TIMOTHY S. BLACK, District Judge.
This civil action for a writ of habeas corpus is before the Court on the Report and Recommendations of United States Magistrate Judge Michael J. Newman. (Doc. 35). In the Report and Recommendations, the Magistrate Judge recommends that Petitioner's Amended Petition for Writ of Habeas Corpus be granted with regard to Ground One and denied with regard to Grounds Two, Three, Four and Five. As a result of the Magistrate Judge's proposed disposition of Ground One of the Amended Petition, the Magistrate Judge recommends that Petitioner be released from incarceration unless granted a new trial in 120 days.
Respondent filed Objections with regard to the Magistrate Judge's recommended disposition of Ground One of the Amended Petition. (Doc. 38). Petitioner filed a response in opposition to the Objections asserted by Respondent (Doc. 39), but did not file any objections of his own to the Report and Recommendations, and the time for doing so has expired. Respondent's Objections having been fully briefed, the amended petition for writ of habeas corpus is now ripe for final determination by this Court.
This case concerns a robbery that occurred on June 22, 2002 at the Beverage Oasis Drive Through ("Beverage Oasis") in Springfield, Ohio. In the late evening hours, two armed men wearing ski masks entered the Beverage Oasis. One of the men attempted to break open the cash register with a shotgun. After most of the employees fled the store, including an employee named Donald Little, Clifford Conley, the store's owner confronted the robber who attempted to break open the register and fired warning shots away from the robber.
After Conley fired the warning shots, the robber turned and raised his shotgun toward Conley. At that point, Conley fired a shot apparently striking the robber. Conley believed he shot the robber in the stomach. The robber fell to a knee, grabbed his stomach area, dropped the shotgun and, after regaining his feet, fled the store. Conley then exchanged gunfire with the other robber outside the store.
While Conley confronted the robbers, Little and the other employees ran from the store and were able to flag down a passing SUV. Little got in the passenger seat of the SUV, as the driver backed the SUV a couple blocks away, dialed 911 and gave the phone to Little. "[M]inutes later, a maroon car drove up from the opposite direction . . . stopped, and a passenger in the back seat lowered his window halfway and smiled at [Little]." State v. Howard, No. 2004CA29, 2005 WL 1060621, at *2 (Ohio App. May 6, 2005). Mere seconds later, the maroon car left.
By late 2003, Petitioner Cecil Howard had been arrested in connection with the Beverage Oasis robbery and was subsequently indicted for attempted murder, aggravated robbery, both with a firearm specification, and for having a weapon under disability. On November 7, 2003, around the time of Petitioner's arrest, the Springfield News-Sun printed an article reporting Petitioner's arrest for the Beverage Oasis robbery. A photo of Petitioner accompanied the article. Little never saw the article, photo or any other news report concerning the robbery.
Over six months after the article appeared in the Springfield News-Sun, and almost two years after the actual Beverage Oasis robbery, Darwin Hicks, the Springfield police officer assigned to investigate the Beverage Oasis robbery, learned from Little's wife, Debra Little, that Little was able to identify one of the shooters. Days later, Officer Hicks presented a photo lineup to Little which contained a photo of Petitioner. About a second after first viewing the photos in the lineup, Little identified Petitioner as the individual he saw in the maroon car minutes after the Beverage Oasis robbery.
Before trial, Petitioner moved to suppress Little's identification, arguing that it was too unreliable. (Doc. 12-40, PAGEID 555-556). During a suppression hearing, Little explained the circumstances involving his opportunity to see the individual in the maroon car. (Doc. 12-40). Little testified that he was no more than four to five feet away from the individual in the maroon car, that he was looking square at the individual's face, that he had two to five seconds to view the individual in the maroon car, i.e., "[l]ong enough. . . to look at this guy," and that, while it was nighttime, there were "[s]treet lights all around there." (Doc. 12-40, PAGEID 519, 528).
When asked whether, at the time he saw the individual in the maroon car, he could "associate that person with being responsible for the robbery[,]" Little testified, "[n]o, I didn't — like I said, it was — I thought it was just another customer pulling up to check and see if we was all right." (Doc. 12-40, PAGEID 531).
