Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 C 1285 James B. Parsons, Judge.
Barnes, Senior Circuit Judge,*fn* Pell and Sprecher, Circuit Judges.
The issue in this case is whether testimony concerning an admittedly suggestive pre-indictment lineup should have been excluded from petitioner's state criminal trial.
Petitioner Roger Pierce brought this action seeking a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241-54. Pierce is presently detained at the Illinois State Penitentiary in Joliet, Illinois as the result of his conviction for attempted robbery of a Chicago taxi driver. This conviction was affirmed by the Illinois Supreme Court. People v. Pierce, 53 Ill. 2d 130, 290 N.E.2d 256 (1972). Pierce's subsequent action for a writ was denied by the district court and he appeals.
While driving his cab at 3:00 a.m. on March 20, 1968, James Dotson saw two males standing behind a parked 1963 Pontiac with the hood up. The two men hailed him and believing that they were out of gas Dotson pulled around the corner to meet them. Dotson testified that when he picked up the two men the street lights were on and as they entered the cab the dome light went on automatically. Dotson also testified that he looked at the two men as they entered the cab. They asked to be driven to 63rd and Greenwood.
After driving approximately two blocks, Dotson heard one of the passengers say something. When he turned around he observed that one of the two men was holding a gun, which Dotson grabbed impulsively. After hitting the brakes, causing his cab to crash into a parked vehicle, Dotson flipped into the back seat and a struggle ensued. During the course of the fight both Pierce and the other passenger (Belmore) jumped from the cab. Just as the two men were making demands for Dotson's money a police squad car came around the corner. The two men left Dotson and ran into a gangway with two officers in close pursuit.
John O'Brien, one of the officers in the police squad car, testified that they had been attracted to the area by the sound of automobiles crashing which occurred when Dotson had slammed on the brakes. As he and his partner turned on Langley Avenue they saw three men struggling beside a taxicab. When O'Brien alighted from his car and announced his office Belmore and Pierce ran toward a gangway. Officer O'Brien pursued the two men through the dark gangway to a brightly lit alleyway. He testified that "when they broke into the alley I was approximately eight to ten feet from them. It was a very brightly lit alley. Roger Pierce was one of the men I saw in the alley." O'Brien apprehended Belmore and recovered a.32 caliber revolver lying on the ground near him. Dotson identified Belmore positively at that time. The other assailant escaped. The case report prepared shortly after the incident by O'Brien from his and Dotson's recollections described the escaped assailant as being 5 feet, 8 inches in height, weighing 170 pounds and wearing a three-quarter length black leather coat.
Detective George Rohrer testified that he was one of the officers who arrested Pierce later that morning. Rohrer's arrest report describes Pierce as being 6 feet tall, weighing 180 pounds and wearing a three-quarter length black leather coat.
Dotson was summoned to the police station following Pierce's arrest. He attended a lineup where at least one other taxi robbery victim, identified as Mr. Parker, was present together with a number of policemen. There was conflicting testimony as to whether the two men actually discussed the lineup prior to making their respective identifications, but the district judge assumed that they were able to do so. Dotson described the lineup as consisting of about six black males. Dotson identified Pierce by kicking him in the seat of his pants and Belmore by touching him with his hands. When asked why he had kicked Pierce, Dotson testified that it was because Pierce had hit him on the head and neck the night before.
Detective Rohrer substantially corroborated Dotson's testimony. He stated that there were six black males of similar appearance, all casually dressed in the lineup. Apparently Pierce was still wearing the same clothes he had on during the attempted robbery a few hours earlier. The six men were brought into the room, asked their name, address and occupation and then told to make a number of turns. Rohrer could not recall any details concerning the age, height or weight of the men in the lineup. No photograph was made of the lineup or its participants and the lineup report which had been prepared could not be produced at trial.
During the hearing on the motion to suppress identification both Pierce and Belmore testified as to the circumstances of the lineup conducted at the police station. Both stated that there were only four men in the lineup and that the other two subjects were dressed in beige or tan trenchcoats and that only they were wearing black leather coats. They maintained they were wearing handcuffs while the others were not. This was disputed by both Dotson who stated that "I don't think any of the men in the lineup had handcuffs on," and Detective Rohrer who stated "none of the men in the lineup were wearing handcuffs."
Both the Illinois Supreme Court and the district court concluded that in some respects the lineup was unduly suggestive. Both courts, however, concluded that a per se exclusion of identification evidence was not necessary and considering the "totality of the circumstances" concluded that ...