Petition — Sumner v. Mata
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In the Supreme Court’...
United States
OcrToBER TrRM, 1979
‘
’ “toh @ Ne YS
No Se we
GEORGE SUMNER, WARDEN OF THE CALIFORNIA
Strate Prison at San QuENTIN,
Petitioner,
VS.
Rosert Mata,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GrorGE DEUKMEJIAN,
Attorney General of the State of
California
Rosert H. Parurosian,
Chief Assistant Attorney General—
Criminal Division
Epwarp P. O’Brien
Assistant Attorney General
Giorgia F. DeHart
Deputy Attorney General
THomas A. Brapy
Deputy Attorney General
DeraLtp K. GRANBERG
Deputy Attorney General
JAMIE JacosBs-May
Deputy Attorney General
6000 State Building
San Francisco, California 94102
Telephone: (415) 557-1223
Attorneys for Petitioner
BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. ¢ S.F., CA 94111 © (415) 981-7882
Peat cars 2 =f
SUBJECT INDEX
Page
NE Seat eri oa Pa CAA colad ena Sates 1
SS edi Oras seh das ces Crea ee > eee hee Cures 2
I II 5 drys ue theme sonar eae 2
Constitutional and statutory provisions involved ............. 3
Seer Sree a eto A ee ee +
A. Proceedings in the state courts...................... 4
B. Proceedings in federal court .....................00. 5
C. Statement of the facts adduced at trial ............... 6
Si: RIE regal cote ae oh wag 6
2. The pretrial identification procedures ............. 8
Reasons for gremting the well .... .. 656. 6.66 en ee ciiess 10
IE oaks Fics ck Seek Ra IE eee US Rae Mee 13
Respondent’s default should bar consideration of his claim and
at the least, the state court of appeal’s findings should be ac-
corded a presumption of correctness .................... 13
A. Proceedings in the state courts ...................... 13
B. Proceedings in the federal courts .................... 14
1. The United States district court ................. 14
Se SE OR MROEE (ie 8 se eS 15
oy : TI 8 et ce is ee es 8 es Se 16
II
The availability of a suspect for a physical lineup does not ren-
der the use of a photographic lineup constitutionally sus-
pect. Moreover, the standard which the court of appeals
used to determine the likelihood of misidentification is er-
SONNE oe ere chins Peel eit ees Se 19
A. There is no requirement that necessity must be shown
before a state may use a photographic array for pretrial
Le DOE, 5. ic 6 ok A 22
B. The standard which the court of appeals uses to deter-
mine the likelihood of irreparable misidentification is er-
roneous and its factual findings without support in the
SUE isk ons Cars eR RGD ERN RO RONG ee ee 28
SE AEE ae RO BESS BILGE, the Si apneaing A PUR 32
il
TABLE OF AUTHORITIES CITED
Cases Page
Curry v. Wilson, 405 F.2d 110 (9th Cir. 1969) ............. 12
I I I ER OS Pik ce ee cee 18
Frank v. Blackburn, 605 F.2d 910 (5th Cir. 1979) .......... 26
Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979) ........ 26
LaVallee v. Delle Rose, 410 U.S. 690 (1973) ............... ll
Manson v. Brathwaite, 432 U.S. 98 (1977) .......... 17, 24, 25, 28
McNeary v. Stone, 482 F.2d 804 (9th Cir. 1973) cert. denied,
6S ess pons sacs a vcae's sine
Neil v. Biggers, 409 U.S. 188 (1972) .......... 12, 19, 23, 24, 28, 31
Parker v. Swenson, 332 F.Supp. 1225 (E.D. Mo. 1971) ...... 28
People v. Lawrence, 4 Cal.3d 273, 481 P.2d 212, 93 Cal.Rptr.
eG A Edt ec ick pdb va Vase rats vass 18
Simmons v. United States, 390 U.S. 377 (1968) ...... 17, 19, 22, 23
Stovall v. Denno, 388 U.S. 293 (1967) .................... 22, 23
United States v. Ash, 413 U.S. 300 (1973) ................. 26
United States v. Baxter, 492 F.2d 150 (9th Cir. 1973) cert. de-
nied, 414 U.S. 801 and 416 U.S. 940 ..................... 21
United States v. Bennett, 445 F.2d 638 (9th Cir. 1971) cert.
RR ee 21
United States v. Boston, 508 F.2d 1171 (2nd Cir. 1974) cert.
avd ewes cscs ces 25
United States v. Calhoun, 542 F.2d 1094 (9th Cir. 1976) cert.
ne a A 21, 28
United States v. Crawford, 576 F.2d 794 (9th Cir. 1978) ... 21, 28
United States v. Evans, 484 F.2d 1178 (2nd Cir. 1973) ..... 25, 27
United States v. Gidley, 527 F.2d 1345 (5th Cir. 1976) rehear-
ing denied, 530 F.2d 976, cert. denied, 429 U.S. 841 ....... 26
United States v. Hurt, 476 F.2d 1164 (D.C. Cir. 1973) ....... 25
United States v. Marchand, 564 F.2d 983 (2nd Cir. 1977) cert.
ERT SS ee a
lil
TABLE OF AUTHORITIES CITED
Cases Page
United States v. Valdivia, 492 F.2d 199 (9th Cir. 1973) cert.
denied, 414 U.S. 801 and 416 U.S. 940 .................. 21, 28
“a ex rel. Pella v. Reid, 527 F.2d 380 (2nd Cir.
BO ion (Rae eae oe a ae adn Bind bars eke tA
United States ex rel. Ross v. Fike, 534 F.2d 731 (7th Cir. 1976) 12
Wainwright v. Sykes, 433 U.S. 72 (1977) ............ 11, 16, 18, 19
Warden v. Hayden, 387 U.S. 294 (1967) .................. 12
Statutes
ALI = Code of Pre-arraignment Procedure (1975) section
DE ne co hs UA RUE ene ka cena ei aca ciean ks
California Evidence Code, section 353 ..................... 16
28 US.C.:
EEE Gc tO eet nee aaa rr Raley a 2
EL ey ORR NSRP ve lier gh Get ALe PMc air egy GB? ier 8 3,5, 11
section ont BARU RIAD ane seen ian ix tra aimee Pobre, erat toe our a <1 2
I oo ea eh eo Re 2, 11, 12, 14, 15,19
Constitution
In the Supreme Court
OF THE
United States
OctoBEeR TERM, 1979
No.
GrorRGE SUMNER, WARDEN OF THE CALIFORNIA
State Prison at San QUENTIN,
Petitioner,
VS.
Rosert Mara,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
The petitioner respectfully prays that a writ of certi-
orari issue to review the judgment and opinion of the
United States Court of Appeals for the Ninth Circuit en-
tered in this proceeding on December 21, 1979.
OPINION BELOW
The opinion of the Court of Appeals is reported at 611
F.2d 754 and is attached to this petition as Appendix A.
The order of the Court of Appeals denying the petition for
rehearing and rejecting the suggestion for rehearing en
banc is unreported and is attached to this petition as
Appendix B.
2
JURISDICTION
The judgment of the Court of Appeals for the Ninth
Circuit was entered on December 21, 1979. The order of
the Court of Appeals denying the petition for rehearing
and rejecting the suggestion for rehearing en banc was
filed on January 31, 1980. This petition is timely filed
within 90 days of the latter date. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. Did the Court of Appeals contravene the require-
ments of 28 U.S.C. § 2254(b) and (d):
A. When a state prisoner failed to use an available
state remedy—i.e., a procedure for contesting the admis-
sibility of identification testimony offered by the prosecu-
tion at trial—but the state appellate court, nevertheless
considered the issue on the merits, is the state foreclosed
from asserting the doctrine of procedural default in a
federal habeas proceeding?
B. Assuming that the state appellate court’s action pre-
cludes the state from asserting the doctrine of procedural
default in the federal habeas proceedings, may the state
submit the findings of the state appellate court and assert
the presumption of correctness which 28 U.S.C. § 2254(d)
gives to factual findings by a state trial court?
C. If the presumption of correctness does not accom-
pany the state appellate court’s factual findings, is the
state at least entitled to litigate the fairness of the identi-
fication process at a special hearing because it was previ-
ously denied a hearing by the defendant’s tactical decision
3
at trial not to contest the admissibility of the identification
testimony?
2. Did the Court of Appeals apply erroneous standards
in evaluating respondent’s claim of denial of due process
in the use of pretrial identification procedures?
A. Does the availability of a suspect for a physical
lineup render the use of photographic identification pro-
cedures constitutionally suspect?
B. Did the Court of Appeals apply the correct standard
to determine the likelihood of irreparable misidentification?
C. Are the Court of Appeals’ de novo factual findings
supported by the record?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Title 28, United States Code section 2254 provides in
pertinent part:
“(b) An application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted unless it appears
that the applicant has exhausted the remedies avail-
able in the courts of the State, or that there is either
an absence of available State corrective process or the
existence of circumstances rendering such process in-
effective to protect the rights of the prisoner.
“(d) In any proceeding instituted in a Federal court
by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State
court, a determination after a hearing on the merits
of a factual issue, made by a State court of competent
4
jurisdiction in a proceeding to which the applicant
for the writ and the State or an officer or agent thereof
were parties, evidenced by a written finding, written
opinion, or other reliable and adequate written indicia,
shall be presumed to be correct,
“And in an evidentiary hearing in the proceeding in
the Federal court, when due proof of such factual
determination has been made, unless the existence of
one or more of the circumstances respectively set forth
in paragraphs numbered (1) to (7), inclusive, is shown
by the applicant, otherwise appears, or is admitted by
the respondent, or unless the court concludes pursuant
to the provisions of paragraph numbered (8) that the
record in the State court proceeding, considered as a
whole, does not fairly support such factual determina-
tion, the burden shall rest upon the applicant to estab-
lish by convincing evidence that the factual determina-
tion by the State court was erroneous.”
United States Constitution, Amendment XIV, section 1
provides in part:
“... No State shall deprive any person of life, liberty,
or property, without due process of law... .”
STATEMENT OF THE CASE
A. Proceedings in the State Courts
On July 4, 1973, respondent was sentenced to life im-
prisonment following his conviction for first degree murder
in the Superior Court of California, County of Kern.
On his direct appeal, the California Court of Appeal
affirmed the judgment of conviction. A copy of the Court
of Appeal’s opinion is attached to this petition as Appen-
5
dix C. No petition for hearing by the California Supreme
Court was sought.
In state habeas corpus proceedings, the Superior Court
for the County of Marin denied respondent’s petition rais-
ing the claim in a minute order on April 1, 1977; the Fifth
District Court of Appeal summarily denied respondent's
petition on August 2, 1977; and the California Supreme
Court summarily denied respondent’s petition on November
14, 1977.
