Willie Arthur Thigpen v. Duane Cory , 804 F.2d 893 ( 1986 )

NATHANIEL R. JONES, Circuit Judge.

At a jury trial in the state court, petitioner, Willie Arthur Thigpen, was found guilty of armed robbery and possession of a firearm during the commission of a felony. After exhausting his rights of direct appeal, he sought a writ of habeas corpus in the district court. He argued that he was denied constitutional due process by the admission of the robbery victim’s in-court identification of him. He also argued that a number of state law errors made by the trial court deprived him of a fundamentally fair trial. The district court denied the writ, and petitioner now appeals.

The robbery victim and sole eyewitness, Robert Jackson, was working alone inside a gasoline station at 2:00 a.m. on February 7, 1981, when he saw two men approaching from the left side of the gas station, which was unlit and dark. The man in front, later identified as Jeffrey Thigpen, was holding a battery. From inside the station Jackson told the men that he would not charge the battery. Jeffrey then asked Jackson through a crack in the door if he would buy it. When Jackson hesitated, Jeffrey walked past Jackson into the station and placed the battery on the floor.

Jackson now was facing Jeffrey inside the station, and the second man was behind Jackson just inside the door. Jeffrey asked Jackson to “fire it up,” referring to the battery. Before Jackson could reply, however, the second man put a gun to the back of Jackson’s head and told him to “give it up.” Only then did Jackson realize that the men intended to rob him. When Jackson started to speak, the second man told him to “shut up.” At that point Jackson briefly turned to look at the man behind him, but testified that “most of the time” he looked at Jeffrey.

Next, Jeffrey searched Jackson for money while the second man remained “on [Jackson’s] back,” where Jackson “didn’t pay too much attention” to him. After taking the money Jackson had in his pockets, Jeffrey insisted that there was more money in the station. Jackson acknowledged that there was, and led the two robbers to a “sort of dark” back room where he had hidden some money. Both robbers were behind Jackson as he walked to the back room.

From this point on, Jackson testified that he “really wouldn’t be paying attention” to the two men’s actions. The second man told Jackson to get under a desk, and a little later Jackson realized they had left. Jackson testified that his total contact with the two men lasted from one to five minutes. Of that time, he testified that he looked at the second man “not too much.” He got a “real good look at Jeffrey,” but “not a good look at” the second man.

Police officers arrived at the station approximately five minutes after the robbery. Jackson described the robbers as two black males, approximately six feet tall, with medium complexions. He indicated that one of the robbers was wearing a short, brown jacket, but otherwise could not remember any identifying details about the robbers, including their clothing, weight, hairstyle, or facial hair.

The police officers followed two sets of footprints in the snow, which led from the service station to a house several blocks away. While outside the house, the officers heard voices arguing inside. Willie Thigpen, the petitioner in this case, admitted the police officers into the house and allowed them to search the premises. Upon searching the house, the officers found two handguns as well as a canister of pennies resembling the one taken from the service station during the robbery. They also found Willie Thigpen’s brother, Jeffrey, hiding in the basement of the house with a sheet over himself. They arrested both Jeffrey and Willie.

Willie Thigpen’s version of these facts at trial was that he had been home that night since around 9 p.m., and that he had been eating pizza and playing with his cat when his brothers Jeffrey and Oakland came in. He said they offered him a canister of pennies, which he refused. When Oakland saw the police outside, both Oakland and Jeffrey ran to the back of the house. Willie contended that Oakland had hidden upstairs where he was not found because there were no lights. (Oakland, confessing to the robbery after Willie’s conviction, corroborated Willie’s version of the facts.)

Willie and Jeffrey Thigpen appeared in a line-up approximately nine hours after the robbery. Including the two brothers, there were only five men in the line-up. Jackson immediately identified Jeffrey Thigpen but did not say anything about anyone else in the line-up. The policeman conducting the line-up testified that he would have prevented anyone in the line-up from “making faces” if he had noticed it, and that no “face-making” was brought to his attention. After Willie was not identified, the police released him.

Twelve days after the robbery, Jackson saw Willie Thigpen at Jeffrey’s preliminary examination. When asked at Willie’s trial what made him notice Willie at Jeffrey’s preliminary examination, Jackson stated: “Like I said, I seen him when he was in the line-up when they sit and look like the same people, they looked different.” But Jackson told no one, except allegedly his girlfriend, that he recognized Willie at this point.

Approximately two months after this, Jackson testified at Jeffrey’s trial. A policeman testified at Willie’s trial that Willie sat with his brother Jeffrey in the courtroom. Jackson testified that Willie came in and sat down next to Jackson, and Jackson then recognized him. When asked what went through his mind at that time, Jackson testified “same thing, I seen him in the lineup. I seen him a few times, and I think that’s the man that robbed me, yeah.” During Jeffrey’s trial, Jackson told an official that Willie was the second robber. Willie was subsequently arrested.

