Biggers v. Tennessee Brief for Respondent

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM , 1967.

No. 237.

ARCHIE NATHANIEL BIGGERS, 
Petitioner,

v.
STATE O F TENNESSEE, 

Respondent

On Writ of Certiorari to the Supreme Court of Tennessee.

BRIEF FOR RESPONDENT.

GEORGE F . McCANLESS,
Attorney General,

State of Tennessee,
ROBERT F. HEDGEPATH, 

Assistant Attorney General, 
State of Tennessee, 

Attorneys for Respondent.

St. Louis Law Pbinting Co., Inc., 411-15 N. Eighth St„ 63101. CEntral 1-4477.



INDEX.

Page
Opinion below ............................................................... 1
J  urisdiction ..................................................................  2
Constitutional provisions ............................................ 2
Question presented.......................................................  2
Statement of the case ..................................................  3
Argument ...................................................................... 5

Cases Cited.
Barrett v. State, 190 Tenn. 366, 229 S. W. 2d 516

(1950) .......................................................................  5
Bryant v. United States, 244 F. 2d 411 (5th Cir. 1957) 6
Gilbert v. Calif., 388 U. S. 263 (1967) .......................  6,7
Holt v. United States, 218 U. S. 245 (1910) ..............  6
Johnson v. Commonwealth, 115 Penn. 369, 9 Atl. 78

(1886) .......................................................................  5
Johnson v. State (Texas), 318 S. W. 2d 76 (1958) . . .  5
Lenoir v. State, 197 Md. 495, 80 Atl. 2d 3 (1951) . . . .  5
Palmer v. Peyton, 359 F. 2d 199 (4th Cir. 1966) ......  7
Rochin v. Calif., 342 IT. S. 165 (1952) .......................... 6
Ross v. State, 204 Ind. 281, 182 N. E. 865 (1932) . . . .  6
Schmerber v. Calif., 384 U. S. 757 (1966) .....................  6
Stovall v. Denno, 388 IT. S. 293 (1967) ........................ 6,7,8
U. S. v. Wade, 388 IT. S. 218 (1967) ........................... 6,7



n

Statutes Cited.
25 U. S. C., Section 1257 (3) ...................................... 2
Constitution of the United States:

Fifth Amendment .................................................... 2, 5,6
Sixth Amendment.................................................... 2,5,7
Fourteenth Amendment ......................................... 2,5, 7

Textbook Cited.
8 Wigmore on Evidence, Sec. 2265, pp. 386, 396 (Mc- 

Naughton, Rev. 1961) ..............................................  5



IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1967.

No. 237.

ARCHIE NATHANIEL BIGGERS, 
Petitioner,

v.
STATE OF TENNESSEE, 

Respondent.

On Writ of Certiorari to the Supreme Court of Tennessee.

BRIEF FOR RESPONDENT.

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

The respondent State of Tennessee for its brief respect­
fully shows to the Court:

OPINION BELOW.

The opinion of the Supreme Court of Tennessee was 
released on January 12, 1967, for publication and can now 
be found at 211 S. W. 2d 696.



—  2 —

JURISDICTION.

Jurisdiction was originally sought by the petitioner 
upon the authority of 28 U. S. C., Section 1257 (3). Cer­
tiorari was granted by this Court on June 12, 1967.

CONSTITUTIONAL PROVISIONS.

This case directly involves the Fourteenth Amendment 
and indirectly involves the Fifth and Sixth Amendments 
to the Constitution of the United States.

QUESTION PRESENTED.

Were the circumstances surrounding the identification 
of the petitioner by the victim such as to deny the peti­
tioner due process of law as guaranteed by the Fourteenth 
Amendment to the Constitution of the United States?



— 3 —

STATEMENT OF THE CASE.

Mrs. Margaret Work Beainer, a Negro mother of five, 
testified that she was assaulted and raped by the petitioner 
during the night of January 22, 1965. She was wrestled to 
the floor by the petitioner who wielded a butcher knife. 
He threatened to kill both her and her daughter.

Mrs. Beamer stated that although the rape occurred 
after the petitioner had forced her to leave home and 
accompany him to a nearby wooded area, she was face to 

j face with her assailant on the floor of the partially lighted 
\ hallway of her home (R. 14).

Mrs. Beamer, a licensed practical nurse for fifteen years, 
stated in the courtroom that it was the petitioner who 
raped her. This courtroom identification of the petitioner 
is found in numerous places throughout the record (R.
9,19). ilyxt'.n 0$/k. A/ I aW  <-

Following the rape which occurred on January 22, 1965, W? ‘‘ ̂  
Mrs. Beamer was shown pictures of possible suspects on < 
numerous occasions (R. 15). She stated that policemen ffczrf)
came to her home with pictures and that she also went to 
the police station to attempt identifications (R. 15). One 
officer testified that Mrs. Beamer was shown thirty to 
forty pictures (R. 38, 39). On one occasion, Mrs. Beamer 
picked out a picture of a man who “ had features” like 
her assailant (R. 15).

