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  • United States of America Ex Rel. James R. Riffert v. Alfred T. Rundle, Superintendent, 464 F.2d 1348, 3rd Cir. (1972)

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    James Riffert was convicted in Pennsylvania state court of various crimes. He appealed, raising three issues: (1) that the identification procedure at his preliminary hearing violated due process; (2) that certain evidence was erroneously admitted; and (3) that the trial court erred by not instructing the jury that unanimity was required. The appeals court rejected all three claims. It found the preliminary hearing identification was appropriately made in the context of the proceeding, with defense counsel present. It also found the admission of certain evidence, while erroneous, was harmless. And it concluded any error in the jury instruction was cured when the jury was later polled and confirmed to be unanimous. The district court's denial of habeas corpus was affirmed

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    Filed: 1972-07-11 Precedential Status: Precedential Citations: 464 F.2d 1348 Docket: 71-1652

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    James Riffert was convicted in Pennsylvania state court of various crimes. He appealed, raising three issues: (1) that the identification procedure at his preliminary hearing violated due process; (2) that certain evidence was erroneously admitted; and (3) that the trial court erred by not instructing the jury that unanimity was required. The appeals court rejected all three claims. It found the preliminary hearing identification was appropriately made in the context of the proceeding, with defense counsel present. It also found the admission of certain evidence, while erroneous, was harmless. And it concluded any error in the jury instruction was cured when the jury was later polled and confirmed to be unanimous. The district court's denial of habeas corpus was affirmed

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    United States of America Ex Rel. James R. Riffert v. Alfred T. Rundle, Superintendent, 464 F.2d 1348, 3rd Cir. (1972)

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    James Riffert was convicted in Pennsylvania state court of various crimes. He appealed, raising three issues: (1) that the identification procedure at his preliminary hearing violated due process; (2) that certain evidence was erroneously admitted; and (3) that the trial court erred by not instructing the jury that unanimity was required. The appeals court rejected all three claims. It found the preliminary hearing identification was appropriately made in the context of the proceeding, with defense counsel present. It also found the admission of certain evidence, while erroneous, was harmless. And it concluded any error in the jury instruction was cured when the jury was later polled and confirmed to be unanimous. The district court's denial of habeas corpus was affirmed

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    of 5

    464 F.

    2d 1348

    UNITED STATES of America ex rel. James R. RIFFERT,


    Appellant,
    v.
    Alfred T. RUNDLE, Superintendent.
    No. 71-1652.

    United States Court of Appeals,


    Third Circuit.
    Argued May 25, 1972.
    Decided July 11, 1972.

    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.

    James Riffert was convicted in the criminal courts of Clinton County,


    Pennsylvania, on charges of burglary, larceny, robbery, and assault and battery.
    After exhausting his state remedies, appellant filed a petition for a writ of
    habeas corpus in the United States District Court for the Middle District of
    Pennsylvania. The petition was denied without a hearing.

    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

    unanimous verdict was required. We shall consider these points seriatim.


    3

    * 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.

    The inherent suggestiveness of any one-to-one identification may very well be


    increased when a witness is asked to positively identify a defendant in the
    context of a judicial proceeding already instituted against him. See, e. g. Dade
    v. United States, 132 U.S.App.D.C. 229, 407 F.2d 692, 695 (1968) (concurring
    opinion of Bazelon, C. J.). To minimize this effect, any identification initially
    made at a judicial proceeding, should be kept, wherever possible, within the
    formal context of that proceeding. This is precisely what was done in the
    instant case.2

    It would certainly be a misnomer to refer to the circumstances of this case as


    anything resembling a "police identification procedure."3 The two witnesses
    here did not merely observe Riffert and subsequently make known their
    positive identification to the police. Rather, they were present at the hearing in
    order to testify for the Commonwealth and their identifications were made in
    that context with full opportunity to defense counsel to cross-examine. Counsel
    was present and participated throughout the hearing and was therefore able to

    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

    Finally, appellant contends that certain items of evidence, allegedly obtained


    through illegal means, were erroneously admitted into evidence and that a new
    trial should therefore be granted.
    Immediately after his arraignment, Riffert was transferred to the county jail.

    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

    The District Court determined that the warrantless seizure of appellant's


    clothing, five days after his arrest, could not be considered "incident to that
    arrest" and was therefore illegal. Preston v. United States, 376 U.S. 364, 84
    S.Ct. 881, 11 L.Ed.2d 777 (1964). Nevertheless, the Court concluded that the
    introduction of appellant's shoes into evidence, although error, was "harmless."
    We agree. Our reading of the record reveals that in context of the state's rather
    substantial case the admission of this evidence, if erroneous, was insignificant
    and "harmless error" within the meaning of Chapman v. California, supra.

    13

    The order of the District Court will be affirmed.

    Wade and Gilbert held that an extrajudicial presentation of an accused to a


    witness for the express purpose of identification is a "critical stage of the
    prosecution," so as to require the assistance of counsel. Wade, supra, 388 U.S.
    227, 87 S.Ct. 1926. Absent counsel at a lineup, not only must evidence of any
    pretrial identification be excluded at trial but also an independent foundation
    for the incourt identification must be established. Wade, supra, 388 U.S. 239243, 87 S.Ct. 1926

    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.

    For cases involving extra-judicial courtroom identifications, see United States

    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

    In light of our conclusion, we need not discuss the implications of Johnson v.


    Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) and Apodaca v.
    Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) on this issue

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