The opinion of the court was delivered by: FORMAN
This matter arises on an order obtained by the petitioner, Albert Herman Landeros, directing the respondent, George F. Goodman, Warden of the New Jersey State Prison, Trenton, New Jersey, to show cause why a writ of habeas corpus should not issue in accordance with his petition filed herein.
Petitioner was convicted by a jury in the Union County Court, Law Division, on October 15, 1954, of the crime of rape. He was sentenced on January 21, 1955 to a term of 10 to 12 years. On his appeal the judgment was affirmed by the New Jersey Supreme Court, State v. Landeros, 1955, 20 N.J. 76, 118 A.2d 524. Certiorari was denied by the United States Supreme Court, Landeros v. New Jersey, 1956, 351 U.S. 966, 76 S. Ct. 1025, 100 L. Ed. 1486. The indictment had charged him with having had carnal knowledge of the complaining witness, Lois Stiles, against her will, on the night of January 30, 1953, in Westfield, New Jersey. She gave a description of her assailant to the Westfield police, and subsequently was taken by the police to confront petitioner on two separate occasions, the first time at petitioner's place of employment in Belle Mead, New Jersey, on February 3, 1953, where, though the record is contradictory, it would appear, for all practical purposes, that she did not identify him; and secondly, at the Rahway, New Jersey police headquarters, on March 9, 1953, where petitioner had been brought after being arrested on a charge of assaulting a woman in that city, at which confrontation, petitioner was identified by Lois Stiles as her attacker.
Petitioner alleges that Lois Stiles was unduly influenced by the police in their reference to him as a rapist, and by the circumstances of his confrontation, and that both of these factors resulted in her falsely accusing him of being her attacker. He further alleges that documents in the police files were 'widely different' from what they had been represented to be by the prosecution at the jury trial -- including a description by Lois Stiles of her assailant which was 'entirely contrary to the actual appearance of the petitioner'; that all these things, including 'deliberate, willful, and continued suppression (of the evidence) by the police and the prosecution at the trial', and the failure of the Supreme Court of New Jersey to order a retrial, constituted a denial of petitioner's fundamental constitutional rights.
At the outset, it does not pass unnoticed that petitioner, in presenting his petition for a writ of habeas corpus, has failed to exhaust the remedies available to him in the state courts, as required by 28 U.S.C. § 2254,
Ex parte Hawk, 1944, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572. No petition for a writ of habeas corpus has ever been presented by him in the state courts. However, implicit in the assertions made by petitioner in the appeal of his conviction to the New Jersey Supreme Court, State v. Landeros, supra, are the charges of violation of his constitutional right to due process, now before us.
It has been held in this circuit, in U.S. ex rel. Smith v. Baldi, 1951, 192 F.2d 540, that a denial by the United States Supreme Court of an application for a writ of certiorari is, essentially, a denial without prejudice; and the United States Supreme Court, itself, has declared that such denial 'carr(ies) no weight in a subsequent federal habeas corpus proceeding', Darr v. Burford, 1950, 339 U.S. 200, 216, 70 S. Ct. 587, 596, 94 L. Ed. 761. Despite this, however, the Supreme Court of the United States did include in its denial of Landeros' application the statement that the denial was made 'without prejudice to an application for a writ of habeas corpus in an appropriate United States District Court'. In the light of the Court's language, and the fact that the constitutional question had been raised in the appellate proceedings in the New Jersey Supreme Court, I was constrained to hear the petition on its merits, notwithstanding failure to resort to habeas corpus in the New Jersey courts. Consequently, an order to show cause why petitioner should not be granted a writ of habeas corpus was signed on February 4, 1957, and a hearing was held on March 4, 1957.
The only question which this court can properly entertain in the instant proceeding, is whether petitioner's constitutional rights have been denied. The points which are at issue, therefore, are whether there has been a suppression of evidence by the prosecution, and if so, whether such suppression was prejudicial to petitioner; and further, whether the circumstances surrounding petitioner's identification by the complaining witness constituted a denial of due process and equal protection of the law.
There is a sufficient body of opinion for the conclusion that suppression of evidence implies elements of willfulness and knowledge amounting to bad faith on the part of the prosecution, or officers of the prosecution.
In Pyle v. Kansas, 1942, 317 U.S. 213, 63 S. Ct. 177, 87 L. Ed. 214, the Supreme Court of the United States remanded habeas corpus proceedings to the Supreme Court of Kansas for a determination of the truth of allegations made therein, including that of suppression of evidence, but the Court made 'suppression' conjunctive with knowledge by the authorities of the suppression. In that case, 317 U.S. on page 216, 63 S. Ct. on page 178, the Court stated the following:
'The record of petitioner's conviction, while regular on its face, manifestly does not controvert the charges that perjured evidence was used, and that favorable evidence was suppressed with the knowledge of the Kansas authorities. No determination of the verity of these allegations appears to have been made. The case is therefore remanded for further proceedings.' (Emphasis supplied.)
