Frank W. Smith v. E.P. Perini
723 F.2d 478
6th Cir.
1983
Check Treatment

*2 WELLFORD, and Circuit Before JONES HARVEY, Judge.* Judges, District WELLFORD, Judge. Circuit convicted of in this cause was Appellant in state court. and felonious assault rape of his court’s denial appeals He district assert- corpus, a writ of habeas for petition used was process the identification ing deny as to him due so Fourteenth Amendment. under the indicted on one was Appellant Smith one count of felonious rape and count in an jury was tried before assault. He trial, appellant Prior to filed court. Ohio relating to the suppress evidence motion on the victim’s used were so procedures that the grounds Af- process. him due deny as to overruled the the trial court hearing, ter a motion, was admitted at and the evidence specific not reveal The record does trial. court on this findings the trial by factual guilty of jury The found issue. assault, giv- he was felonious rape and on both counts. sentences en concurrent ap- to state appealed The conviction and sentence The conviction court. pellate reversed and the assault was for felonious affirmed. The rape conviction of the identification challenge findings factual rejected specific after appellate court. made the Ohio were Supreme Court appeal to the Ohio Leave to was denied. the district petitioned

Appellant 2254 for a writ under 28 court U.S.C. § the identi- challenging corpus, again habeas was re- The matter procedures. fication extensively who magistrate, to the ferred light applica- transcript reviewed petition that the Akron, Ohio, recommended for ble law and Carro, argued, J. Dean adopted the district court be denied. petitioner-appellant. by designation. gan, sitting Harvey, * The Honorable James Judge Michi- Eastern District of for the District petition, denied the magistrate’s report and testified she him that thought told this was appeals now the district “the man” but that she need- ed to see him petition. court’s denial of his with a mustache. Appellant case was a was then taken rape custody victim in this fifteen- into brought hospital. girl; old there were no other witnesses The victim year very apprehensive, so arrangements to the testified that on incident. She *3 were made stay for her to in her of incident she darkened afternoon walked room and to observe in the hall- through park shopping a mall. to a On her way through glass panel the door with- there, way sitting she a man noticed on out being seen herself. Appellant was log path. way near the her back a On short brought down the to stand hall in front of later, time she the same man in noticed glass panel room, to the victim’s and him, As he park. passed she told her to then was led away. stop or he kill As she would her. started to scream, throat, her by man took When the officer returned to the victim’s choked her and her into the dragged woods room, said, she not “That’s him.” The offi- raped and her. cer testified that moment she was very frightened, he told her to take a

After began her, the assailant choking longer look to be certain. the victim she lost testified that conscious- ness episode. much of the traumatic When was brought into the regained She consciousness briefly and hallway again, the victim asked the officers identify could her assailant. to have him shrug his shoulders. When the officer returned to her room and asked her The next consciousness, time she regained what she thought, she asked to see appel- her assailant As gone. she left the lant with his hands around the officer’s however, park, she again saw attacker so, throat. After did the victim aat distance with another talking man. stated that she was sure that appellant was ran immediately, home reported She her attacker. rape, and was a hospital. taken to Appellant argues that evidence of the attack, The afternoon of the the victim identification should have been suppressed gave a attack description of the to an inves- (1) picked because the victim out tigating photo- two. officer. described her She assail- graphs appellant’s settled on white, when old, ant as years 30-35 with dark she was told suspect that the other hair and a was in mustache. The next day, while jail; (2) procedure was unnec- the victim was still hospital, at the an offi- essarily suggestive; (3) the victim initially cer conducted photograph attacker; stated that appellant was not her process. presented The victim was with (4) the victim not identify appellant did more than 150 photographs of white sex as her attacker until after the choking sim- offenders. At one point selected one of ulation. Appellee argues that the identifi- photographs. told the She officer that cation had indicia sufficient of reliability, one man in a was not her photograph assail- and that the of findings factual the Ohio ant because he skinny,” was “too but that appellate court were entitled to a presump- he had the same of type mustache. The tion of correctness under 22 officer then U.S.C. told her that this particular 2254(d). § man was jail.

