Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 74 C 1962, Richard Austin, Judge.
Cummings, Pell and Sprecher, Circuit Judges.
This habeas corpus case primarily concerns instances of prosecutorial misconduct committed during petitioner's trial in state court which allegedly deprived petitioner of a fair trial.
The petitioner, Charles Clark, was convicted and sentenced to death for the 1967 murder of an off-duty Chicago policeman killed near a southside shopping center. On direct appeal to the Illinois Supreme Court, his conviction was affirmed but the sentence of death was vacated because the Illinois death penalty statute had been held unconstitutional in Moore v. Illinois, 408 U.S. 786, 800, 33 L. Ed. 2d 706, 92 S. Ct. 2562 (1972). People v. Clark, 52 Ill.2d 374, 288 N.E.2d 363, 373 (1972). On resentencing, he was sentenced to serve from 100 to 200 years in the penitentiary.
The underlying factual situation of this petition is set out in considerable detail by the Illinois Supreme Court in People v. Clark, 52 Ill.2d 374, 288 N.E.2d 363 (1972), and does not need to be so painstakingly set forth here. A few rudimentary facts will suffice. On the evening of December 13, 1967 shortly before 8:30 p.m., Officer John Collins and his wife Barbara were leaving a Sears Roebuck and Company store in a shopping center at 79th and Kenwood in Chicago. As they were walking to their car in the parking lot, they noticed a black man bending over the vent mirror of their car. When the man noticed their approach, he started to walk away but was intercepted by Officer Collins who had walked around to the other side of the car. Officer Collins inquired as to what the man had been doing by the car. No answer was given, but instead when the man noticed the gun which Officer Collins had been hiding behind his back, he said, "Oh, you have a gun. Well, I have one, too." He stepped back and pulled a small, black snubnosed gun from his jacket pocket. Officer Collins told him to drop the gun, that he was a police officer. The man yelled back that he too was a police officer and told Collins to drop his gun. The man then grabbed Mrs. Collins around the neck and held her in front of him. Officer Collins backed away and again ordered the man to drop the gun. The man fired; Mrs. Collins screamed and dropped to the ground; and Officer Collins returned the shot. The man fled across the parking lot with Officer Collins in pursuit.
At this point a Sears garage employee, Roger Van Schaik, picked up the narrative. He testified that he had been assisting a woman start her car in the Sears parking lot at 79th and Kenwood when he observed a white man chasing a black man across the parking lot. The white man, whom Van Schaik later identified from a morgue photo as Officer Collins, was shouting "halt" and firing into the air. The two men ran across Kenwood Avenue and into a gangway between two homes opposite the parking lot. Van Schaik heard scuffling and another shot. When he got to the gangway, the black man was fleeing out a back gate and Officer Collins, crumpled against the side of a house, was slumping to the ground. Officer Collins died shortly after arriving at Jackson Park Hospital with a gunshot wound in his brain.
The petitioner was arrested about three weeks later on January 2, 1968 and was identified in two lineups that evening. He was tried and found guilty in May of 1968. In 1972, the sentence of death was vacated on appeal to the Illinois Supreme Court, but in other respects, his conviction was affirmed.
The petitioner claims that he was deprived of a fair trial and thus imprisoned in violation of the laws and Constitution of the United States in four major ways. First, he contends that pretrial and trial identification procedures were improperly suggestive. Second, he contends that certain prosecutorial actions and comments deprived him of a fair trial. Third, he contends that the bailiff's communications to the jury were prejudicial. Finally, he contends that the exclusion of jurors who had reservations about the death penalty created a jury biased towards conviction.
The petitioner challenges both the in-court and the out-of-court identification procedures used by the state in this case.
Four witnesses identified the petitioner as the man whom Officer Collins chased across the parking lot on the night in question. Mrs. Collins testified that she saw him clearly while she was on the ground immediately after he had first fired at her husband, because he turned and faced her as if to shoot her. She viewed two lineups prior to trial. At the first, she saw someone who resembled the petitioner in facial characteristics but not in build. At the second, she identified the petitioner out of a five-man grouping. Two other potential witnesses attended this lineup, but could not identify the petitioner.
The three other identification witnesses were all bystanders in the parking lot at the time of the chase. Although it was night at the time, the lot was well lit. Each witness had a good view of the scene. Edward Buchsbaum selected the petitioner as the man in the parking lot out of a five-man lineup and testified to this selection in court. Robert Pulizzi who made an in-court identification of the petitioner, was also present at this lineup with Buchsbaum. Pulizzi identified the petitioner by number in the lineup, but never confirmed this identification by walking to the front of the room and placing his hand on the petitioner's shoulder as Buchsbaum had done. While Pulizzi was walking towards the front of the room, a shriek of obscenities rang out from some of the petitioner's relatives who were present, and Pulizzi fell faint against a locker in the room. Pulizzi never testified to his aborted lineup identification at trial. Mrs. Ruth Kent, the final identification witness, made only an in-court identification of the petitioner.
