Lawrence GREGORY-BEY, Petitioner-Appellant, v. Craig A. HANKS, Respondent-Appellee.
No. 01-1066.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 13, 2002. Decided June 13, 2003.
333 F.3d 1036
James B. Martin (argued), Office of the Attorney General, Indianapolis, IN, for respondent-appellee.
Before COFFEY, MANION, and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge.
In November 1985, two men robbed a McDonald‘s restaurant in Indianapolis, Indiana. During the course of the robbery, the men locked five of the employees in the freezer of the restaurant and proceeded to murder the manager. Three months after the crime, four of the five surviving employees identified Lawrence Gregory-Bey (“Gregory-Bey“) as one of the perpetrators of the crime. After a Marion County, Indiana jury convicted Gregory-Bey of murder, robbery, criminal confinement, and a host of other offenses associated with the McDonald‘s crime, Gregory-Bey‘s direct appeal languished in the Indiana state court system for nearly ten years before it was finally resolved.
I. Factual Background
A.
The two robbers entered the Indianapolis McDonald‘s restaurant shortly after 7 a.m. on November 17, 1985. After drinking some coffee and remaining on the premises until all the other customers in the restaurant departed, the two men brandished handguns, announced themselves as robbers, and ordered the five employees (Angela Grinter, Urhonda Graham, Patrice Hampton, Kathryn Blakely, and Sonia Meads) and the assistant manager (DeWayne Bible) to the back of the store. The robbery itself lasted about five to ten minutes and netted the men slightly over $1,000. The robbers, not satisfied with their illicit proceeds, forced all but one of the employees into the freezer room, while keeping one as a hostage. In an act of bravery, Bible asked the criminals to take him as their hostage rather than his employee, and they did so, locking the other five employees in the restaurant‘s freezer. Approximately five minutes later, the employees in the freezer heard two or three gunshots. After waiting several minutes and when the employees were no longer able to hear the voices of the robbers, believing that they had departed, the employees kicked the locked freezer door open. Upon exiting the freezer, they discovered Bible‘s body, lying on the floor in a pool of blood with two closely spaced gunshot wounds at the base of his head (execution style).
Shortly thereafter, the police arrived and they separated the witnesses and proceeded to tape record statements from each of them concerning the details of the crime, including their respective descriptions of the criminals. The victims estimated that over the course of the robbery, they had five to ten minutes to view the faces of the robbers. Their descriptions of the robbers’ features were relatively consistent, varying only in the amount of detail provided. They described one of the suspects (whom they later identified as Gregory-Bey) as a dark-skinned African American male, between 5‘10” and 6‘1” in height, with a slight build (125-130 pounds), uncombed or matted Afro, a small amount of facial hair or thin beard, and pock-marks or acne scars on his face.
After providing the police with descriptions of the two robbers, three of the witnesses—Grinter, Graham, and Hampton—met collectively with a police artist and provided a description that was subsequently used in the creation of composite sketches of the two robbers. Police placed copies of these sketches in the vicinity of the crime scene, resulting in the police receiving several tips.
In the weeks following the robbery, the police received information that Gregory-Bey might have been involved in the McDonald‘s robbery and Bible‘s murder. Accordingly, the police produced a black-and-white photograph of Gregory-Bey from the Indianapolis Police Department and placed it among a set of at least a half dozen other black and white photographs of black men, which they displayed to the victims in hopes of getting a positive identification of the robbers. (R. at 406.) The record is clear that these photos were of poor quality and that no witness was able
The police department refused to terminate their investigative efforts just because of the lack of an identification from the admitted poor quality of the initial photos presented. Detective Fred Jackson next secured a (color) photo of Gregory-Bey from the police department‘s photo lab. This photo (marked as State Exhibit 3A, and included in the record before us on appeal), while apparently more clear than the original photo, still did not reveal the subject‘s features in detail sufficient for any of the witnesses to make a positive identification of the suspect, as the face is largely shadowed. Two months after the crime, Jackson displayed this photo, within a stack of twenty-seven other color photos, to witnesses Blakely, Graham, Grinter, and Hampton individually. All four testified that although they felt the man pictured “looked like” one of the robbers, they still couldn‘t be sure because the picture wasn‘t clear. (R. at 414, 425-26, 544, 581, 593-94, 616-17, 640-41, 1057, 1163.)1