The victim subsequently selected one oth- We hold the state appellate er photograph among large from court group, findings of fact1 are entitled to a that of appellant him depicting presumption without a of correctness Marshall hair, mustache and longer with as the v. Lonberger, _U.S. _, one 103 S.Ct. most likely to be her (1983), Mata, attacker. The officer 74 L.Ed.2d 646 Sumner infra, (1972), 1. Each of the factors enumerated in Neil were considered these find- Biggers, ings. 409 93 S.Ct. 34 L.Ed.2d 71 L.Ed.2d 480 In Manson v. wherein supra, Mata, single photograph potential drug II), (1982) (Sumner and Sumner witness,- presented dealer was to the 449 U.S. split Court resolved a of in the authority I). finding of (1981) (Sumner The ultimate of Appeals developed Courts that had since sufficiently whether the identification was Biggers. approach, per One se ap- appellant’s reliable so as not to offend proach, required exclusion out-of- is, of rights under the due clause identification, regard court without to relia- law, course, a to full subject bility, whenever it had been obtained review court. v. Mata by this Sumner through confron- unnecessarily suggestive (Sumner II), supra. procedures. ap- tation The more lenient Appellant challenge photo does not proach continued to on the rely totality utilized, graphic array procedures although circumstances, the admission permitting pho he contends that the victim chose two if, despite suggestive proce- evidence *4 her attacker. tographs possibly depicting as dures, the possessed identification certain however, argue, He does the reliability. features of hospital suggestive at the and unneces second, adopted The Court in Manson the sary. Appellant acknowledges while approach, holding more lenient the identifi- are frowned are not show-ups upon, they admissible, stating cation evidence that: per se unconstitutional. v. Den See Stovall [Rjeliability is the in linchpin determin- no, 293, 1967, 388 18 L.Ed.2d U.8. the ing admissibility of identification tes- (1967); Bordenkircher, 1199 v. 608 Summit timony pre- post-Stovall for both con- 247, (6th Cir.1979). 252 frontations. The factors to be considered primary Supreme The Court decisions to in Biggers. are set out 409 at 199- U.S. be considered are Manson v. 200, 93 at These S.Ct. 382-383. include 2243, 432 U.S. 97 53 L.Ed.2d 140 the of the to view opportunity S.Ct. crime, the criminal at the (1977) Biggers, and Neil v. time of the U.S. attention, degree witness’ (1972). accuracy Big- S.Ct. In criminal, of his prior description of the gers, respondent had been convicted of certainty the level of demonstrated at the rape jury after a trial and the evidence ’ confrontation, and the time between the part consisted in of a stationhouse identifi- Against crime and the confrontation. respondent by cation of the victim. The weighed these factors is to be the cor- Denno, Court first noted that v. Stovall rupting effect of the identifi- supra, a claim that “the confrontation con- cation itself. law,” carefully ducted ... of had been con- at 2253. U.S. S.Ct. rejected of the light “totality sidered the circumstances.” 409 U.S. fac Biggers This Court has utilized the then con- Biggers S.Ct. at 380. The court tors in several decisions. v. Ham See U.S. ilton, (6th denied, “totality Cir.), sidered whether under the of the 684 F.2d 380 cert. 74 L.Ed.2d S.Ct. circumstances” the identification was relia- 459 U.S. Bordenkircher, (1982); Summit proce- ble though even the confrontation Russell, Cir.1979); (6th F.2d 247 The suggestive. dure was Court stated Cir.1976). (6th F.2d 1063 in evaluat- that the factors to be considered of misidentification in- ing the likelihood Russell, In supra, opportunity cluded the extent of the trial, robbery. was convicted of bank At viewer, view, focus of attention of the appellant. three witnesses identified reliability description given, degree of the from an photograph first witness selected a lapse and the certainty identification occurred be- array. No conduct episode of time between the and the subse- picture. her selection of appellant’s fore 199-200, 93 quent viewing. entirely positive. 409 U.S. at Her identification was not agent at 382-383. The FBI told her after her selection furthermore, think guy probably reasonably that this was “the we under sure did it.” circumstances. photo- The second witness also made a by ap- most serious raised