At Willie’s trial the evidence against him consisted of the handguns and the can of pennies recovered during the police search, Jackson’s testimony concerning the robbery and identification, and the testimony of police officers concerning the search, apprehension and identification of Willie and Jeffrey Thigpen. Based on that evidence, Willie was convicted.

A conviction based on identification testimony following pretrial identification violates the defendant’s constitutional right to due process whenever the pretrial identification procedure is so “impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Because “reliability is the linchpin” of this analysis, Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), courts have used two Steps to find the use of identification testimony unconstitutional. First, the court evaluates the undue suggestiveness of the preidentification encounters. If the encounters were unduly suggestive, the court evaluates the “totality of the circumstances” to determine whether there are nevertheless sufficient independent indicia of reliability. See, e.g., id.; Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972).

In arriving at the conclusion that the pre-identification encounters in this case were not unduly suggestive, both the state appellate court and the federal district court relied on the fact that police machinations did not cause the confrontations between the witness and the defendant. This was an erroneous basis for decision, for the deterrence of police misconduct is not the basic purpose for excluding identification evidence. See Neil v. Biggers, 409 U.S. at 198-99, 93 S.Ct. at 381-82; Green v. hoggins, 614 F.2d 219, 222 (9th Cir.1980). Because it “is the likelihood of misidentification that violates a defendant’s right to due process,” Neil v. Biggers, 409 U.S. at 198, 93 S.Ct. at 381-82, only the effects of, rather than the causes for, preidentification encounters should be determinative of whether the confrontations were unduly suggestive. In other words, we adopt the Ninth Circuit’s holding in Green v. hoggins, 614 F.2d 219 (9th Cir.1980) (Peck, J., sitting by designation), that,

a court is obligated to review every pretrial encounter, accidental or otherwise, in order to insure that the circumstances of the particular encounter have not been so suggestive as to undermine the reliability of the witness’ subsequent identification.

Id. at 223.

In the case at hand it is undisputed that the witness encountered the defendant three times prior to identifying him as the second robber: at the line-up, at Jeffrey’s preliminary examination, and at Jeffrey’s trial. Although only one of these confrontations was caused by the police, we consider all three to determine whether unduly suggestive encounters occurred.

An individual’s appearance in a lineup suggests to a witness that the person is in police custody for some reason. Even if the police do not indicate that the people to be viewed are all suspects for that particular crime, seeing a man in a small line-up for a crime is likely to associate that person with the crime to some degree in the witness’ mind. Indeed, in the case at hand, every time Jackson was asked about his thoughts when he later encountered Willie, Jackson testified that his immediate thought was that he had seen Willie in the line-up for the robbery. The suspicion planted in Jackson’s mind by Willie’s presence in the line-up was significantly reinforced by seeing Willie at two court proceedings involving the man Jackson had identified at the line-up as the first robber. Federal courts have previously held that circumstances such as these are unduly suggestive, United States v. Ballard, 534 F.Supp. 749, 752 (M.D.Ala.1982) (defendant seen at line-up and a series of related court proceedings); United States ex rel. Johnson v. Hatrak, 417 F.Supp. 316, 327 (D.N.J. 1976) (defendant seen at line-ups and unrelated preliminary hearing), aff’d mem., 564 F.2d 90 (3rd Cir.1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1454, 55 L.Ed.2d 497 (1978), and we agree. Jackson’s repeated encounters with Willie Thigpen in connection with the investigation and trial for the robbery were unduly suggestive.

Having found that unduly suggestive encounters occurred in this case, we must next determine the “central question”— whether under the totality of the circumstances the identification was nevertheless reliable. Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382. The Supreme Court has set out the factors to be considered:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Id. at 199-200, 93 S.Ct. at 382-83. Although we must afford a presumption of correctness to the state court’s factual findings concerning these factors, whether the factors demonstrate reliability in the identification process is a question of law for this court to decide. Sumner v. Mata, 455 U.S. 591,102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (per curiam).

At the pretrial hearing to determine whether the witness’ identification testimony was admissible, pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the trial court made factual findings concerning several of the factors. With respect to the first factor— the opportunity of the witness to view the criminal at the time of the crime — the state court correctly held that Jackson had viewed the robbers at close range inside the gas station under fluorescent lighting. The court also held that the witness observed the second robber for approximately five minutes. However, the court based this finding on its cursory, leading examination of Jackson:

THE COURT: How long did the incident take place at the gas station approximately?