The petitioner challenges the two lineups at which he was identified as impermissibly suggestive because more than one prospective witness attended each lineup and because procedures were used which singled out the petitioner. The petitioner challenges the in-court identification by Mrs. Collins and Messrs. Buchsbaum and Pulizzi as irreparably tainted by the prior lineups. Finally, the petitioner challenges the in-court identification by Mrs. Kent on grounds of unreliability because petitioner was the only black person at counsel table.
A hearing was held in state court prior to trial on a motion to suppress the identification testimony concerning the two lineups. Nine witnesses testified including the petitioner. The petitioner's witnesses testified in substance to three factors which singled out the petitioner in both lineups: (1) that the petitioner wore a different colored jacket from the rest of the lineup; (2) that the petitioner was required to repeat the phrase "I'm a policeman, too; drop the gun," three times while other participants were required to say it only once; and (3) that just prior to identification by the witnesses, a policeman came up and placed his hand on the petitioner's shoulder or suggestively stood behind the petitioner. The police officers who conducted the lineup both testified that all members of the lineup wore the same type of jacket though not the same color. They testified that at no time shortly prior to identification did any officer touch the petitioner or stand behind him. Although there was some disparity between the officer's testimony regarding speaking the line, "I'm a police officer, too; drop the gun," both officers clearly indicated that the petitioner was not singled out to say it more times than anyone else. At the end of the hearing, the trial court denied the motion to suppress.
Although the court gave no reasons for the denial, it obviously credited the officers' testimony as against that of the petitioner's witnesses on the issue of whether the petitioner was singled out. In cases where written findings of fact are made by the state court, the federal court in a habeas corpus proceeding must defer to that court's findings unless they are not fairly supported by the record. 28 U.S.C. § 2254(d)(8). Here, no written findings were made, but the question that petitioner raises and the substance that petitioner argues concerns the facts which derive from the state court hearing. Petitioner challenges neither the adequacy of the hearing, nor the standard the trial court applied. Thus, as to the factual questions resolved at the hearing, we are in no position to overrule the state trial court which heard the witnesses and could judge their credibility. Moreover, there is nothing inherent in the record of the hearing that would demand a conclusion contrary to that of the trial court. Thus, we cannot say that the two lineups were impermissibly suggestive, in that they singled out the petitioner.
We have previously addressed the question of the presence of more than one identification witness at a lineup at one time, and have severely criticized the practice. United States ex rel. Pierce v. Cannon, 508 F.2d 197, 200 (7th Cir. 1974). However, as was noted in Pierce, when dealing "with the adequacy of state lineup procedures . . . the only question before us is whether the procedures employed violated petitioner's due process rights." Id., at 202. In a consideration of this question, the Pierce court held that the "totality of the circumstances" must be examined to see if there was "a substantial likelihood of misidentification." Id., at 203. The Pierce court set out the so-called Biggers factors, Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), which it saw as the relevant factors in a "totality of the circumstances" consideration. These factors include:
The opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
In consideration of Mrs. Collins' identification of the petitioner while other witnesses were present, we need not even consider these factors since the other prospective witnesses could not make any identification and thus could not have influenced the identification made by Mrs. Collins.
In regard to Buchsbaum's identification of the petitioner, we cannot say that the presence of Pulizzi, who made a preliminary identification, was not at least slightly suggestive. Thus, Buchsbaum's identification must be examined in light of the Biggers factors.
First, Buchsbaum had a good opportunity to view the petitioner in the Sears parking lot. He testified that he was 10 to 15 yards away from the black man when he first noticed the altercation and that he was only 8 or 9 feet away when the two men ran past. The lighting was good. Buchsbaum's attention, although broken by his ducking momentarily behind an automobile, appears sufficient for him to have related the incidents of the parking lot altercation with clarity. Buchsbaum's initial description of the petitioner is not reflected in the record and thus cannot be considered. Buchsbaum demonstrated a high level of certainty at the lineup and the length of time between the lineup and the crime was only three weeks. Under the Biggers analysis as described in Pierce, Buchsbaum's identification of the petitioner shows little likelihood of mistaken identification which might have been created by the presence of Pulizzi and, thus its use did not deprive the petitioner of a fair trial.
Since the lineup which Mrs. Collins viewed was not suggestive, and since Edward Buchsbaum's identification of the petitioner at the lineup was not significantly influenced by Pulizzi's presence, we find no basis for challenging their subsequent in-court identifications. Therefore, these must also stand.
The petitioner challenges Robert Pulizzi's in-court identification on the ground that his presence at the lineup at which Buchsbaum identified the petitioner gave rise "to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). The same Biggers factors apply in determining whether there was a likelihood of misidentification.
In considering these factors, we note that Buchsbaum and Pulizzi exited the store together, were very near each other in the parking lot when the events took place and gave strikingly similar testimony. The only Biggers factor applicable to Pulizzi which differs significantly from those regarding Buchsbaum concerns prior description. Pulizzi admitted on the stand that he had told the police that the black man in the parking lot looked 40 years old. The petitioner at the time of trial was 25, but Pulizzi from the stand estimated his age at 35, a judgment shared by ...