Jerry Lynn Young v. Robert Herring, Lee County Sheriff , 917 F.2d 858 ( 1990 )

JERRE S. WILLIAMS, Circuit Judge:

This case involves the requirement in a habeas corpus proceeding that a due process inquiry is barred only when the highest state court, pursuant to the contemporaneous objection rule, denies relief by a clear and express statement of an independent state ground for decision. The case involves the validity of an in-court identification of the accused. A prior panel of this Court found an independent state ground, although there was no express statement. But that decision was before a recent controlling decision of the United States Supreme Court. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

We find that neither the “law of the case” doctrine nor a claim of non-retroactivity bars consideration of appellant’s Harris v. Reed argument. We then find that the state court failed to conform to the “clear and express statement” requirement of Harris v. Reed to establish an independent and adequate state ground for decision. Finally, we find that the in-court identification testimony was erroneously admitted in violation of appellant’s right to due process, and we reverse.

I. Facts and Prior Proceedings

Appellant Jerry Lynn Young was convicted on December 19, 1980, of the armed robbery of the Bank of Mississippi in Tupelo, Mississippi. On March 17, 1980, a man wearing some sort of mask and carrying a sawed-off shotgun robbed the bank. At the time of the robbery, three tellers were present at the scene of the crime. The crime lasted approximately one and one-half to two minutes. The robber forced the tellers to lie face-down on the floor. A Tupelo police officer saw the robber leave the bank and get into his car.

At trial, in anticipation of leniency, Young’s alleged accomplices testified that he robbed the bank. Although two of the bank tellers and the police officer gave descriptions of the robber, they could not identify Young as the bank robber. Only the third teller, Barbara Hoard, identified Young in court as the robber. Appellant seeks to challenge the constitutionality of this identification.

According to the record, immediately after the robbery, Hoard described the robber as a white man in his mid-twenties to early thirties, 5'5" to 5'7" tall, 150-60 lbs., with light brown hair and gold-rimmed glasses. She testified that she could describe him because, although she was scared to death, she had raised her head and looked up at the robber while she was lying on the floor. She stated that she could see his glasses, eyes, mouth, the side of his face and his hair through the holes in the stocking he wore over his head. The other tellers and the policeman all testified to the contrary that the robber wore not a stocking but a mask. Despite her detailed description, at that time Hoard could not identify or recognize the robber as either a bank customer or as Young, although she testified that she knew Young by sight as a bank customer. It was not until four or five weeks later that Hoard first identified appellant at a pre-trial photographic identification procedure.

At the time of the photo array procedure, Hoard knew that a “Jerry Lynn Young” was a suspect in the crime. Hoard was shown six photographs. One was a picture of Jerry Young with his name printed on it. He was thirty-seven, gray-haired, clean-shaven and wore glasses. No evidence suggests that he looked any different at the time of the crime. Four of the other five photos were of men in their early twenties; the fifth man also was not close to Jerry Young’s age. Only one of the other five men wore glasses, and he had a beard.

At trial, during the prosecution’s case-in-chief, Young’s counsel moved to strike Hoard’s testimony, and moved for a mistrial, “on the grounds that Mrs. Hoard made an alleged identification of the defendant from the photograph before she came into Court and made an in-court identification”. Young v. Herring, 777 F.2d 198, 200 (5th Cir.1985). The trial court denied the motion. The court did, however, grant defense counsel’s motion for production of the photos. They were subsequently produced and introduced in evidence at the close of the case. Defense counsel did not make any more objections to Hoard’s identification of Young until after the verdict of guilty was returned by the jury. At that time, the defense moved for a new trial on the ground that Hoard’s in-court identification was based on an impermissibly suggestive out-of-court identification. The trial court denied the motion.

Young’s direct appeal to the Mississippi Supreme Court challenged these denials. The Mississippi Supreme Court affirmed. It held:

Young’s motion to strike the testimony and for a mistrial, dealt not with an allegation that the in-court identification was gained as the result of a suggestive or improper pre-trial identification procedure, but was on the sole basis that the witness’ in-court identification came after a pretrial photographic identification. Under this circumstance the lower court did not err in ruling the credibility of Mrs. Hoard’s identification was for the jury to weigh.”