graphic appeared identification. to be She pellant is to the directed factor of level assumption pho- that the robber’s of certainty demonstrated at the confronta- in the tograph array presented to her. tion. The initial victim’s was that reaction possibilities She narrowed the down to two trial, appellant was not the man. At how- one. At photographs, finally chose this ever, the and the victim officer testified point, agent told her that she had cho- the reason her initial reaction was one, sen wrong pho- and that frightened that she was that if she identi- tograph person they believed to fied he “get” that would somehow be guilty. her. The district court found that ade- pho- The third witness was also shown a quately explained initial reaction. In tographic array, but was unable to make an view also of certainty displayed after He made identification. an identification 'viewing, the second appears there to be however, of appellant, but after he ample to support appel- evidence the state just observed appellant manacles before finding late court’s that the identification preliminary hearing. was sufficient to meet Biggers standards. “A defendant is denied process only due This Court held that the when the identification evidence so unre- admissible, the first witness was primarily liable that its introduction a trial renders because already photo- selected *5 unfair. As as there a long is not substan- graph before the comment suggestive misidentification, tial it likelihood of is the found, made. at 1068. The Court function of the to jury determine ulti- however, that the photographic identifica- mate weight given to be identification.” tion procedure for the second witness was Bordenkircher, Summit v. 608 F.2d impermissibly suggestive, and that it creat- (6th Cir.1979)(citing Manson v. ed a substantial likelihoodfor misidentifica- supra). Therefore, In this case we find the tion of cannot appellant. Court held it identification evidence to have been unreli- inadmissible. Id. As to the third trial, deny able so as to nor witness the Court it Smith fair did sugges- held that was it tive involve in view permit to observe a our substantial likelihood witness to de- fendant in manacles.- It misidentification. consequently held that, in for order to be identification Appellant argues choking that admissible, the trial to find judge had that simulation at viewing the victim’s second this witness’ identification of was impermissibly suggestive. We con to be on independent a basis of his custodial clude, however, that these circumstances situation in manacles. Id. at 1069. were not suggestive deny appel so as to The victim in this had a good case lant’s right process, to due the iden as was opportunity view her assailant since the tification of the defendant in manacles in attack occurred daylight Russell, Even supra. if the procedures was confronted when she was frontally were to some degree, this stopped path on the she regained and when case, independent there was an basis for the consciousness during the attack. Her at identification; victim’s of ap the selection tention was focused upon her attacker dur pellant’s photograph from the array ing a very personal humiliating experi presented her, situation unlike ence at range. close The victim’s descrip Russell, affirm, therefore, We supra. man, tion of the despite into uncon lapses district deny appellant’s court’s decision to sciousness, and while generalized, was accu petition for a writ of habeas corpus. rate. one-day between span time attack time of Accordingly, judgment identification was of the district quite appellant, short. identification court is AFFIRMED. JONES, circumstances, Judge, we must