Detective Elmer Combs was also in possession of another (color) photo of Gregory-Bey (marked as State Exhibit 4, and included in the record before us on appeal), but this photo was much clearer than the one Jackson had. The face in Combs’ photo is clearly visible, and the defendant‘s features (acne, facial hair, hair style) are clearly distinguishable. Shortly thereafter, he displayed this different picture of Gregory-Bey in another photo array with five other pictures to the victim-witnesses. When the witnesses were shown this markedly different photo individually, their reactions were decisive and swift. Within “seconds,” each of the four witnesses—Blakely, Graham, Grinter, and Hampton—individually and positively identified Gregory-Bey as one of the robbers. (R. at 436, 438, 440, 544-46, 592, 614-16, 640.)2 The witnesses’ identifications were made independently of each other, and without any assistance or suggestions from the detectives.3 Blakely and Graham even began to “shake” when seeing a clear picture of the face of the perpetrator.4 Thus, the record reflects that four of the five
Based upon these positive identifications recounted above (from four out of the five surviving victim witnesses), the police arrested and took Gregory-Bey into custody on March 2, 1986, and the following day arranged for a physical identification lineup of six men, enacted in the presence of Gregory-Bey‘s counsel. Before viewing the lineup, the police instructed the witnesses about certain guidelines for the lineup procedures. Specifically, the police stated to the witnesses that the suspect “may or may not be in the line-up” and also that they were “not to talk to each other about anything.”5
The witnesses viewed the lineup in two separate groups. First, Blakely, Grinter, and Graham viewed the lineup and were given a numbered form to mark if they were able to identify the suspect (each person in the lineup had a number). Blakely immediately picked Gregory-Bey out of the lineup and marked her form accordingly.6 Blakely later stated at her deposition that as she did so, she overheard Grinter and Graham whispering to each other, contrary to the instructions to refrain from talking, and heard them saying that they were scared to pick the perpetrator, for fear of being identified.
Graham also testified that she had “whispered [to Grinter] in the conference room” after the lineup procedure was completed about who was in the lineup and that Graham told Grinter that she “thought it was number five.” Additionally, Graham remarked that Grinter had whispered that she believed the suspect was “number three.” Grinter, however, testified that this exchange took place when the witnesses were riding home together in the company of each other after the identification lineup procedure, and not in the conference room at the police station. In any event, because of their respective fears that the suspect could see them through the glass, neither Grinter nor Graham marked their identification forms while viewing the lineup.7 Next, Hampton and Meads viewed the lineup, and neither of them made a positive identification of Gregory-Bey at that time. Hampton, repeating the same fear expressed by Grinter and Graham that she could be seen through the glass, refused to give the police a positive identification.
Shortly after the lineup, Graham, Grinter, and Hampton made contact with the police and informed them that they had seen one of the robbers in the lineup, but were afraid to select him because they were fearful that he might have been able to see them as they made their identifica
B.
Based on these positive identifications (from the photographic array, the live lineup, and the videotape lineup) made by witnesses Blakely, Grinter, Graham, and Hampton, Gregory-Bey was charged with murder (
On October 1 and November 17, 1986, the trial judge conducted an extensive hearing (350 pages of testimony) outside the presence of the jury before ruling on Gregory-Bey‘s motion to suppress. During the hearing, defense counsel vigorously questioned the victim witnesses as well as detectives Jackson and Combs about the investigative procedures the police employed. The defense focused on the composition of the various photographic arrays, the allegedly suggestive comments Jackson made before showing the witnesses the photos, Jackson‘s supposed expression of “happ[iness]” after a positive identification, the purported improprieties that occurred during the physical lineup, and the witnesses’ failure to positively identify Gregory-Bey earlier in the course of the investigation. Defense counsel was allowed to introduce in evidence before the jury the composite sketch, transcripts of the witnesses’ statements on the day of the crime, the police bulletin issued on the day of the crime that provided a description of the two suspects, and the videotape of the physical lineup. The state trial judge, after reviewing all of these exhibits and testimony submitted on behalf of the defendant, refused to suppress the witness identifications.
At trial, all four of the witnesses (Blakely, Grinter, Graham, and Hampton) identified Gregory-Bey in open court for a third time as one of the perpetrators of the crimes. Once again defense counsel was given another opportunity to thoroughly and exhaustively question the victim witnesses regarding their failure to identify Gregory-Bey from the initial (poor quality) photographic arrays, any alleged improper suggestions made by the police during their viewing of the same arrays, and any
C.
