UNITED STATES of America ex rel. Robert J. RAYMOND, Petitioner-Appellant, v. PEOPLE OF the STATE OF ILLINOIS, Respondent-Appellee, 455 F.2d 62

SWYGERT, Chief Judge. This is an appeal from the denial of appellant’s petition for a writ of habeas corpus. Appellant, Robert J. Raymond, is imprisoned at the Illinois State Penitentiary pursuant to a conviction for rape and robbery. On July 26, 1962 the Circuit Court of Cook County sentenced him to concurrent terms of 20 to 40 years for rape and 15 to 20 years for robbery. The Illinois Appellate Court affirmed these convictions on March 24, 1965, People v. Raymond, 57 Ill.App.2d 292, 206 N.E.2d 740 (1965).

Post-conviction relief was denied by the Circuit Court of Cook County on June 8,1967 and that denial was upheld by the Supreme Court of Illinois on June 20, 1969, People v. Raymond, 42 Ill.2d 564, 248 N.E.2d 663 (1969).

Appellant filed a petition for a writ of habeas corpus on June 2, 1970 challenging the constitutionality of his conviction on two grounds: Raymond claims that he was denied due process of law by the state’s use of identification procedures that were unnecessarily suggestive and conducive to irreparable mistaken identification and by the state’s failure to disclose to the defense attorney material evidence favorable to the accused. The judgment of conviction is reversed.

As to Raymond’s second argument, Judge Pell and I agree that the nondisclosure of the result of the laboratory test to counsel for defendant requires reversal. However, I alone agree with Raymond’s argument that the particular identification procedures used here constitute an alternative ground for reversal of the conviction. The crime for which Raymond was convicted was alleged to have occurred at 6:00 p. m. on November 16, 1961. Mrs.

Virgie Barger, a white woman, 58-years-old at the time, was walking down the street when a young, Negro man grabbed her, took three dollars from her purse and after dragging her into a nearby gangway, raped her. Apart from the victim and her attacker, there were no witnesses to the incident. Police officer Mallder arrived at 6:10 and escorted Mrs. Barger to her apartment three blocks away. Mrs. Barger gave the officer a description of her attacker which he sent to the Central Communications room after 6:15.

Between 6:10 and 6:15 Raymond was arrested for an unrelated crime approximately five blocks from the scene of the rape. En route to the station house, the arresting officer heard the description of Mrs. Barger’s assailant over the police radio and immediately brought Raymond to Mrs. Barger’s apartment. Raymond, in handcuffs and accompanied by six uniformed policemen, confronted Mrs. Barger twice between 6:20 and 6:30. Mrs. Barger did not identify him at this time. Between 8:00 and 8:30 at the station house later that evening, Raymond, wearing the same clothes he wore when arrested, took

part in a lineup of eight men. At this point, Mrs. Barger identified him as her assailant. The defendant points to these procedures —two “showups” immediately after the alleged crime followed two hours later by a lineup — as constituting a violation of due process. Defendant’s second claim refers to a police laboratory test for spermatozoa made on Raymond’s sweater, pants, and undershorts at 9:30 p. m. the evening of his arrest.

On the following day the police station commander reported the results to Raymond saying, “The results of the test on your clothing came back and proved negative but that don’t clear you.” Raymond’s attorney did not hear of this report until after his client had been found guilty. The state introduced the report only at the sentencing hearing following the trial. I The standard to be applied in judging a due process claim involving pretrial identification procedures derives from Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

While' the Court in Stovall refused to give reU roaetive application to the rule announced in 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), requiring counsel at pretrial identification confrontations, it did present as an alternative ground of attack the claim that the identification procedures were “so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law.” 388 U.S. at 302, 87 S.Ct. at 1972.

Defendant claims that the identification procedures used here fall under this standard either because of the holding of a showup immediately after the crime or because of the combined use of two showups and a lineup within two hours of each other. The showup in the instant case can be supported under Stovall.

In Stovall, the Court held that while “the practice of showing, suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned,” any particular claimed violation of due process must depend on the “totality of circumstances surrounding it.” 388 U.S. at 302, 87 S.Ct. at 1972.

