus, which attacks his state court conviction for armed robbery on several grounds. His primary [101]*101argument concerns certain one-on-one confrontations (showups) which the police arranged with three witnesses after his arrest.

Appellant was convicted by a jury on March 25, 1971 on one count of armed robbery. Having been on parole when he committed this offense, Appellant received an indeterminate sentence of from ten to twenty-five years in the Ohio Penitentiary.

His immediate conviction concerned the May 9, 1970 robbery of a McDonald’s Restaurant in Cleveland, Ohio. Viewing the evidence in the light most favorable to the Government, we find that Appellant and an accomplice entered the restaurant before its opening, having disguised themselves in loose-fitting stocking masks. At gunpoint they ordered the Manager, his son, and three employees to lie face-down on the floor after binding them with electricians’ tape. The robbers took approximately $3500 in cash and escaped out the back door. The pair parted company, Appellant traveling on foot.

Mr. Delbert Mohney, who was parked at a gas station across the street from the McDonald’s, observed Appellant fleeing the restaurant, drove his car parallel to the escape route, and observed Appellant (without a stocking mask) walking along the street for approximately 45 seconds at a distance of about eight feet. Mohney then lost sight of Appellant, returned to the gas station, and paid his bill. While at the station he saw Appellant a second time, as he was in police custody in the McDonald’s parking lot.

Several police cruisers converged on the restaurant within minutes of the robbery. The officers received a rough description of the two robbers — one tall, the other short, one in a dark blue sport coat and fishing hat. While searching the immediate area, Patrolmen Benik and Dunn observed a blue sport coat hanging on a fence and someone running through a neighboring yard. After firing a warning shot, Dunn arrested Appellant. A gun with five live shells was found several feet from the place of arrest.

The officers returned with Appellant to the McDonald’s parking lot. Without asking the McDonald’s employees to attempt to identify him, they transferred Appellant to another cruiser, which took him to a stationhouse. There he was booked and held under suspicion of the robbery.

The following morning the Manager (William Borkenhagen) and an employee (Brian Farland) were asked to come to the stationhouse to identify a “suspect.” Borkenhagen testified that he was “taken into a room to confront a suspect the officer told us they found in the neighborhood, and they asked us if we could identify him.” The confrontation occurred in a small room on an upper floor of the stationhouse. The only persons present were Borkenhagen, Appellant, and two policemen. Borkenhagen identified Appellant as one of the robbers, on the basis of a scar over his right eye which had shown through the loose-fitting stocking mask worn during the robbery. Farland recounted a similar story, except that only one policeman and Appellant were present in the room. Far-land recognized Appellant not only by the scar, but also by his voice and size. Farland testified that the stocking had not hidden Appellant’s identity since the sear “stood out real well” and the stocking was “like if you take a piece of cloth and lay it over your head, it hung real loose.”

Two weeks later, on May 24, Mohney was called to the stationhouse for a similar showup. “I recognized him immediately,” stated Mohney.

The trial court overruled motions to exclude the three witnesses’ identification testimony, holding that “the State has established beyond any reasonable doubt that [Mohney’s] in-court identification is not in any way tainted by any confrontation.” After the State produced the stocking used in the robbery, which the trial court described as “a very thin piece of nylon mesh, . holding it up to the light even you can [102]*102see right through it,” the trial court overruled motions to exclude Borkenhagen’s and Farland’s testimony.

Appellant argues that his conviction was constitutionally invalid because the stationhouse showups were conducted in the absence of defense counsel and because they were impermissibly suggestive. There are two distinct claims presented.

The first is that he was deprived of his Sixth Amendment right to the assistance of counsel during the showups. If he is correct, the trial court should not have admitted testimony concerning the show-ups. The second claim is that he was deprived of his Fourteenth Amendment right to due process because the showups were “unnecessarily suggestive and conducive to irreparable mistaken identification.” Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct. 1877, 1883, 32 L.Ed.2d 411 (1972), quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). If he is correct on this ground, the trial court should not have admitted testimony of the participants in the showups concerning Appellant’s identity.

We turn first to Appellant’s Sixth Amendment claim. The rule established in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), is that the Sixth Amendment guarantees the right to counsel at any “critical confrontation” occurring after the initiation of adversary criminal proceedings. If such a confrontation occurs in the absence of defense counsel, unless the right to counsel is waived, the Government may introduce in-court identification testimony of a witness who participated in the improper confrontation only if it can “establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” Wade, 388 U.S. at 240, 87 S.Ct. at 1939. The Government may not introduce testimony concerning the improper confrontation itself. If it does so, a conviction may not stand unless it is clear beyond a reasonable doubt that the admission of the testimony was harmless error.

It is clear that Appellant did not have the assistance of counsel at either the May 10 showups with Borkenhagen and Farland or the May 24 showup with Mohney. Appellee does not dispute Appellant’s contention that he requested the presence of counsel at both times. The showups were clearly “critical confrontations.”

The District Court held that counsel was not required at the May 10 showups because “adversary judicial proceedings” had not been initiated against him at the time of the May 10 showups. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). See also Hastings v. Cardwell, 480 F.2d 1202, 1204 (6th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1425, 39 L.Ed.2d 478 (1974).

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Bluebook (online)
512 F.2d 99, 1975 U.S. App. LEXIS 15635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-holland-v-e-p-perini-superintendent-of-marion-correctional-ca6-1975.