Robert Gray Graham v. Herman Solem, Warden, South Dakota State Penitentiary, and Mark v. Meierhenry, Attorney General, State of South Dakota

GRAHAM, Gray Appellee, Robert SOLEM, Warden,

Herman Penitentiary, and Mark V. Meier-

henry, Attorney General, State of South

Dakota, Appellants.

No. 82-1371.

United of Appeals, States Court

Eighth Circuit.

Submitted Nov.

Decided March Gen., Meierhenry, Grant Atty.

Mаrk V. Pierre, S.D., Gen., Atty. Asst. Gormley, appellants. Evans, Richardson, Davenport,

Sarah Smith, Falls, S.D., for Hurwitz & Sioux appellee. HEANEY, LAY, Judge, and

Before Chief ARNOLD, ROSS, McMILLIAN, BRIGHT, BOWMAN, GIBSON, JOHN R. FAGG and Judges, Circuit en banc. Solem, Da- Warden of the South

Herman Falls, Penitentiary kota State at Sioux Attorney Mark General Meierhenry, Dakota, judg- a final appeal from Court for the ment entered the District writ granting District of South Robert corpus petitioner habeas Graham. below, judg- first For reasons discussed issue raised in this appeal ment of the district court is reversed. whether the United States Court’s decision in Rose Lundy, recent argued Two issues were and submitted to 509, 102 379, requires 71 L.Ed.2d (1) sitting the court en banc: whether Rose corpus peti us to dismiss habeas Graham’s Lundy, Rose v. Lundy tion. held federal dis (1982), apply L.Ed.2d 379 should retroac- may trict courts not entertain habeas cor (2) tively and whether the district pus petitions which contain both exhausted in holding complaining erred that wit- 522, Id. at and unexhausted claims. 102 ness’ of Graham was in-court identification The state contends that Gra result impermissibly suggestive of iden- ham has to of failed exhaust several unreliable, procedures, tification nineteen raised in his habeas petition claims therefore a inadmissible. Because different and, therefore, the petition entire must be issue, majority of court decided each is he position dismissed. Graham’s that has different member of the court prepared an exhausted all nineteen claims.1 As al each majority opinion for issue. dis- argument, ternate Graham maintains senting opinions immediately follow the should, Lundy this court Rose v. in aрply majority for each issue. opinion his case because the district court issued writ on the of a basis claim that was ex I. EXHAUSTION hausted and did so before Rose v. Lundy McMILLIAN, Judge, Circuit with whom was decided. ROSS, ARNOLD, GIBSON, JOHN R. BOWMAN, Judges, join.

FAGG and Circuit First, we determine whether the habeas petition before us contains unexhausted three Petitioner Graham his co-de- claims. fendants, Reiman, Elliott, Onstott and tried and found in guilty by jury state Requirement A. Exhaustion Yankton, court of kidnapping raping Dakota, petitioner South woman. four A All defendants federal habeas satis appealed to the Dakota of requirement South fies exhaustion 28 Court, which reversed Onstott and Elliott’s 2254(b) (1976) (1) when he either U.S.C. § convictions, kidnapping upheld but all the has no other presently available state reme other convictions. v. pursue (2) fairly 284 dies to has presented 860, (S.D.1979). N.W.2d 874 Petitioner Gra- substance his federal claims to the state’s ham subsequently petition 1007, filed a for a writ v. Wyrick, courts. Moore 668 F.2d corpus (8th Cir.1982). habeas in the federal district 1009 Under South petition court. law, reiterates basically post-conviction has reme Graham still same points Thus, made to the state supreme dies available to him.2 we must ex writ, court. The district court granted brief Da amine Graham’s before holding that the use of the victim’s identifi- kota determine whether cation of at trial fairly was a violation he an presented op court with Graham’s federal right portunity constitutional to due federal pass upon the constitu process. appealed, The state challenging grounds his tional claims.3 Citation to a power both the district court’s provision address of the federal or a constitution the merits of the issues raised Graham’s case addressing constitutional basis petition claim, and the district court’s decision on the to a or a discernible reference the merits. right federal constitutional is all is 1007, Wyrick, (8th Cir.1982); 1. The district court held that Graham had ex Thomas v. 1009 411, hausted (8th Cir.1980). all nineteen of issues in his raised 622 F.2d 414 Solem, corpus petition. Graham v. habeas No. 4174, 16, op. (D.S.D. mem. at 4 Feb. CIV80 — Only signifi- errors of federal constitutional 1982). corpus cognizable are cance federal habeas Berry De v. of a review state conviction. through 2. S.D. Codified Laws Ann. § 23A-34-1 Wolff, 1336, Cir.1975). (8th 513 F.2d 1338 Wyrick, See Moore 34-23 v. 668 F.2d 1536 Cir.1982); Harding Harless, 655, (2d n. 3 v. 657 & required. Anderson F.2d

normally 850, Carolina, (4th 276, 3, North 4, 683 F.2d 851-52 v. 277-78 n. 459 103 & U.S. O’Lone, 60, v. F.2d Morrow Slotnick curiam); Cir.1982); v. 683 (1982) (per 3 74 L.Ed.2d denied, Cir.1982), cert. (8th Cir.), (3d Wyrick, 646 F.2d 1232 61 (1983); 447 401, 70 L.Ed.2d denied, 454 U.S. (10th Wyrick, Hess, Thomas v. & n. Jones (1981); v. 681 F.2d L.Ed.2d ex rel. v. Cir.1980). States Clauser 411, 413 (8th making United Cir.1982); F.2d Shadid, assessment, (7th Cir.1982). in mind that we must bear 677 F.2d Balkcom, courts, guardians of con co-equal state Johnson Contra Ashe, rights, recognize able to fed Niziolek Cir.1983); stitutional are (11th ex even when no (1st Cir.1982).6 eral constitutional issues We also F.2d 285-87 con plicit the federal opin reference made has this circuit mixed aware that Lundy, Rose Wyr Compare Dunn stitution. subject. on the ions 518, at (Rose 102 1203. v. 731, ick, 679 F.2d (8th Cir.1982) 733 corpus to Lundy will be habeas applied review state supreme A of Graham’s been claims have petitions where exhausted to court reveals that he has failed brief in the federal litigated and decided fully 6, 11, 5, 14 15 exhaust issues and Lundy v. prior to the Rose district court petition raised his for writ of habeas in a Wyrick, 681 Romano v. decision), and F.2d faced, therefore, corpus.4 We are 555, (8th Cir.1982) (mixed peti 556 & n. 3 must petition mixed5 habeas decide entirety), in need not be dismissed its tion v. Lundy Rose retroactive apply whether to Parratt, 757, v. with Stewart 682 F.2d 758 ly- case district (8th Cir.1982) (remanding to Lundy v. Lun Rose to Retroactivity of light court reconsider v. Rose B. dy). We aware that all of the cir almost on the opinion most recent This court’s Lundy Rose v. applied cuits have retroac v. Lundy v. Richards See, Tennessee, Rose e.g., Bowen v. effect

