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United States v. Marks

argued: June 22, 1976.


Appeal from the United States District Court for the Eastern District of Pennsylvania. District of Columbia Civil No. 74-3006.

Adams, Hunter and Weis, Circuit Judges. Hunter, Circuit Judge, dissenting.

Author: Weis

Weis, Circuit Judge.

A rape victim's statement that her assailant wore a blue knit cap was countered by the accused's testimony that he never wore hats. The ease with which a person may don a cap led the state trial judge to disparage that phase of the defense in terms which the federal district court thought so prejudicial as to require habeas corpus relief. After our own review of the complete trial record, we disagree with the district court and vacate its order.

Petitioner was convicted in the Philadelphia Court of Common Pleas of a savage rape which occurred after dark on the evening of March 8, 1969. The details of the occurrence were not seriously disputed and the critical issue in the case was one of identification.*fn1

At the trial, the victim testified that she had been walking along the sidewalk of a lighted street when the defendant and his companion, walking in the opposite direction, touched her as they passed. She turned, looked back over her shoulder at them, and continued on her way. Several moments later, the two men approached from behind and seized her. They then dragged her into a dark alley and later onto a nearby porch where they repeatedly raped her. During the course of the events, she was able to see their faces and, at a later date, she positively identified the defendant. She also noted that he had worn a dark blue knit hat.

As the attack continued, a passerby named Carroll came upon the scene. He scuffled with the defendant who fell over the porch railing and onto the ground, a distance of about five feet, as photographs of the scene show. Carroll then heard the defendant cry that his leg was broken. Although at the trial he was able to describe the assailant as being similar in height, weight, complexion and age to the defendant, Carroll could not be certain in his identification during the courtroom confrontation. He too recalled that the assailant had worn a blue knit cap.

On March 21, 1969, two weeks after the rape, the police arrested the defendant at his home. The officers at trial testified that, at the time of the arrest, defendant was limping and one ankle was swollen so severely that he could not lace the shoe on that foot. A photograph taken on the night of the arrest confirms this fact. One of the officers asked defendant about the condition of his leg and he replied that he did not know how he had received his injury because he had been drunk at the time.

The defendant testified that he did not know which pair of shoes he had worn on the night of his arrest and denied either having injured his foot or having had any conversation with the police about it. In addition, defendant, his wife and his mother each testified briefly that he did not wear hats. In response to a question, defendant said that he "never wore a hat, never in my life."

During the course of his lengthy instructions to the jury, the trial judge said:

"Now, members of the jury, there was testimony that the defendant never wears a hat, or may, or may never wear a hat except when he is going out to rob a bank, or never wears a hat unless he is going ice skating, or never wears a hat unless he is going out to commit some crime, or whatever. So what significance that has, I don't know. You must say."*fn2

At the conclusion of the charge, the court invited counsel to submit requests for additions or corrections, but the defense lawyer submitted neither exceptions nor requests for modification.*fn3

After the jury returned its verdict of guilty, counsel for defendant filed motions for a new trial and in arrest of judgment on the ground that the verdict was against the evidence and the law, but no complaint about the charge was registered. When arguments on the motions were scheduled, the defendant requested permission to personally review the trial notes and the court granted a continuance of three weeks for that purpose. At the rescheduled hearing, counsel for defendant said, "I went over the notes again. I still cannot find any reason to argue the motion for a new trial."

The defendant addressed the court, stating that he had gone through the notes, along with a few of his friends at the prison who were acquainted with the law, and he still wondered why he had been picked out. On this point, the Assistant District Attorney revealed that defendant had been implicated in the rape by his companion who was in custody of the police on another matter. Once again, after having ...

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