It is interesting to note that when the case, under the name of Pyle v. Amrine, was finally disposed of by the Kansas Supreme Court, 1945, 159 Kan. 458, 156 P.2d 509, at page 518 that court said:
'In the absence of allegations amounting to bad faith or willful oppression in office we would be loath to hold that because the prosecuting officers saw fit to present a certain piece of evidence to a jury in one case and decided not to use it in a companion case, the convicted defendant in the first case should be released on a writ of habeas corpus on the ground that evidence favorable to him had been suppressed.'(Emphasis supplied.)
In Woollomes v. Heinze, 9 Cir., 1952, 198 F;2d 577, 579, the court said:
'Deliberate suppression of evidence may well constitute proper ground for release where there has been connivance or actual fraud by the prosecution preventing use of evidence by the accused at his trial.' (Emphasis supplied.)
And in Burns v. Lovett, 1952, 91 U.S.App.D.C. 208, 202 F.2d 335, 339, affirmed 1953, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508, the court said:
'Habeas corpus has been held to lie in criminal cases * * * where there has been * * * a deliberate suppression of favorable evidence * * *.'(Emphasis supplied.)
There is a growing tendency in the courts of this circuit to hold that, in criminal matters, the essence of a fair trial calls for a higher duty on the prosecutor in weighing contradictory evidence than has heretofore been the custom, and where necessary in the interests of justice, in making such contradictory evidence available to defense counsel. In U.S. ex rel. Thompson v. Dye, 3 Cir., 1955, 221 F.2d 763, 769, Judge Hastie, in a concurring opinion, says:
And in United States v. Rutkin, 3 Cir., 1954, 212 F.2d 641, 644, the court held that 'The deliberate suppression by the prosecution of evidence favorable to a defendant may constitute a denial of due process.'
With the foregoing as the standard by which to measure petitioner's charges of suppression of evidence, a closer examination of them will be made now.
Among petitioner's several documents and records accompanying his application, is a 'supplemental memorandum and supplemental appendix'
which he had submitted to the Supreme Court of New Jersey. The appendix contains some 24 items which include various police and probation reports, and records of criminal charges. These items relate either to the instant case or to other police matters in which petitioner was in some way involved. It is not clear whether petitioner intends to assert suppression of all these items. Many of the items in question are inferentially referred to as being evidential of a 'pattern' by which the truth was suppressed. The items which petitioner seems to more directly charge as suppressed evidence are the prosecuting witness' description of her assailant, as related to Lt. Hann and Detective Duelks of the Westfield police on January 31, 1953, and the report which Lt. Hann submitted on February 25, 1953, concerning the visit to Belle Mead on February 3, 1953.
The substance of petitioner's allegations relates to the fact that the prosecuting witness' description of her attacker to the Westfield police did not conform to petitioner's actual description; and that Lt. Hann's report stated that the prosecuting witness, Lois Stiles, told Lt. Hann, after the confrontation of Landeros in Belle Mead, that Landeros was not the man who had raped her.
It should be noted that at the trial the prosecution sought to interrogate Lt. Hann concerning the description given to him by Lois Stiles on January 31, 1953 in the following excerpt from the testimony.
* * * 'Q. Did you interview Lois Ann Stiles on the 31st of January, 1953, in connection with the assault and rape on the prior night?
'Q. At that time did you obtain from Lois Ann Stiles a description of the person who was alleged to have assaulted and raped her on the previous night?
'Mr. Burrell: If your Honor please, I object to that on the ground this is hearsay.
'The Court: Well, the answer is yes or no. It could only be answered yes or no.
'Q. What description was given to you be Lois Ann Stiles of the man who attacked her on the prior night?
'Mr. Burrell: I object to that.
'The Court: Objection sustained, because it would be hearsay. * * *' R. pp. 49a and 50a.
The original description of the accused described him as 5'6', and 'lightcolored'. Petitioner is 'light-colored', but is 5'10'. At the trial, Lois Stiles described her assailant as being 5'8', still not accurate. But the defendant was identified in his true person to the jurors. He was before them so that they could seel what he looked like. Yet they did not view the discrepancy in Lois Stiles' description as sufficiently important to affect their decision.
Another point emphasized by the petitioner is the fact that Lois Stiles had not described her attacker as having a moustache, whereas he does, in fact, have a prominent one. It is pertinent to note, however, that this is an omission in a description, not altogether improbable under the circumstances, and not having the same significance as a mis-description reversing the facts -- as would be describing her attacker as having a moustache, when he did not. The latter situation would be more persuasive of faulty identification. There may be times when errors of omission are as damaging as errors of commission -- but this is not one of those times. It is most significant, too, that the Rahway police, after apprehending Landeros, sent out a teletype description wherein the police themselves, certainly more experienced in such matters than the victim of the rape, also omitted mention of the moustache.