The circumstances considered • there pointed to the necessity for the showup where formal lineup procedures would have been impractical: Since the only witness was in the hospital in imminent danger of lying, a direct confrontation between the witness and her alleged assailant was the only “feasible” procedure. Showups have been sustained in other situations when the state’s interest in an expeditious identification could be shown, as in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.

Ed.2d 1247 (1967), where the defendant’s photo was presented to witnesses the day after a serious felony had been committed when the memory of the incident was still fresh and while the perpetrators remained at large, or in Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104 (D.C.Cir. 1968), where the defendant was apprehended shortly after the crime and returned to the scene of the crime to confront the complaining witnesses. See Wise v. United States, 383 F.2d 206 (D.C.Cir. 1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968); Harris v. Dees, 421 F.2d 1079 (5th Cir. 1970); cf.

United States v. Gilmore, 398 F.2d 679 (7th Cir. 1968). In the instant case, where there were two reports of attacks in the same five block area, within fifteen minutes of each other, the police sought to determine quickly if they had apprehended the right man, and an immediate showup twenty minutes after the crime, rather than a formal lineup, was justified. But this determination is not disposi-tive since the showup alone did not yield an identification of Raymond as Mrs. Barger’s assailant; it is the combination of procedures — two showups and a lineup — -that finally resulted in a positive identification.

However justified a single showup or a single lineup is at the outset, the rationale of Stovall suggests that they are alternative procedures. Their use in combination is highly suspect. In Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1968), the complaining witness observed a police station lineup involving three men — the defendant, who was approximately six feet tall, and two very much shorter men. The witness could not identify the defendant at this time and instead asked to speak to him. A one-to-one confrontation was immediately arranged, but the witness remained uncertain.

About a week later, at a second lineup in which the defendant was the only person who had also appeared in the first, the witness was “convinced” that the defendant was the robber. The Court found that the pretrial identification evidence was inadmissible on the ground that “the pretrial confrontations clearly were so arranged as to make the resulting identifications virtually inevitable.” 394 U.S. at 443, 89 S.Ct. at 1129. The facts of the instant case fit even more squarely under the ruling of Foster.

The identification procedures began with a one-to-one showup which, as Stovall states, is itself a highly suggestive procedure. 388 U.S. at 302, 87 S.Ct. at 1967. The defendant, handcuffed and accompanied by six uniformed policemen, confronted Mrs. Barger at her apartment twenty minutes after the alleged crime, wearing the same leather jacket and brim hat that had fit the description she had given of her assailant. The witness did not identify him at this time, nor did she ask to see him again as the complaining witness in Foster had.

The lineup held only two hours later at the police station was solely at the police’s initiation. Furthermore, there is some dispute as to whether Raymond was the only man in the lineup wearing a leather jacket and brim hat. It is clear that he was wearing the very same clothes he had worn at the confrontation with the plaintiff a short time before, and that he was the only member of the lineup to have participated in a prior showup. I believe that these procedures “so undermined the reliability of the eyewitness identification as to violate due process.” Foster v. California, supra at 443, 89 S.Ct. at 1129.

The instant case can be compared to cases attacking the conduct of lineups when police officers have in some way drawn attention to the suspect during the lineup. E. g., United States ex rel. Stevenson v. Maneusi, 409 F.2d 801 (2d Cir. 1969). In Wade for example, several witnesses testified that they saw the suspect through an open door outside the courtroom before he was joined by other prisoners and before the lineup formally began.

Indeed, the finding in Wade that lineups require the presence of a lawyer was based in part on the conclusion that lawyers could help prevent those practices whose net effect was to turn a lineup into a showup. 388 U.S. at 236, 87 S.Ct. at 1926. In this case, practices similar to those which the Wade rule is henceforth to deter did occur. Where the showup was held only two hours before the lineup, the lineup can hardly be seen as a fair or objective proceeding.