B. Proceedings in Federal Court
On December 9, 1977, respondent filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Northern District of
California. On May 23, 1978, the district court filed a judg-
ment and order denying the petition. A copy of the court’s
opinion is attached to this petition as Appendix D.
The Ninth Circuit filed its opinion on December 21, 1979
(Appendix A). A majority of the panel reversed the mur-
der conviction and ordered the district court, upon remand,
- to “hold the Petition in abeyance for a period of ninety
days, within which time California’s prosecutors may, if
they so choose, initiate a new trial against [respondent].
... 611 F.2d at 760 (A-12).
A petition for rehearing and suggestion for rehearing
en banc was filed on January 4, 1980. On January 31, 1980,
the Court denied the petition for rehearing, though Judge
Sneed would have granted the same, and all three judges
rejected the suggestion for en banc review (Appendix B).
6
Our request for recall and stay of the mandate was filed
on February 26, 1980, and was denied on March 5, 1980.
C. Statement of the Facts Adduced at Trial
1. The Murder
The murder victim, Leonard Arias, had just arrived at
the California Correctional Institution at Tehachapi on
October 19, 1972, and was socializing with inmates Rigo-
berto Almengor and Jay Allen, when a call over the in-
stitution’s loudspeaker ordered all new arrivals to report
to the prison laundry room (RT 372, 584). The three men
proceeded to the laundry room and passed respondent and
his two co-defendants, Gallegos and Vargas (RT 79, 373,
375, 510, 587, 676, 677). Respondent and his co-defendants
approached Arias and began hitting him. Gallegos stabbed
Arias and one of the three pulled a knife out of Arias’ back
(RT 377-379, 587). Inmate Allen attempted to help Arias
but one of the three assailants jabbed at him, ripping his
jacket (RT 588). Almengor joined the fray, and fought with
respondent Mata, who had a knife (RT 380). Allen caught
Arias as he fell to the floor and Gallegos and Vargas fled
through the dormitory door (RT 383-383, 589).
Robert Loomis, a correctional officer at the prison, heard
the fight and when he entered the room, inmate Allen yelled,
“a guy has been stuck, get an ambulance.” (RT 236).
Loomis opened his office door and dialed control for as-
sistance (RT 237).
One and one-half minutes after hearing the fight in dorm
8, inmate Juan Olvera saw Gallegos coming from dorm 6
which was near dorm 8 (RT 512). Gallegos was in a hurry
and told Olvera, “If they ask about me, tell them I’ve been
7
with you for the last hour” (RT 513). Gallegos had a pair
of black leather gloves rolled up in his hand at the time
(RT 514). One of the persons who stabbed Arias had gloves
on (RT 622).
At approximately 2:00 p.m. on the afternoon of the
killing, a search of the institution was conducted (RT
658). A knife was discovered in the trash can of dorm 5
and a jacket with blood on the sleeve was found under
bunk number 56 of the dorm (RT 659, 660-661). Respondent
Mata resided in bunk number 60 of that dorm (RT 658).
Broken grass shears were found on the floor between the
door of dorm 8 and the spot where Arias’ body had fallen
(RT 670). The handle portion of the shears was found on
the stairs leading into the dorm (RT 672).
The day following the killing, Albert Mills, a correctional
officer at Tehachapi, was contacted by inmate Paul
Childress who indicated that he had witnessed the incident
(RT 673-674). Childress named Mata and one of his co-
defendants as the killers and identified the other co-
defendant from a picture (RT 285-288, 676-677). Because
Childress feared for his life he was placed in segregation
confinement (RT 675, 678). While in segregation, he saw
Mata, Vargas, and Gallegos, who had also been so confined
(RT 289). Defendant Gallegos asked him if he was “ratting
on the thing” but he answered that he wasn’t (RT 291).
Carlos Ortega, the chief at Tehachapi of the Mexican
Mafia prison gang, testified that Mata and Vargas, also
members of the Mafia, contacted him before the killing.
Mata told him that the victim was due to arrive at the
prison, and that they were ordered “to hit” him (RT 822-
8
824). The next day, October 19, he, Mata and Gallegos met.
Mata and Gallegos urged Ortega “to get down,” meaning
to arm himself with a knife and stab the intended victim
(RT 824). When Mata and Gallegos departed, Vargas ap-
proached Ortega. Mata and Gallegos returned and Mata
tried to give Ortega a knife. Mata said he had another knife
in his belt (RT 830-831). Ortega refused to take the knife,
and Vargas called him a “ery baby” (RT 832).
Ortega and Gallegos were among several inmates trans-
ferred to another institution after the incident. En route,
Gallegos said, “My knife broke when I hit him. We all
worked out on it.” (RT 830-839).
Joe Escobar testified that he was a member of the
Nuestra Familia, a rival group to which the victim Arias
belonged (RT 1154). Just before the stabbing took place,
Escobar saw respondent and his two co-defendants walking
toward dorm 8, where the stabbing took place (RT 1175-
1178). Escobar saw Gallegos a short time later; his face
was flushed and he appeared excited (RT 1178). That eve-
ning Escobar saw Mata, who motioned to him and smiled,
indicating that he had “hit” the victim (RT 1183-1184).
The defense was one of denial by all three defendants.
Three witnesses testified that respondent was on his own
bed playing cards near the time when the stabbing took
place (RT 1016, 1106, 1131).
2. The Pretrial Identification Procedures
October 19, 1972
Both Almengor and Allen were questioned on the eve-
ning of the incident. Almengor named “Bogus” Pete Nunez
as one of the assailants. This name had been provided to
9
him by other inmates, based upon his description of one of
the assailants (RT 399). Almengor identified “Bogus” Pete,
and tentatively identified defendant Vargas, and inmates
Ramirez and Reymundo from a rollodex of all of the in-
mates on the “medium side” of the institution (RT 398-
400, 711, 734, 914-915). Almengor testified that he selected
eight photographs as bearing similarities to the three as-
sailants (RT 401).
Allen was not shown any photographs that evening since
he asserted that he could not make any identifications
(RT 720).
October 27,1972
Due to prison disturbances, Almengor and Allen were not
contacted again for the purpose of making identifications
until October 27, 1972 (RT 725, 927).
At this time, Allen was shown a group of photographs
introduced into evidence as Exhibit 23, which included the
photographs of Mata, Gallegos, and Vargas. The names of
the inmates were cor ealed (RT 720). Allen again made no
identifications, and complained that the photographs were
too old (RT 720-721).
Almengor was also shown the photographs introduced
at trial as Exhibit 23 with the names of the inmates con-
cealed (RT 715). Outside Allen’s presence, Almengor again
tentatively identified the photo of Vargas (RT 4387, 711,
959).
1At this time, we have certified the record to include Exhibits 23
— 24, the two photographic arrays preserved and introduced at
10
Almengor said that he felt the photographs were too old
and that appearances might have changed. He requested
up-to-date photographs (RT 716).
Up-to-date photographs were taken of the three defend-
ants and other inmates but none were useable. The three
defendants were photographed a second time and these
pictures are included among the fifteen photographs com-
prising Exhibit 24. All these photographs are black and
white, are of the same size, have the same quality of
“newness”, and are of inmates of Mexican descent. The
defense asserted that Allen and Almengor saw the de-
fendants being taken out for photographing. Allen testified
he was unaware that they were being photographed; Al-
mengor testified that he knew Gallegos was being photo-
graphed but was unaware respondent and Vargas were
with him (RT 444, 445, 625, 634).
October 30, 1972
On October 30, 1972, Allen and Almengor were shown
the group of photographs introduced as Exhibit 24.
First Almengor was shown the photographs with the
inmates’ names concealed, and he identified all three de-
fendants (RT 722). Then Allen was brought in and, while
Almengor stood on the other side of the room, Allen like-
wise identified Mata, Gallegos, and Vargas as the assail-
ants (RT 722).
REASONS FOR GRANTING THE WRIT
From the standpoint of raw power, a single federal dis-
trict judge in a habeas corpus proceeding can nullify the
product of a state’s entire criminal justice system. In re-
11
sponse to abuses of that awesome power and in the inter-
ests of comity between federal and state courts, this Court
and Congress over the past two decades created two doc-
trines which serve to limit unwarranted federal reversals
of legitimate state court convictions. One is the rule which
bars federal habeas review to a state prisoner who has
failed to raise issues in the state courts in accordance with
the requirements of state procedure absent a showing of
“cause” and prejudice. Wainwright v. Sykes, 433 U.S. 72,
87 (1977). The other is the requirement that federal habeas
courts defer to state court factual findings rendered after
full and fair hearings. LaVallee v. Delle Rose, 410 U.S.
690 (1973) ; 28 U.S.C. § 2254(d).
The district court rejected outright our procedural de-
fault argument, and denied habeas relief in some eryptic
and conclusory findings without confronting our section
2254 argument. On the other hand, the Ninth Cireuit not
only failed to acknowledge our 2254 argument but also
ignored the conventional function of appellate review. In
an opinion which can easily be mistaken for the jury argu-
ment by trial counsel, the Ninth Circuit not only set the
murder conviction at large but precluded any use at re-
trial of the testimony of two eyewitnesses to the fatal
stabbing.
This Court should grant certiorari to clarify two sig-
nificant limitations on federal habeas corpus review which
have become somewhat muddied. First, a state should not
be precluded from asserting the doctrine of procedural de-
fault simply because a state appellate court, in disregard
of settled appellate procedure, has considered and decided
on appeal an issue which the defendant failed to preserve
12
by objecting at trial. Dictum by this Court in footnote three
of Warden v. Hayden, 387 U.S. 294, 297 (1967), has led
sone circuit courts to an opposite conclusion. See, e.g.,
United States ex rel. Ross v. Fike, 584 F.2d 731 (7th Cir.
1976) ; Curry v. Wilson, 405 F.2d 110, 112 (9th Cir. 1969).
But even if review on the merits by a state appellate court
forgives the failure to use evailable state remedies, at the
least the factual findings by the state appellate court on
the issue should be afforded a presumption of correctness
when offered in a federal habeas proceeding. See 28 U.S.C.
§ 2254(d). And at the very least, if the state may not assert
the presumption of correctness, it should be afforded the
opportunity to litigate the issue at a special hearing, a
hearing previously denied it by the defendant’s failure to
object during his trial.
Moreover, the Ninth Circuit found that since it was not
necessary to use pretrial photographic identification pro-
cedures—that is, a corporeal lineup was possible—the use
of photographie identification procedures was therefore
classified as unnecessarily suggestive inasmuch as it trig-
gered the application of a test for determining whether
there was a substantial likelihood of irreparable misiden-
tification. The court then adopted a set of factors for
determining the likelihood of misidentification from a 1971
district court case, which standard differs significantly
from those set forth by this Court in Neil v. Biggers, 409
U.S. 188 (1972). Finally, the Court of Appeals’ de novo fac-
tual findings are not supported by the record.