Petitioner makes much of the report prepared by Lt. Hann of the Westfield police, relative to the visit to Belle Mead for the confrontation of Landeros. This report as mentioned earlier, has Lois Stiles stating that Landeros was not the man. However, it was written some three weeks after the date of the visit to Belle Mead, and is very different in tone fron a report submitted by an accompanying police officer from Cranford, a Lt. Rosendale, only two days after the Belle Mead visit. The latter report stated that Lois Stiles and a woman who had been the victim of a rape in Cranford, 'could not make a positive identification'.
I do not pass judgment on which report is the more accurate. However, on this very matter of a difference or discrepancy in reports between the Cranford and Westfield police, petitioner's own Supplemental Memorandum, p. 8, contains the following footnote with regard to ascertaining a date:
'We would assume the Cranford records to be more accurate in this regard because made more contemporaneously with the Belle Mead trip.'
If I am to accept this form of reasoning then it would follow that Lt. Rosendale's report is to be considered 'more accurate.'
In the light of all the circumstances, the accusation that the Hann report was suppressed is unsupported. Further, the fact that Lois Stiles failed to identify Landeros before the police officers at the Belle Mead confrontation, or at the very least, that grave doubts concerning such identification surrounded her testimony at the trial, could not have been lost on the jury. As the Supreme Court of New Jersey noted in State v. Landeros, supra, 20 N.J. at page 79, 118 A.2d at page 526:
'Concededly, her testimony as to the Belle Mead incident was vacillating and uncertain and undoubtedly affected her credibility in so far as her identification of the defendant was concerned.'
But, as the court there concluded, it was for the jury to weigh her inconsistencies and determine their effect upon her credibility.
'The trial court, at the defendant's insistence, specifically charged that in considering the weight to be given to the alleged identification of the defendant by the complaining witness it 'must consider her prior failure to openly identify the same defendant at Belle Mead Depot * * *.' It likewise charged:
"The jury must weigh and consider all the evidence, including any contradictions and inconsistencies in the evidence, including the question of identification and the weight of such identification, and if the jury, after considering and weighing all the evidence, is not satisfied beyond a reasonable doubt that the complaining witness has identified the defendant as her attacker accurately and truthfully, he should be acquitted". State v. Landeros, supra, 20 N.J. at page 83, 118 A.2d at page 528.
It is quite apparent from the foregoing, therefore, that the jjry entered into its deliberations after being put on notice concerning inconsistencies and contradictions in the testimony of Lois Stiles.
Related to this situation is the charge by petitioner that Lois Stiles gave testimony which the prosecution knew to be false. This concerns the fact that at the trial, Lois Stiles stated that during the time she was at Belle Mead, she wasn't sure that petitioner was the man who attacked her, but that on the way home from Belle Mead, she did become sure that it was he, and so informed either Chief Pfirrmann or Lt. Hann, the accompanying Westfield police officers. After a recess which followed soon after this testimony, Lois Stiles voluntarily corrected her testimony by saying that, after she had become convinced of the identity of her attacker, and that it was the petitioner, she related this to someone other than the accompanying police.
Petitioner now claims that the prosecution was under a duty to put witnesses on the stand to corroborate Lois Stiles' identification of petitioner. This demand for corroboration, however, is not clear. If petitioner is demanding corroboration, in general, of her testimony identifying petitioner on the basis that her testimony was insufficient to support the finding of a verdict of guilty, it is beyond the scope of this court's inquiry, for the instant petition would then be in the nature of an appeal from a state court decision. See United States ex rel. Brogan v. Martin, supra, 3 Cir., 238 F.2d 236. If, however, petitioner is directing his demand for corroboration to the Belle Mead identification, it is then incumbent to ask how the prosecution is expected to corroborate an identification which was not, in fact, communicated to them. The prosecution's own witness, Lois Stiles, after correcting herself on earlier testimony, testified that she did not communicate to the police her lated belief in petitioner's identity as her attacker. And the police records themselves -- which petitioner himself points out -- disclose no such communication to them as a result of the Belle Mead visit. In fact, a report of March 11, 1953 made by Lt. Hann and Det. Duelks of the Westfield police, following Lois Stiles' identification of petitioner at Rahway, concludes with the following:
'We asked Lois Stiles why she did not identify Albert Landeros as her attacker when she saw him at Belle Mead, N.J.; she said at that time she was sure it was him but was afraid to say it was him because the lady from Cranford did not say it was him.'
The prosecution was under no duty to corroborate this statement of their own witness, nor would it, in effect, have been of any consequence. In fact, any testimony offered as to conversations not made in the presence of the petitioner would have been subject to objection as hearsay, an objection which petitioner raised on a number of occasions at the trial. The charge ...