NATHANIEL R. Circuit determine dissenting. they produced whether a substantial likeli irreparable hood misidentification. Unit in this arises from a The conviction case Russell, ed 532 F.2d States allegedly committed rape (6th Cir.1976). Accord United ex rel. July on afternoon of 1979. The Brierton, (7th Hudson v. 699 F.2d Cir. victim, year girl, a 15 old identified 1983). separate as her assailant on two The first occasion was when she occasions. There can be no serious here appellant’s photograph out of a picked at the hos show-up photographs of about 150 to 200 display Indeed, one-on-one pital suggestive. white, male sex offenders on the afternoon the victim of a confrontations between after she had been attacked. The second suspect universally crime and a have been took later place occasion that same after- suggestive condemned for their inherent petitioner noon when the was taken to the Denno, ness. See Stovall hospital being where the victim was treat- 1967, 1972, S.Ct. evi- ed. There no substantial (1967). example, For this Court Summit linking appellant with the crime. dence Bordenkircher, (6th 608 F.2d surrounding The circumstances the identifi- nom., Cir.1979), Watkins v. aff’d sub Sow persuade pretrial cation me that the identi- ders, 341, 101 66 L.Ed.2d procedures fication utilized in case (1981), recognized suggestive. They were also unnecessarily suggestive. is inherently [a] irrepara- created a substantial likelihood of person presented When one to a Therefore, respect- ble misidentification. I witness, tendency there is a natural fully dissent. feel obligated provide the witness to requires Due positive identification. suppressed pretrial be if the iden- Similarly, the has also rec- Seventh Circuit were so impermissibly tification ognized that give as to rise to a “substantial question, any almost one-to-one [without irreparable likelihood of misidentification.” *6 confrontation between a victim of crime States, 377, Simmons v. United 390 U.S. the person police present and a to whom 384, 967, 971, 88 19 L.Ed.2d 1247 S.Ct. to him as a must the suspect convey (1968). applicable process The due doctrine the reason to message police that have requires us to make a three-pronged analy- guilty. believe him First, sis. we must consider whether the Kirby Sturges, ex rel. v. 510 United States sug- identification were pretrial procedures 397, (7th Cir.), cert. denied gestive. If the identification procedures 1016, 2424, were we must consider U.S. S.Ct. suggestive, (1975). majority opinion I do not read the they necessary whether were under the cir- confrontation holding show-up If the are found to as that the procedures cumstances. unnecessary hospital suggestive.1 be under the at the was not In jail police majority opinion man was in 1. The concludes that even if then told her that appellant’s suggestive, whereupon show-up settled on the was there was an inde- the witness identification, highly suggestive. pendent picture. This basis for the witness’ conduct Russell, supra, being appellant’s photo- of In a witness’ that the selection challenged by appel- suspect graph. Although a not the somewhat tentative identification of lant, array by agent photographic appears to an F.B.I. who told her the also was confirmed by suggestiveness. picture guy undue the she had selected was “the have been tainted probably photographs this occurred two the we think did it.” Since The witness selected from mustache, picture array, depicting a man with a after her selection of the we refused to one depicted find error in the trial court’s admission of the the without while the testimony. pre- witness’ 532 F.2d at mustache. The witness testified at the identification a however, Here, hearing photo- liminary the con- that the men in the two 1067-68. assailant, prior graphs the witness’ selection of looked like but the duct occurred skinny. appellant’s picture. such circumstances the mustache was too Under one with fact, imagine it would difficult to a more The Supreme be Court has held that the that utilized in suggestive procedure than of admissibility identification this case. stemming from suggestive confrontation on whether depends does it that the the identifi- appear

Nor necessary under the facts of this In case. cation was reliable under the of the totality Denno, supra, wife Stovall husband and Biggers, circumstances. Neil v. 409 U.S. were their night by attacked in home one 188, 382, S.Ct. L.Ed.2d 401 an intruder. The attack left the husband (1972). also See Manson hospital. and the near in dead wife death 53 L.Ed.2d police and, fearing a suspect arrested (1977) the in (reliability “linchpin” wife, that the who was the witness to determining of admissibility crime, the expire, brought would him to the testimony). The Court then stated that the hospital where he was in one- identified following factors must be considered de- noting on-one confrontation. While termining reliability the identifica- practice showing suspects the of singly tion: persons for purposes of identification rather 1) the opportunity of the witness to view as part lineup widely than of had beén crime; the at criminal the time of the condemned, Supreme the Court neverthe- 2) attention; the witness’ degree of less held that there no due violation the exigencies because of the situ- 3) accuracy of prior the witness’ de- Stovall, ation demanded immediate action. criminal; scription at supra 87 S.Ct. at 1972. 4) the level of certainty demonstrated Conversely, such exigencies no existed confrontation; at witness case Although before us. the witness 5) the length time crime between the hospitalized, indi- nothing in record and the confrontation. cates that she was or dying near death. is there Nor indication that the any 199-200, Neil v. Biggers, supra 409 U.S. at could not have visited police station to 382-383. view a lineup, that a lineup could not accept I cannot the majority’s assessment arranged have been hospital. In of these factors. Perhaps most trouble- short, nothing in record before justi- us some statement in the majority opinion is fied use the show-up confrontation. assertion its the witness’ “attention Consequently, consideration the first two upon was focused her attacker

prongs of the required analysis me to leads support assault.” I am unable to find any pretrial conclude that fact, for this statement the record.2 In procedures utilized in this case were unnec- evidence directly contradicts this asser- essarily suggestive. conclusion, This how- *7 tion. The witness’ own estab- ever, does not by peti- establish itself that that during lished she unconscious most tioner’s due rights were violated. of the assault. Indeed she testified that she Stovall, See at supra 87 S.Ct. at 1972. was conscious for few only a seconds and Such violation is only established where conscious, when that she “wasn’t even look- unnecessarily suggestive pretrial con- ing most of the time.” I frontation produced [her assailant] have agree “substantial cannot that it is to on likelihood fair conclude irreparable mis- Simmons, identification.” supra 390 these facts that witness’ attention was 384, 88 S.Ct. at 971. “focused” on her attacker. agree attach, however, I appears, cannot that this selection could serve as not it inter where independent alia, an basis for adequate- her identification. that the material were not facts court, ly developed state where the majority