Little also testified that, at the time of his identification, he knew Petitioner faced charges in connection with the Beverage Oasis robbery and that Petitioner was a suspect in the murder of his wife's brother, i.e., Little's brother-in-law. (Doc. 12-40, PAGEID 533-534). Nevertheless, Little testified that the only time he had ever seen Petitioner's face before making the identification was the night of the Beverage Oasis robbery when Petitioner was in the maroon car. (Doc. 12-40, PAGEID 534). Essentially, Little testified that, while he knew Petitioner's name and Petitioner's purported connection to the Beverage Oasis robbery and the murder of his brother-in-law, he could not place a face to Petitioner's name at anytime before making the identification.
At the conclusion of the suppression hearing, Petitioner's trial counsel argued:
(Doc. 12-40, PAGEID 555-556).
The trial court denied Petitioner's motion to suppress noting that "the photo array. . . does have six persons who are similar in appearance, in their physical characteristics[,]" that there was no evidence of "any suggestion, comments, or words spoken at the time of the identification" and that "[t]here were no suggestive circumstances as to who [Little] ought to identify." (Doc. 12-40, PAGEID 559, 560). The trial court concluded that Little's identification "appear[s] to be an independent, unbiased recollection by Mr. Little as to the identity of Mr. Howard at the time of the incident." (Doc. 12-40, PAGEID 560).
Following denial of his motion to suppress, Petitioner was tried and convicted of all three counts in connection with the Beverage Oasis robbery.
Following his convictions, Petitioner appealed to the Ohio Second District Court of Appeals. Among the assignments of error he advanced, Petitioner asserted error in the trial court's denial of his motion to suppress, arguing as follows:
(Doc. 12-10, PAGEID 161-162). In addressing this contention, the court of appeals concluded that the lineup was not suggestive, because "all the suspects were similar in appearance and build . . . Howard's complexion was typical of the other suspects . . . [and] [e]ach of the suspects had facial hair which, although not identical, was substantially similar." Howard, 2005 WL 1060621 at *4.
In finding that Little's identification was sufficiently reliable to present to the jury, the court of appeals relied on Little's testimony "that the passenger in the maroon car was no more than four or five feet away, that [Little] `could see real good,' and that the car was stopped `long enough for [Little] to look at this guy [in the maroon car].'" Id. at *5. The court of appeals also relied on the fact that Little "took `about a second'" to identify Howard in the photo lineup. Id.
The Supreme Court of Ohio ultimately declined to review the court of appeals' determination as it relates to Little's identification.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that district courts "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). An application challenging claims "adjudicated on the merits in State court" will not be granted unless the State court's adjudication:
28 U.S.C. § 2254(d).
With regard to the State court's determination of facts, "it is not enough for the petitioner to show some unreasonable determination of fact; rather, the petitioner must show that the resulting state court decision was `based on' that unreasonable determination." Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011) (citation omitted). This Court presumes that issues of fact determined by the State court are correct, and Petitioner must rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Respondent's Objections to the Report and Recommendations focus on the Magistrate Judge's conclusion as it relates to Ground One of Petitioner's Amended Petition concerning the suggestiveness of the photo lineup presented to Little and the reliability of the identification. Respondent contends that the Magistrate Judge: (A) incorrectly concludes that the state courts unreasonably determined the facts concerning the lineup's lack of suggestiveness; (B) erred in independently determining that the lineup was suggestive; (C) erred in concluding that Little's identification was not sufficiently reliable to present to the jury; and (D) incorrectly found that any error was not harmless.
Very shortly
In Perry, the Supreme Court clarified that "what triggers due process concerns is
In determining whether an unacceptable risk of misidentification with regard to a photo lineup exists, courts use "a two-step analysis[.]" United States v. McComb, 249 Fed. Appx. 429, 437 (6th Cir. 2007) (citing Ledbetter v. Edwards, 35 F.3d 1062 (6th Cir.1994)).
Step one requires a determination as to "whether the pretrial identification was unduly suggestive," which "is a fact-specific determination[.]" Id. (citing Ledbetter, 35 F.3d at 1070-71. This inquiry probes whether "the procedure itself steered the witness to one suspect or another, independent of the witness's honest recollection." Cornwell v. Bradshaw, 559 F.3d 398, 413 (6th Cir. 2009) (citing Wilson v. Mitchell, 250 F.3d 388, 397 (6th Cir.2001)). In making this determination, "the court may consider `the size of the [photographic] array, the manner of its presentation by the officers, and the details of the photographs themselves.'" McComb, 249 Fed. Appx. at 437 (citing United States v. Sanchez, 24 F.3d 1259 (10th Cir.1994)).