THE WITNESS: About five minutes.

THE COURT: So you had five minutes to observe Willie Thigpen for approximately 5 minutes; is that correct?

THE WITNESS: Yeah.

Wade Hearing Transcript, # 14, at 63. The facts developed at trial demonstrate that Jackson actually observed the second robber infrequently during the five-minute robbery. Jackson testified that the second man was directly behind him most of the time, that he turned to look at him briefly only once, and that although the man was not behind him after they moved to the back office, the office was dark and the witness was under a desk. Consequently, the trial court’s finding at the Wade hearing concerning the length of the observation is not entitled to a presumption of correctness, 28 U.S.C. § 2254(d)(3) (1982), and we accept the witness’ trial testimony that he barely looked at the second robber during the robbery.

With respect to the witness’ degree of attention, the trial court held that the witness was not drunk or under the influence of drugs. But the court did not mention the degree of stress that the witness might have felt and how it might have affected his attention. This court has previously noted the important effects stress or excitement may have on the reliability of an identification. United States v. Russell, 532 F.2d 1063,1066 (6th Cir.1976). Jackson was obviously affected by such stress, for at trial he repeatedly indicated that he was too scared during the robbery to “pay too much attention” to the robbers.

The trial court did not explicitly make any findings concerning the third factor— the accuracy of the prior description of the criminal. Although Jackson could not remember how he had described the robbers, the policeman who made out the report testified that his entire description was of “two black males, approximately six feet ... one was wearing a short brown jacket ... medium complexion.” While Willie is indeed a black male approximately six feet tall, that description fits many people. Accuracy also refers to how particularly a description matches a suspect, and Jackson was unable even to describe the robbers’ weights, builds, hairstyles, or facial hair.

Concerning the fourth factor — level of certainty — the trial court noted in its conclusions at the Wade hearing that Jackson did not identify Willie at the line-up because he “wanted to be sure of his identification.” Thus, the witness’ level of certainty on the day of the robbery was clearly low. It also seems to have been low at the first in-court confrontation since the witness continued to remain silent. Even later, at Willie’s trial, during both direct and cross-examination the witness stated only that he was “pretty sure” that Willie was the robber. The state court’s findings do not contradict this.

Finally, the time between the crime and the confrontation is undisputed. The confrontation which rendered Jackson “pretty sure” that Willie was the robber occurred over two months after the robbery.

Altogether, none of the five factors indicates that Jackson’s identification of Willie was reliable, and so the suggestive preidentification confrontations between Jackson and petitioner did indeed create a substantial likelihood of irreparable misidentification. We therefore hold that the trial court violated petitioner’s due process rights by admitting Jackson’s testimony identifying Willie as the second robber.

The next question is whether the admission of the identification testimony was harmless error. The Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), adopted the approach to harmless error that it had previously developed in Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963): “ ‘[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Chapman, 386 U.S. at 23, 87 S.Ct. at 827 (quoting Fahy, 375 U.S. at 86-87, 84 S.Ct. at 230-31). In the course of its analysis the Court criticized the California courts for their overemphasis of the other substantial evidence of a defendant’s guilt. Id. Furthermore, the Court concluded that the beneficiary of the error has the burden of proving that the error was harmless beyond a reasonable doubt. Id. at 24, 87 S.Ct. at 828.

In this case the state could not possibly prove beyond a reasonable doubt that the identification testimony did not influence petitioner’s conviction. The state itself, at the evidentiary hearing on the defendant’s motion for a new trial, characterized Jackson’s identification of petitioner as “the first and probably the most important” evidence. At this same hearing the court intimated that it was the identification testimony that rendered unlikely a different outcome in a new trial. Although there was other evidence against petitioner — for instance, the handguns and some money from the robbery were in the house where he was found, and two sets of tracks led to that house from the gas station— those facts were consistent with his alibi. There was not the sort of substantial evidence linking defendant to the crime that would support a finding that the identification was harmless error. See, e.g., United States v. Russell, 532 F.2d 1063, 1068 (6th Cir.1976) (identifications which violated due process not harmless in view of “dearth of other evidence”); Cf United States ex rel. Johnson v. Hatrak, 417 F.Supp. 316, 327-28 (D.N.J.1976) (identifications harmless when five other eyewitnesses testified).

Because we hold that petitioner was deprived of due process by the admission of the identification testimony, we need not address the issue of whether he was denied a fundamentally fair trial by the state court’s evidentiary errors. We do hold, however, that he adequately presented that constitutional claim in the state courts, and so met the exhaustion requirement. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Accordingly, we REVERSE the judgment of the district court denying the petition for a writ of habeas corpus, and REMAND the cause to the district court with instructions to grant the writ.