SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
On the afternoon of June 16, 1965, the third-floor apartment of Norma J. Sword was broken into, and from it were purloined a large stereo set, an extensive collection of records and a piggy bank containing coins. Information vital to the apprehension and prosecution of appellant as a participant in the affair was supplied by Lois M. Vines, a second-floor neighbor. Between 1:30 and 2:00 p. m. on that date, she heard noises emanating from Miss Sword's apartment, and minutes later saw two men, one with black gloves and a brown paper bag, exit from the basement of the building and leave in a green 1956 Plymouth. Mrs. Vines, checking immediately, found the door to the Sword apartment open, and located the stereo set just outside the building. Then perceiving the Plymouth returning, she retreated to her apartment, and through her window watched the two men put the stereo set into the car. She jotted down the license plate number and later gave it to the police, together with physical descriptions of the two men.
About 2:25 p. m., two police officers received a radio report on the housebreaking,
For the purpose of a possible identification, Mrs. Vines was brought to the station. Approaching it, she noticed the Plymouth, which had been parked in the vicinity, and remarked that it was the car she had seen earlier. She was taken inside, first to a room the transpirations in which the record does not reveal, and then to the threshold of an adjoining room. In the latter were appellant and about a half-dozen police officers in plain clothes. Several of the occupants, including appellant, were Negroes. Appellant was seated and, under Mrs. Vines' scrutiny, was requested to stand and turn around, which he did. At some point, Mrs. Vines identified him as one of the two participants in the pilferage of Miss Sword's apartment.
Indicted and placed on trial on counts of housebreaking
Three contentions are presented for our consideration. We find merit in but one,
What appellant does urge is that the circumstances surrounding his station house confrontation with Mrs. Vines induced an identification which was not the product of the witness' objective judgment, and that the Government's capitalization on it resulted in a deprivation of due process. Stovall confirmed the proposition that a confrontation with a view to identifying a suspect may be "so unnecessarily suggestive and conducive to irreparable mistaken identification that he [is] denied due process of law."
The record before us reflects conditions auguring the possibility that the limits set by the demands of due process were exceeded here. "A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification."
On the other hand, "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it,"
We are uninformed as to the characteristics which by Mrs. Vines' observation served to distinguish appellant from other persons.
Since the inadequacy of the record precludes our decision of the issue, we remand the case to the District Court
Remanded for further proceedings.
BAZELON, Chief Judge (dissenting):
I believe that due process is violated whenever the police unjustifiably fail to hold a lineup. Since mistaken identifications are probably the greatest cause of erroneous convictions,
I think this is what the Supreme Court meant in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Stovall it held that a defendant was entitled to show that the confrontation in his case "was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." 388 U.S. at 301-302, 87 S.Ct. at 1972 (emphasis supplied). The Court went on to say that "The practice of showing suspects singly to persons for the purpose of identification, and not as a part of a lineup, has been widely condemned." It affirmed defendant's conviction only because the record revealed that "the showing of Stovall to [the eyewitness-victim] in an immediate hospital confrontation was imperative." Id. at 302, 87 S.Ct. at 1972 (emphasis supplied).
The clear thrust of Stovall is that, without justifying circumstances, a one-man showup is too unnecessarily suggestive to satisfy due process. A lineup must be conducted unless it will necessitate a delay which is likely to make identification impossible or less reliable.
In Wade the Court pointed out that cross-examination at trial "cannot be viewed as an absolute assurance of accuracy and reliability [in courtroom identifications]. Thus, in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself." 388 U.S. at 235, 87 S.Ct. at 1936. In other words, we must insist on the fairest feasible identification procedures and not rely on the courts' ability to gauge the psychological effects of more suggestive procedures.
In light of Stovall and Wade, I must reject the majority's assertion that I am making a new "constitutional pronouncement."
Nor did the judge's action in regard to the requested instruction constitute error. His charge recognized appellant's alibi defense as "a legitimate and legal and proper defense." It included an identity instruction in effect admonishing that one of the "essential elements" the Government had to prove beyond a reasonable doubt was that appellant "was present at the time and place of the commission of the alleged offenses." The jury was told that appellant "does not have to prove his innocence," and the judge at a number of points restated the Government's burden of proof as to all elements. We think the charge thoroughly and fairly covered appellant's defensive theory, and communicated adequately the substance of his well taken position that he had no obligation to show that another was actually the transgressor.
We note that the station house confrontation occurred after appellant had been arrested on abundant probable cause, but also after his alibi was corroborated by a friend. The record does not tell us precisely how much time elapsed between the commission of the offenses and the confrontation. In this connection it will be recalled that we emphasized in Wise, supra, at 209, that "circumstances of fresh identification" are "elements that if anything promote fairness, by assuring reliability, and are not inherently a denial of fairness," and that "we do not consider a prompt identification of a suspect close to the time and place of an offense to diverge from the rudiments of fair play that govern the due balance of pertinent interests that suspects be treated fairly while the state pursues its responsibility of apprehending criminals." See also State v. Matlack, 49 N.J. 491, 231 A.2d 369, 373 (1967).
Moreover, we do not have before us all of the circumstances, and constitutional decisions, no less than judicial resolutions of other types, are not to be rested on inadequate factual support. United States v. Petrillo, supra, 332 U.S. at 12, 67 S.Ct. 1538; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 210-213, 55 S.Ct. 187, 79 L.Ed. 281 (1934); City of Hammond v. Schappi Bus Line, Inc., 275 U.S. 164, 171-172, 48 S.Ct. 66, 72 L. Ed. 218 (1927); Chastleton Corp. v. Sinclair, 264 U.S. 543, 548-549, 44 S.Ct. 405, 68 L.Ed. 841 (1924). We reserve the question our dissenting brother discusses for a concrete record, and an occasion of strict adjudicative necessity. Peters v. Hobby, 349 U.S. 331, 338, 75 S.Ct. 790, 99 L.Ed. 1129 (1955); Stefanelli v. Minard, supra, 342 U.S. at 120, 72 S.Ct. 118; Rescue Army v. Municipal Court, supra, 331 U.S. at 568, 67 S.Ct. 1409.