Certiorari should be granted so that this Court can
resolve the conflicts among the circuits regarding whether
the use of otherwise nonsuggestive photographic identifi-
13
cation procedures renders such procedures constitutionally
suspect in the absence of necessity.
ARGUMENT
I
RESPONDENT’S DEFAULT SHOULD BAR CONSIDER-
ATION OF HIS CLAIM AND AT THE LEAST, THE
STATE COURT OF APPEAL’S FINDINGS SHOULD
BE ACCORDED A PRESUMPTION OF CORRECT-
NESS
A. Proceedings in the State Courts
A jury convicted Robert Mata of first degree murder.
Respondent did not litigate the admissibility of identifica-
tion tesumony at trial. Rather, trial counsel made a tactical
decision to use the identification testimony of two of the
eyewitnesses, Rigoberto Almengor and Jay Allen, to attack
the credibility of the third eyewitness, Paul Childress,
when they testified he was not there, knowing they could
then attack Almengor’s and Allen’s credibility by painting
the identifications as resulting from official suggestion.
The California Court of Appeal considered on the merits
an argument relating to the admissibility of the identifica-
tion testimony, notwithstanding respondent’s failure to
preserve the issue by objecting to the introduction of this
evidence in the trial court. The court concluded that the
circumstances of the case “indicate the inherent fairness
of the procedure, and we find no error in the admission
of the identification evidence.” C-5. Specifically, the Court
of Appeal found that the photographs displayed to the wit-
nesses were available for cross-examination purposes at
the trial, that there was no showing of influence by the
14
investigating officers, that the witnesses had an adequate
opportunity to view the crime, and that the descriptions
by the witnesses were accurate. (C-4, 5).
Respondent did not seek hearing before the California
Supreme Court.
In habeas corpus proceedings, respondent again raised
this issue, and for the first time complained that his coun-
sel was incompetent for failing to object to the admission
of this identification evidence at trial. The California Su-
perior Court, Court of Appeal, and Supreme Court denied
respondent’s habeas corpus petitions without opinion.
B. Proceedings in the Federal Courts
1. The United States District Court
The district court failed to discuss or make any findings
with respect to our section 2254(d) argument. The court
also rejected our argument that respondent’s claims were
beyond federal review because of his procedural default.
The district court proceeded to the merits of respondent’s
eyewitness identification claim and, based upon the same
state court record, denied the petition after stating some-
what cryptically that “petitioner has established that
irregularities occurred in the pretrial photographic iden-
tification of petitioner by witnesses Almengor and Allen.”
(D-3). The court concluded that these irregularities did not
taint the in-court identifications by the witnesses and fur-
ther concluded that even if the testimony of Allen was
tainted, the positive identification by Childress and the
strong identification by Almengor made the error harmless
beyond a reasonable doubt. The court also found that re-
15
spondent’s trial counsel was not incompetent for not
litigating the identification issue at trial because the claim
was “at best arguable, and that any error was harmless
beyond a reasonable doubt.” (D-3).
2. The Court of Appeals
The Ninth Circuit’s opinion not only failed to acknowl-
edge our section 2254(d) argument but also disregarded
the limitations inherent in the appellate process. Rather
than reviewing the district court’s findings, the Ninth Cir-
cuit, after reviewing the trial court record, found itself
“driven to the conclusion that the photographic identifi-
cation procedure was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable
misidentification.” 611 F.2d at 759 (A-11). The court went
on to say “Due process of law cannot be predicated on a
systematic plan by prison officers to twist a photographic
identification procedure in a manner calculated to obtain
an identification of one they suspect.” Jd. at 759 (A-11).
Moreover, the court concluded that it “cannot hold that the
error in allowing these identifications was harmless beyond
a reasonable doubt.” Jd. at 759-760 (A-12). Reversing and
remanding the case to the district court, the only option
the Ninth Cireuit offered was one of holding the case in
abeyance for a period of 90 days “within which time Cali-
fornia’s prosecutors may, if they so choose, initiate a new
trial against the appellant, a trial in which prosecutorial
evidence barred by the federal Constitution will not be in-
troduced.” Jd. at 760 (A-12). Thus, in the Ninth Circuit, re-
spondent prevailed on an issue which his trial counsel, in
16
a tactical decision, elected not to present to the state trial
court.
C. Argument
By virtue of respondent’s tactical decision to withhold
objection to the identification testimony at trial,? and the
state Court of Appeal’s gratuitous consideration and re-
jection of his claim on the merits, the federal court system
has allowed respondent to slice through a procedural de-
fault barrier, and at the same time be shielded from a
presumption of correctness of the state court’s findings
rejecting his claim.
The evils which this Court addressed in Wainwright v.
Sykes, 483 U.S. 72 (1977) are realized in this case. Re-
spondent has also been permitted to utilize a record where
the People had no incentive or opportunity to demonstrate
the admissibility of the evidence when the witnesses were
available and their recollections fresh, and where the trial
judge made no factual findings though he was the only
judge who observed the demeanor vf the witnesses. Wain-
wright v. Sykes, supra at 89.
To allow the federal courts to reach respondent’s claim
on the merits is to allow defense counsel to “sandbag” on
- their chances on a verdict of not guilty in a state trial
court with the intent to raise their constitutional claims in
federal court if their initial gamble did not pay off. Ibid.
A finding of procedural default is particularly appro-
priate in the context of this case. This Court has observed
*California’s contemporaneous objection rule is codified in Cali-
fornia Evidence Code section 353.
17
that the due process right involved here protects an evi-
dentiary interest, which has a limited impact on our ad-
versary system.
“Tt is part of our adversary system that we accept
at trial much evidence that has strong elements of
untrustworthiness—an obvious example being the tes-
timony of witnesses with a bias. While identification
testimony is significant evidence, such testimony is
still only evidence, and, unlike the presence of coun-
sel, is not a factor that goes to the very heart—the
‘integrity —of the adversary process.
“Counsel can both cross-examine the identification
witnesses and argue in summation as to factors caus-
ing doubts as to the accuracy of the identification—
including reference to both any suggestibility in the
identification procedure and any countervailing testi-
mony such as alibi.’” Manson v. Brathwaite, 432
U.S. 98, 113-114, n. 14 (1977) (citations omitted).
This Court’s faith in the fact-finding ability of our
juries is also evidenced by the observation in Simmons
that “the danger that use of the technique may result in
convictions based upo* misidentification may be substan-
tially lessened by a course of cross-examination at trial
which exposes to the jury the method’s potential for er-
ror.” Simmons v. United States, 390 U.S. 377, 384 (1968).
This Court reiterated this point in an often-cited pas-
sage from Manson v. Brathwaite, 432 U.S. 98, 116 (1977):
“We are content to rely upon the good sense and
- judgment of American juries, for evidence with some
extent of untrustworthiness is customary grist for the
jury mill. Juries are not so susceptible that they can-
18
not measure intelligently the weight of identification
testimony that has some questionable feature.”
In the instant case, the photographs from which the
witnesses made their identifications were preserved and
introduced at trial. Counsel for respondent and both co-
counsel cross-examined prosecution witnesses at length in
an effort to reveal the possibility of prejudice and impugn
their identification testimony and vigorously argued to the
jury that these identifications were tainted. (See People v.
Lawrence, 4 Cal.3d 273, 278-279, 481 P.2d 212, 93 CaR 204
(1971). Is there any doubt that respondent is being given
two bites from the same apple—the right he exercised at
trial to use the identification testimony to impeach the eye-
witnesses testimony and attack the case against the People,
and now the right to complain that despite his failure to
object, admission of this testimony violated his due process
rights in his federal habeas corpus claim?
Nor should the state Court of Appeal’s decision be
deemed waiver of this default. This Court’s opinion in
Wainwright v. Sykes explains the motivation for the State
Court of Appeal’s ruling, made prior to Wainwright while
the rule of Fay v. Nota, 372 U.S. 911 (1963) prevailed:
“Under the rule of Fay v. Noia, state appellate
courts know that a federal constitutional issue raised
for the first time in the proceeding before them may
well be decided in any event by a federal habeas tri-
bunal. Thus, their choice is between addressing the
issue notwithstanding the petitioner’s failure to time-
ly object, or else face the prospect that the federal
habeas corpus court will decide the question without
the benefit of their views.” Id. at 89.
19
Thus, the state court’s ruling on the merits should not be
considered a waiver of respondent’s procedural default.
If it is determined that the state appellate court for-
gave the default by reaching the merits, surely its resolu-
tion of the facts is entitled to the presumption of correct-
ness accorded state court findings by 2254(d). To rule
otherwise would be to reward respondent’s tactically
motivated noncompliance with the contemporaneous ob-
jection rule. Wainwright v. Sykes, supra at 90.
The Ninth Circuit disregards the federal rules by not
according the state’s factual findings a presumption of
correctness, yet making its own factual findings on the
same “cold” state record. At the very least, if a “cold”
record cannot serve as a basis for a presumption of cor-
rectness, the state should be given the opportunity to
present evidence on this issue in an evidentiary hearing
before de novo factual findings are made by any federal
court.
II
THE AVAILABILITY OF A SUSPECT FOR A PHYSI-
CAL LINEUP DOES NOT RENDER THE USE OF A
PHOTOGRAPHIC LINEUP CONSTITUTIONALLY
SUSPECT. MOREOVER, THE STANDARD WHICH
THE COURT OF APPEALS USED TO DETERMINE
THE LIKELIHOOD OF MISIDENTIFICATION IS ER-
RONEOUS
The Ninth Circuit’s opinion purported to follow Sim-
mons v. United States, 390 U.S. 377 (1968) and Neil v.
Biggers, 409 U.S. 188 (1972), which hold that a conviction
based on eyewitness identification at trial following a pre-
20
trial identification by photograph will be set aside as a
denial of due process only if the photographic identifica-
tion procedure was so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misiden-
tification. See 611 F.2d at 757 (A-6, 7).
The opinion, however, describes and follows a “two-part
approach” which the Ninth Circuit has independently
developed in determining the admissibility of an in-court
identification. The court identifies and applies the first
part of this approach by stating:
“First, the necessity of the photographic identification
procedure is considered. In this case, appellant was
an inmate at the Tehachapi facility and was placed
in segration after the stabbing. It seems quite clear,
therefore, that there was no necessity here to use
photographic identification procedures. While lack of
necessity is not a per se ground for rejection of the
identification, we have consistently held that necessity
is an important factor to be considered in judging the
validity of the identification procedures.” Jd. at 757
(citations omitted) (A-7).
“The second standard or tier of our court’s traditional
approach is ‘whether there was a very substantial
likelihood of irreparable misidentification’.” Jd. at
758 (A-7, 8).
Applying this test the court concludes that:
“Based upon the lack of necessity, the diversion of
the witnesses’ attention at the time the crime was
committed, the hazy and very general description of
the appellant by Almengor, and the inescapable fo-
cusing of attention upon the appellant by the investi-
gating authorities, we are driven to the conclusion
that the photographic identification procedure was so
21
impermissibly suggestive as to give rise to a very sub-
stantial likelihood of irreparable misidentification.”
