(dissenting).
Because of my serious concern with the result reached by the majority in this case, I have made a meticulous study of the transcript of the evidence in this case as it was tried to a jury in the Criminal Court of Cook County, Illinois, beginning June 26, 1962 and concluding July 2, 1962 with a jury verdict finding defendant Robert Raymond guilty of robbery and guilty of rape. After this study of the record and the evidence in the Illinois state court proceeding, I am convinced that the conclusions reached by the majority will result in a grave miscarriage of justice to society. My conclusions require a more comprehensive statement of the facts than is apparent from the majority opinion.
I
The prosecuting witness, Virgie Bar-ger, age 58, at the time of the alleged robbery and rape on November 16, 1961, resided in an upstairs apartment at 1753 E. 67th Street, Chicago, Illinois. She had been a widow for nine years, was the mother of three children and the grandmother of six grandchildren. She had worked at her usual place of employment from 8:00 a. m. to 4:10 p. m. that day. Leaving work she walked to a grocery store about five blocks from her residence where she did some shopping and left there about 5:40 p. m. She was walking north on the sidewalk on the east side of Ridgeland Street between 67th and 68th Streets on her way home. She reached a point about one block from her home around 6:00 p. m. It was dusk, the street lights were lighted and the nearest street light was about ten feet from the point of the alleged crime.
At this point, the assailant, later determined to be the petitioner, Robert *68Raymond,1 was walking south on the same sidewalk approaching her. As they met face-to-face he placed his gloved hand over her mouth so she could not scream and pulled her down onto the sidewalk. He then pulled up her skirt and slip and searched her for a money belt. Finding none, while she was lying there he searched her purse and removed three $1.00 bills and about $1.00 in change, a total of about $4.00 and asked her, “Are you sure that’s all the money you’ve got?” She replied that was all she had.
While this occurrence took place, from the street light ten feet away she had a close clear view of his face. She saw no one else on the street at that time.
He then dragged her from the sidewalk into a gangway, paved with cement, to a point where it was quite light from either a window or a back porch light. While she was there lying down he tore off her panties and began to rape her, asking “weren’t you ever raped before?” She answered in the negative. She thought the sexual act lasted about three minutes and said that during that period of time “it was quite light” and “1 could see good.” In answer to the question, “And could you see his face during the three minutes or so when he was raying you?”, she responded: “Yes, yes, yes.” (Emphasis added.)
When the act of rape was concluded he said to her, “If you won’t scream I won’t hurt you.” With that he left her lying there, her back hurting and her face bruised. She had difficulty getting up from the cement pavement, but finally did arise and started walking to her home a few doors away. She met two ladies and a man she had previously seen in the neighborhood, told them what had happened to her and asked them to help her home. One of the assisting ladies hailed a passing police car which stopped and Officer Mallder came to her. Mrs. Barger told him what had happened and asked him to help her upstairs. The other three people left without their names being obtained.
She described her assailant to Officer Mallder as being colored, about 20 years of age, about 5 feet 10 inches in height, wearing a leather finger-tip jacket, a narrow brim hat and dark trousers. Officer Mallder assisted her to her upstairs apartment and after receiving her report of the occurrence and description of the assailant, he returned to his squad car and called in his report to the Central Communications Room. He then returned to her apartment and began making out his report.
In the meantime, Officer Forberg was cruising alone in a squad car at 67th & Stony Island and received over his car radio a report of a robbery and rape with a description of the assailant (as previously given). While traveling west on 68th Street about 6:10 p. m. he saw a man answering this description run out of an alley. The officer got out of his car and chased the running man. After two commands, the man stopped and asked “What’s wrong, Officer?” He was handcuffed and started a commotion and was put into the squad car. This was about five blocks from the point where Mrs. Barger was raped. Other officers arrived to help Officer Forberg. While en route to the 10th District Station they heard the radio description of the assailant and detoured to the home of the victim.
Two police officers and a police sergeant entered Mrs. Barger’s apartment with petitioner. Petitioner was there with the officers about ten minutes. During that time petitioner said nothing to Mrs. Barger and she said nothing to him. Officer Mallder said she was “very hysterical, very nervous.” She said she *69was “frightened” of petitioner, “was all upset” and “couldn’t talk.” She then told the officer to “get him out of here;” “I don’t want to see him, get him out of here.” She made no attempt to identify petitioner at that time. She did not say she could not identify him.2
Petitioner was taken from her apartment by the officers who brought him there and Officer Mallder took Mrs. Bar-ger to the Jackson Park Hospital where she was examined for about fifteen minutes by a doctor in an emergency room. While there her daughter and son-in-law arrived. Officer Mallder returned to the 10th District Station alone and Mrs. Barger was taken to this station by her daughter and son-in-law. This completed Officer Mallder’s association with the occurrence.