Mrs. Beamer identified the petitioner at the police sta­
tion on August 17, 1965 (R. 16). She said that she came 
to the police station to identify the suspect if she could 
(R. 17). The identification of the petitioner by Mrs. 
Beamer was based upon his size (R. 17, 19), his voice 
(R. 17), his smooth face (R. 18), and his hair (R. 18). 
She stated that he had the voice of an immature youth, 
medium pitched and soft (R. 17).

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— 4 —

Upon cross-examination, Mrs. Beamer stated that the 
police did not point out the petitioner to her but that she 
was able to identify him at police headquart'e'rS''f-E.^j24). 
.She ‘said that the identification about which she testifiecK 
represented the second time she had seen him, that she 
had been down to look at him before (R. 24, 25). This 
particular testimony was not developed further by the 
■defense. Mrs. Beamer further stated upon cross-examina- 
tionTharUghe got a good look at the petitioner during the 
rape and that^Ke"'knew him (R. 33, 34).

A number of police officers testified at the trial con­
cerning the police station identification. The substance 
of their testimony is that Mrs. Beamer was brought to 
headquarters to identify, if she could, a suspect. This 
was not the first such suspect she had been brought in 
to identify (R. 65). Although counsel for the petitioner 
objected to the State’s showing that the witness had been 
brought to police headquarters to attempt an identification 
of other suspects (R. 65), it later developed upon cross- 
examination that she had looked not only at pictures but 
at several people (R. 73). Mrs. Beamer was in one of 
the offices at police headquarters and the petitioner walked 
by in the hallway and spoke certain words. There was 
no lineup on this occasion. There was likewise no hesita­
tion in her identification.

The petitioner had been arrested during the night prior 
to the identification by Mrs. Beamer. He was arrested 
in connection with a separate offense and had been taken 
to the Juvenile Court (R. 46), at which time he had been 
advised of his constitutional rights in his mother’s pres­
ence (R. 52).

At the time Mrs. Beamer identified him, he was not 
being held for raping her



5

ARGUMENT.
This Court is asked by the petitioner to reverse the 

holding of the Court below which upheld his conviction 
for rape. It was insisted in the petition seeking certiorari 
that the petitioner was denied a fair trial guaranteed him 
by the Fourteenth Amednment to the United States Con­
stitution when he was forced to speak for identification 
purposes during a pretrial identification process at which 
time he was not represented by counsel. The respondent 
respectfully insists that there was no violation of the 
petitioner’s constitutional rights with respect to the Fifth 
Amendment guarantee that he should not be forced to 
give testimony against himself or the Sixth Amendment 
right that he is entitled to counsel.

This Court must determine whether or not the circum­
stances under which the defendant was identified by Mrs. 
Beamer at the pretrial identification process violated the 
standards of a fair trial which the petitioner is guaran­
teed under the Fourteenth Amendment to the Constitution 
of the United States.

The overwhelming weight of authority including the 
position always taken by this Court is that it is permis­
sible to require a suspect to speak for identification pur­
poses at a pretrial identification. The fact that an ac­
cused is required to speak certain words for the purpose 
of identifying him as the guilty party does not violate 
the Fifth Amendment privilege. 8 Wigmore on Evidence, 
Sec. 2265, pp. 386, 396 (McNaughton, Rev. 1961); Lenoir 
v. State, 197 Md. 495, 80 Atl. 2d 3 (1951); Johnson v. 
Commonwealth, 115 Penn. 369, 9 Atl. 78 (1886); Johnson 
v. State (Texas), 318 S. W. 2d 76 (1958).

The prosecution can require an accused to speak for 
purposes of identification and can require that he wear 
clothing which was worn by the guilty party. In Barrett 
v. State, 190 Tenn. 366, 229 S. W. 2d 516 (1950), the 
accused was required to wear a hat during the identifica-



-—  6 —

tion procedure. In Ross v. State, 204 Ind. 281, 182 N. E. 
865 (1932), the accused was required to grow a beard and 
place a handkerchief across his face.

This Court upheld a requirement that the accused wear 
a garment worn by the guilty party in the case of Holt v. 
United States, 218 U. S. 245 (1910). It is likewise no 
violation of the Fifth Amendment privilege to require the 
accused to furnish a specimen of his handwriting. Bryant 
v. United States, 244 F. 2d 411 (5th Cir. 1957).

