Staley, Aldisert and Hunter, Circuit Judges.
JAMES HUNTER, III, Circuit Judge.
James Riffert was convicted in the criminal courts of Clinton County, Pennsylvania, on charges of burglary, larceny, robbery, and assault and battery. After exhausting his state remedies, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. The petition was denied without a hearing.
In this appeal, Riffert raises three points of alleged error: (1) that the confrontation and identification procedure employed at his preliminary hearing was violative of the due process standard enunciated in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); (2) that the admission of certain evidence was erroneous and warrants the granting of a new trial; and (3) that it was reversible error for the trial court not to instruct the jury that a unanimous verdict was required. We shall consider these points seriatim.
Riffert's preliminary hearing was held ten days after his arrest. At that time, he was led into the courtroom handcuffed and accompanied by two policemen and his attorney. It is undisputed that a number of the Commonwealth's witnesses -- subpoenaed and present to testify on its behalf -- saw appellant as he was led into the room. The handcuffs were removed prior to the commencement of the proceedings.
It has long been a recognized attack upon a criminal conviction that a defendant was subjected to a pretrial confrontation and identification "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to amount to a denial of due process. Stovall v. Denno, supra, 388 U.S. at 302, 87 S. Ct. at 1972; Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). This basic principle was recently reaffirmed by the Supreme Court in its decision in Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1970). There, while determining that United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967),*fn1 required the presence of counsel at only those lineups conducted after the "onset of formal prosecutorial proceedings," Kirby v. Illinois, supra, 406 U.S. 690, 92 S. Ct. 1882, the Court nevertheless again stated that the "Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification." Kirby v. Illinois, supra, 406 U.S. at 691, 92 S. Ct. at 1883.
The inherent suggestiveness of any one-to-one identification may very well be increased when a witness is asked to positively identify a defendant in the context of a judicial proceeding already instituted against him. See, e.g. Dade v. United States, 132 U.S.App.D.C. 229, 407 F.2d 692, 695 (1968) (concurring opinion of Bazelon, C.J.). To minimize this effect, any identification initially made at a judicial proceeding, should be kept, wherever possible, within the formal context of that proceeding. This is precisely what was done in the instant case.*fn2
It would certainly be a misnomer to refer to the circumstances of this case as anything resembling a "police identification procedure."*fn3 The two witnesses here did not merely observe Riffert and subsequently make known their positive identification to the police. Rather, they were present at the hearing in order to testify for the Commonwealth and their identifications were made in that context with full opportunity to defense counsel to cross-examine. Counsel was present and participated throughout the hearing and was therefore able to cross-examine the witnesses both at the hearing and the trial as to any weakness in their identifications. Further, there is no indication in the record, nor does counsel suggest, that the police "aided" the two witnesses in their identification prior to their taking the stand. There was no violation of due process. See United States v. Hardy (Appeal of Andrews), 451 F.2d 905 (3d Cir. 1971), and United States v. Hardy (Appeal of Hardy), 448 F.2d 423 (3d Cir. 1971).
The record does not reveal why the Commonwealth considered it necessary to utilize handcuffs and we do not consider it appropriate, absent countervailing facts in the record, to second guess its decision that restraints were required. Although an identification which occurs in a context of an unnecessary portrayal of a defendant as a "criminal" may under certain circumstances amount to fundamental unfairness, Stovall v. Denno, supra, this degree of suggestiveness is certainly not present in the instant case. The handcuffs were removed as Riffert entered the courtroom and we cannot say that the chance observation by two of the witnesses was "so unnecessarily suggestive and conducive to irreparable mistaken identification" to deny appellant due process of law. Stovall v. Denno, supra, 388 U.S. at 302, 87 S. Ct. at 1972.
Riffert contends that the failure of the trial court to charge the jury that unanimity was required is reversible error. This argument is advanced despite the following: (1) no objection to the charge was made; and (2) the subsequent polling of the jury indicated that the verdict had been unanimous.
The charge, read in its entirety, was complete, carefully phrased and contained all of the usual instructions as to reasonable doubt, presumption of innocence, etc. However, even if the failure to charge as to unanimity was plain error -- cf. United States v. Carter, 401 F.2d 748 (3d Cir. 1969), cert. denied, 393 U.S. 1103, 89 S. Ct. 905, 21 L. Ed. 2d 797 (1969) -- the jury was polled and subsequently indicated its unanimity.*fn4 The error, under ...