Young v. State, 420 So.2d 1055, 1059 (Miss. 1982). Young’s motion for rehearing was denied summarily.

Young subsequently filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. The district court found that the admission of the in-court identification testimony had deprived Young of due process and granted the writ. The court did not reach the other claims in his petition.

On appeal, this Court reversed the district court’s grant of the writ and remanded for consideration of Young’s other claims. Young v. Herring, 777 F.2d 198 (5th Cir.1985). The panel concluded that it was procedurally barred from reviewing appellant’s due process claim because the Mississippi Supreme Court had rested its decision upon an independent and adequate state ground. Young apparently had failed to comply with the Mississippi contemporaneous objection rule. Id. at 202-3. The court therefore considered itself barred from reaching Young’s constitutional claim under the independent and adequate state ground doctrine. Id. (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). The panel further found that Young could not show sufficient cause and prejudice to excuse his failure to comply with the state procedural rule. Id. at 204. We thus concluded that he did not qualify for the Wainwright v. Sykes “cause and prejudice” exception to the doctrine.

On remand, the district court determined that the “law of the case” doctrine precluded reconsideration of the identification issue. It also found the remainder of appellant Young’s claims were without merit and denied the petition. Young appeals.

II. The “Law of the Case” Doctrine

Although the earlier panel held that it was barred under the independent and adequate state ground doctrine from reaching the due process issue, Young asserts that this Court now must reach those claims because the state court failed to comply with the “clear and express statement” requirement recently established in Harris v. Reed, supra. The Court in Harris declared:

a procedural default does not bar consideration of a federal claim on either direct review or habeas review unless the last state court rendering a judgment in the case “clearly and expressly” states that its judgment rests on a state procedural bar. [Citation omitted.]

489 U.S. at 262, 109 S.Ct. at 1043. The Mississippi Supreme Court, the last state court to render judgment in Young's case, did not state clearly and expressly that its judgment relied on Young’s failure to comply with the state contemporaneous objection rule. Thus, this Court properly may reach Young’s due process claim.

Appellee forcefully argues, however, that the “law of the case” doctrine forecloses any consideration by this Court of appellant’s Harris v. Reed argument. It contends that the previous panel already conclusively resolved the issue of the state procedural bar, and that this panel cannot reconsider it.

The “law of the case” doctrine holds that an appellate court decision rendered at one stage of a case constitutes the “law of the case” in all succeeding stages. Knotts v. U.S., 893 F.2d 758 (5th Cir.1990). The doctrine “operates to foreclose reexamination of decided issues either on remand or on a subsequent appeal.” Pegues v. Morehouse Parish School Board, 706 F.2d 735, 738 (5th Cir.1983). The scope of the doctrine, however, is limited: it “applies only to issues that were decided in the former proceeding and does not pertain [to] questions that might have been decided but were not.” Knotts v. U.S., 893 F.2d at 761 {quoting Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1320 (5th Gir.1978)). The doctrine encompasses those issues decided by “necessary implication” as well as those decided explicitly. Knotts v. U.S., 893 F.2d at 761. The doctrine, however, also recognizes three exceptions:

While the “law of the case” doctrine is not an inexorable command, a decision of a legal issue or issues by an appellate court established the law of the case and must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court, unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest' injustice.

White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967).

We recognize that the “law of the case” doctrine applies to this case. We find, however, that the Supreme Court decision in Harris v. Reed catapults the subject issue into the “change in controlling authority” exception to the doctrine. At the time of the earlier panel’s decision, it was not required in the context of habeas review that a state court clearly and expressly declare the state procedural ground upon which it rested its judgment. As long as an independent and adequate state ground reasonably could be found to exist, a federal court was barred under the independent and adequate state ground doctrine from reviewing the issue in a habeas petition. In keeping with the existing law, the previous panel properly concluded that the Mississippi court implicitly determined that an independent and adequate state ground existed to support the state court’s decision, by virtue of appellant’s apparent failure to satisfy the Mississippi contemporaneous objection rule.