Id. at 759 (footnote omitted) (A-11).
We submit that the test articulated by the Ninth Circuit
departs radically from the holdings of this Court. Despite
the fact that this Court has stressed that reliability is the
“Jinchpin” in determining the admissibility of identification
evidence following pretrial identification confrontations,
the Ninth Circuit’s test introduces factors which have no
possible bearing on the reliability of that evidence. Fur-
thermore, the Ninth Circuit’s test conflicts with the inter-
pretation of this Court’s holdings which have generally
been reached by the other circuits and by the state courts.
Since the Ninth Circuit’s articulation of this test appears
to be considered pronouncement, based on a line of pre-
vious Ninth Circuit cases, its opinion in this case cannot
be classified as an aberrant decision which is unlikely to
influence the results of other cases.°
’The case appears to be part of a significant line of cases decided
by the Ninth Circuit in which its “two-part approach” has been used
to resolve questions regarding the admissibility of identification evi-
dence following pretrial identification confrontations in a variety of
factual contexts. United States v. Calhoun, 542 F.2d 1094, 1104
9th Cir. 1976), cert. denied, 429 U.S. 1064; United States v. Val-
ivia, 492 F.2d 199, 209-210 (9th Cir. 1973), cert. denied, 414 U.S.
801 and 416 U.S. 940; United States v. Baxter, 492 F.2d 150, 170-
173 (9th Cir. 1973), cert. denied, 414 U.S. 801 and 416 U.S. 940;
McNeary v. Stone, 482 F.2d 804 (9th Cir. 1973), cert. denied, 414
U.S. 1071; United States v. Bennett, 445 F.2d 638 (9th Cir. 1971),
cert. denied, 404 U.S. 1023; see also United States v. Crawford, 576
F.2d 794, 797 (9th Cir. 1978).
22
A. There Is No Requirement That Necessity Must Be
Shown Before a State May Use a Photographic Array
for Pretrial Identification Purposes
This Court’s cases do not require that “necessity” must
be demonstrated before photo identification procedures
may be used. It is true that in Stovall v. Denno, 388 U.S.
293 (1967), a case involving a show-up of a single
handcuffed suspect (a practice which the Court noted had
been “widely condemned”), the Court stated that a claimed
violation of due process in the conduct of a confrontation
depends on the totality of circumstances surrounding it
and, in finding that there had not been a violation of due
process, stressed that under the circumstances there was
no practical alternative to a single-person show-up. Id. at
302. Stovall does not hold that lack of “necessity” for
use of a particular identification procedure (especially one
that may not, in itself, be impermissibly suggestive)
weighed in favor of a finding that the suspect’s due
process rights had been violated.
In Simmons v. United States, supra, 390 U.S. 377, the
first case in this Court dealing with photo identifications,
the Court noted that, “this procedure has been used widely
and effectively in criminal law enforcement.” Jd. at 384. It
then held that: “. . . [C]onvictions based on eyewitness
identification at trial following a pretrial identification by
photograph will be set aside on that ground only if the
photographie identification procedure was so impermissi-
bly suggestive as to give rise to a very substantial likeli-
hood of irreparable misidentification.” Jd. In applying this
test to the case before it, the Court noted that it had not
been suggested that it was “unnecessary” to use photo
23
identification procedures. Use of such procedures was jus-
tified by the fact that the suspects were still at large when
their pictures were shown to the witnesses and it was essen-
tial for the FBI swiftly to determine whether they were on
the right track. Id. at 384-385. The Court then noted that
in the circumstances of this case there was “little chance
that the procedure utilized led to misidentification of Sim-
mons.” Id. at 385. This case does not hold that lack of
“necessity” for use of photographic identification proce-
dures weighs in favor of a finding that the suspect’s due
process rights have been violated.
The meaning of Stovall and Simmons became clearer in
the Court’s subsequent cases. In Neil v. Biggers, supra, 409
U.S. 188, a case involving an identification at a single-per-
son show-up, the Court reviewed its previous cases and
stated the principle to be extracted from them: “It is the
likelihood of misidentification which violates a defendant's
right to due process. .. . Suggestive confrontations are dis-
approved because they increase the likelihood of misiden-
tification, and unnecessarily suggestive ones are condemned
for the further reason that the increased chance of misiden-
tification is gratuitous.” Jd. at 198. The Court then stated:
‘What is less clear from our cases is whether . . . unneces-
sary suggestiveness alone requires the exclusion of evi-
dence. While we are inclined to agree with the courts below
that the police did not exhaust all possibilities in seeking
persons physically comparable to respondent [in order to
construct a lineup], we do not think that the evidence
must therefore be excluded.” Id. at 198-199 (footnote
omitted).
24
The Court then turned to the “central question” of
“whether under the ‘totality of the circumstances’ the iden-
tification was reliable even though the confrontation pro-
cedure was suggestive.” Jd. at 199. It stated that: “
[T]he factors to be considered in evaluating the likelihood
of misidentification include 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 de-
scription of the criminal, the level of certainty demon-
strated by the witness at the confrontation, and the length
of time between the crime and the confrontation.” Jd. at
199-200.
Applying these factors to the case before it, the Court
found that the identification was reliable and that the dis-
trict court, which reached the opposite conclusion, “fo-
cused unduly on the relative reliability of a lineup as op-
posed to a show-up.” 7d. at 200.
In Manson v. Brathwaite, supra, 432 U.S. 98, a ease in-
volving identification by means of a single photograph
shown to a witness, the court stated that the admission of
evidence concerning a suggestive and unnecessary pretrial
identification procedure does not violate due process as
long as the identification possesses sufficient aspects of
reliability. The Court applied a two-part approach in de-
termining whether the suspect’s due process rights were
violated. The initial inquiry was whether the out-of-court
identification was obtained by use of an impermissibly sug-
gestive procedure. If it was, the Court then asked whether,
under all the circumstances, that suggestive procedure gave
rise to a substantial likelihood of irreparable misidentifi-
25
cation. Jd. at 107. If it did not, evidence of the out-of-court
identification could still be admitted. The Court stressed
that: “... [RJeliability is the linchpin in determining the
admissibility of identification testimony for both pre- and
post-Stovall confrontations. The factors to be considered
are set out in Biggers. ... Against these factors is to be
weighed the corrupting effect of the suggestive identifica-
tion itseif.” 7d. at 114.
It is Manson which most dramatically underscores the
error in the Ninth Circuit’s approach. The Ninth Circuit
equates lack of “necessity” for the use of photographic
identification procedures with impermissible suggestiveness
and requires a court to proceed directly from a finding of
lack of “necessity” to application of criteria for determin-
ing whether identification possessed sufficient aspects of
reliability. The lack of “necessity” is given weight among
these factors as tending to detract from the reliability of
the identification. 611 F.2d at 757, 759 (A-6, 7, 11).
The Ninth Cireuit’s approach is contrary to numerous
eases decided by the other circuits. For example, in United
States v. Marchand, 564 F.2d 983, 995 (2nd Cir. 1977),
cert. denied, 434 U.S. 1015, the court stated: “While it is
preferable for law enforcement officers to use a line-up
rather than photographic identification when the suspect is
available, this is not a requirement.” To the same effect
are United States ex rel. Pella v. Reid, 527 F.2d 380 (2nd
Cir. 1979); United States v. Boston, 508 F.2d 1171, 1176-
1177 (2nd Cir. 1974), cert. denied, 421 U.S. 1001; and
United States v. Hurt, 476 F.2d 1164 (D.C. Cir. 1973). In
United States v. Evans, 484 F.2d 1178, 1186 fn. 8 (2nd Cir.
1973), the court specifically rejected a contention that
26
“taint” is established prima facie when the government has
failed to use a “more reliable source of identification” when
it is able to do so.
In United States v. Gidley, 527 F.2d 1345 (5th Cir. 1976),
rehearing denied 530 F.2d 976, cert. denied, 429 U.S. 841,
a case in which witnesses were showed a photo spread ap-
proximately two weeks before trial, the court states that:
“In determining whether the photographic display was im-
permissibly suggestive, we evaluate only the picture spread
itself—whether other more desirable methods of identifica-
tion were available or whether there was a compelling need
for a photographic display are not relevant in the deter-
mination.” Jd. at 1350.
Gidley has been consistently followed in the Fifth Cir-
cuit. The most recent cases following it are Frank v. Black-
burn, 605 F.2d 910 (5th Cir. 1979) (rehearing en banc
granted) and Hudson v. Blackburn, 601 F.2d 785 (5th Cir.
1979).
The Ninth Cireuit’s approach is also contrary to the
great weight of the state court cases. The ALI Model Code
of Pre-arraignment Procedure (1975) does not prohibit or
restrict the use of photo identification procedures to situ-
ations where photo identification (as opposed to a corporeal
lineup) is “necessary.” The comments to section 160.2 of
the Model Code (dealing with the conduct of identification
procedures) note that, “most courts recognize no ban on
photo identification when the defendant is in custody and
a lineup is feasible.” Jd. at 440.
This position is in accord with this Court's general state-
ment in United States v. Ash, 413 U.S. 300, 321 (1973):
27
“We are not persuaded that the risks inherent in the use
of photographic displays are so pernicious that an extraor-
dinary system of safeguards is required.”
The Ninth Circuit’s standard conflicts with the standard
adopted by this Court, by the other circuits, and by most
of the states which have considered the issue. Despite the
fact that this Court has repeatedly stressed that reliability
is the keynote in determining the admissibility of identifi-
cation evidence, the Ninth Circuit’s standard identifies as
an “important factor” a circumstance (the “necessity” for
the use of photo identification procedures as opposed to
corporeal lineup procedures) which has nothing to do with
either suggestiveness or reliability. No due process interest -
of the defendant and no interest of society are protected
by the Ninth Circuit’s unique rule.
The issue presented by this case is not whether corporeal
lineups should generally be used in place of photographic
identification procedures when it is feasible to do so.
Rather, the issue is whether the due process clause, as ap-
plied to the states, requires that corporeal lineups be used
by equating failure to use them in the first instance with a
finding that the other procedures actually used were im-
permissibly suggestive, and by giving this “finding” sig-
nificant weight as detracting from the reliability (and
hence admissibility) of identification evidence. As the court
stated in United States v. Evans, supra, 484 F.2d at 1184,
“.. [To sustain the exclusion of identification testimony,
there had to be a showing both of impermissibly suggestive
procedures and of the substantial likelihood of misidenti-
fication. Where one or both are lacking, this Court con-
cluded that eyewitness identification testimony was to be
admitted.”