tively. 698 Solem, 760, (8th Cir.1982), 693 241, banc); F.2d 763-64 (6th Cir.1983) (en F.2d 242-43 Estelle, 1898, Burns 847, denied, — U.S. —, 103 v. F.2d n. 2 695 851-52 & Richards, Dalsheim, Gulliver v. (5th Cir.1983); (1983). 286 In 687 77 L.Ed.2d (hereinafter Appeals for the In to The United States his state court brief referred Court Brief), specific adopted as State either a total ex- Graham cited and Ninth Circuits Fifth provision Lundy or a ad federal constitutional case v. was decid- haustion rule before Rose dressing the issue both 509, 5, federal constitutional Lundy, n. 513 ed. See Rose v. 455 1, each of other nineteen issues: Issue 5, 1198, 71 1201 n. L.Ed.2d 379 29-31; 2, at State Brief at Issue State Brief Eleventh follows the Fifth Circuit 46-47; 3, Issue Brief 71-73 State State at Jones, Cosby precedent. v. 682 Circuit Reiman, 860, (S.D.1979) v. 284 N.W.2d 866 1373, (11th Cir.1982). F.2d 1376-78 guilt (raising sociation); as the constitutional issue rule, exhaustion The Fifth Circuit’s total 54; 7, 4, Issue State Brief at Issue Circuit, adopted by excep- Eleventh had an 59, 55-56; 8, State Brief at Issue State Brief at tion, already if the re- however: district 12, 68-69; 13, 61-62; Brief Issue State at Issue peti- petition, the of a mixed viewed the merits State trial Brief 70 and citation to motion appellate be would not dismissed tion raising right to as sixth amendment effective Wainwright, 582 F.2d 348 level. See Galtieri 2106-09; 16, sistance of counsel at Tr. Issue 1978) (en banc). (5th The Fifth has Cir. Circuit Billing State State v. Brief at and citation to longer exception that this is no ton, 44, now concluded (1974); Issue 86 N.M. 519 P.2d Lundy, even when the dis- (reference right valid after Rose State Brief at 86 made right compul rendered before Rose trict court’s decision was cross-examination and “basic Estelle, sory Lundy process”); see State v. Issue was decided. Burns v. 865; (5th Cir.1983). Brief at 87. N.W.2d Issue The Eleventh F.2d position opposite and has taken Circuit has petition corpus 5. A is said to be habeas applied Lundy is not be held that Rose v. when it contains both claims which “mixed” Balkcom, retroactively. 695 F.2d Johnson v. fully in the state courts and exhausted Cir.1983). (11th fully those which were not exhausted in state courts. case, court chose to follow Dunn for three corpus. rea- In the third Bergman v. Bur- (1) sons: Dunn was directly point on be- ton, 953,102 72 L.Ed.2d cause it judgment involved a district court (1982) (order), the Court vacated the writ; (2) that denied the it felt Dunn was judgment and remanded the case to the persuasive arguing that retroactive appli- appeals court of for further consideration in requirement cation exhaustion would light of Rose Lundy. The Supreme resources; judicial (3) waste non-retro- Court’s orders in Duckworth and Rodriquez, active application Lundy of Rose v. to the which direct the lower courts apply petition before it comported with the comi- total exhaustion rule to cases decided be- ty purpose of the total exhaustion rule be- fore Rose v. Lundy, permit no other conclu- cause the federal district court and circuit sion than that the Supreme is apply- courts in agreed Richards with the state ing Rose v. Lundy retroactively.7 courts post-conviction relief should be denied. Royal See also v. Wyrick, 694 F.2d however, The Richards panel, distin- (8th Cir.1982). n. guished these cases because they all in- Dunn, following panel Richards volved lower federal court decisions which post-Rose stated that three v. Lundy United granted the writ corpus, of habeas while in States Court orders did not re- Richards, the writ was denied. The reason- quire Richards, different result. ing implicit in this distinction is that at 764. All three orders involved cases in failure to retroactively the total apply ex- which mixed habeas petitions were decided haustion rule to granted cases that the writ on the merits federal district and would create the kind of federal-state fric- circuit courts before Rose v. Lundy was tion assailed in Rose v. Lundy, yet no such handed down. In orders, two of these friction would be generated when the fed- Cowell, Duckworth 996, v. 455 U.S. 102 eral agrees court with the state in courts 1626, (1982), S.Ct. 71 L.Ed.2d 858 and Rodri- denying post-conviction Thus, relief. while quez Harris, 997, v. 455 1627, U.S. 102 S.Ct. all the reasons militating against the total 71 (1982), L.Ed.2d 858 granted the Court exhaustion rule are present in cases in certiorari, vacated the judgment, and re- which the federal court already agreed has manded the case to the court of appeals with with the merits, to state courts on the instructions direct the district none of to petition dismiss the for writ of habeаs the purposes justifying the total exhaustion Burton, Bergman 953, v. In ly 456 U.S. 102 S.Ct. held was unexhausted. The district court 2026, (1982) (order), 72 granted L.Ed.2d 478 corpus the Su then the writ of habeas preme judgment given Court vacated the government re-try below and leave to the the appeals Bergman, petitioner. ordered the court of to further consider Burton v. No. 78-71968 Lundy. light (E.D.Mich. the Rose v. panel 8, Thus, case in 1982). petitioner, The Nov. the Solem, in Richards court, v. (8th appeals 693 the F.2d 760 district Cir. the court of all — denied, 1982) —, Lundy Rose v. ap- U.S. understood that 103 was to S.Ct. be 1898, plied (1983), retroactively. 77 Supreme L.Ed.2d 286 found Even the the Court Bergman petition Court’s failure to order dissenters in realized that the dismissed total applied appli shows that in some exhaustion rule situations would have to be retroactive retro- actively. cation of the total As Justice Stevens in exhaustion rule is wrote dissent: discretion Bergman, ary. however, Lundy Rose v. “Under ap In I read the Court’s the court of —if opinion peals correctly gets question had never case back to reached the of wheth —after Court, er District that court petition or not must dismiss the there was a mixed before corpus petition part habeas Supreme them now a because the Court raised the Bergman, 954, sponte. record.” Bergman, 456 U.S. at 102 sua Burton v. issue S.Ct. 649 F.2d (footnote omitted). at 2028 (6th Cir.1981), vacated and re 432 manded, 953, 2026, 102 S.Ct. 72 summary We realize that orders the Su- (1982) (order). L.Ed.2d 478 remand preme On precedential Court have less value than appeals court of remanded the opinions. case to thе dis summary full But these orders do light trict court for further consideration Supreme exist as evidence of what Lundy. Bergman, Rose v. Burton v. Lundy opinion by issuing 703 F.2d its Rose v. intended (6th Cir.1982). 559 simple, straightforward mandatory On remand to the district in such lan- court, petitioner Estelle, petition guage. 847, See Burns v. amended his 695 F.2d 851 previous- (5th Cir.1983). delete the issue the district court had

1538 Thus, 11, 5, 6, 9, 10, 14 and 15. issues retroactively apply- would be served rule amended, con- petition, Lundy to such cases. Graham’s ing Rose v. claims. exhausted tains logic has the force of This distinction whom LAY, dissenting, with Judge, Chief it, fact that both it overlooks the behind but HEANEY, joins. Judge, Circuit appeals the court of the district court and for writ of petition denied the Rodriquez on spoken Court has Supreme Harris, v. Rodriquez corpus. habeas retroactivity weighing issue. On 9, 1980) (S.D.N.Y. July No. 79-CIV-4177 basic concerns one of the new doctrine any recommenda (order adopting magistrate’s the overall effect measuring relates mem., 659 F.2d writ), aff’d deny tion to if ap rule will have of a new application Cir.1981). Court’s (2d Oil Co. v. cases. Chevron plied pending must be total exhaustion rule order that the 106-07, 349, Huson, U.S. court’s applied pre-Rose even to a lower 355-56, (1971); Rudolph v. 30 L.Ed.2d petition denial of a mixed habeas Lundy 90, 92-95 Corp., Electric 586 F.2d Wagner courts of up is not to the shows that denied, Cir.1978), cert. U.S. (8th comity federal-state appeals to re-balance (1979). Here the 60 L.Ed.2d resources. judicial conservation of against mixed-ex application retroactive Lundy. in Rose v. That balance was struck Lundy, 455 rule of Rose v. haustion in holding said rеcently As the Third Circuit (1982), 71 L.Ed.2d 379 retroac Lundy applied that Rose v. must be time judicial waste of creates a tremendous whether “we are not free to consider tively, judges. federal district already expended by Lundy imposed by burdens Rose Solem, (8th 763-64 693 F.2d Richards with the benefits rule will be commensurate denied, — U.S. —, Cir.1982), cert. support by in its articulated Dunn ‍‌‌​​​​‌‌‌‌‌‌​‌‌‌​​​​‌‌​‌​​​‌​‌​​‌​‌‌​‌‌‌‌‌‌​‌‌​​‍v. (1983); L.Ed.2d 286 O’Lone, 683 F.2d at Court.” Slotnick v. Cir.1982). (8th Wyrick, conclude, banc, en that Rose We now retroactively. Lundy applied must be observed: I have earlier repeat what brief, pro- appellate his federal Gra to think that additional It is absurd his ham that should we find requests prisoners will deter cedural roadblocks unexhausted, sum claims to be we should release. to seek their filing petitions from as a dismiss the unexhausted claims marily who and state courts Both courts federal means of with the total exhaus complying prison- to attempt provide deterrents Appellee’s tion rule. Brief at 29-30. Gra only make by procedural ers technicalities court and ham has filed an affidavit in this pro- is true that for themselves. It work waiving in the district court below important policies rules serve cedural this court petition claims raised in his which However, willing- too courts which well. purposes finds to be unexhausted complicated enter into discussion ly function Lundy. procedure Rose v. This is exhaustion, problems and technical sug equivalent to Justice O’Connor’s ally questions procedural bypass which tackle a habeas gestion Lundy in Rose v. “cause” determinations of with detailed petition “сan amend the petitioner always pro- could conclude the “prejudice,” and claims, rather to delete the unexhausted di- expeditiously by going ceedings more court to exhaust all returning than to state Post-conviction to the merits. rectly 102 S.Ct. of his claims.” 455 U.S. relief; state and result rarely cases this and other adopted by 1204. It has been courts, familiar long now federal trial Parratt, v. 682 F.2d at circuits. Stewart process, constitutional with established Coombe, (2d F.2d 908 Rock v. 758. See mark. toe the constitutional generally denied, — U.S. —, Cir.1982), cert. easily are more The merits of case (1983); 1773, 76 L.Ed.2d 345 Guthrie of technical litigation than the decided (4th Warden, 821 n. 1 v. 683 F.2d rules. by procedural problems presented Tennessee, 698 Cir.1982). Bowen v. Contra be all courts should point The is that adopt proce will F.2d at 245-46. We the merits on by passing resourceful waiver of more accept also and Graham’s dure possible, of all claims as soon as (1982) (mem.), rather L.Ed.2d 858 persuade fails to than resorting intricately pro- involved me that the analysis undertaken in Rich- cedural concerns which serve to ex- ards v. is Richards, Solem incorrect. See tend into simple protracted issues 693 F.2d at 764. In the first two summary frustrating satellite litigation. real orders, Duckworth and Rodriquez, the Su- losers the courts themselves. preme Court vacated the lower judg- ment Ashby Wyrick, (8th and remanded with directions to dis- Cir.1982) C.J., (Lay, concurring). petition. miss the mixed habeas Yet in the case, latest Bergman, the Court re- merely Nonetheless, although this case was manded the case to thе Sixth Circuit for placed en banc in order for the court further consideration in light of Rose v. decide this allegedly important question, I Lundy. This inconsistency submit demonstrates never should have been argued. The issue was that the really post-Rose never before us. Court’s three petitioner’s brief he Lundy waived his nonexhaust- orders do not mandate retroactive ed claims so there was no longer any viable application of v. Lundy. Rose Rose Lundy question. I always thought Accordingly, I dissent from the majority’s it fundamental we should not discuss issues opinion overruling Richards v. Solem and which do not present live controversies. Dunn v. Wyrick. Judge McMillian’s statement about exhaus-

tion in this case strictly obiter dictum. II. THE MERITS FAGG, ROSS, Circuit Judge, with whom