Later that evening Officer Forberg saw petitioner coming out of the lockup. As petitioner passed him, petitioner said to him, “I did it, but you’ll never prove it.” When Mrs. Barger returned to the station with her daughter and son-in-law, a line-up of eight men, including petitioner, was taking place under the direction of police detectives. Four officers, a number of “victim” witnesses and others were present. Mrs. Barger viewed the line-up and immediately identified petitioner as “the man that robbed me and raped me.” Her identification of petitioner was corroborated by two detectives, Kabor and McCarthy. Petitioner was dressed the same as earlier that evening.
The next morning Mrs. Barger was present at the Sex Bureau on the first floor in the Criminal Court Building at 26th and California. Also present were Assistant State’s Attorney Patrick Egan, Officer Forberg, Detective Prunkle and petitioner. Mrs. Barger testified that petitioner asked the Assistant State’s Attorney if he could talk to her and was given permission to do so. Petitioner then said to Mrs. Barger, “You know, Ma’m I’m awfully sorry for what I did to you last night;” and “When I left the house, I didn’t intend to do anything wrong.” He further admitted he took the three singles and about $1.00 in change from her purse which she was then carrying. Officer Forberg corroborated Mrs. Barger, testifying that at that time petitioner said to her, “Miss, I am sorry for what I did. I know I caused you a lot of trouble. I can’t face my family or my friends. I am trying to apologize but I am doing a bad job at it.” Further, Officer Forberg quoted petitioner as saying, “I seen your purse and all I wanted was the money that was in your purse.” Detective Prunkle corroborated Mrs. Barger, testifying that on that occasion petitioner said to her, “that he was sorry for what he done the night before, and he was ashamed of what disgrace he brought on his people, and that he was no good, and that he should be put away and he kept repeating it to the victim that he was very sorry for what he had done.” Also, the witness testified, “She had a black purse,” and petitioner identified the purse and told the Assistant State’s Attorney Patrick Egan that “that was the purse he took the money out of.”
Petitioner testified in his own defense. In substance, he denied all of incriminating statements attributed to him, he denied robbing and raping Mrs. Barger and he attempted to establish an alibi by three witnesses that he was not present at the time and place where the robbery and rape occurred. He testified that he made no admissions at the Sex Bureau but stated that he did ask to speak to Mrs. Barger there for the purpose of telling her he was sorry for what happened to her the night before; that this was a serious charge against him and she was making a grave mistake and he wanted her to be sure of what she was saying; that he was only trying to get *70across to her that she was making a mistake.
Petitioner made several unsupported charges of police brutality, all of which were refuted and denied.
In rebuttal, two white women, Eleanor Westlake and Lilly Grafton, who lived about five blocks from the scene of the alleged crime and near where petitioner was arrested, testified in substance that shortly after the time of the alleged crime, they were accosted in the vestibule of their apartment building by a black man answering petitioner’s description and dress. One of them positively identified petitioner at the police line-up as the person who accosted them in their apartment vestibule. At petitioner's trial in open court he was positively identified by Mrs. Barger, Officers Mallder, Forberg, Kobar, McCarthy and Prunkle, together with Eleanor Westlake and Lilly Grafton, as the person referred to in their testimony as petitioner Robert J. Raymond.
II
Petitioner was represented by counsel of his own choice from the time of his arraignment, through the trial, judgment and disposition of post-trial motions, judgments on the verdicts and sentencing. Following proceedings in the trial court, trial counsel was permitted to withdraw. Counsel for petitioner was appointed by the Supreme Court of Illinois and an appeal was filed in the Appellate Court of Illinois. The judgment of the Criminal Court of Cook County, Illinois was in all respects affirmed on March 25, 1965, reported in abstract form only as People v. Raymond, 57 111. App.2d 292, 206 N.E.2d 740 (1965).
The opinion of the Appellate Court of Illinois was delivered by Presiding Justice McCormick, concurred in by Drucker, J., and English, J. This opinion appears in full as an exhibit in the proceedings in the federal district court below. The only ground raised in the Appellate Court in any way relevant to the appeal now before us is “that the State has failed to prove the defendant guilty of the crimes for which he was indicted, beyond a reasonable doubt.” Mr. Justice McCormick engaged in a detailed statement and consideration of all the evidence much as we have hereinabove set out. He found that the “positive, clear and convincing evidence of the complaining witness would alone be sufficient to sustain defendant’s conviction. * * * [and that] when we consider the positive identification and the other strong evidence of the complaining witness and the police officers we can only conclude that there was ample evidence on the basis of which the jury could have found the defendant guilty beyond a reasonable doubt.” (Emphasis added.)