28
B. The Standard Which the Court of Appeals Uses to De-
termine the Likelihood of Irreparable Misidentification
Is Erroneous and Its Factual Findings Without Sup-
port in the Record
Having determined that lack of necessity results in a
constitutionally suspect identification procedure, the Court
of Appeals turned to a determination of whether there was
a very substantial likelihood of misidentification. The Court
adopts its criteria for making this determination from
Parker v. Swenson, 332 F.Supp. 1225, 1230-1231 (E.D. Mo.
1971), a pre-Biggers, pre-Manson district court decision:
“*(1) the length of time and the conditions under
which a witness was able to: observe the perpetrator
during the commission of the crime ..., (2) the simi-
larity of the description given by a witness immedi-
ately after the crime to the physical characteristics of
the individual he subsequently identifies, (3) conduct
on the part of the police tending to focus attention on a
particular subject, and (4) presence of other witnesses
at the time of the improper identification and the pos-
sible prejudicial influence of one witness’ opinion on
another’s recollection. See Parker v. Swenson, 332
F.Supp. 1225, 1230-1231 (E.D. Mo. 1971).” 611 F.2d
at 758 (A-8).‘
Compare and contrast this set of factors with this Court’s
test set forth in Neil v. Biggers, supra, 409 U.S. at 199-
200, and used in Manson v. Brathwaite, supra, 432 U.S. at
114-115.
*This standard, an apparent favorite of the Ninth Circuit, has also
been used by the Court in United States v. Valdiva, supra, at 210;
United States v. Calhoun, supra at 1104; and United States v. Craw-
ford, supra at 797.
29
“1. The opportunity to view.
2. The degree of attention.
3. The accuracy of the description.
4. The witness’ level of certainty.
5
. The time between the crime and the confronta-
tion.”
The Court of Appeals’ test is fatally defective in that
under its factors (3) and (4) are included the very ele-
ments of suggestiveness which are supposed to be placed
to one side in order to evaluate the independent basis for
the identification. It also fails to consider two of the five
factors set forth by this Court: the level of certainty dem-
onstrated by the witness at the confrontation, and the
length of time between the crime and the confrontation.
The Court’s errors in establishing the standards to eval-
uate respondent’s constitutional claim are compounded by
its application of its own de novo factual findings which
are not supported by the record. We will highlight some of
the more critical factual determinations.
The necessity determination was resolved in two sen-
tences:
“In this ease, appellant was an inmate at the
Tehachapi facility and was placed in segregation after
the stabbing. It seems quite clear, therefore, that there
was no necessity here to use photographie identifica-
tion procedures.” 611 F.2d at 757 (A-7).
It does not follow that because prison officials had re-
spondent segregated that a corporeal lineup was feasible.
The difficulty was clearly not obtaining custody of him;
30
rather, it concerned arranging large groups of inmates, in-
cluding the suspects, for identification by the witnesses.
Respondent’s candid concession for the necessity of the
photographic display at oral argument before the Ninth
Circuit was based on the fact that this contract killing by
the Mexican Mafia against a Nuestra Familia member
prompted riots and the necessity to lock down the prison.
The majority’s simplistic approach would mandate prison
officials to line up large numbers of inmates of Mexican
descent, some of whom no doubt would have connections
with these prison gangs, with the expectation that in this
face-to-face confrontation the witnesses would make an
identification.°
Judge Sneed’s dissent aptly acknowledges that ‘The
prison world is unique. It differs enormously even from
the precinct stationhouse and police headquarters. A ‘code
of silence’ strengthened by taboos against ‘ratting’ and a
pervasive fear of retaliation are characteristics of the
social order. In this environment, prison administrators
and guards must function. Administrators are responsible
for protecting prisoners in their custody and may be held
liable for a failure to provide such protection.” 611 F.2d
at 760 (citations omitted) (A-14).
In evaluating the likelihood of irreparable misidentifi-
cation, the Court acknowledges, as it must, that the wit-
nesses observed the stabbing and actually fought with
respondent and one of his co-defendants. To repudiate
‘The Ninth Circuit opinion presupposes the existence of facilities
at Tehachapi enabling a witness to view a lineup without having
those in the lineup view the witness; in fact, no such facilities exist
there,
31
this fact, the Court found “the violence accompanying the
incident and the threat presented by the knife would have,
quite likely, diverted the witnesses’ attention.” 611 F.2d at
758 (A-9). No empirical evidence demonstrating why this is
“quite likely” is offered. Moreover, the conclusion is clearly
erroneous in light of the testimony of Almengor that he
and Mata made eye contact (RT 379-383). Thus, as in
Neil v. Biggers, supra at 200, these witnesses were not
‘““casual observers” but were victims, as well, of the
assault.
The only other appropriate factor considered by the
Court, the accuracy of the description, also contains fac-
tual misrepresentations.
The majority acknowledged that Almengor told the in-
vestigating authorities that “two of the assailants were
dark-complexioned and wore moustaches, while the other
assailant looked like ‘an Indian dude’. The appellant is of
Mexican descent and wore a moustache at the time of the
homicide.” 611 F.2d at 758 (A-9). The Court coneluded that
this was “clearly not detailed” and compared the descrip-
tion in Neil v. Biggers, which included the assailant’s ap-
proximate age, height, weight, complexion, skin texture,
build, and voice, and which this Court described as “more
than ordinarily thorough.” Jbid. Yet, the record con-
tains more detail including a description of the types of
moustaches (“a small moustache, more or less like mine”’
and “the one who was doing the stabbing, he had a thicker
moustache”), and that this assailant had “sort of longer
hair like coming up to his neck collar and twisting up.”
(RT 970). The clothing worn by the three was also de-
scribed: they wore state issue jackets, gloves, and beanie
32
caps (RT 969-970). Their identification as being of Mexi-
can descent is implicit in Almengor’s request on October
19 to be shown pictures of “all the Mexican population
on that side [the medium side] of the fence.” (RT 397).
Finally, inmate Allen testified that he knew Mata prior to
this incident since at one time, they both lived in the
same dorm. (RT 595).
To conclude, not only did the Ninth Circuit use an
erroneous legal standard but its de novo factual findings
are not supported by record.
CONCLUSION
For the foregoing reasons, it is respectfully submitted
that the petition for a writ of certiorari should be granted.
Dated: April 3, 1980
GrorGE DEUKMEJIAN,
Attorney General of the State of
California
Rosert H. Puiiisostan,
Chief Assistant Attorney General—
Criminal Division
Epwarp P. O’Brien
Assistant Attorney General
Groria F. DeHartr
Deputy Attorney General
Tuomas A. Brapy
Deputy Attorney General
DeraLp KE}. GRaNBERG
Deputy Attorney General
JAMIE JAcoBs-May
Deputy Attorney General
Attorneys for Petitioner
(Appendices follow)
Appendices
Appendix A
No. 78-2636.
United States Court of Appeals,
Ninth Circuit.
Robert MATA, :
Petitioner-Appellant,
vs. ‘
George SUMNER,
Respondent-Appellee.
Dee. 21, 1979.
Rehearing Denied Jan. 31, 1980.
Before: ELY and SNEED, Circuit Judges,
and TAKASUGI,* District Judge.
ELY, Cireuit Judge:
Robert Mata (“appellant”) appeals from the District
Court’s denial of his Petition for Writ of Habeas Corpus.
The Petition followed the appellant’s conviction of murder
in a California state court and his exhaustion of all avail-
able state court remedies.
We reverse the District Court’s Order upon the basis
of our conclusion that state authorities violated rights
given to the appellant by the federal Constitution. First,
the pre-trial photographic identification procedure em-
*The Honorable Robert M. Takasugi, United States District Judge
for the Central District of California, sitting by designation.
A-2
ployed by state police was so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable
in-court misidentification of the appellant. Second, the ad-
mission of the in-court identification constituted error of
constitutional dimension.
FACTS
This case involved a homicide at the medium security
prison, ©.C.1., Tehachapi, California, on October 19, 1972.
The prosecution’s case was based chiefly on the theory that
the homicide was a result of feuding between opposing
prison factions—the “Mexican Mafia” and the “Nuestra
Family.” The homicide victim, Leonard Arias, was repre-
sented to have been a member of the “Nuestra Family.”
Prior to being transferred to Tehachapi, Arias had alleg-
edly attacked a member of the “Mexican Mafia” while at
another California prison, San Quentin. As a result of
this attack, the “Mexican Mafia” had a “contract” out on
the life of Arias. The day after his arrival at Tehachapi,
Arias was fatally stabbed.
The prosecution alleged that the appellant and co-
defendants Gallegos and Vargas approached Arias and
began hitting him. Gallegos stabbed Arias, and one of the
three defendants pulled the knife out of Arias’ back. One
witness, Allen attempted to help Arias, but one of the three
defendants jabbed at him, ripping his jacket. Another wit-
ness, Almengor, allegedly fought with the appellant, who
had a knife.
The facts surrounding the pre-trial photographic iden-
tification procedures are set forth below;
A-3
October 19, 1972
Almengor was shown several hundred photographs of
inmates. He selected eight photographs, making a positive
identification of Pete Nunez as the person who did the
stabbing, and tentatively identifying inmates Ramirez,
Reymundo, and Vargas. He did not identify the appellant
as a participant. Almengor changed his “positive” iden-
tification of Nunez when prison authorities told him that
Nunez had been outside the prison on the day of the killing.
Allen was not shown any photographs on October 19th,
since he asserted that he could not make any identification.
October 27, 1972
Almengor and Allen were shown twenty-four photo-
graphs of inmates, including photographs of the three
defendants. Outside of Allen’s presence, Almengor again
tentatively identified the photograph of Vargas. Once
again, however, Almengor did not identify the appellant,
Moreover, Almengor stated that the photographs were too
old and requested more recent ones. Allen was unable to
make any identification, and he also complained that the
photographs were too old.
October 27-October 30, 1972
A series of updated photographs were taken of the
defendants and other inmates, but none of the photographs
were useable. The photographs of the three defendants
were the only ones taken a second time. The defense as-
serted that when the defendants were taken to be photo-
graphed, they were led out of the segregation unit in par-
tial view of Almengor and Allen. It is disputed whether
A-4
Almengor or Allen actually recognized the defendants as
the persons who were to be photographed.
October 30, 1972
Almengor and Allen were shown fifteen photographs
of inmates. The only updated photographs included were
those of the three defendants. Not included in the group
of fifteen were the photographs of Kamirez, Reymundo,
and Nunez. As indicated, Almengor had previously iden-
tified these men as suspects when he had been shown pho-
tographs on October 19th. The prosecution’s position was
that the exclusion occurred because the correctional officers
did not consider these inmates as suspects.
In an interview on October 27, 1972, Almengor had de-
scribed two of the assailants as having mustaches. Six of
the fifteen photographs were of inmates wearing mustaches
and prison dress. Three of the six photographs were the
updated photographs of the three defendants, while the
other three photographs were less than a year old. Al-
though taken at different times, most of the photographs
in the line-up were similar in terms of size, color, and pose.
