Biggers v. Tennessee Supplemental Brief in Opposition to the Petition for the Writ of Certiorari

    SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1967.

No. 237.

ARCHIE NATHANIEL BIGGERS, 
Petitioner,

v.
STATE OF TENNESSEE, 

Respondent

SUPPLEMENTAL BRIEF
In Opposition to the Petition for the Writ of Certiorari.

GEORGE F. McCANLESS, 
Attorney General, 

State of Tennessee.
THOMAS E , FOX,

Deputy Attorney General,
State of Tennessee.

St. L ouis Law Printing Co., I nc., 411-15 N. Eighth St., 63101. CEntral 1-4477,



IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1967.

No. 237.

ARCHIE NATHANIEL BIGGERS, 
Petitioner,

v.
STATE OF TENNESSEE, 

Respondent.

SUPPLEMENTAL BRIEF
In Opposition to the Petition for the Writ of Certiorari.

M ay It P lease t h e  C o u r t :

Counsel for the respondent, State of Tennessee, requests 
permission to file this supplemental brief in opposition 
to the petition for writ of certiorari in this cause on the 
question of whether or not the petitioner was denied due



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process of law by the identification procedure followed 
at the police headquarters shortly after the petitioner wTas 
taken into custody August 18, 1965, upon another charge.

Mrs. Margaret Work Beamer, who was' raped about 
9:00 p. m., January 22, 1965, was escorted to police head­
quarters by members of the police force who informed her 
that they had a suspect for her to view and determine if 
she could—whether or not he was the man who raped her. 
When the petitioner was brought into her presence after 
her arrival there, she looked at him and asked that he 
say the words “ Shut-up, or I will kill you” , whereupon 
she was able to positively and unequivocably identify the 
petitioner as her assailant (Tr. 17).

She was asked what characteristics petitioner had which 
enabled her to identfy him and she replied (Tr. 17):

“ Well, he has the voice of an immature youth—I 
call it an immature youth. I have teen-age boys— 
and that was the first thing that made me think it 
was the boy.”

She further identified the petitioner in these words (Tr. 
18-19):

“ No, when he placed his face against mine—that 
was another thing, his skin was rather smooth, as, 
you know, someone that didn’t have to shave. His 
hair was the next thing.

What about his hair?
Sort of bushy.

Yes, the hair—a little longer than it is now, but— 
at the time when I identified him it was a little 
longer-----

*  *  *#  # *



What about his physique!
Well, as I said, the size. He had—well at the time 

he raped me, his shirt was unfastened, and he had a 
large kind of flabby abdomen and breasts.”

Contrary to the insistence of counsel for the petitioner 
Mrs. Beamer did identify the petitioner as the person 
who raped her at the trial, particularly at page 60 of the 
transcript, when she replied, “ Yes, he did. Yes, sir.” , in 
response to the question, “ Mrs. Beamer, I may have al­
ready covered this, but, to be sure, I want you to tell the 
jury whether or not the defendant actually penetrated 
your vagina with his sexual organ” . There was but one 
defendant in the courtroom, so there is no doubt about 
who was being referred to when the word “ defendant” 
was used. This happened or something similar to it hap­
pened throughout the trial.

Also, contrary to petitioner’s contention, there is no 
basis for the insistence that the identification procedure 
was conducted in a manner which tended to suggest to 
Mrs. Beamer that the petitioner was the one who raped 
her, or that she was influenced to any extent by anything 
the police did or said in her identification of him; but, on 
the other hand, the record read fairly shows that Mrs. 
Beamer was exceedingly cautious in her identification of 
the petitioner and that her identification of him was most 
reliable. Counsel for petitioner would have this Court 
believe that Mrs. Beamer did not identify the petitioner 
until his picture appeared as the perpetrator of a similar 
offense in the Nashville Tennessean on the morning of 
August 18, 1965, but again a fair reading of the record 
shows beyond doubt that this contention is unwarranted 
or unjustified (Tr. 17 and 47). One State witness on 
cross-examination did indicate to the contrary (Tr. 41), 
but admitted on redirect examination that he did not 
know (Tr. 42).



4

In the first place, she viewed thirty to forty photo­
graphs of possible suspects (Tr. 39) and she was called 
or driven to City Hall for the purpose of identifying the 
person who raped her several times between the date on 
which she was raped and the date of the petitioner’s 
arrest (Tr. 25 and 73). She never identified any suspect. 
The closest she came was the observation that one of the 
photographs portrayed a man who had features like the 
petitioner (Tr. 15).

The foregoing circumstance itself adds a great deal of 
credence to Mrs. Beamer’s identification of the petitioner 
as her assailant when coupled with the undisputed evi­
dence that petitioner had no police record until his arrest 
on August 17, 1965. Until that date (date of petitioner’s 
arrest) they had no photographs of him for Mrs. Beamer 
to identify and he was not available for her to identify 
at City Hall during the period of time between commis­
sion of the offense and the petitioner’s arrest.

Mrs. Beamer’s daughter who saw the petitioner just 
after his attack upon her in their home could not identify 
the petitioner at the trial, but she was able to describe 
the person who attacked her mother as a large person, 
Negro, who had a young voice (Tr. 83-84). Her (Mrs. 
Beamer’s) daughter corroborated her mother’s testimony 
by testifying that petitioner on the occasion wore a short 
sleeved shirt and petitioner “ said he would kill me and 
her both” (Tr. 84).

One reason advanced to show that petitioner was denied 
“ due process” during his identification is that he was 
sixteen years of age, had a ninth grade education and no 
police record (Petitioner’s Brief, Pages 15-16). (The rec­
ord does not show the extent of his education.) The 
record does not indicate that Mrs. Beamer identified peti­
tioner because of his inexperience or lack of education



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but because of his physical appearance and the sound of 
his voice.