2. The appellate holds that the state fairly supported by factual determination is not findings court’s factual on the identification are 2254(d)(4), (8). the record. 28 U.S.C. §§ presumption entitled ato of correctness 2254(d). presumption 28 U.S.C. § This does pool fit this of such description. lant majority’s with the find- agree can I Nor who could is wide indeed. persons good opportunity the witness had ing that Although the record assailant. to view her the witness’ identification of the Second her assail- the witness noticed indicates that but certain. anything She appellant there through park, trip her first ant on failed to him at the initial only identify not any indicate that she nothing to despite sugges- is its inherent tiveness, said, his features. specifically attention to “That’s not pay any to reason the appellant on her Then when Furthermore, she was attacked him.” when confrontation, he brought back for a second her assailant park, trip through return parts asked to simulate of the assault When she her from behind. approached identify the witness could him. before him, that he she testified turned to confront reason to that it was every There is believe around,” faced him for and that she “moved remembered, victim not the the act that the The state five to ten seconds. no more than to Although majority willing actor. that her assailant court found appellate explanation witness’ that her accept the mouth, the hand over her “put his identify failure to as initial from the hand around her throat was because she was afraid her assailant woods, rear,” her into the dragged her, he would do harm to the evidence that evidence estab- Thus the [emphasis added] uncer- indicates that she was indeed clearly in which her period lished that was her attacker.3 tain that to her assailant before attention was drawn to opportunity the witness’ limited Given consciousness, him for she faced she lost assailant, re- strong her her initial observe while he was mov- five to ten seconds that the was not her assail- action that unpersuaded I am ing around. Thus ant, and the clear evidence of doubt from was as to view her assailant opportunity her testimony, I am unable to conclude own declares. good the,majority as does, majority as the that Biggers meet the stan- span of the time be- was sufficient to exception theWith confrontation, I dards. and the tween the crime remaining factors

am convinced conclusion, remem- important it is to In finding that the wit- against a also militate frightened, fif- that the witness was a ber First, was reliable. ness’ identification just who had endured a year girl teen old general description gave very traumatic, frightening ex- humiliating for a only ponder her assailant. One need Therefore, not be un- it would perience. males there many per- over how white for her moment under such circumstances usual In impaired. dark hair years ceptual are 30-35 old with abilities be are who Russell, we admonished supra, apparent it becomes and a mustache before fit a wide varie- description that this would is, then, misidenti- great potential There no wonder is a

ty people. [t]here when a witness identifies a stran- appel- that the fication majority that the concluded guy you Okay. transcript suppres- that attacked had his page 62 of the Q 3. At hearing, following colloquy place: sion took hair combed. identify you A Yes. the individual And did this as Q they brought you? And this individual attacked [sic] Q up? hospital, A Yes. messed his hair was all any you occasion that denied Was there Q A I know. He was different. don’t *8 or told them that it wasn’t him? support a conclusion This does not Well, question A I had a because— failed to identi- reason the witness you question did have? What Q fy first as her attacker hair, guess A His I it was his hair. was because she was afraid you had What was the Q testimony, this would harm her. Instead he about his hair? appar- had no it was when the witness taken as Well, know, A I I wasn’t sure. His don’t retaliation, reveals the existence ent fear of combed, guy, guess I this his hair hair wasn’t genuine doubt. was combed. obser- ger solely upon single based brief

vation, and this risk is increased when the at a

observation was made time of stress danger

or is in- excitement. Since kind, identification of this every

herent especially vigilant

courts should be certain there is

make no further

distortion of the possibly incomplete of a perception well-meaning

mistaken or other in- unfair

vestigatory techniques, [emphasis added] at 1066. I Since believe that the opinion seriously so understates

majority potential for misidentification in this

case, I respectfully dissent. MELCHIOR, Petitioner-Appellant,

Robert JAGO, Respondent-Appellee.

Arnold R.

No. 80-3500.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 1982.

Decided Dec. 1983.