On Remand from the Supreme Court of the United States
Cummings, Pell,*fn* and Bauer, Circuit Judges.
In Moore v. Illinois, 434 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977), the Supreme Court of the United States reversed the judgment of this Court affirming the district court's denial of Moore's petition for a writ of habeas corpus. In its opinion, the Court held that petitioner's right to the assistance of counsel was violated by a corporeal identification of him made in the absence of counsel after the initiation of adversary judicial proceedings against him. Accordingly, the Court declared that testimony presented at trial concerning the victim's identification of Moore at the pretrial confrontation was per se excludable under Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967). The Court then remanded the case here for a determination of whether the admission of the testimony about the pretrial identification of Moore was harmless constitutional error under Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). In addition, the Court left us free to reconsider in the light of its opinion other issues we had resolved that the Court did not choose to pass upon: namely, whether the victim's in-court identification of Moore at trial was unreliable in view of the suggestive pretrial confrontation that had occurred, Manson v. Brathwaite, 432 U.S. 98, 109-114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977); whether the in-court identification at trial was based on a source other than the uncounseled pretrial confrontation, United States v. Wade, 388 U.S. 218, 239-42, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); and whether the failure to provide petitioner's counsel a transcript of the preliminary hearing at which the suggestive confrontation occurred constituted prejudicial constitutional error under Roberts v. LaVallee, 389 U.S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967).
Inasmuch as the relevant historical facts underlying petitioner's constitutional claims are not in dispute,*fn1 we have determined that a remand of this case to the district court is unnecessary to the resolution of the question presented to us on remand from the Supreme Court. For the reasons noted below, we hold that the admission of the testimony regarding the victim's pretrial identification of Moore was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). Accordingly, we again affirm the district court's denial of Moore's petition for a writ of habeas corpus.
For purposes of our review of the harmless error question presented, we have deemed ourselves bound by the statement of facts set out in the Supreme Court's opinion, as well as the Court's resolution of the ambiguity in the record as to whether the victim selected more than one photograph from the second photographic display presented to her.*fn2 See Moore v. Illinois, 434 U.S. 220, 98 S. Ct. 458, 461-62 n.6, 54 L. Ed. 2d 424 (1977).
Given the undisputed facts of record, it seems to us that the harmless error question presented turns in large measure upon whether the victim's identification of Moore at trial was admissible notwithstanding the suggestive pretrial confrontation that had occurred and the failure to provide Moore counsel at that time. As we see it, the harmless error question is not a difficult one, assuming the admissibility of the in-court identification, because the testimony regarding the victim's pretrial identification of petitioner added little to her positive identification at trial. Especially in view of the fact that much of the suggestiveness inherent in the pretrial confrontation was exposed and vigorously argued to the jury at trial, we doubt that the jury, in assessing the reliability of the victim's identification of Moore at trial, attached any crucial significance to the bare fact that she had previously identified him. What, no doubt, was of critical import to the jury is that the victim testified at trial that she was "positive" Moore was her assailant, and that the victim's certitude was not dispelled by an exhaustive and withering cross-examination on the reliability of her identification. Given the extrinsic evidence linking Moore to the scene of the crime that corroborated the victim's doubt-free identification of him at trial, we are convinced beyond a reasonable doubt that the exclusion of the testimony regarding the victim's pretrial identification of Moore would not have affected the jury's verdict as long as her in-court identification was admissible at trial.
The critical question thus becomes whether the victim's positive identification of Moore at trial was irreparably tainted by the unnecessarily suggestive pretrial confrontation and the failure to afford petitioner counsel at that confrontation. This, in turn, requires two analytically distinct, though related, inquiries, the first being whether the victim's in-court identification of Moore was reliable even though the pretrial confrontation was suggestive, Manson v. Brathwaite, 432 U.S. 98, 109-114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), and the second being whether the identification at trial was based upon the victim's observations of Moore independent of the uncounseled pretrial confrontation, United States v. Wade, 388 U.S. 218, 239-42, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967).
Although we had previously decided that the victim's identification of Moore at trial was both reliable and based on a source independent of the pretrial confrontation, we have reconsidered these questions in the light of the Supreme Court's opinion, which invited us to do so. Having scrutinized the record afresh, however, we have arrived at the same conclusions for the reasons noted below.
As the Supreme Court noted in its opinion in this case,
"It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case." Moore v. Illinois, 434 U.S. 220, 98 S. Ct. 458, 465, 54 L. Ed. 2d 424 (1977).
We concur fully in the Court's comment, as well as in its observation that some if not all of the suggestiveness inherent in the confrontation may have been avoided if counsel had been appointed for petitioner. Id. Nevertheless, as the Court has also recently observed, we are not free to suppress a witness's identification of a suspect at trial merely because the suspect had been exposed to the witness in a highly and unnecessarily suggestive manner. Rather, in assessing whether the suspect's right to due process of law has been violated by the admission of an in-court identification, we are bound to weigh the corrupting effect of the suggestive confrontation against indicia bearing on the reliability of the identification, for "reliability is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977). In the ...