The history of the privilege against giving testimony 
guaranteed by the Fifth Amendment teaches that it is only 
the forced communication of some fact concerning the in­
cident from the accused which is prohibited. The mere 
muscularization of the vocal cords for the purpose of 
identification is not the same as eliciting from the ac­
cused his awareness of facts concerning the crime. Holt 
v. United States, supra. This Court held that the privilege 
protected by the Fifth Amendment is limited to testi­
monial disclosures in the case of Schmerber v. Calif., 384 
U. S. 757 (1966). See also Rochin v. Calif., 342 U. S. 165 
(1952); U. S. v. Wade, 388 U. S. 218 (1967).

On June 12, 1967, this Court decided three cases which 
control the questions raised in this case. In U. S. v, Wade, 
supra, and Gilbert v. Calif., 388 U. S. 263 (1967), this 
Court held that a pretrial identification procedure is a 
critical stage in a criminal proceeding which requires the 
presence of defense counsel. It is conceded by the re­
spondent that the defendant was without counsel in the 
case at bar at the time of the identification, but neverthe­
less the holding in Wade and in Gilbert is not retroactive 
but prospective only. The holding in the case of Stovall 
v. Denno, 388 U. S. 293 (1967) resolves the question with 
respect to whether or not the respondent must be repre­
sented by counsel at his identification procedure.

Although the petitioner was not deprived of his Fifth 
Amendment privilege against self incrimination nor was



he deprived of his Sixth Amendment right to counsel, this 
Court is asked to review the circumstances of the identifi­
cation to determine whether or not they were so suggestive 
as to deprive the petitioner of his right to a fair trial as 
guaranteed by the Fourteenth Amendment to the Consti­
tution of the United States.

This Court in the case of Stovall v. Denno, supra, held 
that although the accused was not denied his Sixth 
Amendment rights because of the prospective application 
of Wade and Gilbert, the matter could be reviewed in or­
der to determine whether a fair trial was given him. This 
review for the purpose of determining whether or not the 
identification confrontation was fair, was made upon the 
authority of Palmer v. Peyton, 359 F. 2d 199 (4th Cir. 
1966). This Court stated that a “ claimed violation of due 
process of law in the conduct of a confrontation depends 
on the totality of the circumstances surrounding i t” . It 
is necessary that this Court review the circumstances 
surrounding the identification of the petitioner in the case 
at bar. It is significant that the Court in the case of 
Palmer v. Peyton reviewed the circumstances and deter­
mined that the accused therein was deprived of a fair 
trial as guaranteed by the Fourteenth Amendment al­
though that particular question had never been raised 
below. It is also significant that the Court in the Palmer 
case cited no authority upon which it reviewed the cir­
cumstances surrounding the identification.

The petitioner J&ggers was arrested during the night 
of August 16, 1967,/taken to juvenile court and released 
by the juvenile court to the metropolitan police of Nash­
ville. Mrs. Beamer had been raped months earlier and 
had from time to time visited the police department in an 
attempt to identify suspects. She was called to identify 
if possible the petitioner while he was being held on a 
separate and unrelated charge. He had been advised at 
the juvenile court of his constitutional rights as had his



—  8 —
mother. He was displayed to Mrs. Beamer at police head­
quarters and asked to speak certain words. She had re­
viewed police files and viewed suspects during the months 
since her rape. The identification which she made of Big- 
gers was not the product of suggestionput was the resulp 

/•of many mont hs of Investigation/Mrs. Beamer identified 
S h e” petitioner in Court also. There is no indication that 

her identification in the courtroom was the result of police 
suggestion nor is there any indication that her identifica­
tion in the courtroom was the result of or influenced by 
her identification before trial.

In the Stovall case the accused was handcuffed to one 
of five police officers who, along with members of the Dis­
trict Attorney’s Office, brought him to a hospital room in 
which the victim of the assault was confined. He was 
identified by the victim from her hospital bed after hav­
ing been required to speak “ words and voice identifica­
tion”. This Court held that the circumstances were not 
such as to indicate that the petitioner Stovall was de­
prived of his right to a fair trial as guaranteed by the 
Fourteenth Amendment. The facts in the Stovall case are 
very similar to the facts in the case at bar.

This Court should affirm the conviction of the petitioner 
for rape. There is nothing in the record to indicate that 
the petitioner has been deprived of his right to due proc­
ess.

Respectfully submitted,

GEORGE F. McCANLESS, 
Attorney General,

State of Tennessee,

ROBERT F. HEDGEPATH, 
Assistant Attorney General, 

State of Tennessee,
Attorneys for Respondent.

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