The day after his 1986 conviction, Gregory-Bey filed a praecipe requesting that a transcript be prepared in order that he might proceed with his appeal process. Some eight years later, in 1994, neither his trial counsel nor his successor counsel (appointed in 1992) had so much as filed an appellate brief on Gregory-Bey‘s behalf. Gregory-Bey then turned to the federal courts for relief, filing a petition under
II. Issues
On appeal, Gregory-Bey repeats the same issues he presented to the federal district court—that the state trial court‘s decision to allow the in-court witness identifications denied him due process because they were unreliable and the product of unduly suggestive investigative procedures. Gregory-Bey argues that the identifications were unreliable for three primary reasons: (1) “the witnesses failed to
III. Analysis
A.
Gregory-Bey filed this
B.
Prior to reaching the merits of a constitutional claim raised in a habeas corpus petition, we must initially determine whether the defendant-appellant has procedurally defaulted his claim that the state‘s witness identification procedures violated his right to due process of law. We must ensure that the habeas corpus petitioner has overcome two procedural hurdles, exhaustion and procedural default, before reaching the merits of his claim. Spreitzer v. Schomig, 219 F.3d 639, 644 (7th Cir.2000). The failure to raise an issue on direct appeal (as did Gregory-Bey‘s appellate counsel in his failure to raise the witness identification issue in the first appeal to the Indiana Supreme Court) will generally bar a defendant from raising it later in a post-conviction proceeding. Menzer v. United States, 200 F.3d 1000, 1005 (7th Cir.2000); Kurzawa v. Jordan, 146 F.3d 435, 441 (7th Cir.1998). The requirement that state courts should have the first opportunity to cure a claim of continued confinement stems from, inter alia, the belief that those courts are in the best position to correct their own errors, from the understanding that state courts are equally obligated to follow federal law, and from the desire for comity between state and federal court systems. See O‘Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1998); Kurzawa, 146 F.3d at 440.
As a procedural default is not jurisdictional, any argument that Gregory-Bey has defaulted his due process claim can be waived by the government. Hernandez v. Cowan, 200 F.3d 995, 997 (7th Cir.2000); Nichols v. United States, 75 F.3d 1137, 1145 n. 17 (7th Cir.1996). We refuse to penalize the defendant-appellant Gregory-Bey under this unique sequence of events that led to his direct appeal being delayed for nearly ten years. The state has waived any argument that he has procedurally defaulted his due process claims. Through no fault of the petitioner, by the time Gregory-Bey finally was able to appeal the merits of his habeas corpus
Throughout the history of Gregory-Bey‘s attempts to have the state court examine the merits of his allegation that the witness identification procedures were flawed, Gregory-Bey‘s basic constitutional right of appellate review was delayed for reasons beyond his control. Initially, Gregory-Bey attempted to secure review in the Indiana court system immediately following his 1986 conviction with the filing of a praecipe to commence the appellate process in the state court. Inexplicably, and despite numerous written inquiries by the petitioner Gregory-Bey regarding the status of his appeal, his attorneys (both his original and successor attorney appointed in 1992) failed miserably, neglecting to file an appellate brief on his behalf until 1994. Second, Gregory-Bey did not sit idly by while his attorneys frittered away his opportunity to appeal. He repeatedly attempted—to no avail—to communicate and correspond with his appointed counsel. Eight years after his conviction, without so much as one single appellate brief being filed in the state courts on his behalf, the petitioner Gregory-Bey was forced to turn to the federal courts on his own and sought habeas corpus relief. We should also point out that in 1996, Gregory-Bey filed a motion with the Indiana Supreme Court pro se requesting that he be allowed to “withdraw and amend” the brief filed by his attorney because it failed to raise the issue of the propriety of the witness identifications. Unfortunately, the Indiana Supreme Court also declined to address Gregory-Bey‘s concerns and swept aside the problem raised in his pro se motion, for reasons unexplained, just as it had done in protecting his attorneys’ tardiness in pressing his appeal.12 In short, the state exceeded the limits of the procedural default doctrine. As procedural default provides the state with the opportunity to correct its own errors, we think that given Gregory-Bey‘s repeated efforts to place the factual and legal basis of his claim before the Indiana Supreme Court and the Indiana Supreme Court‘s inability or unexplained refusal to provide Gregory-Bey with any reasonably timely appellate review, we refuse to sandbag the appellant and hold that the state has waived the right to make any argument that he procedurally defaulted the issues raised in his
C.