All of the inmates pictured were of Mexican descent. From
these fifteen photographs, Almengor selected those of the
three defendants. As indicated above, Almengor had never,
prior to this time, identified the appellant. Allen was then
brought in, and while Almengor stood on the other side
of the room, Allen likewise identified the three defendants.
This was the first time that Allen had made an identifica-
tion of any of the assailants.
The appellant asserted that Almengor was informed by
prison officials that he was a suspect because of the dis-
A-5
covery, shortly after the murder, of bloodied clothes that
belonged to him. Further, it is not disputed that Almengor
had asserted throughout much of the identification process
that he could not make a positive identification from photo-
graphs. The prosecution conceded that Almengor requested
a line-up and that this request was refused. No reason for
the refusal was given.
In respect to Allen, appellant poin ed to the fact that
Allen originally stated that he could make no identification.
Appellant also asserted that the California Department of
Corrections “reminded” Allen of his upcoming parole date
and threatened to transfer him, if he failed to cooperate,
to another institution, a facility wherein his life would be
in danger. Finally, appellant asserted that Allen told one
Faulkner, a private investigator for the appellant, that
(1) the incident lasted only a few seconds, and Allen did
not get a good enough look at any of the assailants to
identify them; (2) throughout the investigation Allen had
maintained that he could not identify the assailants, and
that he would take a lie detector test to substantiate this;
(3) Allen assumed the three defendants must have been
the ones who committed the murder because he saw them
being taken to be photographed the second time; (4) Allen
was due for parole and was under pressure from the
Department of Corrections to make an identification.
The prosecution contended that the appearance of the
appellant in the updated photograph was significantly dif-
ferent than the original photograph which had been taken
three to eight months earlier. Furthermore, the prosecu-
tion relied upon Allen’s testimony that he had feigned an
A-6
inability to make an identification because he was attempt-
ing to avoid involvement. In addition, the prosecution con-
tended that Allen denied that correctional officers at-
tempted to influence him and repudiated much of what
Private Investigator Faulkner had testified that Allen had
told him earlier. Finally, the prosecution pointed to evi-
dence that Allen and Almengor did not ascertain the iden-
tity of who was being photographed a second time and
thus did not “correctly select’’ the defendants on this basis.
DISCUSSION
I.
The presence of counsel is not constitutionally required
during a pre-trial photographic display for purposes of
suspect identification. United States v. Ash, 413 U.S. 300,
93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). Such identification,
however, may be challenged as violative of due process
when the procedure is unnecessarily suggestive and con-
ducive to irreparable mistaken identification. Stovall v.
Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1967) The validity of a photographic identification is to
be evaluated in light of the particular facts and surround-
ing circumstances of each case. Simmons v. United States,
390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968);
United States v. Calhoun, 542 F.2d 1094, 1104 (9th Cir.
1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d
781 (1977). A conviction “based on eyewitness identifica-
tion at trial following a pretrial identification by photo-
graph will be set aside ... [as a denial of due process]
only if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substan-
A-7
tial likelihood of irreparable misidentification.” Simmons
v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971.
Our Circuit has generally followed a two-part approach
in determining the admissibility of an in-court identifica-
tion. See, e.g., United States v. Valdivia, 492 F.2d 199, 210
(9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945,
40 L.Ed.2d 292 (1974); Umted States v. Crawford, 576
F.2d 794, 797 (9th Cir.), cert. denied, 439 U.S. 851, 99 S.Ct.
157, 58 L.Ed.2d 155 (1978). First, the necessity of the pho-
tographic identification procedure is considered. Id. In this
case, appellant was an inmate at the Tehachapi facility
and was placed in segregation after the stabbing. It seems
quite clear, therefore, that there was no necessity here to
use photographic identification procedures. While lack of
necessity is not a per se ground for rejection of the iden-
tification, see United States v. Calhoun, supra, 542 F.2d
at 1104; United States v. Valdivia, supra, 492 F.2d. at 210,
we have consistently held that necessity is an important
factor to be considered in judging the validity of the iden-
tification procedures. See Umted States v. Peele, 574 F.2d
489, 490 (9th Cir. 1978); United States v. Calhoun, supra,
542 F.2d at 1104; United States v. Pheaster, 544 F.24 353,
370 (9th Cir. 1976), cert. demed, 429 U.S. 1099, 97 S.Ct.
1118, 51 L.Ed.2d 546 (1977); United States v. Valdivia,
supra, 492 F.2d at 210; Umted States v. Baxter, 492 F.2d
150, 171 (9th Cir. 1973), cert. denied, 414 U.S. 801, 94 S.Ct.
16, 38 L.Ed.2d 38 (1974).
The second standard or tier of our court’s traditional
approach is “whether there was a very substantial likeli-
hood of irreparable misidentification.” United States v.
A-8
Valdivia, supra, 492 F.2d at 210. Unnecessary suggestibility
alone does not require exclusion of the subsequent inden-
tification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243,
53 L.Ed.2d 140 (1977). “It is the likelihood of misidentifica-
tion which violates a defendant’s right to due process .. ..”
Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381-382, 34
L.Ed.2d 401 (1972). In other terms, “the focus is on the
reliability of the witnesses’ identification rather than on
the flaws in the pretrial identification procedures.” United
States v. Barron, 575 F.2d 752, 754 (9th Cir. 1978). Several
factors have been listed as relevant in the evaluation of the
likelihood of misidentification:
(1) the length of time and the conditions under
which a witness was able to observe the perpetrator
during the commission of the crime .. ., (2) the simi-
larity of the description given by a witness immediately
after the crime to the physical characteristics of the
individual he subsequently identifies, (3) conduct on
the part of the police tending to focus attention on a
particular subject, and (4) presence of other witnesses
at the“time of the improper identification and the
possible prejudicial influence of one witness’ opinion
on another’s recollection. See Parker v. Swenson, 332
F.Supp. 1225, 1230-1231 (1.D.Mo.1971).
United States v. Valdivia, supra, 492 F.2d at 210. See also
United States v. Calhoun, supra, 542 F.2d at 1104; United
States v. Crawford, supra, 576 F.2d at 797.
In applying the facts of this case to well established
standards, it is obvious that there was a grave likelihood of
irreparable misidentification.
A-9
According to their testimony, witnesses Almengor and
Allen observed the stabbing and actually fought with appel-
lant and one of the co-defendants. This would have at least
provided an opportunity for the witnesses to observe the
perpetrators of the crime. On the other hand, the violence
accompanying the incident and the threat presented by the
knife would have, quite likely, diverted the witnesses’
attention.
On October 27, 1972, Almengor told investigating authori-
ties that two of the assailants were dark complexioned and
wore moustaches, while the other assailant looked like “an
Indian dude.” The appellant is of Mexican descent and wore
a moustache at the time of the homicide.
Yet, the descriptions of the assailants were clearly not
detailed descriptions. Cf. Neil v. Biggers, supra, 409 US.
at 200, 93 S.Ct. 375 (description included assailant’s
approximate age, height, weight, complexion, skin texture,
build, and voice).
As for conduct on the part of the authorities “tending to
focus attention on a particular subject,” it should first be
noted that there was not one, but three different sessions
wherein Almengor and Allen were shown photographs. As
stated in United States v. Higginbotham, 539 F.2d 17, 23
(9th Cir. 1976), wherein the witness was given a photo-
graphic display twice:
While the repeated showing to a witness of photo-
graphic displays for the purpose of identification pre-
sents opportunities for abuse and due process prob-
lems, when it is shown that the witness was equivocal
on the first selection and became firm on a later
A-10
showing, that rule should not be applied where the
witness has been consistently firm.
See also United States v. Cook, 608 F.2d 1175 at 1178-79
(9th Cir. June 29, 1979) (“As with all photographic identi-
fication procedures, there is a possibility that the prior
photo array tainted this later identification.”).
Here, Almengor was not merely “equivocal” on the first
selection. He selected photos of three individuals whom the
prosecution asserts were not involved at all. Allen would
not even look at the photos because he said he could not
make an identification. The two witnesses made the
“correct” selections on the third time around, and only after
(1) Almengor’s request for a line-up had been refused.’
(2) considerable pressure from both the prison officers and
opposing prison factions had admittely been brought to
bear on both witnesses, (3) prior “mistaken” selections had
been removed, (4) the number of photos had been drasti-
eally reduced; and (5) new photos of appellant and
co-defendants (and only of these three) had been substi-
tuted in the array.’
The prosecution argued that the changed appearance of
the appellant in the updated photograph accounted for the
1As indicated above, the state authorities offered no reason why
Almengor’s request for a line-up was denied. Particularly in light of
the witnesses’ own complaints about the photographic identification
procedure, we can only infer that the refusal stemmed from the
reluctance of the prison officials to provide appellant with the assist-
ance of counsel which would be required in a line-up procedure.
*Cf. Simmons v. United States, supra, 390 U.S. at 383, 88 S.Ct. at
971 (The danger of an erroneous identification by a witness “will
be increased if the police . . . show [the witness] the pictures of
several persons among which the photograph of a single such indi-
vidual recurs or is in some way emphasized.” ).
A-11
sudden ability of Almengor and Allen positively to identify
the appellant on October 30th. While we have looked at the
photographic exhibits and do agree that there is some
change in appearance, this fact must be balanced against the
totality of circumstances. Based upon the lack of necessity,
the diversion of the witnesses’ attention at the time the
crime was committed, the hazy and very general description
of the appellant by Almengor, and the inescapable focusing
of attention upon the appellant by the investigating authori-
ties, we are driven to the conclusion that the photographic
identification procedure was so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable
misidentification. Due process of law cannot be predicated
on a systematic plan by prison officers to twist a photo-
graphic identification procedure in a manner calculated to
obtain an identification of one they suspect.*
‘Having carefully considered the dissenting opinion, the majority
deems it unnecessary to comment on that opinion, except for one
portion thereof. The portion reads: :
“Pressure was indispensable in the circumstances of this case
if the crime was to be solved reasonably quickly. I repeat,
rison officials must operate in a humane manner but also in a
ered that takes into account the realities of prison environ-
ment. The officials in this case, in my opinion, merely did what
we as citizens demand of them, i. e., protect the inmates by
apprehending those who recently had preyed upon one of
them.”
The record before us indicates, with unmistakable clarity, that the
photographic identification procedures in question were not em-
lo oa to “protect the inmates by apprehending those who recently
had preyed upon one of them.” In fact, the appellant had already
been quickly apprehended and placed in segregation after the stab-
bing had occurred. Therefore, the impermissible procedures were
utilized so as to assemble incriminating evidence against the appel-
lant in order that the crime be more quickly “solved.”
In the consideration of such a fundamental right as due process,
there are, of course, much more treasured values than mere speed
and efficiency. See Wolff v. McDonnell, 418 U.S. 539, 583, 94 S.Ct.