BRIGHT, Judge, Circuit dissenting. ARNOLD, JOHN R. GIBSON and BOW- giving dissent from retroactive effect to MAN, Circuit Judges, join. Rose v. Lundy, Because we hold that the district court (1982).1 L.Ed.2d 379 failed properly apply the “fairly sup- The majority’s holding on exhaustion ported by the record” standard of 28 U.S.C. Solem, overrules Richards v. 693 F.2d 760 2254(d)(8) in determining that the vic- § (8th Cir.1982), denied, — U.S. —, tim’s testimony was inadmis- (1983), L.Ed.2d 286 sible, we reverse the judgment of the dis- Dunn v. Wyrick, (8th Cir.1982). F.2d trict court granting the writ of cor- habeas Although the Supreme Court Rose pus. Lundy left open the retroactivity question, presented evidence trial shows the majority apparently feels its holding is that the victim and her roommate met with compelled by post-Rose the three v. Lundy August co-worker on to celeb- summary orders issued the rate the co-worker’s return to Af- college. Court. The Supreme stated, Court has “the smoking ter some marijuana drinking lower courts arе bound by summary deci some beer the three sions women traveled to a by this court ‘until such time as the ” nearby court informs Nebraska restaurant for dinner. [they] are not.’ [them] Miranda, 332, 344-45, meal, Hicks v. 422 Following their the U.S. 95 women returned 2281, 2289, (1975), S.Ct. 45 L.Ed.2d 223 cit Yankton and went to a bar. While the ing Doe Hodgson, 537, (2d 539 victim was talking acquaintance, to an her Cir.) (brackets quoted material), cert. de friends left for a bar next door. Around nied, 1096, 732, 414 94 U.S. S.Ct. 38 L.Ed.2d midnight the victim left the rejoin bar to 555 route, her friends next door. En she stopped to look inside a customized van majority’s The discussion of Bergman v. parked which was on Burton, the street. While she 456 U.S. 102 72 S.Ct. was peering open inside the side door of the (1982) L.Ed.2d 478 (mem.), Duckworth v. Cowell, van, 455 a man U.S. 102 shoved her inside the van and S.Ct. 71 (1982) L.Ed.2d 858 (mem.), forcibly and restrained her. Rodriquez Two other men Harris, 455 U.S. immediately got into the van and drove it Specifically, paragraph I dissent the final from all but of section I. B. the victim said she showup. point, The vic- At this with the victim still inside.

away the defendant that Graham was absolutely tim later identified driver as certain passenger petitioner Reiman and the as was arrested rapists. the one of in the van Graham. The man who held her kidnapping rape. charged was driven was never identified. van the accompanied the victim day, Also the victim later iden- building into a which of a search war- police in their execution tified as Paint owned Shop the Outasite While at Shop. rant at the Paint Outasite her, defendant Reiman. The men assaulted recognized the victim paint shop, the re- forcibly clothing, removed her and then seen on the mirror as one she had bathroom at least hours. peatedly raped her for four All the defendants ad- night rape. There were at five men who attacked least Paint being mit to at or near the Outasite her, later four of whom she identified rape occurred. Shop during the hours Onstott, Reiman, Elliott and defendants court held that The federal district Her later released her Graham. attackers victim’s in-court identification of Graham near her home. pretrial suggestive was so tainted her Immediately being after released that it denied Gra- procedures captors, the victim went home and unsuc- law. For the reasons process ham due her roommate. cessfully tried to wake She below, disagree. discussed we then went to the of two friends and home told them about the Afterwards she rape. A. Overview returned to her roommate spoke home and reviewing petitioner’s state rape. During about the her discussions conviction, a federal court must ac about the her roommate and friends rape, “high of fact a findings cord the state court mentioned that Reiman and his cohorts Mata, measure of deference.” Sumner might be the name was rapists. Graham’s 591, 598, 1303, 1307, The victim’s roommate also mentioned. (1982) curiam). rape (per mentioned that could have oc- L.Ed.2d 480 Under at Reiman’s same paint shop. findings curred That 2254(d), the state court U.S.C. § day County the victim went to the Yankton presumed to be correct. Before such office gave policе descrip- Sheriff’s aside, set a federal court findings may be tions of four of the assailants. also She with the simply disagree must do more than diagram building drew a where the state court: “it must conclude rape occurred. findings court’s lacked even state ‘fair[] 31, 1977, in the record.” Marshall v. Lon August days support’ On nine after the assault, police drove the victim around berger, U.S.

Yankton to see if she identify any could (1983); 2254(d)(8). L.Ed.2d 646 28 U.S.C. § town, touring assailants. While have findings when the state Conversely, pointed out defendants On- requires the statute necessary support, stott and Elliott immediately upon seeing disa up “the federal courts to face them for the first time after rape. as to the facts and to defer to greement day police past next drove the victim Mata, supra, state court.” Sumner construction site where Graham was work- at 1307. ing and the victim noted Graham’s similari- finding the un process In the ty day, to her attacker. Later that as the facts, credibility determinations derlying police driving the victim around town decide; courts to we are left for the state they past garage shop went an auto where judg our permitted are not to substitute located. The victim picked Graham was witnesses for credibility ment as to the of group standing Graham out of a of men Fulford, v. Maggio the state court. that of time she garage front of the and at that — 2261, 2262, —, 76 103 S.Ct. U.S. was “ninety percent sure” (1983); Lonberger, Marshall v. L.Ed.2d 794 then police one of her assailants. The 103 at 851. A federal court supra, S.Ct. Public brought Graham to the Yankton determinatiоns accept credibility, or must Safety lineup Center for a one-man

1541 just appellate made a state court which these considerations diminish the by credibility must determina- accept court of the victim’s weight testimony. The dis- Strickland, King tions of a trial court. v. skeptical trict court and the dissent are of (11th Cir.1983). 714 F.2d 1494 Feder- presence any evidentiary contradic- al courts are not entitled to draw inferences tions, they upon have relied evidentiary to, with, conflicting which are adverse contradictions in the record to discredit the state courts’ factual determinations. testimony, victim’s which the state court Lonberger, supra, Marshall v. 103 at S.Ct. credible, and to find a set found of facts 851. It is immaterial that the state court considerably different from those found made its factual findings on cold record the state court. We believe this methodolo- testimony. instead of live This does not gy is at odds with the limited federal role alter the fundamental principles of federal- 2254(d). under section state relations on which the limitations of 2254(d)are section founded. See v. Sumner

Mata, 539, 550, 764, 770, 449 101 U.S. S.Ct. Reliability B. of the Identification 66 L.Ed.2d 722 A state appellate process Graham’s due challenge to may be a fact finder for purposes the victim’s in-court identification is exam 2254(d). 545-48, 28 U.S.C. Id. at 101 § ined under a two-step test: 768-69; Zant, S.Ct. Green 715 F.2d step The first is to determine whether the (11th Cir.1983). 558 both the district court and the least two concerns the must accord to a state court’s factual find ings. arrays of We respects. evidence, disаgree deference ease, The first one which favors the with the there are that a disagreement federal court dissent approach conflicting in at is challenged confrontation between the U.S. witness bly suggestive.” cumstances of the L.Ed.2d whether, ^[377] and the 1247]. under the If suspect Simmons so, case, the second inquiry totality ^[967] [v. “impermissi- suggestive of the cir- at 971 U.S.], 390 [19 very confrontation created “a substantial identification and another which suggests that the victim was mistaken in irreparable likelihood of misidentifica- tions between tribute of the individual fact finder based ty. nal contradictions within the testimony of has fair the state courts are afforded the a traumatic of evidence. The federal role is from a constitutional standpoint. We be eral and state roles in ascertain whether the state court’s choice that the victim’s identification was reliable identifying Graham. The South Dakota lieve that make such a choice evidence that Supreme Court matters The victim Second, support under the witnesses, experience properly witnesses, adversary supports of a based its we in the record. upon accept from rape proper to be as well as contradic its sense of credibili habeas that is are system its determination findings upon has competing as a natural at resolved balance of fed inevitable, gone through corpus ripe simply right for con bodies inter cases, 34 L.Ed.2d 401 of the facts incidental to an factors are to be considered: lowing provided criteria for an orderly marshaling Neil Pared to its States son v. whether the identification is reliable. Man United States the criminal at the time of the witness’ tion.” [98], at L.Ed.2d 140]. Amrine, legal (8th Cir.1983). v. Biggers, opportunity Brathwaite, Amrine, Manson standard degree essence, L.Ed.2d (1972), Henderson, supra, [v. of reliability. attention, Brathwaite], U.S. the Supreme Court 724 F.2d at 87. In also United ^[2243] second witness to view 98, 114, (1977); (8th Cir.1983). application 719 F.2d crime, inquiry accuracy The fol United States [53 prior description of the witness’ fusion, contradiction, ‍‌‌​​​​‌‌‌‌‌‌​‌‌‌​​​​‌‌​‌​​​‌​‌​​‌​‌‌​‌‌‌‌‌‌​‌‌​​‍and self-doubt. It is criminal, certainty inherent in the the level of demon- fact for the finding process state court determine the extent strated the witness at the confronta-