Eyewitness identification testimony can violate a defendant‘s constitutional right to due process of law when it creates a “substantial likelihood of irreparable misidentification.” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)); see also Cossel v. Miller, 229 F.3d 649, 655 (7th Cir.2000). In determining the constitutionality of an identification procedure, we undertake a two-step analysis. McGowan v. Miller, 109 F.3d 1168, 1173 (7th Cir.1997). As an initial matter, the petitioner must demonstrate that the identification procedures were unduly suggestive. United States v. Traeger, 289 F.3d 461, 473-74 (7th Cir.2002); United States v. Harris, 281 F.3d 667, 670 (2002). If the petitioner successfully demonstrates that the challenged procedure was unduly suggestive, the court must then determine, under the “totality of the circumstances,” whether the identification was sufficiently reliable to prevent misidentification. Traeger, 289 F.3d at 473-74; Harris, 281 F.3d at 670. In assessing the reliability of an identification procedure, the courts consider the following factors:
- the opportunity of the witness to view the criminal at the time of the crime;
- the witness’ degree of attention;
- the accuracy of the witness’ prior description of the criminal;
- the level of certainty demonstrated by the witness at the confrontation; and
- the length of time between the crime and the confrontation.
Biggers, 409 U.S. at 199-200, 93 S.Ct. 375.
Under the first prong of the Biggers test, Gregory-Bey must establish that the witness identification procedures employed by the police were unduly suggestive. Gregory-Bey claims that the police tainted the identification procedure when they allegedly singled him out by repeatedly showing the witnesses his picture along with a number of other pictures in photo arrays. Next, he alleges that the police improperly reinforced Grinter‘s identifica
The Supreme Court has warned that showing witnesses a photograph of the same person several times may increase the risk of misidentification. Simmons v. United States, 390 U.S. 377, 383-85, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); see also Kubat v. Thieret, 867 F.2d 351, 358 (7th Cir.1989). The danger to be avoided in identification procedures is that of orchestrating the procedure so that one particular suspect stands out from the others and the procedure implicitly suggests to the witness that “this is the man.” See Foster v. California, 394 U.S. 440, 442-43, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). We have held previously that there is nothing per se unconstitutional about showing witnesses the photograph of a particular suspect multiple times as part of an array. See, e.g., Harris, 281 F.3d at 670;13 Stewart v. Duckworth, 93 F.3d 262, 265-66 (7th Cir.1996); United States v. Donaldson, 978 F.2d 381, 386-87 (7th Cir.1992); Kubat, 867 F.2d at 358.
Gregory-Bey goes on to argue that the display and record procedures employed by the police detectives were defective. For example, although the police displayed several photographic arrays to the witnesses, they failed to specifically document how often the witnesses were shown the
In the case before us, the evidence establishes that the displays of Gregory-Bey‘s photograph on more than one instance, along with several other suspects in each of the arrays presented, cannot be classified as unduly suggestive, for it is abundantly clear from the testimony in the record that the colored photograph of Gregory-Bey that the witnesses identified (which revealed in detail for the first time his features such as facial hair or acne scars) was distinctly unique and different from the other, darker color photograph included in an earlier array (which failed to display any features such as facial hair or acne scars).14 In Stewart we concluded that showing a witness photos of the same suspect three separate times along with other pictures did not render the identification unduly suggestive because the photos were markedly separate, distinct, and different. Stewart, 93 F.3d at 265-66 (noting, inter alia, that the defendant‘s photo “did not stand out in the arrays“). It is evident from our review of the evidence that because the photographs of the defendant used in the photographic arrays (from the first set of black and white photos to the second and third set of color photos) were so markedly unique and different from each other, we are convinced that the photographic lineup referred to was not unduly suggestive and thus did not violate Gregory-Bey‘s due process rights.15 See id.; Donaldson, 978 F.2d at 386-87; Kubat, 867 F.2d at 358.
Gregory-Bey next argues that the identification procedures were unduly suggestive because police officers allegedly reinforced both Graham‘s and Grinter‘s identification of Gregory-Bey‘s picture after
Gregory-Bey also argues that both Graham and Grinter testified that the officers appeared happy or excited after their selection of Gregory-Bey as being contained in the photographic lineup, thus improperly reinforcing their identifications. He goes on to argue that after the allegedly improper reinforcement, the witnesses were apt to retain in their memory the photographic image, rather than the image of the perpetrator they actually saw at their crime. Gregory-Bey is reaching out for any argument that might have even the slightest conceivable chance of success, but we refuse to conclude that the procedures employed by the police in displaying Gregory-Bey‘s picture with a number of other suspects were unduly suggestive.