Subsequent to the prior panel opinion, however, the Supreme Court declared in Harris v. Reed that the “plain statement rule” of Michigan v. Long, 463 U.S. 1032, 1040, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983), which had there been applied to direct appellate review, also applied to habeas review. Now it is no longer sufficient that a federal court can discover by implication a state procedural bar to support the state court judgment. Under Harris v. Reed, a state procedural rule will not bar habeas review unless the state court clearly and expressly states the procedural bar.

The Court in Harris v. Reed, 489 U.S. at 265, 109 S.Ct. at 1044, stated that it was changing the rule: “[W]e now extend to habeas review the “plain statement” rule ...” (Emphasis added.) Harris v. Reed thus constitutes a significant change in the controlling authority governing the applicability of the independent and adequate state ground doctrine in the context of habeas review. Further, Harris v. Reed is applied retroactively. See, e.g., Edwards v. Butler, 882 F.2d 160, 165 (5th Cir.1989); McCoy v. Lynaugh, 874 F.2d 954, 959, 967 (concurring opinion) (5th Cir.1989).¹ The law of the case doctrine therefore does not bar review by this panel of appellant’s Harris v. Reed claim.

III. The Harris v. Reed “Clear and Express” Statement Requirement

Since the “law of the case” doctrine does not bar reconsideration, we reach appellant’s contention that the Harris v. Reed clear and express statement requirement was not satisfied in this case. If the requirement has not been satisfied, this Court is obligated to consider appellant’s substantive constitutional due process claim. Harris v. Reed, supra, 109 S.Ct. at 1045.

We find that the Mississippi Supreme Court did not meet the Harris v. Reed requirement. The Mississippi Supreme Court did not rely clearly and expressly on a state procedural ground for its judgment. The state court decision is ambiguous on its face. Nowhere in the opinion does the state court articulate or refer to a state procedural rule, or state that a procedural rule bars appellant’s constitutional claim. Moreover, in direct support of its holding, the court specifically refers to and relies on two cases that address only the federal constitutional issue of impermissibly suggestive identifications, and not on any state procedural rule at all. Young v. State, supra, 420 So.2d at 1059 (citing McNeal v. State, 405 So.2d 90 (Miss.1981) and Chambers v. State, 402 So.2d 344 (Miss.1981)).

The Mississippi Supreme Court conceded in its opinion that Young was asserting before it the due process issue of an unduly suggestive pretrial photo identification. But the Court did not consider this issue, asserting failure to object on that basis. The Court interpreted Young’s objection to be that a valid courtroom identification could not be based upon a pretrial photo identification.

It follows therefore that the Court was acting ambiguously and by implication in finding a failure to object to the due process issue. Thus there was no clear and express statement that it was relying upon a valid state procedural ground of failure to object to justify its failure to consider the due process issue. See Goodwin v. Collins, 910 F.2d 185, 187 (5th Cir.1990), echoing Harris v. Reed: “procedural default bars federal habeas review only if the last state court rendering a judgment in the case clearly and expressly rests its judgment on the procedural default.” (emphasis added).

Due to the ambiguous nature of the Mississippi Supreme Court’s opinion, we find that the “clear and express statement” requirement of Harris v. Reed has not been satisfied. Consequently, we must consider appellant’s substantive constitutional due process claim regarding the identification testimony of Hoard.

IV. The Identification Testimony

Appellant contends that the admission of the in-court testimony of Hoard identifying him as the robber violated his constitutional right to due process of law. He asserts that the testimony was based upon an impermissibly suggestive pre-trial photo display identification procedure.

In order to prevail in his due process claim, appellant must show that the identification procedure at issue was impermissibly suggestive, and that the suggestiveness led to a likelihood of misidentification. Simmons v. U.S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Passman v. Blackburn, 652 F.2d 559, 569 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1722, 72 L.Ed.2d 141 (1982).