The Supreme Court of the United States has illustrated "numerous instances of suggestive procedures," such as:
United States v. Wade, 388 U.S. 218, 232-33. (1967). If the court finds that "the first step of the requisite analysis ends in the government's favor, [the court] need not address whether, under the totality of the circumstances, the photographic identifications were nevertheless reliable." United States v. Stamper, 91 Fed. Appx. 445, 462 (6th Cir. 2004) (citing Ledbetter, 35 F.3d at 1071).
However, if the identification procedure is unduly suggestive, the court proceeds to the second step to determine "whether the totality of the circumstances surrounding the [witnesses'] identification indicates that the identification was nonetheless reliable." McComb, 249 Fed. Appx. at 437. The factors considered in making this determination include:
Id. (citing United States v. Beverly, 369 F.3d 516 (2004); Biggers, 409 U.S. at 198-200). Where "the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth." Perry, 132 S.Ct. at 720.
Here, in analyzing the first step, the Magistrate Judge agrees with the court of appeals' determination that "the differences in physical appearance among the suspects — by themselves — are not so significant to be deemed unduly suggestive." (Doc. 35, PAGEID 1284). Neither party objects to the Magistrate Judge's conclusion in this regard.
However, despite such a conclusion, the Magistrate Judge continues his analysis and finds that the court of appeals' determination concerning suggestiveness was unreasonable "because [it] ignored important evidence in making its factual findings[;]" specifically, "the highly suggestive manner in which the police learned that Little could identify one of the robbers[.]" (Doc. 35, PAGEID 1284).
The Magistrate Judge finds that the court of appeals ignored the following evidence in determining whether the photo lineup was suggestive: (1) the newspaper article reporting Petitioner's arrest in connection with the Beverage Oasis robbery; (2) Little's knowledge of such arrest and his knowledge of Petitioner's suspected involvement in Little's brother-in-law's murder; (3) Little's wife informing police of Little's ability to make an identification in November 2003 and, again, in May 2004; (4) the potential motive of Little and his wife to implicate Petitioner in an effort to revenge Petitioner's suspected involvement in Little's brother-in-law's murder; (5) Little's failure to ever provide a description of the individual in the maroon car; and (6) the time between the robbery and the identification. (Doc. 35, PAGEID 1284-1286).
Respondent, in objecting to the Magistrate Judge's conclusion, argues that:
(Doc. 38, PAGEID 1326). The Court agrees with Respondent's Objection in this regard.
As stated supra, in Perry, the Supreme Court clarified that "what triggers due process concerns is
The possibility that Little's identification was fueled by his or his wife's potential improper motive to implicate Petitioner does not contribute to rendering the lineup suggestive.
Here, Little's knowledge that Petitioner faced charges in connection with the Beverage Oasis robbery, Little's knowledge that Petitioner was a suspect in Little's brother-in-law's murder, as well as the fact that the local newspaper printed Petitioner's photo in conjunction with an article reporting his arrest in connection with the Beverage Oasis robbery, does not contribute to render the lineup itself suggestive as the result of improper police conduct.
Moreover, as pointed out by Respondent, Little never saw the article or any other news report concerning the Beverage Oasis robbery.
Further, and critically, the first part of the two-part test focuses solely on suggestiveness of the lineup procedures; whereas the second part of the test focuses on other distinct reliability factors — and it would be error to conflate the two. See Biggers, 409 U.S. at 200 (stating that "accuracy of the witness' prior description" and "the length of time between the crime and the confrontation" are factors to consider in determining "whether under the `totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive"); Williams v. Lavigne, 209 Fed. Appx. 506, 510 (6th Cir. 2006) (stating that in the due process analysis, there is no need to consider "the reliability of the identification" where "unduly suggestive procedures did not procure the . . . identification").
