APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. D.C. Habeas Corpus No. 170.
Hastie, Aldisert and Weis, Circuit Judges.
This appeal presents the question whether impermissible photographic identification testimony which infringed appellant's due process rights in a state criminal proceeding constituted harmless error beyond a reasonable doubt. The district court found "that the properly admitted evidence of Mealey's guilt was so overwhelming, and the prejudicial effect of the victim's identification of him was so insignificant by comparison that it is not reasonably possible that the improperly admitted evidence contributed to his conviction."*fn1
Following a jury trial in a Delaware State Court, Mealey was convicted on the charge of raping a seventy-six year old woman, and because the jury did not recommend mercy, he was given a life sentence as required by Delaware law, 11 Del. Code Ann. § 781.*fn2 The conviction was affirmed by the Delaware Supreme Court in an unreported opinion in Mealey v. State of Delaware, No. 183, 1970 (1971). Thereafter appellant petitioned the district court for a writ of habeas corpus. An evidentiary hearing was held; the district court denied relief; and this appeal followed.
The relevant legal and constitutional principles are not in dispute. The sole question is the application of those principles to the evidence adduced at trial. This evidence disclosed that Mealey had a comprehension in reading, spelling and arithmetic between the second and third grade, in the opinion of a psychologist, "a mentally defective range" for a twenty year old. On September 17, 1969, he was with a group of other youths drinking and carousing in the vicinity of the residence of Mrs. Viola Sanderson, the victim. There was testimony that Mealey had drunk three six packs of beer and a fifth of whiskey in the twelve hours preceding the incident.
At approximately 3:00 a.m. Mrs. Sanderson was beaten and raped in her home by an assailant who had gained entry through a previously broken window. A neighbor testified that at 2:45 a.m. she "heard all this commotion" and saw the appellant and three other youths "Luther Payne, Larry Blevins, Richard Morgan (the victim's son), they were all out in front of this house. . . . ." "From my house, see, I can't see Mrs. Sanderson's entrance or anything of her property and it's tall weeds there to the side . . . . they were kind of wrestling around, you know, and loud talking. And then all four of them went in Mrs. Grants' (a neighbor of the victim) house."
We agree with the Delaware Supreme Court and the district court that the state had a "strong case" of circumstantial evidence connecting Mealey to the crime: the victim testified that her assailant had a portable radio; witness Sanders testified that he owned a portable radio and had possession of it that evening when Mealey and another entered his car, and that after they left his car between 11:30 p.m. and 12:30 a.m., his radio was missing; Mealey was seen at a time between 3:00 and 3:30 a.m. with a portable radio; his mother testified that upon his return home at 3:45 a.m. he was carrying a portable radio. The victim said the assailant wore black trousers; separate witnesses saw Mealey wearing black trousers at 2:45 and between 3:00 and 3:30 a.m. as did his mother when he returned home; and at the time of police questioning, Mealey was wearing black gabardine trousers.
Following interrogation by the police, Mealey admitted he had broken into a neighborhood delicatessen, stealing eight plastic lighters and two watches and that he was the owner of a British shilling coin with a hole in it.*fn3 The police found a British shilling with a hole in it outside the victim's house. In the victim's bedroom the police found four plastic cigarette lighters and two copies of a motor vehicle warrant bearing Mealey's name.
The state offered evidence that police found three or four grey hairs about a foot in length on Mealey's trousers. There was no proof of similarity between the victim's hair and the hairs found on Mealey. Police found that Mealey's white undershorts were stained with a reddish substance. There was no proof that the stains were blood.
We now turn to the identification evidence as described by the habeas court:
During the trial the victim of the assault either could not or would not identify Mealey, who was in the courtroom. Thereafter, photographs of six men were exhibited to her by the prosecution. One strikingly differentiated Mealey from the other five.*fn4 From these photographs the victim identified Mealey as her assailant.*fn5 The Delaware Supreme Court held that this "procedure was error," but that:
"We think the error here was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Although improper, the identification was merely cumulative of the State's already very strong case. We reach this conclusion because of the overwhelming evidence ...