An identification procedure is unduly suggestive when it is so suggestive as16 to create a substantial likelihood of irreparable misidentification. See Moore v. Illinois, 434 U.S. 220, 227 (1977). Where the police subtly (or in some cases possibly even not so subtly) thrust upon the witness signals or clues that lead the witness to select a predetermined suspect, the identification procedure is not likely to provide an unbiased reflection of the witness‘s personal knowledge. Foster, 394 U.S. at 442-43, 89 S.Ct. 1127. But we are convinced that in this factual situation this is not a case where the police, like a magician pushing the two of hearts upon an unwitting audience member asked to “pick a card,” prodded the witnesses to select Gregory-Bey (and not some other suspect) from the photospread. Gregory-Bey has been unable to point out to us any example of evidence in the record that might even suggest that the police tipped the witnesses off to the fact that Gregory-Bey‘s picture was among the many photographs in the display. In the past we have held that procedures more suggestive than these fell short of rising to the level of a constitutional violation. For example, we held that a photographic lineup in which the primary suspect‘s photograph was a mug-shot with a time-date stamp corresponding with the approximate time of the crime was not unduly suggestive. Kubat, 867 F.2d at 358-59. Similarly, we have found that a photograph of a suspect with visible ankle shackles was not unduly suggestive. Traeger, 289 F.3d at 473-74. We do not think that the fact that the police “seemed happy” after Graham and Grinter had selected Gregory-Bey from the stack of photos raises even an iota of concern that the police‘s “suggestion” might have caused an “irreparable misidentification.”16
The conversations between Graham and Grinter, during and after the physical lineup, merit discussion. Both Graham and Grinter reported that they were fearful that the suspect would be able to see them through the glass at the lineup and both agree that for this reason they were reluctant to identify the suspect because of fear and whispered about these fears during the lineup. Although the police instructed the witnesses to avoid “talk[ing] to each other about anything,” we cannot see how the witnesses’ sharing of fears that the suspect might be able to see them raises even a modicum of concern about the suggestiveness of the procedure, for it has absolutely nothing to do with the identification procedure itself.
There is conflicting testimony, however, from Graham and Grinter about when they spoke with each other concerning their opinions as to which of the persons in the lineup they believed to be the perpetrator. According to Graham, the two talked about their potential identifications at the police station, but only did so after the completion of the lineup. Grinter agreed and testified that the conversation took place after the execution of the lineup, and furthermore that it only occurred after the two witnesses had completed the identification procedure and had departed from the police station. It is not the role of an appellate court to second-guess the finders of fact because the cold pages of an appellate record do not allow us the opportunity to observe the verbal and nonverbal behavior of the witnesses, including their reactions and responses to the interrogatories, any confused or nervous speech patterns, their facial expressions, attitudes, tone of voice, eye contact, posture, fidgeting, perspiring, and body movements. See United States v. Frykholm, 267 F.3d 604, 612 (7th Cir.2001); United States v. Tolson, 988 F.2d 1494, 1497 (7th Cir.1993). In this case, although the state trial judge failed to particularize and articulate the amount of weight he gave to the testimony of each of the individual witnesses, it is clear that he believed and credited their statements that they were certain about their identifications and, more importantly, that their separate identifications had not been influenced by the police. Given the nature of the fear and anxiety that certainly was created by the trauma of being involved in the robbery and murder episode, it is less than surprising that the lay witnesses would be most fearful and thus reluctant to identify the suspect in that they were apprehensive about being identified by him, and it is more than plausible that their whispering had only the effect of encouraging each other to overcome their fears. We have observed before that cross-examination is “the greatest legal engine ever invented for the discovery of truth.” Rodriguez v. Peters, 63 F.3d 546, 556 (7th Cir.1995). In this case, defense
Even if we were to believe that Graham‘s and Grinter‘s conversations about their fears during and after the physical lineup rendered the lineup an unnecessarily suggestive procedure, we would affirm the decision of the state court because Gregory-Bey has failed to establish that under the totality of the circumstances the incourt identifications of each of the four witnesses were unreliable because of the alleged suggestive procedure. United States v. Funches, 84 F.3d 249, 253 (7th Cir.1996). We bear in mind during this examination that “the primary evil to be avoided is a very substantial likelihood of irreparable misidentification.” Biggers, 409 U.S. at 198, 93 S.Ct. 375. It is the reliability of identification evidence that primarily determines its admissibility. Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). As the Supreme Court has pointedly noted, “the only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence.” Watkins v. Sowders, 449 U.S. 341, 347, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981). Further, we note that “[j]uries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” Abrams v. Barnett, 121 F.3d 1036, 1042 (7th Cir.1997) (citing Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). Based on this record, we are confident that the jury diligently assumed their duty and obligation under the law and followed the court‘s instructions in dealing with the witness identification question and also when evaluating the reliability of the eyewitness testimony, and furthermore we see no reason to doubt their finding that the eyewitness testimony was reliable. See United States v. Miller, 276 F.3d 370, 375 (7th Cir.2002) (holding that juries are presumed to follow their instructions).