2963, 41 L.Ed.2d 935 (1974) (Marshall, J., dissenting); Fuentes v.
A-12
II.
From our review of the record, including the evidence
introduced against the appellant, it is clear to us that the
in-court identifications by Almengor and Allen constituted
evidence that was of exceptional importance to the prosecu-
tion in its achievement of the appellant’s conviction. There-
fore, we cannot hold that the error in allowing these identi-
fications was harmless beyond a reasonable doubt. Chapman
v. Califorma, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967); United States v. Lopez, 575 F.2d 681, 685 (9th Cir.
1978). See also Wilson v. Anderson, 379 F.2d 330, 335-37
(9th Cir. 1967) (Ely, J., dissenting), rev’d per curiam,
Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Fid.2d
81 (1968). Accordingly, the challenged Order of the District
Court is reversed. Upon remand, the District Court will
hold the Petition in abeyance for a period of ninety days,
within which time California’s prosecutors may, if they so
choose, initiate a new trial against the appellant, a trial in
which prosecutorial evidence barred by the federal Consti-
tution will not be introduced.
REVERSED and REMANDED, vith directions.
Shevin, 407 U.S. 67, 90-91 n. 22, 92 S.Ct. 1983, 32 L.Ed.2d 556
(1977). We cannot remain oblivious to the danger, a danger of the
severest gravity, that investigating officials, in an effort quickly to
solve a crime, may exert such coercive tactics as to lead to the mis-
taken identification of an innocent individual. Moreover, in the con-
text of prison environment, the guarantee of due process rights is
no less important than is that guarantee to society at large, All law
abiding citizens share the desire that all crimes be solved with rea-
sonable speed, but speed, in and of itself, cannot justify the in-
fringement of basic constitutional rights. And, it is well established,
of course, that a prisoner does not shed his basic constitutional pro-
tections when he enters an American prison. See Finney v. Arkansas
Board of Corrections, 505 F.2d 194, 211 (8th Cir. 1974) and cases
cited therein.
A-13
SNEED, Circuit Judge (dissenting) :
I respectfully dissent.
The majority concludes that there was “a systematic
plan by prison officers to twist a photographic identifica-
tion procedure in a manner calculated to obtain an iden-
tification of one they suspect”; that there was no necessity
to use photographic identification procedures; and that the
procedures employed here created a grave likelihood of
irreparable misidentification. Fortified by my examination
of the photographs employed on October 27, 1972 and
October 30, 1972 and the fact that, leaving aside the direct
appeal process, three courts of the State of California
(Superior Court of Marin County, Court of Appeal, Fifth
Appellate District, and Supreme Court of California) and
one federal court (District Court, Northern District of
California) have failed to discern the “systematic plan”
and to reach the conclusions so easily arrived at by the
majority, 1 conclude that the procedures employed did not
contravene the Simmons test as interpreted by this circuit.
In addition, I suggest that the application of the Sim-
mons test in habeas corpus proceedings should be some-
what less rigorous than is the case in direct appeals from
federal convictions. That is, the likelihood of irreparable
misidentification should be sufficiently clear and convincing
in habeas proceedings to require a setting aside of the con-
viction to prevent manifest injustice. This position involves
recognition that a vigorous application of Simmons in the
direct appeal setting rests, in part, on our supervisory
powers rather than exclusively on the command of the Due
Process Clause of the Fifth Amendment,
A-14
I. THE SIMMONS TEST AS USED
ON DIRECT APPEAL
In applying Simmons as it would be on a direct appeal,
the majority concludes much too easily that there was no
necessity in this case to use photographic identification
procedures. I disagree. The prison setting of the crime
for which appellant was convicted and the investigation
thereafter by prison officials in my opinion dictate the use
of photographic identification procedures. Apparently the
majority insists as a matter of constitutional law that
there be employed lineups of a large group of inmates,
with each suspect, or more likely a substantial group of
inmates, which would include the suspects, suitably
equipped with counsel, in lieu of photographic identifica-
tion procedures. See p. 759 n. 1. To state the requirement
reveals its impracticability. Moreover, it would impose
heawy demands on the staff, strain employee relations,
and expose the inmates to increased risks of bodily harm.
\
The prison world is unique. It differs enormously even
from the precinct stationhouse and police headquarters. A
“code of silence” strengthened by taboos against “ratting”’
and a pervasive fear of retaliation are characteristics of
the prison social order. In this environment prison admin-
isters and guards must function. Administrators are re-
sponsible for protecting prisoners in their custody and
may be held liable for a failure to provide such protection.
See, e.g., Sostre v. McGinnis, 442 F.2d 178, 205 (2d Cir.
1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d
740 (1972); Bennett, Who Wants To Be Warden?, 1 New
England J.Prison L. 69, 69-70 (1974). Guards, directly
responsible for prison order and security, jealously hus-
A-15
band their stock of authority and seek to avoid any con-
frontation that will deplete that stock. See National Insti-
tute of Law Enforcement and Criminal Justice, Prison
Employee Unionism: The Impact on Correctional Admin-
istration and Programs 24-25 (1978). To require the type
of lineup the majority envisions in this setting is to insist
upon jeopardizing the security and safety of all as the
price of securing the constitutional protection that the ma-
jority holds appellant is entitled. We should be reluctant
to fashion constitutional doctrines whose price is so dear.
In any event, necessity, or the lack of it, constitutes but
part of the Simmons test. United States v. Crawford, 576
F.2d 794, 797-8 (9th Cir.), cert. denied, 439 U.S. 851, 99
S.Ct. 157, 58 L.Ed.2d 155 (1978). The strength of the ma-
jority’s position rests on the exertion of pressure by prison
authorities on Almengor and Allen and the use or three
photographic spreads in the manner described. Pressure
was indispensable in the circumstances of this case if the
crime was to be solved reasonably quickly. I repeat, prison
officials must operate in a humane manner but also in a
fashion that takes into account the realities of prison en-
vironment. The officials in this case, in my opinion, merely
did what we as citizens demand of them, 2. e., protect the
inmates by apprehending those who recently had preyed
upon one of them.
The record of this case does not include the several
hundred photographs shown to Almengor on October 19,
1972. The spreads of October 27 and 30, 1972, are included,
however. So different is the appellant’s photograph used
in the October 27 spread from that of October 30 that it
A-16
is difficult to accept the fact that the appellant appeared
in the October 27 spread at all. Nonetheless, I must accept
that fact because both appellant and appellee agree that
the appellant’s photograph did appear in the October 27
spread. It remains true, however, that any failure to select
the appellant’s photograph in the October 27 spread may
be attributable to the fact that it bore little resemblance
to the appellant’s appearance at the time of the murder
of Arias.
The spreads of October 27 and 30, therefore, are not
impermissibly suggestive on their face. Nor are they made
so by the absence of the photographs of Ramirez, Rey-
mundo, and Nunez. The range of choice available to Almen-
gor and Allen remained large. Also, contrary to the major-
ity’s characterization is the weight that must be given to
Almengor’s description of the assailants of Arias and the
consistency with which Vargas, one of the assailants, was
identified. Admittedly the uncertainty surrounding Allen’s
motivations prior to his identification of the appellant
compels us to review carefully the way in which the
spreads were used. Alleu’s behavior, however, is consistent
with an effort to avoid entanglement until his identifica-
tion would yield the largest possible return to him. While
such an attitude is not particularly noble, it is precisely
the state of mind most prisoners would have under simi-
lar circumstances. In any event, I find it impossible to
attribute his identification of appellant’s photograph to
an impermissibly suggestive use of photographic spreads.
That Allen was subjected to official and unofficial pressures
I do not doubt; but the Simmons rule should not be dis-
torted to enable us to condemn on constitutional grounds
A-17
the inescapable use of such pressures in an investigation
of a murder in a prison setting. Interpretations of our
supervisorial powers or of the Constitution which ignore
the realities of the environment within which they function
bring discredit to both the courts and the Constitution.
II. COLLATERAL REVIEW AND SIMMONS
Should I be wrong about the application of Simmons to
the facts of this case were it before us on direct appeal,
I maintain that Simmons should be applied in habeas cor-
pus proceedings so as to overturn convictions only in the
case where clear and convincing evidence demonstrates
that reversal is required to prevent manifest injustice. To
so limit Simmons in habeas proceedings is in keeping with
the scope the remedy historically has been given. See
Stone v. Powell, 428 U.S. 465, 475, 96 S.Ct. 3037, 49 L.Ed.2d
1067 (1976); Oaks, Legal History in the High Court—
Habeas Corpus, 64 Mich.L.Rev. 451 (1966). Although the
scope of habeas relief has been expanded, it has remained
a remedy for exceptional cases: “It is of the historical
essence of habeas corpus that it lies to test proceedings so
fundamentally lawless that imprisonment pursuant to them
is not merely erroneous but void.” Fay v. Noia, 372 US.
391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837 (1963).
To apply Simmons in habeas proceedings to instances
of manifest injustice requires recognition that “impermis-
sible suggestiveness” for purposes of collateral review of
state convictions rests on an interpretation of due process,
assured by the Fifth and Fourteenth Amendments, that
may not exhaust the full reach of Simmons which, it must
be remembered, arose from a direct appeal from a fed-
eral conviction. Mr. Justice Harlan, speaking for the Court,
A-18
recognized that, in fashioning the Simmons standard, su-
pervisorial powers, rather than constitutional commands,
also could be the source of the Court’s authority. 390 U.S.
at 384, 88 S.Ct. 967. Limitation of Simmons in collateral
review to “suggestiveness” so flagrant as to result in mani-
fest injustice merely recognizes that the dictates of due
process are somewhat less far reaching than are the super-
visorial powers of federal courts over federal law enforce-
ment officials. The existence of this difference appears to
me to be neither unreasonable nor inconsistent with Sim-
mons. It must be admitted that the distinction I suggest
has not been utilized by the Supreme Court. See Neil v.
Biggers, 409 U.S. 188, 196-09, 93 S.Ct. 375, 34 L.Ed.2d
401 (1972); Manson v. Brathwaite, 432 U.S. 98, 121-22, 97
S.Ct. 2248, 53 L.Ed.2d 140 (1977) (J. Marshall dissent-
ing); Pulaski, Neil v. Biggers: The Supreme Court Dis-
mantles the Wade Trilogy’s Due Process Protection, 26
Stan.L.Rev. 1097, 1106-09 (1974) ; but see Comment, Photo-
graphic Identification: The Hidden Persuader, 56 Iowa
L.Rev. 408, 425-26 (1970). Nor has this circuit employed it.