The Supreme Court of Illinois upheld the denial of post-conviction relief to defendant by the Circuit Court of Cook County, Illinois, after having appointed new and separate counsel for defendant on that appeal. People v. Raymond, 42 Ill.2d 564, 248 N.E.2d 663 (1969). At 42 Ill.2d 568-569, 248 N.E.2d 663, 665, the Supreme Court of Illinois gave express consideration to defendant’s reliance upon Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), as support for his contention “that his constitutional rights were violated when he was taken for identification to the victim’s apartment immediately after his arrest.” Referring to Stovall, the Supreme Court of Illinois concluded, 42 Ill.2d at 568, 248 N.E.2d at 665: “Although the procedure followed by the police has been widely condemned, we find that after considering the totality of the circumstances of this case, defendant’s constitutional rights were not violated.” I agree with Chief Judge Swygert that the identification procedures followed in the initial showup in Mrs. Barger’s apartment finds adequate support in Stovall, supra.
Although there is no showing that petitioner pursued his state court remedies by petition to the Supreme Court of the United States for certiorari, on June 2, 1970 (with still another court-appointed *71attorney), petitioner filed his instant habeas corpus petition in the United States District Court for the Northern District of Illinois, the Honorable Edwin A. Robson, Judge (now Chief Judge) presiding. In his habeas petition, inter alia, petitioner raised the two issues now before us on this appeal, viz: (1) that the pre-trial identification procedures prejudicially tarnished the in-court identification of petitioner by Mrs. Barger; and (2) that the prosecution suppressed evidence favorable to his defense. On October 6, 1970, the eminent district judge with the entire record and transcript of the state court proceedings before him, including the opinions of the Illinois Appellate and Supreme Courts, and after reviewing the evidence below agreed with the Supreme Court of Illinois that “the totality of circumstances surrounding petitioner’s initial confrontation with the victim was not ‘so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law,’ ” citing Stovall v. Denno, 388 U.S. 293, at 301-302, 87 S.Ct. 1967, at 1972 (1967). Other habeas corpus claims were found to be frivolous on their face and not rising to constitutional dimensions.
Thus we find a division of three eminent justices of the Appellate Court of Illinois, a unanimous Illinois Supreme Court and a distinguished federal district court judge all in agreement that petitioner’s federal constitutional rights were not prejudicially violated. I find myself to be in accord with them.
III
Chief Judge Swygert correctly recognizes that the standard to be applied in judging a due process claim involving pretrial identification procedures derives from Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). He further recognizes that the Court in Stovall refused to give retroactive application to the rule announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), requiring counsel at pretrial identification confrontations. He also properly recognizes that under Stovall, 388 U.S. at 302, 87 S.Ct. at 1972, if the identification procedures were “so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law” and that any particular claimed violation of due process must depend on the “totality of circumstances surrounding it.”
With due deference, I part company with Chief Judge Swygert when he holds that the combination of the showup with the line-up “so undermined the reliability of the eye witness identification as to violate due process.” He is not impressed with the showing that Mrs. Bar-ger was hysterical and upset at the show-up in her apartment to the extent that she could not or did not identify petitioner at that time. Neither is he impressed with Mrs. Barger’s power of observation to have been able to identify petitioner while the two attacks were made on her.
In my considered judgment there is no adequate support in the record to justify the startling conclusion reached by Chief Judge Swygert on this issue. I cannot believe that for the first time in the long and tortuous court history of this criminal proceeding it can now be said, on the record below, that “the conduct of the pretrial identification procedure violated petitioner’s constitutional rights and that the resultant evidence was inadmissible at trial.” 3
*72Further, under the record in this case I do not find that Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), and other eases cited by Chief Judge Swygert, compel or even justify the holding of the majority. Rather, I find comfort in the rationale expressed by the author of the opinion in Bates v. United States, 132 U.S.App. D.C. 36, 405 F.2d 1104, at 1106 (1968).4
Just this week, on November 8, 1971, appears the publication of the opinion of the Sixth Circuit in Hancock v. Tollett, 447 F.2d 1323 (1971), where, in an extended review of Stovall in another pre-Wade case, the court finds no denial of due process notwithstanding a showup where the witnesses had had a good opportunity to view the robbers in a well-lighted area, followed by another confrontation at the jail some eight to ten days later.
Finally, if there be thought that a per se rule on findings of due process flows from Stovall, that thought has been laid to rest following the dissenting opinion of Mr. Justice Douglas in Biggers v. Tennessee, 390 U.S. 404, at 408, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968), and referred to in Bates, supra, 405 F.2d at 1106, fn. 3, and a host of other federal and state decisions.