As noted above, Biggers announced several factors to consider in assessing the reliability of an identification:
the opportunity of the witness to view the criminal at the time of the crime; - the witness’ degree of attention;
- the accuracy of the witness’ prior description of the criminal;
- the level of certainty demonstrated by the witness at the confrontation; and
- the length of time between the crime and the confrontation.
Biggers, 409 U.S. at 199-200, 93 S.Ct. 375. In applying the factors announced in Biggers, we note that the factual situation before us points overwhelmingly towards the reliability of the eyewitness identifications. First, the witnesses had sufficient opportunity to observe the robbers with a fixed and heightened degree of attention. All four of the witnesses had ample time (five to ten minutes at the crime scene) to view the robbers as they committed their robbery and proceeded to herd them into the store‘s freezer. The witnesses testified that Gregory-Bey approached them and made clear their intention to rob the store, thus giving them ample time and opportunity to view his face and bodily features over the course of several minutes and from multiple angles during the course of robbery. Neither of the robbers wore masks and the store was well lit. See, e.g., United States v. Clark, 989 F.2d 1490, 1495-96 (7th Cir.1993) (two-minute robbery during broad daylight gave witnesses the opportunity to obtain definite impression of the robber‘s appearance). Second, we emphasize that the witnesses were not casual observers to the crime, but direct eyewitness victims. See Manson, 432 U.S. at 115, 97 S.Ct. 2243 (witness identifications are more reliable when the witnesses are not casual observers, but are instead victims of the crime); United States v. Newman, 144 F.3d 531, 536 (7th Cir.1998) (same).
More importantly, four of the five surviving witnesses all provided what can best be classified as consistent and accurate descriptions of Gregory-Bey immediately after the crime. As we have pointed out supra, their descriptions were sufficient to allow the creation of a fairly accurate composite sketch, which in turn led to the police receiving a tip that Gregory-Bey was probably involved in the crimes. All four of the witnesses described Gregory-Bey as dark skinned. Three of the four (Graham, Grinter, and Hampton) described him as having an Afro that was either matted or uncombed. Hampton and Grinter described his build as tall (5‘10” to 6‘1“) and slight (135 pounds). Lastly Hampton and Graham described Gregory-Bey as having a small beard or a little facial hair. All of these descriptions match Gregory-Bey‘s appearance. That the witnesses were able to provide such an accurate and detailed description of Gregory-Bey is a further indication of the reliability of their identifications.18
But most telling is the degree of certainty the witnesses demonstrated at the time of identification. Kathryn Blakely testified that when she came to Gregory-Bey‘s picture she “kept starin[g] at the picture and ... just started shakin[g].” Blakely
This is not a case of a flimsy identification resting upon a foundation of quicksand, where a minor slip-up by the police during the investigation might have seriously undermined the confidence in the reliability of the identification. Instead, this is a case where prior to trial four witnesses had independently identified—not once, but twice—Gregory-Bey as one of the perpetrators of these heinous violent crimes, murder and armed robbery. Two of those witnesses (Blakely, the first witness to identify Gregory-Bey both from the photos and the lineup, and Hampton) made their identifications completely independently of anyone and were entirely unaffected by the allegedly suggestive procedures about which Gregory-Bey complains. All four witnesses expressed a great deal of confidence and certainty about their identifications. Although some of the initial detective work (identification procedures, unclear picture, and records thereof) might have been improved upon, it fell far short of creating a “substantial likelihood of irreparable misidentification.” It is not our duty—as an appellate court—to nitpick the record to find possible error, but rather to search for the truth and the truth alone in the type of factual situation presented herein and render justice to the accused whether it be a finding of not guilty or guilty. The United States Constitution guarantees not a perfect trial, but only a fair one. See United States v. Harris, 271 F.3d 690, 704 (7th Cir.2001). We have acted accordingly and confirmed the considered judgment of the jury made up of the defendant‘s peers.