1542 each the record. Once support fair have

tion, of time between length and the considered, giving been these factors has crime and the confrontation. of findings, the state court deference to proper 199-200, Against at 382. 93 Id. at S.Ct. must determine federal court then the factors, weigh must the court these iden- pretrial of whether legal question identifi- suggestive effect of the corrupting a sub- Brathwaite, very has caused supra, tification procedure v. itself. Manson cation 2253; misidenti- 114, irreparable at United 97 stantial likelihood of 432 U.S. at S.Ct. Henderson, at 937. supra, 719 F.2d v. fication. States the consti of question

The ultimate identi admitting in-court tutionality of the Victim to Opportunity 1. The governed by section fication is not at the Time View Criminal that underlie this of fact questions Crime however, conclusion, governed by Supreme Court found Dakota The South Fulford, Maggio v. statutory presumption. had an un- in this case “[t]he 2264-65; v. at Sumner supra, 103 S.Ct. to view the defendant opportunity usual Mata, 102 supra, 455 U.S. S.Ct. v. hours.” a of several period over “Thus, the witnesses (1982). whether 1307 (S.D.1979). N.W.2d to observe opportunity in this case had an Further, Dakota the South distracted; whether the crime or were too carefully victim’s motivation noted the detailed, accurate de gave the witnesses of her attackers. appearance observe the were and whether the witnesses scription; * * * Thus, putting opportunity at 872. pressure questions under are all Id. statutory presumption as to which the found that a together, fact motivation the court Mata, supra, applies.” Sumner was image indelibly of the attackers mental at 1307. during mind the ex- fixed in the victim’s tended assault. Id. Considering part the first test, two-step there is little doubt in supports supreme amply The record the final con case that at least out-of-court At trial the victim testified finding. court’s frontation, showup, impermissibly follows: suggestive. We have noted that previously Q. they able ever while you Were showup suggestive, is “the most with either having you, intercourse objectionable therefore the most method of otherwise, their to see orally or pre-trial identification.” United States faces? Henderson, supra, quoting F.2d at A. Yes. Cook, (8th 464 F.2d 251 United States denied, Q. opportunity an to see Cir.), you Did have U.S. (1972). the victim once? L.Ed.2d 305 Once them more than as a had selected Graham from a distance A. Yes. attacker, person resembling her there was Q. than a brief And more time? necessity suggestive procedure no for this A. Yes. showing singly. to the victim Denno, See Stovall time? Q. quite long period For 18 L.Ed.2d A. Yes. The focus in this case is on the second Q. your mind Is there doubt the in-court iden- step the test: whether of the men? these are four reliable, though tification was even an iden- These are the A. There is no doubt. procedure suggestive. tification four. factual Court made during the point At another Tr. 829-30. findings regard Biggers to each of the stated, “I’m it’s these four. positive trial she findings factors and these must each be Tr. at 860 forget never their faces.” I can the context of properly examined within 2254(d) they (emphasis added). section to determine whether Hence, findings away. Confronted with the state court far A. Yes.” at 897. Tr. it them, and the clear evidence that supports unlikely is that she would have needed her position the federal courts are in no attackers, glasses to view her whom she findings make different or to draw adverse viewed at close necessarily range. any inferences to the effect that the victim’s event, specific finding of the state court ability perceive or recall impaired. that she was able to view her attackers The victim only person was the to testify question subsumes the of her impaired vi- attackers, about her opportunity to see her sion, and the federal court is not permitted and she stated that she had ability to to draw such an adverse inference. observe the men’s faces and that she did so. The district court empha- and the dissent The victim specifically stated that she saw sized the fact the rape occurred in Graham both in the van and when he forced darkness. again, Once the state court nec- her to have intercourse. Tr. at essarily took the lighting conditions into The district court and the dissent choose in finding account that the victim was able to focus on the evidence that the victim’s adequately to view her attackers. The only perception was blurred due to the consump- that the testimony room was dark was by tion of marijuana. alcohol and The South victim, who nevertheless stated that she Court specifically noted could view her attackers and that a light the victim’s smoking drinking. State v. shining in the bathroom. Tr. at Reiman, supra, 284 N.W.2d at 863. Never- Finally, should be noted that theless, the state court found that the vic- Supreme Court has found victims of violent tim had an excellent opportunity to view Graham, crime able to view so, their attackers suffi- that she did and that the obser- ciently lighting vations were stamped memory. into her conditions have been This finding subsumes question far from ideal. Neil v. Biggers, supra, victim’s blurred perception. The state 193-94, (vic- 93 S.Ct. at 379-80 court necessarily took into account the vic- tim viewed assailant in dark lighted kitchen tim’s smoking and drinking, and the state only by adjoining bedroom and also out- court did not deem these factors to be im- woods, doors in by moonlight; entire inci- pairments to the victim’sperception. There dent minutes); lasted 15-30 Coleman v. support evidence to the state court’s find- Alabama, 1999, 2000, ings concerning thе perception. victim’s (1970) (brief 26 L.Ed.2d 387 view on dark The victim testified at her deposition that lighted highway only by passing ear’s head- she “was not drunk” and that she was act- lights). ing normally. Dep. at 449. One of the companions did not think she was Degree 2. The Victim’s of Attention. intoxicated. Tr. at 704. The other compan- Dakota Supreme Court con- ion did not think acting she was unusual or circumstances, cluded that view of the “[i]n high. Moreover, Tr. at 770. there was no we can assume the witness’ degree of atten- testimony that the victim’s senses were tion was very high.” State su- dulled during the course of the rape, which pra, 284 N.W.2d at 872. The district court lasted least four long after the hours— agree and the dissent with this finding. time frame when any witness testified as to having seen her. The testimony victim's 3. Accuracy of the Victim’s Prior De- shows that the sordid pro- details of the scriptions of the Criminal longed attack were committed to her mem- ory. The South Dakota Court found that there was no inaccurate prior descrip-

The dissent also emphasizes that the vic- descriptions tion “because four tim did not have her glasses and that this when given there were at least five assail- impaired her perception. The victim is thus been nearsighted, ants. Graham could have com- farsighted, and only needs glasses “Q. omitted driving. pletely group suspects That from means you things can see real close but not very ample sup- Id. There is record described.” outset, heads, faces, arms of her finding. for this From the she shoulders and

port rape by guys.” Hence, claimed “six Tr. at 736. On reluсtance attackers. August gave descrip- 23 she the sheriff four identifying victim in a male viewed from a tions, including Dep. not Graham. at 454- profile in a head to toe does little distance 55. The victim testified at trial that she dispel to of an realistically identify did not Graham’s characteristics upon that was based a face to August and features to the sheriff on 23 face encounter. because that time” she “couldn’t re- “[a]t added). (emphasis member.” Tr. at 892 a. The first confrontation provided plausible explanation The victim a at a con- The victim first viewed Graham for her omission: she stated that when she a of forty struction site from distance day, saw the sheriff on that she was still “in yards. She noted Graham’s resemblance 454; Dep. shock.” Tr. at 892. The vic- “I couldn’t her attacker but she stated that explained “Maybe you tim her reaction: a tell for sure because the man had on understand, can’t but I was blocking every- I coverall suit and he had on a hard hat. thing and that was all I could remember at off, I could said if he could take that hat Dep. time.” at 454. stated that She “within the next few she days” began I tell better because the man remembered remember identity: just Graham’s “I start- was towards the front of the head balding * * remembering. ed And I could remember *.” Tr. at 854. The Dakota the other ones clearer and that is when he Supreme Court found from circum- came to Dep. mind.” at 456. to make stances that the victim’s reluctance course, positive prompted by are identification was

Of there inconsistencies in the testimony but the fact finding caution, doubt, role a high not and indicated selectivity credibility is for state reliability. su- degree record, court. Based upon the the South pra, 284 officers N.W.2d at 872. The did position Court was in a point out or tell the victim who Graham fairly find that the victim did not misdes- driving he was. She was “all over” with cribe Graham before she saw him at the “keep your the officers and told to Hence, construction site. accuracy eyes open.” Tr. at 853. It was the victim her description fairly cannot be eroded on that saw the two men at work and noticed the basis of the descriptions given to the similarity between Graham and her at- August sheriff on tacker. Tr. at 854.