Nor can I find, in considering the “totality of circumstances” surrounding this case, any showing of state necessity that may justify holding a lineup immediately after a showup. The state stresses the fact that Mrs. Barger was hysterical at the showup. It appears to be claiming either that since her first encounter with the defendant was inconclusive, police efficiency required a second, or that the procedures were not prejudicial since Mrs. Barger’s condition in some way eradicated all memory of the previous confrontation. It is not at all clear that Mrs.

Barger was hysterical: She was sufficiently in control to give the police a detailed description of her assailant. She was sufficiently m control so that the police officers thought a showup could be immediately fruitful to determine if their investigation was on the right track. Moreover, unlike the justification offered for a showup immediately following commission of a crime, there is no legitimate state interest in securing a positive identification that can be held to override the prejudice of these procedures. In Palmer v.

Peyton, 359 F.2d 199, 202 (4th Cir. 1966), which is cited approvingly in Stovall, the court holds that the state may not “rely on an identification secured by a process in which the search for truth is made secondary to the quest for a conviction.” I hold that the conduct of the pretrial identification procedure violated appellant’s constitutional rights and that the resultant evidence was inadmissible at trial. Moreover, the state did not offer sufficient independent corroborative evidence to justify admitting Mrs. Bar-ger’s in-court identification of Raymond. E. g., Wright v. United States, 131 U.S.

App.D.C. 279, 404 F.2d 1256, 1261 (D.C. Cir. 1968); Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161 (D.C.Cir. 1969). The incident in question took place at dusk. Mrs. Barger was a 58-year-old woman who had been surprised by her attacker and dragged on her back into the nearby gangway. Where the witness’ powers of observation are in doubt to that extent it cannot be said that the in-court identification “had a source sufficiently independent of the [pretrial identifications] to be free from [their] taint.” Frazier v. United States, supra at 1170.

II Defendant’s second claim relates to the state’s failure to disclose the results of a laboratory test on defendant’s clothing to the defense attorney. At oral argument, the state conceded a duty to disclose this information, but contended that the duty was wholly fulfilled by disclosure to the defendant rather than to the defense counsel. This is a case of first impression. Cases dealing with the state’s duty of disclosure consider the scope of disclosure — the kinds of information that must be disclosed and the circumstances triggering that duty — and not the party to whom the information is to be given.

In each case, the contours of the state’s responsibility to disclose are determined by considering what the defense counsel needs to know in order to insure a fair trial. The test of what evidence has to be revealed is such that the only reasonable recipient of that information is the defense attorney. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.

Ed.2d 215 (1962) held that the prose-ration's nondisclosure of evidence violated due process where that evidence is “material either to guilt or to punishment.” The court’s rationale was stated simply: “Society wins not only when the guilty are convicted but when criminal trials are fair . . . ” 373 U.S. at 87, 83 S.Ct. at 1197 (emphasis added). Barbee v.

Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964), extended the Brady rule, holding that the state’s duty was not dependent on the diligence of counsel in requesting the evidence in question: “In gauging the nondisclosure in terms of due process, the focus must be on the essential fairness of the procedure and not on the astuteness of either counsel.” 331 F.2d at 846 (emphasis added). If there is a duty to disclose in the instant case — as the state admits — it can only be grounded in the importance of the evidence to the defense’s case at trial.

To then maintain that the state’s duty is fulfilled before that information is squarely in the hands of the defense counsel is wholly inconsistent. The state’s argument implies either an additional burden on the attorney to ask the defendant for any information which the state may or may not have disclosed, or alternatively, on the defendant himself to disclose that infomation to his attorney. We can find no support for either contention. The state’s duty to disclose which is not to be conditioned on the defense attorney’s request for information from the prosecution, Barbee Warden, supra, Levin v.

Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (D. C.Cir. 1966), cannot now give rise to a new burden on defense counsel to specifically request that information from the defendant. The state principally emphasizes the defendant’s choice in withholding this information or in furnishing it to his attorney. Where the items involved are material to an accused’s defense at trial, and are, as in this case, technical data uniquely in the possession of the police, there can be no informed choice on the part of the defendant.