Because we find the identification procedures were neither unduly suggestive nor so unreliable as to create a “substantial likelihood of irreparable misidentification,” see Traeger, 289 F.3d at 473-74; Biggers, 409 U.S. at 198, 93 S.Ct. 375, Gregory-Bey‘s sentence and conviction are AFFIRMED.
WILLIAMS, Circuit Judge, dissenting.
While I agree with the legal standard the majority uses to determine the reliability of the witnesses’ identification of Lawrence Gregory-Bey, I disagree with its application of that standard. Based on the facts submitted, I believe that the identification procedures were unduly suggestive, making the identification of Bey by the four eyewitnesses, Kathryn Blakely, Angela Grinter, Urhonda Graham, and Patrice Hampton, unreliable. Accordingly, I dissent.
*
*
*
As the majority noted, we analyze whether the initial identification procedures were unduly suggestive and if so whether the undue suggestion impairs the reliability of the identification. See United States v. Newman, 144 F.3d 531, 535 (7th Cir.1998); United States v. Duprey, 895 F.2d 303, 307 (7th Cir.1989). Our task is made particularly difficult in this case because the witnesses provided statements regarding the facts and circumstances surrounding their identifications to the police and in deposition, motion to suppress, and trial testimony, and some portions of these statements are inconsistent.
A. Unduly Suggestive
Identification procedures are unduly suggestive when the suggestiveness creates a “very substantial likelihood of irreparable misidentification.” See United States v. Moore, 115 F.3d 1348, 1360 (7th Cir.1997) (internal quotation marks omitted). Bey challenges the identification procedures used during the photo array and lineups that form the basis of the witnesses’ identification of him.
1. Photo arrays
As the majority notes, repeated showing of a suspect‘s picture in police photo arrays is not unduly suggestive if the photos do not resemble each other. See Stewart v. Duckworth, 93 F.3d 262, 265-66 (7th Cir.1996) (after reviewing photos court ruled that the arrays were not unduly suggestive because the photos were dramatically different); United States v. Donaldson, 978 F.2d 381, 386–87 (7th Cir.1992) (court held repeat showings not unduly suggestive because the suspect‘s photos were distinctly different). This court normally determines the resemblance by comparing the pictures in each array. Id. at 387. In this case, the court was unable to compare the black and white photo and the color photos due to the unexplained absence of the black and white photo.1 So the majority relies on the witnesses’ testimony to decide if there was a dramatic difference between the photos. However, there are difficulties presented in this case because of the conflicting testimony of the witnesses regarding the differences between the black and white and color photos.2 Given this conflicting testimony and the court‘s inability to compare the actual photographs, this court cannot determine the difference, if any, between the black and white and color photos of Bey and thus whether the repeated showing of Bey‘s picture was unduly suggestive.
Repeated showing of one suspect‘s picture increases the likelihood that the witness will choose the recurring picture not because it is the suspect, but because the witness remembers seeing the picture before. See Simmons v. United States, 390 U.S. 377, 383-84, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Kubat v. Thieret, 867 F.2d 351, 358 (7th Cir.1989). The likelihood that a witness will misidentify a suspect from repeated showings of the suspect‘s photo is lessened if the witness at least tentatively identifies the suspect in the first photo array, as was the case in Kubat. See id. at 356. In this case, only one of the four eyewitnesses tentatively identified Bey from the black and white photo,3 and she was still not completely certain that Bey was the robber upon viewing the color photos.4 Because three of the wit
The likelihood of irreparable misidentification was further exacerbated by comments made by the police. Before picking Bey out of the photo array, the police told Grinter that another witness had picked a suspect out of the photos.6 According to Grinter, the police then showed her a photo array in which Bey‘s photo was the only photo that had appeared in previous photo arrays.7 Both Grinter and Graham claimed that when they chose Bey the police seemed excited,8 and Grinter further asserted that the police indicated to her that Bey was the same person chosen by the other eyewitnesses.9 These statements and expressions of the police before and after Grinter and Graham identified Bey as a suspect have been found by other circuits to be unduly suggestive. See United States v. Smith, 156 F.3d 1046, 1050 (10th Cir.1998) (unduly suggestive for police to tell witnesses to assume the suspect was in the photo array); Grubbs v. Hannigan, 982 F.2d 1483, 1490 (10th Cir.1993) (impermissibly suggestive to cause a
In sum, because the court cannot determine how similar Bey appeared in the photos used at each photo array, the witnesses were unable to identify Bey prior to viewing the color photo, and the police made suggestive comments, I would hold that the photo array identification procedures for all four of the eyewitnesses were unduly suggestive.