4. The Certainty Level of Demonstrated b. second confrontation by the Victim at the Pretrial Con- The victim next viewed Graham as he

frontations. standing garage in front of a with a In principle, one-on-one confrontations dark, group making of other men. It was suggestive. Nevertheless, the record upon quar- an identification based a close demonstrates that the pretrial confronta- ters with the encounter assailants some- tions had as a common theme the victim’s riding what difficult. The victim was in a recognition of tempered re- by car driven an officer without indica- straint to avoid a hasty, mistaken identifi- they going tion from him where were cation. There is ample support record 854; they might Dep. South Dakota who see. Tr. at Court’s determi- nation that the confrontations did stated, not de- are going officer “we stroy thе reliability of the victim’s identifi- just again, just keep your drive around cation. eyes open.” Tr. at 854. The victim testi- fied the streets they drove around The difference in nature between two of people. They while she viewed Tr. at 854. pretrial the three confrontations and the garage shop drove an auto and there victim’s encounter with her attackers at the standing of men in the door. group time of gang rape important. Of necessity, the victim’s upon picked group. focus was the The victim Graham out of They drove garage mony, number of and the finding, state court’s times, victim, according to the because it completed the identification in her was not until the third time that “he mind, stated, [Gra- the district court “I do not standing light and could ham] consider the mention of the tattoo to be a see him.” Tr. at 855. The victim said she significant part of the identification of Mr. was “ninety percent sure” at that time that agree Graham.” We cannot that the vic- Graham was the man. Tr. at 855. The tim’s recognition of distinctive physical state trial felt the victim had made a characteristics was entitled to so little positive identification at this time. The weight. desire, however, victim did indicate a get The victim’s remarks confirm the a closer look at the man. Tr. at 855. state court finding that before she had underlying facts the first and second rapes confrontations the had already indeli encounters dispel any notion of a very sub- bly printed the faces of the attackers in her stantial likelihood of misidentification. The mind. The victim’s reactions under the cir police merely drove the victim around the comport cumstances with our common-sense streets of Yankton without any coaching or knowledge of how memory works. “The suggestive remarks. The victim made the lack of a ‘graphic description’ or even the own, responses on her without failure to describe the assailant is not deci any prompting by the officers. It was the sive since ‘most persons after immediately herself, police, requested who or a short time viewing after a person, Graham, viewing a closer an opportunity particularly under circumstances that occa she received in the third encounter. sion an interest in appearance, his are able mentally to photographically recognize that c. The third confrontation ” person.’ Director, Jones v. Patuxent In The victim’s third viewing of Graham stitution, 913, F.Supp. (D.Md.1972), occurred at the public safety center. Gra- quoting Gallagher States, v. United ham was in the center for questioning and F.2d (8th Cir.), denied, the victim observed through him a glass U.S. 23 L.Ed.2d 756 door. This was the first time the victim Court, South Dakota had viewed Graham at range. close At this evidence, after reviewing the found that viewing, the victim stated she was sure of being the victim was cautious about her Graham’s identity rapists: as one of the finding support identification. That has Q. Could you recognize him at the record and must accepted therefore be time? by this court. hesitancy Some initial on the Yes, A. that’s when—because I was sure part of a victim does not necessarily render before, but there was still some the identification unreliable. See Smith v. my doubt in mind. And I knew if I Perini, (6th 723 F.2d Cir.1983); just could see him closer than I had Bordenkircher, Summitt v. him, been seeing I would know. And (6th Cir.1979), nom., 252-53 aff’d sub Wat the thing really made me sure Sowders, kins U.S. was when I saw the tattoo on his left (1981). Indeed, 66 L.Ed.2d 549 we should is, arm. I don’t remember what it encourage thoughtful reserve a victim to but I night. remembered it from that sparing suspects end of a hasty, ill-con Tr. at 855. sidered, positive identification. The South Dakota Supreme Court recog- The advice the victim received from her practical nized the exposure nature of the friends concerning possible identity of the victim had to Graham when she was attackers, suggestive, while attacked, was not when it made the point that when crucial to Graham’s identification. The she saw his vic- arm, bald head and tattooed “this tim did crystallized prior not know of the attackers identification in her mind.” rape. State v. Tr. at had not supra, 284 N.W.2d 961. She seen at 871. Notwithstanding testi- them the victim’s before and was not aware of their time the Shop during Paint Tr. 962. Because she was in a Outasite

names. occurred; (3) rape state of shock the victim did not describe victim iden- rape to her friends. Tr. at 892. The Shop Graham Paint as the loca- tified the Outasite the attack- victim’s friends mentioned that rape. tion of the Although played part no Reiman,” “Onstott,” ers be “Bud might analysis, in its Court noted in 377; Tr. at ‍‌‌​​​​‌‌‌‌‌‌​‌‌‌​​​​‌‌​‌​​​‌​‌​​‌​‌‌​‌‌‌‌‌‌​‌‌​​‍Dep. “Bud Reiman’s crew.” Manson that the of the identifica- 899. There is no evidence that Graham’s “hardly tion was undermined” facts the victim’s friends name was mentioned which connected the defendant with the indeed, suspect; as a the victim testified Brathwaite, scene of the crime. Manson v. that Graham’s name was never mentioned. supra, 92 S.Ct. at 2254. Moreover, Tr. at 899. when the victim the victim’s The dissent concludes spotted on the construction site Shop Paint identification of the Outasite garage and later viewed him at the and the questionable the scene of the crime is “of center, public safety she was not informed specifically The state court reliability.” that Graham was associated with Reiman reliable, found that this identification or Onstott. finding amply supported by and this examination, the victim record. On direct Length 5. The of Time Between the was what she remembered about the asked Crime and the Confrontations appearance building of the where she was The South Dakota found raped: elapsed the time which between the Right away type I knew it was some rape (August 22) and the victim’s identifica- the garage. You could smell the oil and (August 31) tion was not unreasonably long. dirt. I the at first that it got impression 284 N.W.2d at supra, 872. I dirty place. was a It was cluttered. The district the agree court and dissent there, cars all over in seeing remember this was “short enough for the victim to on. I know how being cars worked don’t have memories of the in rape still fresh taken many, they parts but had different her mind.” in, being

out and but it was so dark put 6. Reliability Other Indicia of in there. I remember the cement floor it. grease all over the Biggers Under test for thе admissibil identification, of an ity eye-witness other Tr. at 820. The victim also testified that guilt evidence of does not play a formal role she remembered the mirror in the bathroom analysis. Brathwaite, in the Manson at the Paint Shop: Outasite supra, 432 U.S. at 97 S.Ct. at 2253. I remember it well because when I went Yet, it ignore is difficult to facts additional there, bathroom, the I I don’t into ran which indicate that the actual likelihood of why, get away; know to because I was misidentification in this case was slim. In nose, just I bleeding my from and was deed, it seems unnatural to set such evi over, I running. There was blood all and aside when one dence considers that the looking remember above the bathroom ultimate purpose Biggers of the factors is small, sink in the mirror. The mirror was to avoid eyewitness testimony where there narrow, there red paint was is “a very irrepara substantial likelihood of it, ones, designs on weird kind of. And ble Biggers, misidentification.” Neil v. su my in looking seeing remember 381; pra, 409 at U.S. 93 S.Ct. at Sim mirror, bloody painted face in that red States, 377, 384, mons v. United U.S. it. just forget and I don’t think I can ever 19 L.Ed.2d 1247 Tr. at victim testified in Finally, the following wholly factors do not seem irrele deposition that she remembered the dis- whether, fact, vant to in there was such a garage, tinctive smell of the the windows of substantial likelihood of misidentification in door, the steel garage posts the the feel of (1) this case: the four raped by onto, men; which she held the location of the (2) had or more all four men convicted of toilet, the rape being together general appearances the admit to the and the away To take that Dep. power the in tification. light sink and the bathroom. what It is difficult to is to rob it of jury responsi- 424—26. conceive from the the fairly to required could be better evidence bility perform precise functions than the finding the state court support perform. most wanted it Founders and realistic vic- testimony detailed certainly And Constitution written tim. this preserve indispensable, unerodible system core trying of our criminal Weighing Reliability Sugges- C. included, not have cases would hidden tiveness provisions, a among slumbering its sleep- question legal To determine ultimate granting judges destroy er license to in case—whether the in-court victim’s trial in whole or in by jury part. rights violated un- identification Graham’s California, Foster v. due must bal- process der the clause—we (1969) 22 L.Ed.2d 402 suggestiveness ance of the identifica- (Black, J., dissenting). procedure against reliability tion eyewitness reliability identification. The We are unable conclude that there was the identification is “the deter- linchpin such a risk of irreparable substantial mis- identifica- mining admissibility of the identification this case that state Brathwaite, testimony.” tion su- Manson v. trial committed error judge constitutional pra, 432 U.S. at admitting testimony identi- assessing doubt, of an Without reliability fying relative Graham. the identifi- identification, it is crucial to remember cation procedure employed by the state is not deciding falsity the court the truth Nevertheless, suggestive. there were suffi- but there is testimony, only whether cient indicia of to warrant irrepаrable such a substantial likelihood of testimony. admission of testimony that misidentification the should courts, deference the Giving proper to state by jury. testimony not be heard the concerning we are faced with these facts be with need not without fault: “evidence the vic- reliability identification: the some element of untrustworthiness is cus- adequate tim had an to view opportunity grist for the Juries are tomary jury mill. her painfully range attackers close for susceptible they not so that measure cannot hours; least four as a of most victim this the intelligently weight of identification her degrading degree crime of attention that testimony questionable has some fea- was the victim’slevel of certain- very high; Indeed, ture.” Id. 97 at 2254. ty identifying high; in Graham was and judicial a cornerstone of our is the system reasonably identified finally, she jurors we of place confidence in the ability only Biggers soon after the crime. The the accuracy to determine truthfulness and arguably detracts from the factor which is testimony. of a witness’ Nowhere Justice the identification ab- reliability of is the the against robbing jury Black’s admonition description sence of a of Graham and prior of vital function appropriate: this more satisfactorily explained vic- this is the judicial anis incontestable fact in our [I]t tim’s initial reaction to the brutal emotional that history jury the is the sole tribunal rapists. the encounter with weigh to and determine facts. That assessing the vic- importance must, that the we jury keep means if give to a of prior description tim’s failure Constitution, faith with the allowed to be Graham, must be for given consideration eyewitnesses hear and for itself decide real life is the victim’s situation when she whether it can truth and recognize the truth, by gang strangers. of As forcibly raped they are It telling whether the earlier, it explained has not been shown that jury means the to must be allowed and that the victim misidentified Graham for itself decide whether the darkness her plausible explanation she provided night, the the weakness a witness’ test approach to the or omission—shock. eyesight, impaired other factor must have a flexi- ability witness’ iden- of measure of make an accurate 1548 otherwise, is in an in the the victim dissented South Dakota