Before United States v. Wade, 87 S. Ct. 1926, Gilbert 
v. California, 87 S. Ct. 1951, and Stovall v. Denno, 87 8. 
Ct. 1967, there may have been grounds for insisting that 
requiring petitioner to speak before Mrs. Beamer violated 
his Fifth Amendment right not to give evidence against 
himself and such an argument was the basic argument 
made in petitioner’s behalf even on appeal before the 
State Supreme Court, but since the decision on those cases 
there no longer remains any room for such an argument.

It is not suggested what an attorney or relatives might 
have done in this particular case had they been present. 
They certainly could not have objected to petitioner’s 
being required to talk and if petitioner had been placed 
in a lineup Mrs. Beamer surely would have been able to 
identify him. She had looked at suspects and photographs 
of suspects for a period of nearly seven months and had 
made no erroneous identification of any of them. Ex­
hibiting suspects to a witness separately over a long 
period of time could very well be a greater safety meas­
ure for a not guilty person than placing them all in one 
line on one occasion.

Mr. Wall in his Treatise, Eye-Witness Identification in 
Criminal Cases, lists among a number of “ danger sig­
nals” which he thinks might increase the probability of 
a mistaken identification the fact that a considerable 
period of time elapsed between the witness’ view of the 
criminal and his identification of the defendant. Counsel 
for the respondent insist that such a conclusion if valid 
at all is not applicable in this case because Mrs. Beamer 
under the circumstances exhibited an attitude of coolness 
and clearness of mind that might have not been possible 
due to her being emotionally upset at the time or immedi­
ately after the incident occurred.



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Some of the other “ danger signals” listed by Wall were 

present in the identification of petitioner. The petitioner 
could not be identified by Mrs. Beamer’s daughter and 
Mrs. Beamer had a limited opportunity to see the peti­
tioner before the crime; but these are minimized by the 
totality of the circumstances, particularly the lack of any 
discrepancy between her description of him and his actual 
appearance and the fact that both petitioner and Mrs. 
Beamer were of the same race and the fact that Mrs. 
Beamer made a very positive identification of the peti­
tioner after seeing him and hearing his voice.

The rule to be followed in this case since it came after 
the decisions in United States v. Wade, supra, and Gilbert 
v. California, supra, is found in Stovall v. Denno, supra, 
in these words:

“ The practice of showing suspects singly to per­
sons for the purpose of identification, and not as part 
of a lineup, has been widely condemned. However, a 
claimed violation of due process of law in the con­
duct of a confrontation depends on the totality of the 
circumstances surrounding it . . . ” (p. 1972).

In Stovall, the totality of the circumstances surround­
ing the confrontation in such a case seems to be the lack 
of any other alternative even though the identifying wit­
ness, Mrs. Behrendt, was in such a condition it could not 
be determined whether or not she would long survive the 
attack made upon her, a circumstance which incidentally 
might have rendered her identification most unreliable.

What amounts to “ due process” depends upon the cir­
cumstances. In Bradford v. School District No. 20, 244
F. Supp. 768, 773, it was defined thusly:

“ What constitutes ‘due process’ within the mean­
ing of the Fourteenth Amendment cannot be precisely



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defined. It must be decided in the light of that which 
is just and reasonable, considering all factors, and 
cannot unduly confine those officials who have the 
responsibility of governing. As stated by Mr. Justice 
Frankfurter in his concurring opinion in Joint Anti- 
Fascist Refugee Committee v. McGrath, 341 IT. S. 123, 
163, 71 S. Ct. 624, 644, 95 L. Ed. 817 (1951):

‘The precise nature of the interest that has been 
adversely affected, the manner in which this was 
done, the reasons for doing it, the available alter­
natives to the procedure that was followed, the 
protection implicit in the office of the functionary 
whose conduct is challenged, the balance of hurt 
complained of and good accomplished—these are 
some of the considerations that must enter into 
the judicial judgment.’ ”

The totality of the circumstances surrounding the iden­
tification of the petitioner in this case is not inconsistent 
with the foregoing principle. The burden is upon peti­
tioner to show that the procedure followed was in fact 
unfair to the petitioner. This they have been unable to do. 
An investigation extending over several months cannot as 
a practical matter be done with all the safeguards and 
finesse that may be employed when only one “ real hot” 
prospect and one investigation is involved. To follow such 
procedure in an extended type of investigation more gen­
eral than specific would involve an enormous amount of 
time and police man hours, more than perhaps any muni­
cipal police force has available; nor is such an abundance 
of caution necessary in an investigation as this was, one 
in which neither the police nor the victim appear to be 
highly emotional and excited to the extent that they are 
determined to have some person identified as the offender.

In view of all the foregoing, counsel for the State of 
Tennessee insist that the petition for certiorari in this



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cause should be dismissed and the judgment of the Ten­
nessee Supreme Court left undisturbed.

Respectfully submitted,

GEORGE F. McCANLESS, 
Attorney General,

State of Tennessee,

THOMAS E. FOX,
Deputy Attorney General, 

State of Tennessee.

Certificate of Service.

I, Thomas E. Fox, Deputy Attorney General of the State 
of Tennessee, certify that I have mailed copies of the 
foregoing supplemental brief in opposition to the petition 
for writ of certiorari to:

Honorable Michael Meltsner 
Attorney at Law 
10 Columbus Circle 
New York, New York
Honorable Anthony G. Amsterdam 
3400 Chestnut Street 
Philadelphia, Penna.
Honorable Avon N. Williams 
Attorney at Law 
Charlotte at Fourth 
Nashville, Tennessee

on this the 5th day of December, 1967.

Thomas E. Fox,
Deputy Attorney General.