Upon a review of the record, we are left with no doubt that the pre-trial photo display procedure was impermissibly suggestive and likely led to misidentification of Young at trial. It is clear that the photo display procedure was extremely suggestive. First and foremost, at the time of the procedure Hoard knew that “Jerry Lynn Young” was a suspect. His photo had his name on it. These two circumstances alone arguably are sufficient to render the procedure impermissibly suggestive. But the procedure contained additional grave flaws. Young’s picture was the only one of a man in his late thirties. Four of the five other photos were of men in their early twenties. The fifth photo was of a man also disparate in age. Young was the only man with glasses and clean shaven. Only one other man had glasses, but he also had a beard. Furthermore, Hoard picked Young’s gray-haired photo out of the pack, despite her previous claim that the robber had brown hair.

The cumulative effect of these glaring differences undeniably leads to the conclusion that the photo array procedure was impermissibly suggestive. See United States v. Merkt, 794 F.2d 950, 958 (5th Cir.1986), cert. denied, 480 U.S. 946, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987) (photo array in which the accused’s photo was the only one in black and white and was the only Caucasian, while the others were color photos of Hispanic men, was impermissibly suggestive); Swicegood v. Alabama, 577 F.2d 1322, 1327 (5th Cir.1977) (a considerable age difference between the accused and the other men depicted in a photo array was a significant factor in finding the array impermissibly suggestive); United States v. Gidley, 527 F.2d 1345, 1350 (5th Cir.) cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976) (photo array in which the defendants were the only ones with long black hair, and one defendant was the sole one with an oriental appearance was impermissibly suggestive).

The photo display procedure also undoubtedly was likely to lead to a misidentification of Young as the robber. The Supreme Court has outlined five factors to consider in determining whether misidentification was likely: (1) the witness’s opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).

First, Hoard had an extremely limited opportunity to view the robber at the time of the crime. The crime only lasted one and one-half to two minutes. The robber’s face was covered. No one else at the scene could identify the robber. Her view was from the floor looking up at the robber. Second, according to her testimony, Hoard was very frightened at the time she was lying on the floor at the robber’s behest. It thus is unlikely, in such an intensely stressful and brief situation, that she had a high degree of attention as to his description or identity. Third, her earlier description of the robber was far from accurate if Young were the robber. She described the robber as a man in his mid-twenties with light brown hair. Young is in his late thirties with gray hair. Fourth, the record lacks any substantial evidence indicating the level of certainty demonstrated by Hoard at the photo array procedure. Her testimony at trial, however, reveals some uncertainty. She admitted that she could not have recognized appellant as either “Jerry Lynn Young” or as the bank robber if she had seen him walking down the street after the robbery. Fifth, the length of time between the robbery and the photo array procedure was at least four to five weeks. Given these extreme facts, we conclude that the pretrial photo array procedure was likely to lead to a misidentification of Young.

Finally we must determine whether admitting Hoard’s tainted testimony was harmless error. We find that the error was not harmless. The tainted identification of appellant at trial was a significant part of the state’s case, particularly because no other person at the scene of the crime could identify Young as the perpetrator. We conclude that the admission of this impermissible identification testimony might well have contributed to Young’s conviction. See Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 1129, 22 L.Ed.2d 402 (1969); Brown v. Blackburn, 625 F.2d 35, 37 (5th Cir.1980) (citing Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967)).

V. Conclusion

The “law of the case” doctrine does not bar review of appellant Young’s claim. Under the independent and adequate state ground doctrine we find that the state court’s decision did not comply with the Harris v. Reed “clear and express statement” requirement. On the merits of Young’s due process claim, the photo display procedure was impermissibly suggestive and likely led to a misidentification of Young as the robber. The admission of the in-court identification based upon the pretrial procedure therefore violated Young’s right to due process of law. We must reverse the district court’s denial of the writ of habeas corpus.

PETITION FOR HABEAS CORPUS GRANTED.

1 . Appellee also argues that the Teague rule of non-retroactivity bars consideration of appellant’s Harris argument. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court held that a petitioner could not raise a new rule of criminal procedure on collateral review. The rule announced and applied by the Supreme Court in Harris v. Reed is a quasi-jurisdictional rule regarding the scope and limitations of the independent and adequate state grounds doctrine of abstention. It is not a rule of criminal procedure. Teague therefore has no bearing on this case. In fact, the Teague court itself considered the Harris v. Reed requirement applicable in the Teague case.