bility; situation. If sense impossible common and in 284 N.W.2d experience upon, are drawn practical keenly per- (S.D.1979). analysis His is seem victim’s identification does not im- by say- He concluded ceptive. his dissent probable purposes or unreliable for the ing: police procedure, this seems “After Indeed, our it is a analysis. constitutional witness’ complaining incredulous experience encountering common that after origin inde- in-court identification had an not an individual be able strangers, may pretrial and pendent untainted these meaningfully to describe them others. Id. I more. procedures.” agree couldn’t Yet, his or may the faces be etched in memory, again there upon seeing them BRIGHT, dissenting. Judge, Circuit appears is an immediate This recognition. I the decision on the merits to be believe to have in precisely been the situation However, on a very judge as a re- close. stated, case. As the victim could she “nev- court, I am viewing say unable to er their faces.” forget Tr. at 860. misapplied gen- the law to the district court Considering totality of the I erally Accordingly, uncontroverted facts. case, circumstances in this failure the mere join Judge McMillian’s view that we give prior description does render should affirm district court. the identification testimony constitutionally infirm. Cf. United States ex rel. Hudson v. McMILLIAN, Judge, dissenting, Circuit Brierton, cert. (7th Cir.), F.2d LAY, with HEA- Judge, whom Chief — denied, —, BRIGHT, join. NEY Judges, Circuit Scully, (1983); Brayboy L.Ed.2d opinion’s agree majority do not denied, Cir.1982), (2d F.2d 65-66 the merits decision on and therefore dissent. — U.S. —, L.Ed.2d weighed I believe the district court properly Likewise, intensity and du “corrupting impermissi- effect” of the ration of the victim’s encounter with the bly suggestive procedures identification rapists clearly overrides suggestiveness against ability the indicia of the witness’ post-rape of her confrontations with Gra make a reliable identification. Any remaining ham. about concerns strongest Graham’s first and argument suggestiveness of the proce identification in-court dure the reliability of the identification rapists to be him as one of the his consti- properly jury violated considered assessing the weight right process. the tutional to due given be vic The South See United v. testimony. tim’s States Sin Dakota Supreme even Court held that gleton, 1159, 702 F.2d (D.C.Cir.1983); 1166 though the victim’s in-court identification Bordenkircher, Summitt v. supra, 608 F.2d was unnеcessarily suggestive, it was admis- at We conclude that the identification sible because it had been of purged reliable, by the was there was not “a arising taint from the illegal out-of-court very irreparable substantial likelihood of Reiman, State procedures. identification misidentification,” therefore, and Graham’s 860, 871 (S.D.1979). 284 N.W.2d The South rights constitutional were by not violated Supreme Dakota Court also ruled that even the state court’s the admission of if had not the in- purged, the taint been testimony. identification court identification still would be admissible

Accordingly, the the judgment of district origin independent because its was court the granting petition for writ of habe- out-of-court improper identification. corpus reversed. in-court supreme state court found that the “was based a mental upon identification LAY, Chief Judge, with whom dissenting, fixed in mind image indelibly [the victim’s] HEANEY, Circuit Judge, joins. during the extended assault. As she stated trial, positive at I can join Judge analysis I in of ‘I’m it’s these four. McMillian’s the ” Id. at 872. Dunn, their point forget merits. also out that never faces.’ Justice experienced an and jurist, vigorously adopt able state that this court should argues