Here, while the Court certainly recognizes that Little's potential motive impacts the weight accorded his identification and the credibility of his testimony, the Court does not conclude that any potential improper motive rendered the lineup procedure, itself, suggestive. Also, the length of time between the robbery and the identification, as well as Little's apparent failure to describe a suspect before his identification, are factors affecting the ultimate reliability of Little's identification, not the suggestiveness of the lineup itself. Biggers, 409 U.S. at 200. Therefore, any failure by the state courts to consider Little's motive, Little's failure to give a prior description, or the time lapse between the robbery and identification does not render unreasonable the state courts' conclusions concerning suggestiveness.
Accordingly, the Court finds that the determination of the state courts that the photo line up was not unduly suggestive was not an unreasonable determination of clearly established law nor an unreasonable determination of the facts. Respondent's Objection to this extent is therefore
Because the state courts' determination that the lineup was not unduly suggestive was reasonable, this Court need not consider the second step of the two-part test.
Accordingly, the Court
The Magistrate Judge, having reviewed the record, recommended that the Amended Petition be denied as it relates to Grounds Two, Three, Four and Five. Neither party objected to the Report and Recommendations as it relates to disposition of these four grounds, and the time for doing so has expired.
As required by 29 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has reviewed the comprehensive findings of the Magistrate Judge and considered the record de novo. Noting no objections to these portions of the Report and Recommendations, based upon the reasoning set forth by the Magistrate Judge as it relates to these four grounds, as well as upon a de novo review, the Court adopts the aforesaid Report and Recommendations with regard to Grounds Two, Three, Four and Five of the Amended Petition. Accordingly, the Court denies habeas relief pursuant to Grounds Two, Three, Four and Five of Petitioner's Amended Petition.
Based upon the foregoing, the Court: (1)
Even where a witness has a motive to lie, "it does not follow that his testimony [i]s untrue, nor does it follow that his testimony [i]s constitutionally inadmissible." Hoffa v. United States, 385 U.S. 293, 311 (1966); see also Randolph v. California, 380 F.3d 113 (9th Cir. 2004) (concluding that petitioner's due process rights were not violated upon admission of informant's testimony where petitioner had opportunity to cross-examine the informant with regard to motive and the jury heard a cautionary instruction). Instead, "[t]he established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury." Id.; see also Perry, 132 S.Ct. at 728-29.
Before Perry, i.e., at the time the Magistrate Judge entered his Report and Recommend-ations, the Sixth Circuit had held "that police machinations" were not required in determining suggestiveness, contrary to the Supreme Court's conclusion in Perry. See Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986), cert. denied, 482 U.S. 918 (1987); see also United States v. Edwards, 949 F.2d 397, 1991 WL 256706 (6th Cir. 1991).
Certainly, the fact that Little gave no prior description of the individual in the maroon car and the significant period of time between the event and the description detract significantly from the reliability of the identification. However, where "the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth." Perry, 132 S.Ct. at 720; see also United States v. Hill, 967 F.2d 226, 233 (6th Cir. 1992) (concluding that, while a time lapse of five years between a robbery and identification "detract[s] somewhat from the reliability of [the] identification[,]" it was insufficient to render the identification inadmissible in light of other factors favoring reliability).
The Court would also sustain Respondent's Objection as it relates to the Magistrate Judge's harmless error analysis. As noted by the Magistrate Judge, the state's case relied significantly on three details: (1) Petitioner's fingerprint found on the shotgun left at the scene by one of the robbers; (2) metal fragments found in Petitioner's body, corroborating Conley's testimony that he shot one of the robbers, though inconsistent with Conley's belief that he shot one of the robbers in the stomach; and (3) Little's identification of Petitioner as the individual in the maroon car seen two-and-a half blocks from the Beverage Oasis minutes after the robbery.
The Petitioner's fingerprint found on the shotgun, and the metal fragments found in Petitioner's body (somewhat corroborating Conley's testimony that he shot the robber who dropped the shotgun), were sufficient evidence upon which a jury could have convicted Petitioner, even in the absence of Little's identification testimony. Further, Little's identification testimony was specific and limited. Little consistently and steadfastly testified that he could not identify either of the two individuals who committed the robbery, and that he could only identify Petitioner as one individual he saw in one of "umpteen" cars that passed by him two-and-a-half blocks away from the Beverage Oasis minutes after the robbery. Thus, admission of Little's identification at trial did not have a "substantial and injurious effect or influence in determining the jury's verdict[,]" and, therefore, its admission, even if error, was harmless. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