The state’s argument implies that fulfillment of the duty to disclose, which was triggered by the significance of the state’s information to the defendant’s case whether or not specifically requested by “astute” counsel, would rely finally on the “astuteness” of the defendant in using the information to its best advantage. We cannot agree that the state’s duty to disclose evidence, as required by due process, can be discharged by disclosure to the defendant rather than to the defense counsel.

The district court’s denial of defendant’s petition is reversed and the cause is remanded to the district court for further proceedings. . A showup can be described as a “single suspect [confrontation] wherein a witness is presented with one individual and asked if lie can make an identification.” United States v. Clark, 294 F.Supp. 44, 49 (D. D.C.1968). . Several cases have upheld showup-lineup combinations where the initial encounter was justified under Stovall and yielded an identification of the suspect at the outset. E. g., United States v. DeLeo, 422 F.2d 487 (1st Cir. 1970) ; "United States ex rel.

Garcia v. Follette, 417 F.2d 709 (2d Cir. 1969). In this case, Mrs. Barger did not identify Raymond at the initial showup and thus tlie danger of suggestion resulting from subsequent encounters with the defendant was exacerbated. . In United States v.

Wade, supra at 233, 87 S.Ct. at 1935-1936, the Court reviewed several state court decisions describing the numerous ways in which police single out their suspect during lineups, for example, where “all in the lineup but the suspect were known to the identifying witness . . . the other participants in a lineup were grossly dissimilar in appearance to tlie suspect only tlie suspect was required to wear distinctive clothing which the culprit allegedly wore . . . the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail . . . the suspect is pointed out before or during a lineup, and . . . the participants in the lineup are asked to try on an

article of clothing which fits only the suspect.” . The case of United States ex rel. Thompson v. Dye, 221 F.2d 763 (3d Cir. 1955), upon which the state principally relies, involves the scope of the prosecution’s duty of disclosure only. The state quotes the principle reaffirmed in Dye that “[e]vidente is not suppressed or withheld if the accused has knowledge of the facts and circumstances or if they otherwise become available to him during trial.” 221 F.2d at 767.

That principle refers to the court’s concern that disclosure bo used to equalize the resources of the defense counsel and the prosecutor, and thus that the defense attorney be given access only to information that would be beyond his competence to obtain in the ordinary course of criminal discovery, Where the information at issue consisted of statements made by one of the arresting officers to the prosecutor, the court concluded that “[h]ad the defense trial lawyer been without peer as an advocate he still could hardly have been held to putting the second arresting officer on the stand where there was every reasonable expectation that his story would dovetail with what [the other arresting officer] liad said.” 221 F.2d at 768.

In Hayes v. Wainwright, 302 F.Supp. 716 (1969), the court found no due process violation since the undisclosed information involved “evidence” of self defense that had been related to the sheriff by the defendant and was clearly within the attorney’s competence to discover. In the instant case, the results of police laboratory tests are conceded to fall within the scope of the prosecution’s duty of disclosure; the remaining question is whether that duty was discharged by disclosure to the defendant. . Levin v.

Katzenbacli, 363 F.2d 287 (1966), extends the prosecution’s duty of disclosure even beyond that defined in Barbee v. Warden, supra, to include evidence that was discoverable through due diligence on the part of defense counsel. 363 F.2d 287 (1966). See Giles v. Maryland, 386 U.S. 66, 100, 87 S.Ct. 793, 17 L.Ed.2d 737 (1966) (concurring opinion). . The state emphasizes the use of the word “accused'’ in United States v. Dye, supra at 767, where the court refers to evidence that the “accused has knowledge of”, or of the word “petitioner” in Hayes v.

Wainwriglit, supra at 718, where the court speaks of “information within petitioner's knowledge and thus available for his defense.” Depending upon the context, those words can function simply ns terms of art signifying either the "caused individually or counsel for the accused. The clear implication in the above cases is “counsel for the accused.” See note 4. Similarly in Brady v. Maryland, supra at 87, where the evidence at issue had been specifically requested by the defense counsel, the court speaks of the withholding of evidence “on demand of an accused.”