1549 this approach against three-tiered and hold the in- the reliability dures of the identifi- admissible, court if identification to be even if cation determine the use of the in- constitutionally lacking, because it was of court identification violated the defendant’s Manson, independent origin. my argu- process rights. In view due 432 U.S. at 114, 2253; Biggers, ment 97 S.Ct. at misperceives the current standard of 409 U.S. at 199-200, 93 S.Ct. at 382-383. process eyewitness due review for identifi- cations. Thus, concepts of “purged taint” and “in dependent origin” into, been Brathwaite, have blended Manson v. 113-14, superseded by, two-step process of 2243, 2252-53, 53 L.Ed.2d weighing against reliability suggestiveness (1977) 140 (Manson), Supreme set Court 199-200, in Biggers, articulated 409 U.S. at forth the dual elements of successful due Smith, 93 at S.Ct. 382-383. See Solomon process challenge to an in-court eyewitness (2d First, & n. 9 Cir. identification. a defendant must 1981). Today, “reliability linchpin is the in prove that the in-court identification was determining admissibility of of identifica unnecessarily suggestive result out- Manson, tion testimony.” of-court U.S. procedures identification which Nonetheless, their the South engender nature a “very substantial Court did on the rely Big likelihood irreparable of misidentification.” gers criteria of determining Neil Biggers, that the in-court purged identification was (1972) 35 L.Ed.2d 401 (Biggers). of Second, taint and was independent origin. prove the defendant must that the Therefore, I will assume that the state su identification was Manson, unreliable. preme court concluded that U.S. at the identifica Biggers S.Ct. at 2253. listed tion was reliable will review the court’s several criteria for determining reliability, findings accordingly. including: the opportunity witness’ to view crime, criminal during the the witness’ I. SUGGESTIVENESS degree attention, accuracy prior witness’ descriptions, level of cer- The South Dakota did not tainty demonstrated witness at the dispute the one-man lineup identifica- confrontation, and length be- time tion of Graham sugges- was unnecessarily tween the crime and the Rеiman, confrontation. tive. at 871.1 N.W.2d 199-200, atU.S. 382-383. In the The district federal court also held that the final analysis, the must balance the entire procedure police used to assist corrupting effect of suggestive proce- the victim’s identification of Graham 1. The motion Record at 77-30, state in the following cation convincing deciding lar such a our demned [388 U.S. Such identification 1975, 1149], 1977) “unduly suggestive.” (S.D.1979)). reference this one-man depositions rule South Dakota trial letter denying 233 N.W.2d 586. was and State v. 296-98, by showing (Jones, that the this with 218], opinion evidence that the both not to motion, Graham’s respect unnecessarily suggestive. of all Yet the identification State v. J.) (located United States burden is to establish lineup. Considering at 2 Judge S.Ct. 1926 witnesses with Keeling procedures I to Mr. Graham (S.D. State v. pre-trial suppression have court, however, Keeling Jones also stated: on procedures pretrial 6th the State after ^[89] carefully by [18 284 N.W.2d Cir.Ct. Dec. Wade, procedures Designated establishes clear and are SD particu- identifi- L.Ed.2d prior ^[436] read con- No. did In reasoned that tion, judged by though the analysis, sibly suggestive, Neil v. cation Id. Translating ing do so. identifications this court tial identified Mr. Graham in a actual while facts Mr. Graham did lineup Shop, suggestiveness Mr. Graham at the discrepancies analysis, Biggers procedures. they he I conclude that the description, description prohibit are to be condemned as these rape, the the were not standing of him of the “condemned” identifi- Biggers reliability findings between [the victim’s] not [the victim] Thus, that she had there so Mr. taint trial, “unduly” аppears near Nelson’s criteria, outweighed into as to according one-man of were no substan- positive procedures, if possible the identifica- the terms from she is require Judge suggestive. previously impermis- lineup identify- manner to able to future Jones Cycle that pre- of a his al- of give presumption courts must very and federal suggestive posed impermissibly factual determinations to these mis- correctness irreparable substantial likelihood exceptions contained eight one of the their in- unless police identification. The focused 2254(d) present.2 vestigation even the vic- U.S.C. § on Graham before in the state court of the record identify had to view or him. failure tim a chance whole, fairly as a proceeding, considered police Tr. at 1413. The followed Graham the state court’s factual determina- support and allowed the victim throughout day 2254(d)(8). exception. is one such Id. present- § five times before tion to view Graham the federal district court agree I lineup. him the victim in a one-man ing of proving borne his burden for the Graham has viewing It was after courts’ supreme trial and the state single day, including fifth time in a once Big- binoculars, applying through that the victim became factual determinations supported criteria of gers sure” Graham was one of “ninety percent come to this conclusion the record. rapists. my opinion her In district of defer- “high of the measure cognizant court that: correctly determined findings, accorded state factual ence” to be procedures these I am By the use of virtually well as the absolute deference investigating plant- sure that the officers paid credibility determinations be ed the seeds of an identification in the heard the wit- judge a state court who has mind of The seeds of the [the victim]. Marshall v. Lon- testimony. ness’ live See identification were nurtured each suc- 843, 850- berger, 459 U.S. showing petitioner cessive to [the case, 74 L.Ed.2d 646 In this the time of trial what had By victim]. however, credibility de- there have been no been mere seeds blossomed into a com- terminations, a state explicit implied, plete unequivocal identification. has heard the witness’ live judge who Solem, CIV80-4174, Graham v. No. mem. was testimony no live testimony because (D.S.D. 1982). at 9 Feb. op. The state to the state courts. presented II. RELIABILITY sup- motion to trial court decided Graham’s Biggers reliability crite- applying solely the identification based on press case, present ria to the Dakota the relevant witnesses’ writ- cold record of (a) concluded that: Court vic- including the depositions, deposition ten opportunity tim had an unusual to view the supra. the victim. ‍‌‌​​​​‌‌‌‌‌‌​‌‌‌​​​​‌‌​‌​​​‌​‌​​‌​‌‌​‌‌‌‌‌‌​‌‌​​‍note 1 I am con- hours; the course of several defendant over vinced, the testi- mainly by and convinced (b) degree high of attention was due to herself, victim that several of mony of the crime; (c) none although the nature of supreme trial and courts’ factual state her ra- prior descriptions findings support lack in the record. fair pists аppearance, matched Graham’s Gra- Opportunity to View rapist ham could have been the fifth A. description given; (d) whom no failed The South very certain of her in-court iden- that there Biggers analysis to mention in its tification; separated ten (e) only days testimony was extensive the victim the confrontation from the crime. was under the influence of both alcohol and Reiman, 284 N.W.2d at 871-72. See, marijuana rape. at the time of the 539,551, 800,888,1301-03,1311-12,1903- Mata, Tr. at e.g., Under Sumner note that the victim (1981), 66 L.Ed.2d 722 04.3 It also failed to Findings relating Biggers gers, 379 n. to the criteria are n. Fogg, (1972); to the factual determinations are entitled 34 L.Ed.2d 401 Dickerson presumption (2d Cir.1982). of correctness. The conclusion 242-43 likeli- that there was or was not a substantial opinion points misidentification, majority the out that 3. The is drawn from hood of which accompanied weighing Biggers against sug- the to the friends who had victim the criteria the gestiveness procedures, victim not intoxicat- bar testified that the was of the identification is However, parted compa- question friends had and is entitled to the ed. these of law not shortly arriving Big- ny presumption after at the with the victim of correctness. See Neil The prescription description pas- was not at cedures. of the van’s wearing glasses her the rape. time of the The victim testified the senger given by victim does not in any that she is and needs nearsighted especially way match Graham’s This appearance. her at glasses night. to see Tr. at 896-97. shows that Graham could have been the not rape night. Thе at The record occurred (or possibly sixth) fifth undescribed assail- shows opportunity that the victim’s to view ant. victim herself The testified that she per- assailants was limited impaired did describe the in the front passenger of ception. that that passen- van and Graham was ger. majority The conclusion opinion’s B. Attentiveness the contrary is untenable in the face of the that, I agree because of the of the nature testimony. only victim’s own conclu- crime, attention was Her high. victim’s be sion which can drawn from the record ability recollect, however, perceive that give description the victim did of the may impaired. have been she assailant claims is and that description does not ap- match Graham’s Descriptions C. Prior pearance. Tr. at 893-94. This criterion The victim testified that Graham was suggests the victim’s in-court identifi- passenger of the van in which was she cation was unreliable. passenger accosted and one of was the two assailants she most. remembered Certainty D. of Level Tr. at the victim 893. Yet testified that At and at lineup, trial the one-man none police she descriptions gave the she absolutely victim said was sure that matched appearance. Graham’s Tr. at 891. Graham one of her But the rapists. stated trial the one-man were lineup not the that any discrepancies descrip- between the only confrontations with Graham. tions and appearance Graham’s Earlier confrontations less certainty evoked substantial beсause the victim gave which, through the course of impermissibly four descriptions and there were least at suggestive identification procedures, was Graham, five assailants. the court conclud- increased to gradually certainty 80-90% at ed, could have the fifth been undescribed confrontation, just prior fifth to the assailant. at N.W.2d lineup. Tr. 855. The focus of the cer- tainty eyewitness’ criterion must be on the This factual conclusion is not supported level certainty being exposed before First, by the record. is difficult to be- impermissible legally confrontations. As lieve that the victim would not have de- recently Circuit has emphasized: Second persons scribed one of the she remembered Certainty entails confidence one’s iden- most, especially his face when was “indeli- suspected tification of a perpetrator. He- bly Second, fixed in her mind.” Id. sitancy, inability positively to be sure victim admitted on the stand had that she suspect, about a and the extent to which described the four assailants re- which she an is the prod- affirmative identification membered most and that none those prodding others, signals uct of descriptions appearance. matched Graham’s which certainty undermine the Third, Tr. at 893. importantly, most suspect witness’s identification the victim testified Graham was the the pre-trial confrontation. passenger in the front the van which v. Fogg, (2d she Dickerson In her F.2d deposition abducted. gave description Cir.1982). See United ex rel. Phipps of that States passenger рolice Follette, being subjected (2d Cir.), before to the impermissibly pro- denied, suggestive identification Testimony bar. from two saw witnesses who under influence of an at the intoxicant time 702, 705, 707, 709, shortly

the victim before the victim was ab- Tr. her abduction. 712-15, probably ducted indicates that the victim was assailants, possible Here, identify the victim dis- individuals (1970). L.Ed.2d uncertainty during deal of played great pointed a and without hesitation instantly she sug- stages impermissibly the initial of the Yet when her co-defendants. out Graham’s police gestive procedures used toward specifically directed attention uncertainty help identify her Graham. This Graham, she was unable Tr. to the instant stands in marked contrast her as one of positively identify Graham identifying the victim exhibited in certainty This uncer- Tr. at 1056-66. assailants. See Tr. at 847-51. the other three defendants. impermissibly continued until tainty highlighted This contrast is further indeli- procedures identification suggestive she remembered the testimony victim’s that vic- features into the bly fixed Graham’s she now claims is Graham better than rapist majority opinion speaks memory. tim’s other defendants whom she iden- three workings common sense practical, the first time. The upon seeing tified for over memory memory ripens and notes that progression in record reveals discernible true, Biggers but time. This is indeed level of certainty —from is eyewitness’ memory that if an teaches us police initial to the when Gra- descriptions of a de- showings nurtured successive physical yet ap- ham’s features had not victim, the victim’s identifi- fendant to Tr. at tо the peared memory, in her other indicia accompanied by cation must be that she would trial where she testified Loftus, Eye- E. reliability. generally forget rising never Graham’s face. This Brod- Testimony (1979); Rahaim & witness the conclusion level of certitude reinforces Versus Evidence Common sky, Empirical certainty identifying the victim’s Lawyer Knowledge Eye- Juror & Sense: product at trial is more the Graham Accuracy, Psych.Rev. 7 Law & witness it is an indication of police’sprodding than Note, Identification (1982); Eyewitness reliability. Jury Testimony Cautionary & the Need for gave Cases, Wash in Criminal Instructions special weight testimony to the victim’s 1387,1387-02 U.L.Q. such indi- One she positively identify was able to Gra- certainty is the level of before cation because she lineup ham one-man impermissibly suggestive pro- identification the tattoo his arm. recognized on Here, take hold. the victim dis- cedures Reiman, 284 at 872. Yet she never N.W.2d about played great uncertainty deal police prior described this tattoo to the Graham, lineup displaying uncertainty and could not describe it at trial while no without from the at- prompting prosecuting the other defendants. identifying about Recognition Tr. at 855. of a tattoo torney. the victim’s This difference in the level of even notes that significant less when one stages initial of what uncertainty at the both defendants Reiman and Elliott had suggestive an impermissibly turned into tattoos and that the victim testified she saw ingredi- pivotal is a procedure throughout night.” “a lot of tattoos Tr. emphasize ent in must also my deсision. at 855—66. me that the single factor convinced that no unrelia- telling unreliability The most indicia of of Graham is victim’s identification the victim’s identification of is the whole, Rather, as a the sur- ble. taken certainty instant and absolute that the vic- that the few circumstances show rounding other displayed tim when she identified the outweigh do not indications of three co-defendants in a crowded room the identifi- suggestive nature of highly prompting police. without from the This case, procedures cation used Graham’s from his co-de- apart factor sets Graham case alone. and Graham’s no indication gave fendants. The she greater opportunity had lesser Lapse E. Time Indeed, any particular to view assailant. between the days lapsed ten Only about par- she testified that she remembered the relatively This was a lineup. and the rape assailant, says ticular whom she now is Gra- time, the victim to enough short ham, short the most. When she was taken rape have memories of the still fresh in that being Graham’s admissionto outside of her mind. Shop night Outasite Paint of the can rape be used to show reliability, find Reliability

