Ricco Fountain Thigpen v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 16-1855
Filed October 24, 2018
RICCO FOUNTAIN THIGPEN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly,
Judge.
Ricco Thigpen appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
John G. Daufeldt of Daufeldt Law Firm, PLC, Conroy, for appellant.
Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.
A man made the acquaintance of two other men at a club in Cedar Rapids.
He asked the two for a ride, directed them to an alleyway, and robbed them at
gunpoint. Following the incident, Cedar Rapids police presented the two men with
photo arrays. Both identified Ricco Thigpen as the person who robbed them.
The State charged Thigpen with two counts of first-degree robbery.
Thigpen moved to suppress the photo identifications on the ground the “photo line-
up procedures violated [his] due process right[s]” under the United States and Iowa
Constitutions. At the suppression hearing, Thigpen highlighted differences
between his photo and the others in the array. The district court acknowledged
the disparities but concluded “[d]ue process did not require police to scour their
files to come up with a photo array that would eliminate all subtle differences
between individuals.” (internal quotations and citation omitted). The court denied
the suppression motion, and the case proceeded to trial.
At trial, both men who were robbed reaffirmed their prior identifications of
Thigpen. The jury found Thigpen guilty as charged.
Thigpen appealed his judgment and sentence. He asserted in part that the
district court should have suppressed the photo identifications. See State v.
Thigpen, No. 07-0359, 2008 WL 5003746, at *1 (Iowa Ct. App. Nov. 26, 2008).
This court rejected the claim. We reasoned, “[T]here was a reasonable effort to
harmonize the photographs selected in the line-up and the photo line-up was not
impermissibly suggestive, nor was there a substantial likelihood of
misidentification.” Id.3
Thigpen filed a postconviction-relief application. He claimed his trial
attorney was ineffective in failing to call an eyewitness-identification expert at the
suppression hearing and at trial. The district court denied the application
following an evidentiary hearing.
On appeal, Thigpen reprises the arguments he made in the district court.
To prevail, he must show (1) deficient performance by counsel and (2) prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
We begin with the suppression ruling. In evaluating the claimed need for
an expert at the suppression hearing, we consider our precedent on photo
identification procedures. “The analysis of an undue suggestiveness claim is
separated into two parts. The first consideration is whether the out-of-court
identification procedure was ‘impermissibly suggestive.’ If so, the totality of the
circumstances must be examined to determine whether the procedure gave rise
to ‘a very substantial likelihood of irreparable misidentification.’” State v. Rawlings,
402 N.W.2d 406, 407 (Iowa 1987) (citations omitted); see also State v. Nagel, 458
N.W.2d 10, 12 (Iowa Ct. App. 1990) (same).
At the postconviction-relief hearing, Thigpen’s attorney testified to his
criminal law experience and his familiarity with the photo-identification process.
Although he lost his file and recalled few details of Thigpen’s case, he agreed
eyewitness identification “was a significant issue in this case.”
The attorney’s pretrial cross-examination of the officer who prepared and
presented the photo arrays confirms his understanding of the photo-identification
process. During the suppression hearing, the attorney (1) underscored possible
weaknesses in the parameters the officer used to select the photos, (2) elicited an
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admission that the officer did not have the men sign and date an admonition
explaining the identification process, (3) confirmed that the officer had no way of
knowing whether the second man conferred with the first prior to making his
identification, and (4) established that the photos were not reshuffled before the
second identification.
Certainly, an expert could have been called to explain the absence of a
double-blind photo identification process, in which the officer presenting the photo
array does not know the suspect’s identity. See Gary L. Wells & Deah S. Quinlivan,
Suggestive Eyewitness Identification Procedures and the Supreme Court’s
Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 Law & Hum.