Hence, it becomes obvious that on the mistaken identification issue I have read the record evidence differently than Chief Judge Swygert.
IV
The second issue on this appeal concerns petitioner’s contention that his constitutional right to due process was violated when the State did not introduce into evidence a police crime laboratory report of a microanalysis performed on petitioner’s clothing showing a negative result.
The record discloses that petitioner gave his clothing to the police for test*73ing, willingly and with his consent; he was told the results of the test the next day and knew then they were negative; he apparently did not tell his attorney about the test or results thereof; and he waited until after he had been found guilty and his motion for a new trial was coming up for hearing to request a copy of the report. The State promptly made it a part of the record in compliance with petitioner’s request.
The majority recognizes that this is a case of first impression. The key question is whether the State, having immediately made known the results of the police laboratory tests to petitioner had a continuing constitutional duty to disclose the information to petitioner’s attorney. The majority extends the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and places the facts of the instant case under its umbrella. In doing so, I respectfully submit that the majority erred.
In Brady, the court said: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-1197. (Emphasis added.)
Here it is clear that petitioner had full knowledge of the facts and this could hardly be called “suppression.” Neither petitioner nor his attorney “requested” the evidence before or during the trial, although petitioner had full knowledge of its existence and content.
Finding that the evidence in question was not exculpatory, that petitioner knew of the report and was informed of the results of the analysis, yet he did not apprise his attorney of these facts, and waited until after he had been found guilty to exhibit any interest in its procurement, the Supreme Court of Illinois held that no deprivation of due process had been shown. People v. Raymond, 42 Ill.2d at 568, 248 N.E.2d 663. I agree.
Further, no case has been cited since Brady, and we know of none, wherein a court has found that evidence has been suppressed in violation of Brady when either the defendant or his attorney had knowledge of the evidence. Cases contrary to petitioner’s contention and the majority holding are Hayes v. Wainwright, N.D.Fla., 302 F.Supp. 716, 718 (1969) and Pugliano v. Staziak, W.D.Pa., 231 F.Supp. 347, 354, fn. 10 (1964).
On this issue I would hold that there was no suppression of evidence in violation of Brady.
In sum, I would affirm the judgment of the district court.
. Robert Raymond was referred to as the defendant in the state court trial proceedings and as petitioner in various post-trial proceedings. He is variously referred to as petitioner, appellant, petitioner-appellant and defendant in his federal habeas proceedings. For the sake of simple clarity I shall refer to him here as petitioner.
. Chief Judge Swygert’s opinion refers to two sliowups during this short confrontation. The transcript shows that petitioner alone refers to two separate sliowups. The testimony of Mrs. Barger and Officer Mallder implies there was only one show-up.
. If further analysis of the record be necessary, we quote with approval the summation by the Government in its brief on this appeal:
“ * * * in the present case, there are several critical factors negating the argument that the present identification pro-eedures were ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ First of all, Virgie Barger had ample opportunity to observe the unmasked petitioner face-to-face in adequate lighting. Second, she had opportunity to clearly *72hear the petitioner speak. Third, there is no evidence that the emotional state of the witness was such as to preclude objective identification at the police lineup although, her emotional state did preclude and explain why Virgie Barger was unable to identify the petitioner in her apartment immediately after the crime and subsequent arrest. Fourth, the witness’ observations of the petitioner were not so limited as to render them particularly amenable to suggestion or a tendency to identify on less than a positive basis. Fifth, the extrajudicial identification confrontation occurred within approximately three (3) hours of the crime — assuring reliability. Sixth, there is no evidence that in the above mentioned confrontation the petitioner appeared with other male Negroes unreasonably dissimilar from himself. Seventh, there is no evidence that any tangible objects related to the offense were placed before the witness or the petitioner during identification to encourage selectivity. Eighth, there is no evidence of consultation, hesitation, or equivocation in the witness’ identification. Ninth, there is no evidence that the witness made any identification of another person as the rapist-robber prior or subsequent to any identification confrontation with the petitioner. Tenth, the witness testified positively on direct and unshakenly on cross-examination concerning her ability to observe the petitioner during the crime. Eleventh, petitioner was able to take full advantage at trial of the witness’ failure to identify him at the initial confrontation at her apartment.”
. In speaking for the court the then Circuit Judge Burger wrote:
“There is no prohibition against a viewing of a suspect alone in what is called a ‘one-man showup’ when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification, but rather tends under some circumstances to insure accuracy. * * *
“Our review of the circumstances surrounding the apprehension of Appellant and the police conduct which led to his identification satisfies us that the claim that Appellant was denied due process of law is without merit; there was not ‘substantial likelihood of irreparable mis-identification.’ To the contrary, the police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh.”