F. Other Indicia of that the victim’s identification of the Outa- site Paint as the Shop scene of the crime The state urges us to consider as addi- was itself questionable reliability. tional indicia of the fact that all four they defendants admitted were at or Shortly after she was raped, the victim near the Outasite Paint Shop during the went to the home of two of her friends. hours the rape was committed. The victim While there she told her friends that she pinpointed had Shop Outasite Paint as had been in a raped just vacant room place the rape where occurred identi- sink and a mattress in it. Tr. at 1806. She fying mirror which came from the Outa- did not mention the mirror4 or that many site Paint Shop. The victim testified that cars cluttered up room to her friends at during rape the course of the she broke free that time. Tr. at 1806. When the victim and ran into a bathroom where she saw a told her roommate that she raped, had been mirror design with a red on it. When the her roommate suggested that Bud Reiman police showed her a mirror which came was probably culprit. The roommate from the Outasite Paint Shop, recog- she then described Reiman to the victim as hav- nized it as the one night she saw the of the ing hair, a “long beard and tattoos.” Tr. at rape. 772. The victim responded that this de- First, I note that Graham did not admit scription was accurate. The victim also de- being in the Outasite Paint Shop during scribed the room in which she was raped to the time rape occurred. He did admit her roommate. According to the room- that he momentarily stopped by the Outa mate, the victim described the room as con- site Shop Paint but did not go in. He taining a van and several bikes. The room- stated that he merely sat outside the area mate then suggested to the victim that the of the Outasite Paint Shop while talking on rape probably occurred in the Outasite a CB radio Second, and then left. оther Paint Shop, though even the roommate had evidence of guilt which does not relate to never been inside the Shop. Outasite Paint ability witness’ perceive remember Tr. at 787-88. should not enter into the process of deter After her friends told that Bud Rei- mining an identification’s reliability. Green man was one probably rapists of the Loggins, (9th F.2d Cir.1980). that he probably raped her in his garage —(cid:127) Manson, Compare 432 U.S. at 97 Shop Outasite Paint police took —the (fact at 2253 defendant found at along with them they when exe- the scene of the crime being and admitted cuted search warrant at garage. Reiman’s there on several played part occasions no It was after only highly suggestive these the reliability analysis), with Cronnon v. events that the victim’s description Alabama, (5th Cir.) (relia place of her rape includes a reference to a bility supported by witness testimony that room filled with cars various states of murderer left the bag store with a of pea repair description which matches Rei- —a nuts because later-identified defendant was garage. man’s Tr. at Compare 820 with Tr. reported to have arrived home bag with a at 1806. of nuts that got store”), he “at the denied, This analysis suggest does not that the L.Ed.2d 792 (1979). But assuming even victim’s identification of the Outasite Paint I have rape. tried to recite the victim’s testi- Tr. at 1871-84. There are other mony relatively testimony or other uncontested unreliability beyond indicia of in the record originally explore and did not the evidence in testimony. those eliсited from the victim’s own the record that tends to show that the mirror in transcript Most of the citations in dissent- Shop the Outsasite Paint the victim said however, ing opinion, are citations to the vic- night rape she remembered from the testimony. tim’s actually purchased by night Reiman after the then, Q. relia- it. Then

Shop degree Okay you is inadmissible. The remember shop identification as the it must have been Mike. bility paint jury location of the is for the to con- rape

sider. The victim’s identification of the to the A. did come and talk Someone of the crime has paint shop as location passenger. reviewed in order to determine only been that now. Q. Okay. We are back to victim, general, could or whether you previously just And have told me perceive could not and recollect the events did, Mike. Are that if someone it was night of that accurately. Outasite now, we sure someone did and it as Shop Paint identification shows that Mike Peck. ability accurately rip- victim’s to recollect Mike, but I A. I can’t swear that it was police subjected ened after know someone was there. victim to the impermissibly suggestive iden- Well, you, Q. argue I don’t want to procedures. tification fair, just told you and I want to be but against Another factor which militates a did, Now, me if it Mike. someone finding of is the descrip- saying that and it you retreating on tions of the van in which she was kid- have been someone other than could napped. van Initially, she described the as him? Later, being orange. Tr. at 864. the victim No, trying say A. what I’m is I testified that a while I it was thought “[f]or thought I saw Mike at the van door. green van.” Finally, Tr. at 865. she Q. previously Have also testified you police being described the van to the you that Mike looked in and saw gold possibly bearing white with trim and away? then looked large “happy insignia face” on its exterior. Like I was in there. A. he didn’t know Tr. at 990. One of the own defendants did van, gray Q. but was a two-tone color with you testify you thought But did a Maltese Cross on its Tr. painted exterior. you? he saw at 1373-74. A. Yes.

One last indication of the victim’s ability perceive to accurately and recollect events there, gone. A. He was and then he was on the night raped she was is her recollec- That’s I if it why say can’t for sure tion of the details of her kidnapping. Gra- just even him. I think I Sometimes ham’s counsel following elicited the testimo- imagined it. ny from the victim concerning Michael Q. you may imagined You think have it? Peck, acquaintance an of the victim whom No, A. I think —I believe —I think —I just she saw at the bar prior to her abduc- believe he was there. tion, and the events which transpired while Peck Tr. at 886-88. Mike testified that he the victim was being forcibly restrained in did not look in van on that window the van outside the bar. Tr. It is night. interesting to note Q. testified, have Previously, you have that Graham was also at the bar at not, you that Mike Peck came to the time Mike Peck and the victim were same window of this van when you were there. inside held captive? III. RELIABILITY WEIGHING AGAINST sure, A. I said I wasn’t I but SUGGESTIVENESS did, he thought did. If someone it was Mike, but I can’t swear did that he As the United Court said States come to the window. Manson, testify a “witness must about an stranger

encounter with a total under cir- Q. can Perhaps you explain it for me. emotional emergency cumstances of did,

You said if someone it was Mike. witness’ recollection of the stresses. The the cir- stranger easily by A. can be distorted ‍‌‌​​​​‌‌‌‌‌‌​‌‌‌​​​​‌‌​‌​​​‌​‌​​‌​‌‌​‌‌‌‌‌‌​‌‌​​‍coming remember someone talking po- to the cumstances or later actions passenger. lice.” S.Ct. at 2252. I

believe that is occurred what in this case. TRIBE, Plaintiff, JICARILLA APACHE Appellant, Cross-Appellee, California,

The case of Foster v. (1969), L.Ed.2d 402 closely analogous present to the case. CORPORATION, SUPRON ENERGY Foster, the witness viewed the defendant Royalty Company, Southland James G. on several occasions before the witness Watt, Secretary Interior, Gas positive could make a identification. Company Mexico, Defendants, of New witness first viewed the in a defendant Appellees, Cross-Appellants, but lineup, identify failed the defendant. Corporation, Defendant, Exxon Cross- police Then the arranged the one-to-one Claimant, Appellee, Cross-Appellant, confrontation between the defendant and the witness. When the witness could Mexico, Applicant State of New in Inter- make a tentative identification even after Appellant vention and in 81-1680. confrontations, these the police placed the 81-1680, 81-1860, Nos. 81-1871 to defendant lineup another days few 81-1874 and 81-1939. later. The defendant was the only person who was in both the first and second line- United Appeals, States Court of ups. This third confrontation “produced a Tenth Circuit. definitive identification.” Id. at Feb. S.Ct. at 1129. The Court held Rehearing Granted March that, law, as a matter of the identification procedures were so defective that the iden-

tification was constitutionally inadmissible. facts,

Id. n. 2. far egregious On less Circuit

Second reached a similar conclusion. Dickerson Fogg, 692 F.2d at 244-47. present case,

In the the few facts sup-

porting the reliability of victim’s identi-

fication of Graham do not outweigh the

suggestiveness of the proce-

dures used. This leads to the conclusion very

that there was a substantial likelihood

of misidentification which violated Gra-

ham’s process rights. due Because I would

hold the admission of the victim’s identifi-

cation of Graham as one of her rapists was error,

not harmless I would affirm the

judgment of the district court granting the

petition for writ of habeas corpus.

Case Details

Case Name: Robert Gray Graham v. Herman Solem, Warden, South Dakota State Penitentiary, and Mark v. Meierhenry, Attorney General, State of South Dakota

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 5, 1984

Citation: 728 F.2d 1533

Docket Number: 82-1371

Court Abbreviation: 8th Cir.