Swygert, Chief Judge, Sprecher, Circuit Judge, and Dillin, District Judge.*fn*
Petitioner applied for habeas corpus relief on several grounds, the principal one being that an in-court identification was unconstitutionally tainted by an earlier improper and suppressed line-up identification.
The district judge denied the application for a writ of habeas corpus. We affirm and adopt as the opinion of this court the memorandum opinion of the district court which follows in the appendix.
Petitioner is presently incarcerated in the Illinois State Penitentiary, Menard Branch, serving a term of six to ten years imposed for the offense of armed robbery on June 25, 1968. He was tried and convicted by a jury in the Circuit Court of Cook County. He alleges as grounds for habeas corpus relief that his conviction is unconstitutional in that 1) an in-court identification was fatally tainted by an improper line-up, 2) there was a fatal variance between the indictment and the proof, 3) the trial court committed reversible error by refusing to allow petitioner to exhibit to the jury his lack of teeth without waiving his privilege against self-incrimination, and 4) the trial court committed reversible error by admitting into evidence proof of another crime.
Petitioner has presented these specific allegations to the Illinois Supreme Court in a direct appeal of his conviction. Because that Court believed these contentions to have no merit, People v. Harris, 46 Ill.2d 395, 263 N.E.2d 35 (1970), petitioner will be deemed to have exhausted his state remedies as required by 28 U.S.C. § 2254. Kemp v. Pate, 359 F.2d 749 (7th Cir. 1966). We will therefore consider petitioner's contentions on their merits.
The petitioner's first contention concerns an in-court identification of himself by a Mr. John Doyle, the pharmacist of the drug store which petitioner was charged with robbing. He asserts that the trial court used a constitutionally improper evidentiary standard in determining that Doyle's in-court identification of petitioner was based upon observations independent of, and not influenced by, a pretrial confrontation which the trial court did hold to be violative of the petitioner's constitutional rights.
The petitioner and his co-defendants in the criminal trial, two women, were arrested by police during the mid-afternoon of February 22, 1968, several hours after the robbery occurred. Mr. Doyle had been contacted by the police and was told that there were some suspects they would like him to see. The police positioned Doyle in an automobile outside the police station, where he witnessed petitioner's two co-defendants exiting from a squadrol. Later that evening, Mr. Doyle returned to the police station where he witnessed a show-up of six Negro persons, three men and three women, with petitioner and the two women whom Doyle had viewed earlier in the middle of the group. At this show-up, Doyle identified petitioner and his two co-defendants as the perpetrators of the robbery. No counsel was present at the time of this identification, nor at bond court where Doyle again witnessed the defendants.
The petitioner made a motion at his trial to suppress all identification testimony, both the out-of-court and any in-court identification on the basis of 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); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), three decisions of the United States Supreme Court which indicate that Court's concern with the manner in which pretrial identifications are frequently made. These cases establish that a suspect has a Sixth Amendment right to counsel at a pretrial confrontation subsequent to June 12, 1967, and a Fourteenth Amendment right to be free from pretrial identification so unnecessarily suggestive and susceptible to mistaken identification as to deny due process of law.
These cases further establish that, even if the State violates a suspect's rights in a pretrial confrontation, in-court identifications may nevertheless be made by witnesses who viewed the suspects at a tainted confrontation, but only if the State establishes that the incourt identification proceeded from a source independent of the prior illegal confrontation. Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178; United States v. Wade, 388 U.S. at 218 at 240-241, 87 S. Ct. 1926, 18 L. Ed. 2d 1149; see also, Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (en banc 1968), cert. denied 394 U.S. 964, 89 S. Ct. 1318, 22 L. Ed. 2d 567 (1969).
The trial court, prior to admitting Doyle's in-court identification testimony, held a hearing on petitioner's motion to suppress during the course of Doyle's testimony, but out of the presence of the jury (Tr.*fn1 pp. 270-332) and suppressed the identifications made at the line-up, apparently concluding that the petitioner's constitutional rights under Wade had been violated (Tr. p. 325).
In considering the motion to suppress any in-court identifications, the trial court made several statements crucial to the issues herein. In response to a question by defense counsel as to whether the defendant had the burden of establishing that the improper line-up did in fact taint the in-court identification, the court responded, "It is the burden of the defense to do that." (Tr. p. 154). When counsel for both sides suggested at the hearing that the burden of proof was upon the other, the court stated, "The burden does lie on the person filing the petition." (Tr. p. 271). At the hearing, the State's sole case consisted of having Doyle identify petitioner. All of the facts concerning the robbery which indicated the circumstances under which Doyle had observed the suspect prior to his identification of petitioner at the line-up came forth on cross-examination by petitioner's counsel. In conclusion, the court stated, "Now as far as the in-court identification is concerned, the witness (Doyle) did make an in-court identification of (petitioner), and there is no evidence in the record that this was not an independent identification." (emphasis supplied) (Tr. p. 327)
These statements by the trial court necessitate the conclusion that it did utilize an improper evidentiary standard in determining whether the in-court identification was independent of the improper line-up. The court, as petitioner contends, in fact placed the burden on him to prove that the in-court identification was not of an independent nature, whereas Wade clearly states that the Government is the party that must go forward and sustain its burden of proof by establishing "by clear and convincing evidence that the in-court identifications ...