2. Lineup
The lineup procedure employed by the police was also unduly suggestive, for several reasons. First, while waiting in the police conference room immediately after viewing the live lineup, and also later that day, Graham and Grinter discussed their potential identifications with one another.10 It was only after these conversations took place that Graham and Grinter identified Bey during a video lineup. Because they made positive identifications only after learning of each other‘s suspicions about whether the robber was in the lineup, their identifications were tainted. See Monteiro v. Picard, 443 F.2d 311, 313 (1st Cir.1971) (finding certain identifications to be “tainted” because the witnesses identified a suspect only after hearing another witness identify that suspect).
Second, Grinter said that before Blakely went to the lineup, she told Blakely that everyone had picked the same suspect out of the photo array.11 Grinter‘s comments to Blakely prior to the live lineup probably suggested to Blakely that she should look for the person in the photo instead of making an independent identification, creating the substantial likelihood of irreparable misidentification.
Third, the identification of Bey by Hampton in the video lineup was unduly suggestive because the police used the same lineup in the video as the live lineup.12 This is problematic because of the possibility that the witnesses would discuss the live lineup before they were brought in to view the video lineup in the same way they discussed the photo array before attending the live lineup. Thus, the live and video lineups were unduly suggestive for
B. Reliability of Identification
Applying the five factors announced in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), I find that each of the four eyewitnesses’ identifications of Bey was unreliable because of their lack of certainty that Bey was the robber.
In her first statement to the police, Blakely failed to describe any specific characteristics of the suspect beyond the fact that he was tall, skinny, and had dark skin. Tr.2 at 381 (Defendant‘s Exhibit C). In fact, Detective Jackson testified that within ten days of the robbery, Blakely intimated that a different dark-skinned man was the robber.13 In addition, the level of certainty Blakely expressed when identifying Bey is troubling. Blakely was shown Bey‘s picture several times before
Furthermore, Blakely testified at trial that when she identified Bey from the photo array more than three months after the robbery, she was certain Bey was the assailant.17 Notwithstanding this certainty, Blakely further testified that when she identified Bey at the lineup four months after the robbery,18 she thought that he was not the same man she had just picked out of the photo array.19 Moreover, when Blakely picked Bey out of the lineup she was not “100% sure” that Bey was the robber, but certain that Bey “looked exactly like [the robber].” Tr.5 at 1228. Because Blakely initially identified someone else as a suspect nearly two weeks after the robbery, believed that the person she
Grinter‘s identification was no more reliable than Blakely‘s identification. First of all, it is questionable whether Grinter had ample time to view the suspect at the time of the crime because she testified that she was afraid to look at him directly.20 However, assuming that she did have an opportunity to view the suspect and paid attention to him, Grinter still failed to accurately describe Bey in her first statement. Specifically, Grinter failed to mention that the suspect had bumps on his face, a mustache, and a beard. Tr.2 at 388 (Defendant‘s Exhibit E). In fact, at her deposition and at the motion to suppress hearing, she testified that the suspect did not have any scars or bumps on his face.21 Thus, her early descriptions of the suspect were not accu
Graham‘s identification of Bey was also unreliable. Graham had ample time to view the suspect, she paid attention to the suspect, and her first description matched Bey.26 However, Graham‘s description of Bey changed over time. Graham later said that the suspect did not have a beard or mustache,27 but these characteristics
Finally, Hampton‘s identification of Bey was unreliable. Hampton had ample time to view the suspect at the time of the crime, and there is no question that she paid attention to the suspect at the time of the crime. Tr.3 at 563-71. Yet, her first statement failed to mention that the suspect had bumps on his face and a mustache.32 When she officially identified Bey‘s photo, she had seen his picture three times,33 and she was not completely certain that it was Bey. Hampton requested to see Bey in person before she could be certain.34
At the lineup Hampton failed to pick Bey35 and lied about it to the police.36 She did not change her story until she heard that someone had identified Bey as the suspect.37 Hampton then called the police and said that she failed to identify the suspect because she was scared.38 Addi
For the reasons stated above, I would reverse Bey‘s conviction.
Michael J. HAMM, Plaintiff-Appellant, v. WEYAUWEGA MILK PRODUCTS, INC., Defendant-Appellee.
No. 02-2529.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 10, 2002. Decided June 13, 2003.
332 F.3d 1058