United States of America Ex Rel. James R. Riffert v. Alfred T. Rundle, Superintendent, 464 F.2d 1348, 3rd Cir. (1972)
United States of America Ex Rel. James R. Riffert v. Alfred T. Rundle, Superintendent, 464 F.2d 1348, 3rd Cir. (1972)
2d 1348
Herbert K. Fisher, Bloom, Ocks & Fisher, Philadelphia, Pa., for appellant.
Michael Luber, Asst. Atty. Gen., Dante Mattioni, Deputy Atty. Gen., E.
Pennsylvania, J. Shane Creamer, Atty. Gen., Philadelphia, Pa., for
appellee.
Before STALEY, ALDISEXT and HUNTER, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge.
In this appeal, Riffert raises three points of alleged error: (1) that the
confrontation and identification procedure employed at his preliminary hearing
was violative of the due process standard enunciated in Stovall v. Denno, 388
U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); (2) that the admission of
certain evidence was erroneous and warrants the granting of a new trial; and (3)
that it was reversible error for the trial court not to instruct the jury that a
* Riffert's preliminary hearing was held ten days after his arrest. At that time,
he was led into the courtroom handcuffed and accompanied by two policemen
and his attorney. It is undisputed that a number of the Commonwealth's
witnesses-subpoenaed and present to testify on its behalf-saw appellant as he
was led into the room. The handcuffs were removed prior to the
commencement of the proceedings.
It has long been a recognized attack upon a criminal conviction that a defendant
was subjected to a pretrial confrontation and identification "so unnecessarily
suggestive and conducive to irreparable mistaken identification" as to amount
to a denial of due process. Stovall v. Denno, supra, 388 U.S. at 302, 87 S.Ct. at
1972; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).
This basic principle was recently reaffirmed by the Supreme Court in its
decision in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411
(1970). There, while determining that United States v. Wade, 388 U.S. 218, 87
S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87
S.Ct. 1951, 18 L.Ed.2d 1178 (1967),1 required the presence of counsel at only
those lineups conducted after the "onset of formal prosecutorial proceedings,"
Kirby v. Illinois, supra, 406 U.S. 690, 92 S.Ct. 1882, the Court nevertheless
again stated that the "Due Process Clause of the Fifth and Fourteenth
Amendments forbids a lineup that is unnecessarily suggestive and conducive to
irreparable mistaken identification." Kirby v. Illinois, supra, 406 U.S. at 691, 92
S.Ct. at 1883.
cross-examine the witnesses both at the hearing and the trial as to any weakness
in their identifications. Further, there is no indication in the record, nor does
counsel suggest, that the police "aided" the two witnesses in their identification
prior to their taking the stand. There was no violation of due process. See
United States v. Hardy (Appeal of Andrews), 451 F.2d 905 (3d Cir. 1971), and
United States v. Hardy (Appeal of Hardy), 448 F.2d 423 (3d Cir. 1971).
7
The record does not reveal why the Commonwealth considered it necessary to
utilize handcuffs and we do not consider it appropriate, absent countervailing
facts in the record, to second guess its decision that restraints were required.
Although an identification which occurs in a context of an unnecessary
portrayal of a defendant as a "criminal" may under certain circumstances
amount to fundamental unfairness, Stovall v. Denno, supra, this degree of
suggestiveness is certainly not present in the instant case. The handcuffs were
removed as Riffert entered the courtroom and we cannot say that the chance
observation by two of the witnesses was "so unnecessarily suggestive and
conducive to irreparable mistaken identification" to deny appellant due process
of law. Stovall v. Denno, supra, 388 U.S. at 302, 87 S.Ct. at 1972.
II
8
Riffert contends that the failure of the trial court to charge the jury that
unanimity was required is reversible error. This argument is advanced despite
the following: (1) no objection to the charge was made; and (2) the subsequent
polling of the jury indicated that the verdict had been unanimous.
The charge, read in its entirety, was complete, carefully phrased and contained
all of the usual instructions as to reasonable doubt, presumption of innocence,
etc. However, even if the failure to charge as to unanimity was plain error-cf.
United States v. Carter, 401 F.2d 748 (3d Cir. 1969), cert. denied, 393 U.S.
1103, 89 S.Ct. 905, 21 L.Ed.2d 797 (1969)-the jury was polled and
subsequently indicated its unanimity.4 The error, under these circumstances,
was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
705 (1967).5
III
10
11
11
Five days later the warden gave permission to investigating police officers to
remove certain articles of appellant's clothing from a locker. No warrant had
been obtained.
12
13
Although opposing counsel have called to our attention and emphasized a case
decided by this Court, United States v. Lipowitz, 407 F.2d 597 (3d Cir. 1969),
we do not consider that decision particularly on point. In Lipowitz the
witnesses were brought to the arraignment for the sole purpose of identifying
the accused (unknown to him) and not to participate as witnesses in those
proceedings. As stated by Judge Biggs, "it was not disputed that proceedings
other than [the defendant's] arraignment were taking place while [the
witnesses] were in the courtroom." United States v. Lipowitz, supra, 407 F.2d
at 599
Further, there are, in fact, two "Lipowitz" cases, both arising out of the same
robbery, United States v. Lipowitz (Appeal of Muller), 401 F.2d 591 (3d Cir.
1968), cert. denied 395 U.S. 924, 89 S.Ct. 1778, 23 L.Ed.2d 240 (1969) and
United States v. Lipowitz (Appeal of Smith), 407 F.2d 597 (3d Cir. 1969). The
circumstances of the identification at issue in each case were substantially the
same.
v. Black, 412 F.2d 687 (6th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct.
583, 24 L.Ed.2d 509 (1970) (identification at a preliminary hearing); Pettett v.
United States, 434 F.2d 105 (6th Cir. 1970) (identification at an arraignment);
Dade v. United States, supra, (identification occurring during trial of accused
for a different offense)
4
The argument by counsel that the mere "possibility" that a single juror did not
know that he alone could "hang" the jury is certainly an insufficient allegation
to overcome the validity of the subsequent polling