Behav. 1, 8 (2009) (“The . . . effects of the tester on the person being tested are
the reason that double-blind procedures are used in scientific experimentation.”);
see also State v. Senn, 882 N.W.2d 1, 62 (Iowa 2016) (noting “psychological
research has identified several areas where procedural suggestiveness can subtly
influence witnesses to identify the suspect—these problems include pre-lineup
instructions, the composition of the lineup, and the behavior of the official
administering the lineup, in addition to other problems”). But our courts have not
required this type of procedure. To the contrary, the Iowa Supreme Court upheld
an identification made on the heels of an officer’s statement that the photo array
included a suspect. See State v. Neal, 353 N.W.2d 83, 87 (Iowa 1984). Here, the
admonition the officer read to the men stated the array “may or may not contain a
picture of the person who committed the crime being investigated.” The
admonition alleviated concerns of undue pressure by the officer.
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Thigpen also argues an expert could have testified to the unreliability of the
first man’s cross-racial identification. See, e.g., Long v. State, No. 09-1841, 2011
WL 2420821, at *3 (Iowa Ct. App. June 15, 2011). But the second man who
identified Thigpen was of the same race as Thigpen, undermining the probative
value of this type of testimony. Cf. State v. Brooks, 540 N.W.2d 270, 272 (Iowa
1995) (finding no prejudice in counsel’s failure “to secure appointment of an expert
witness to testify to the problems of ‘cross-racial identification’” because the court
made it clear the testimony would have been disallowed).
Finally, an expert might have reinforced the points counsel made about the
differences in the photos, including Thigpen’s skin color. But the admonition read
to the men informed them the photos “might not always depict the true complexion
of a person.” And our precedent holds that “even rather startling differences
between defendant’s characteristics and those of others depicted in a photo
display have not resulted in a finding of suggestiveness.” Neal, 353 N.W.2d at 88(rejecting assertion that the inclusion of only four snapshots and the “noticeably
darker background” in his snapshot rendered the array impermissibly suggestive);
Nagel, 458 N.W.2d at 13 (noting physical differences among the individuals
included in a photo array but declining to find the array impermissibly suggestive);
see also State v. Osborn, No. 04-0546, 2005 WL 1397212, at *1 (Iowa Ct. App.
June 15, 2005) (“We disagree that Osborn was the only fair-skinned man in the
array but, even if he was, this type of difference in physical appearance has not
supported a finding of suggestiveness.”).
At the end of the day, “the question of whether or not to call an expert
witness is a matter of trial strategy.” Heaton v. State, 420 N.W.2d 429, 432 (Iowa
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1988). We conclude counsel exercised reasonable trial strategy in declining to call
an expert at the suppression hearing.
We turn to the question whether counsel was ineffective in failing to call a
trial expert on eyewitness identifications. At trial, the first person who was robbed
testified he picked Thigpen out of the photo array “right away.” His identification
was preceded by “probably 45 minutes” of interaction at the club with the person
who robbed him and “probably 15 minutes” in the car. He testified “there’s no
doubt” the person he picked from the photo array was the person who robbed him.
The second person similarly testified he “immediately recognized” Thigpen
from the photo array. Although his description of Thigpen differed slightly from that
of the first eyewitness, as did the description provided by a third witness, it was up
to the jury to sort out these differences. See State v. Shanahan, 712 N.W.2d 121,
135 (Iowa 2006); see also State v. Shorter, 893 N.W.2d 65, 74 (Iowa 2017) (noting
“the strength of the identity evidence . . . is a question for the jury”).
Apparently recognizing the jury’s role in assessing witness credibility,
Thigpen’s attorney testified his strategy was to highlight the discrepancies in the
witnesses’ descriptions of his client. He explained, “I just felt if we were going to
trial that the descriptions provided by the three State’s witnesses I thought were of
such a variance with Mr. Thigpen’s appearance that we didn’t need an expert.”
Notably, the jury was instructed on factors to consider in evaluating the
reliability of eyewitness identification, including “the way in which the defendant
was presented to the witness for identification.” The inclusion of this instruction
obviated the need for an expert. See State v. Jordan, No. 11-0431, 2013 WL
750137, at *2 (Iowa Ct. App. Feb. 27, 2013) (noting “[t]he jury had ‘the necessary
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framework to assess’” the identification). We conclude counsel exercised
reasonable trial strategy in declining to call an eyewitness identification expert at
trial.
We affirm the district court’s denial of the postconviction-relief application.
AFFIRMED.