Charles Arthur Gray v. Edward C. Ellsworth, Jr., Warden

U.S. Court of Appeals for the Ninth Circuit
Charles Arthur Gray v. Edward C. Ellsworth, Jr., Warden, 438 F.2d 130 (9th Cir. 1971)

Charles Arthur Gray v. Edward C. Ellsworth, Jr., Warden

Opinion

PER CURIAM:

The district court held that appellee was denied due process by admission at his trial for burglary of the identification testimony of a witness who had viewed appellee before trial in a “one-man lineup” at which appellee did not have assistance of counsel. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The court ordered appellee discharged from custody unless the state gave him a new trial.

We are satisfied from a reading of the trial record that the constitutional error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

The witness’ in-court identification was qualified and uncertain — she candidly agreed that she was “not really sure” that appellee was the burglar. On the other hand, the other evidence of ap-pellee’s guilt was all but conclusive: ap-pellee’s fingerprint was found at the scene of the crime on a piece of glass from the window which the burglar broke to effect entry; and a prescription bottle issued to appellee and marked with his name was found with the loot which was abandoned miles away. It is our belief that there is no reasonable possibility that the identification testimony might have contributed to appel-lee’s conviction.

Reversed.

Reference

Full Case Name
Charles Arthur GRAY, Petitioner-Appellee, v. Edward C. ELLSWORTH, Jr., Warden, Respondent-Appellant
Status
Published