See United States v. Allison, 414 F.2d 407, 409 (9th Cir.),
cert. denied, 396 U.S. 968, 90 S.Ct. 449, 24 L.Ed.2d 433
(1969) ; United States v. Baxter, 492 F.2d 150, 170-71 (9th
Cir.), cert. dismissed, 414 U.S. 801, 94 S.Ct. 16, 38 L.Ed.2d
38 (1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40
L.Ed.2d 292 (1974); United States v. Jones, 512 F.2d 347,
351 (9th Cir. 1975); cf. United States v. King, 433 F.2d
937, 938 (9th Cir. 1970), cert. denied, 402 U.S. 976, 91 S.Ct.
1681, 29 L.Ed.2d 142 (1971) (the court quoted Mr. Justice
A-19
Harlan’s opinion that the Supreme Court has both super-
visory and constitutional powers of review).
Also, Stone v. Powell, supra, while useful as an analogy,
does not precisely justify my position because there the
evidence admitted in the state proceedings in no way could
be thought to have been “created” by impreper official con-
duct. Its admissibility might be barred because of an im-
proper search and seizure, but its genuineness and probity
could not be questioned. Here the situation is different. In
court identifications carry some taint whenever any non-
frivolous issue regarding the use of photographic spreads
is raised. The taint, moreover, puts in issue the truth of
the in court identification. It follows, therefore, that the
balancing process employed by the Court in Stone v. Pow-
ell, in which the utility of the exclusionary rule is weighed
against the costs of extending it to collateral review, is not
applicable here. A different approach must be employed,
one in which the constitutional standard employed in col-
lateral review is somewhat less demanding than the super-
visorial standard employed on direct appeal.
Notwithstanding the inapplicability of Stone v. Powell’s
balancing process, it remains true that its emphasis upon
the opportunity for full and fair litigation in the state
courts is equally applicable here. 428 U.S. at 494, 96 S.Ct.
3037. This opportunity to litigate an issue as imprecise as
“impermissible suggestiveness” in the state courts strongly
suggests that collateral review by federal courts frequently
is redundant. Repetitive collateral review employing a
standard so amorphous more resembles a game of chance
than it does the wise administration of criminal justice..
A-20
To so employ the Great Writ is to corrupt, not enhance
it. See Sneckloth v. Bustamonte, 412 U.S. 218, 275, 93 S.Ct.
2041, 36 L.Ed.2d 854 (Powell, J., concurring). I would
affirm the district court.
Appendix B
United States Court of Appeals
For the Ninth Circuit
No. 78-2636
Robert Mata, ’
Petitioner/Appellant,
VS.
George Sumner,
Respondent/Appellee. :
[Filed Jan. 31, 1980]
ORDER
Before: ELY and SNEED, Circuit Judges, and
TAKASUGI,* District Judge
Of the judges constituting the panel originally concerned
with the subject case (Ely, Sneed and Takasugi), Judges
Ely and Takasugi have voted to deny the Petition for
Rehearing. Judge Sneed would grant panel rehearing.
Judge Sneed has voted to reject the suggestion for rehear-
ing en bane, and Judges Ely and Takasugi have recom-
mended that the suggestion be rejected.
The full court has been advised of the suggestion for an
en banc hearing, and no judge of the court has requested a
vote on the suggestion for rehearing en banc. Fed. R. App.
P. 35(b).
The Petition for Rehearing is denied, and the suggestion
for a rehearing en banc is rejected.
*Honorable Robert M. Takasugi, United States District Judge,
Central District of California, sitting by designation.
Appendix C
In the Court of Appeal
State of California
Fifth Appellate District
5 Crim. 1735
(Sup. Ct. No. 15771)
The People, ;
Plaintiff and Respondent,
vs.
Salvadore Vargas, David Gallegos, and
Robert Mata
Defendants and Appellants.
Z
[Filed Aug. 4, 1975]
OPINION
APPEAL from a judgment of the Superior Court of
Kern County. P. R. Borton, Marvin E. Ferguson and
John M. Nairn, Judges. Affirmed.
Douglas J. Morgan, under appointment by the Court of
Appeal, for defendant and appellant David Gallegos.
C. Michael Farmer, under appointment by the Court of
Appeal, for defendant and appellant Salvadore Vargas.
Jim D. Mills, under appointment by the Court of Appeal,
for defendant and appellant Robert Mata.
Evelle J. Younger, Attorney General, Jack R. Winkler,
Chief Assistant Attorney General, Arnold O. Overoye, Joel
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Carey and Anthony L. Dicce, Deputy Attorneys General for
plaintiff and respondent.
Appellants herein, Salvadore Vargas, David Gallegos and
Robert Mata, were tried jointly and were found guilty of
murder in the first degree. All three were sentenced to state
prison for the term prescribed by law. All three filed
separate appeals, the contentions in which are treated here
together.
FACTS
On October 19, 1972, inmate Leonard Arias was stabbed
to death in a dormitory at the California Correctional
Institution at Tehachapi. At approximately 1:30 p.m. of
that day, Arias, one Rigoberto Almengor and one Jay
Allen, all inmates of the institution, were drinking coffee
and talking near Allen’s bunk in Dormitory Hight. A call
over the institution’s loud speaker ordered all new arrivals
to report to the laundry room. Arias had just arrived at the
institution from San Quentin Prison the previous day and
the three men thereupon proceeded to the laundry room.
On the way to the laundry room they passed three men
who were standing by the bulletin board. These three men
then turned and attacked the victim Arias. During the
attack, Arias was stabbed with a knife several times,
causing his death.
Each of the appellants denies partaking in the attack
and subsequent killing; and each produced evidence tending
to show that he was at another place in the prison at the
time of the incident in question.
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Multiple issues are raised by the respective appellants
and assigned as prejudicial error requiring a reversal of
the judgment.
I. The Photographic Lineup Procedure.
Both appellants Gallegos and Mata contend that there
were prejudicial errors in the pretrial identification of
them by certain prosecution witnesses.
Three inmate witnesses testified that they saw the
stabbing take place. All three—Childress, Almengor, and
Allen—identified all three defendants; but their testimony
is attacked by appellants Gallegos and Mata on the basis
of claimed improper pretrial photographic identification
procedures. The witnesses were shown a number of photo-
graphs of Tehachapi inmates in an attempt to identify the
slayers. Almengor was interviewed and shown photos on
Uetober 19, 1972, the day of the incident. He made a
possible identification of appellant Vargas, but made pos-
sible misidentifications of the other two participants. On
October 30, 1972, more recent photos were presented to
Almengor and he identified all the appellants. On October
27, 1972, Allen was shown photographs but stated he could
not make an identification because the photographs were
old. On October 30, 1972, more photos were presented to
Allen and he identified all three appellants. On that date
Childress also selected all three appellants from photo-
graphs shown to him.
Appellants argue that the witnesses Almengor and Allen
were housed in the same segregation unit with appellants,
that they were aware that appellants were removed from
the segregation unit to have their pictures taken and that
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this makes their identification inadmissible. But they make
no showing, and the record supports none, that the wit-
nesses were in fact influenced in their identifications by this
action of the investigating officers.
It is established that the safeguards set forth in United
States v. Wade, 388 U.S. 218 and Gilbert v. California, 388
U.S. 263 do not apply to pretrial photographic identifica-
tion of a suspect. (People v. Lawrence, 4 Cal.3d 273.)
The Lawrence case followed the decision by the United
States Supreme Court in Simmons v. United States, 390
U.S. 377, which reached a similar result. Both courts
reasoned that particularly where the photographs from
which the witness made his identification were preserved
and available at trial, as was the situation in the case at
bench, counsel for the accused can easily reveal the possi-
bility of prejudice by using the photographs in cross-
examination. (Simmons v. United States, supra, 390 U.S. at
384; People v. Lawrence, supra, 4 Cal.3d at 278-279.) Both
courts have determined that each case must be considered
on its own facts, and that a violation of due process occurs
and a conviction will be set aside only if the photographic
identification procedure was so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable
misidentification. (See Simmons v. United States, supra,
390 U.S. at 384; People v. Lawrence, supra, 4 Cal. 3d at
280.)
Reviewing the facts of the present case to determine if
the particular photographic identification procedure used
contained the proscibed suggestive characteristics, we first
find that the photographs were available for cross-examina-
tion purposes at the trial. We further find that there is no
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showing of influence by the investigating officers: that the
witnesses had an adequate opportunity to view the crime;
and that their descriptions are accurate. The circumstances
thus indicate the inherent fairness of the procedure, and we
find no error in the admission of the identification evidence.
II. Denial of Discovery.
All three appellants contend tht the trial court abused its
discretion in denying a motion for additional discovery.
At the commencement of the trial, counsel for the
defendant Gallegos, Mr. Simrin, renewed a motion for
discovery which had been made before another department
of the court previously, and had been continued generally
for hearing before the trial judge. This motion had been
instituted by a notice in writing, coupled with the declara-
tion of the attorney, and requested information from the
Department of Corrections concerning (1) records and
reports concerning the membership or non-membership of
one Ortega, a prospective prosecution witness, in the
Mexican Mafia; and (2) records and reports concerning the
membership or non-membership of the three defendants;
and (3) a list of all those persons alleged to have been
members of the Mexican Mafia as of October 19, 1972.
Counsel for the other defendants joined in the motion.
Subsequently, at an in-chambers conference prior to trial,
the motion was limited to records concerning the witness
Ortega; all counsel agreeing that if this witness were not
called there would be no reason to urge the motion.
Thereafter, the desired files of the Department of Correc-
tions were obtained, and an im camera hearing was held
wherein the material was found to be of a privileged nature
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and it was further found by the judge that the privilege
outweighed any probative value the evidence may have to
the defense. Although the judge did disclose certain infor-
mation in the file to counsel for the defendants, he found
that the balance of the file was privileged and in any event
contained no further material of any probative value to the
defendants. After the court had announced its decision,
counsel for one of the defendants moved for further dis-
covery on the file. The court denied the motion, and refused
to permit counsel to state a reason for the further discovery
for the record.
Absent some governmental requirement that information
be kept confidential, the accused in a criminal trial is
generally entitled to have access to all evidence in the
hands of the prosecution or in possession of other agencies
which are part of the criminal justice system and which can
throw light on the issues in the case. (People v. Riser, 47
Cal.2d 566; Engstrom v. Superior Court, 20 Cal.App.3d
240.) It is therefore necessary to inquire whether the type
of information sought to be discovered in the instant case is
confidential, official information."
1We are not unmindful of the cases of Procunier v. Superior Court
(Losoya), 35 Cal.App.3d 207, and Procunier v. Superior Court
(Herth), 35 Cal.App.3d, 211, which hold that almost identical infor-
mation was absolutely privileged under the provisions of Govern-
ment Code section 6255.
These decisions, however, ignore section 6260 of the Government
Code, which provides:
“The provisions of this chapter shall not be deemed in any
manner to affect the status of judicial records as it existed im-
mediately prior to the effective date of this section, nor to
affect the rights of litigants, including parties to administrative
proceedings, under the laws of discovery of this state.” (Em-
phasis added. )
It thus appears that section 6255 of the Government Code is not
applicable to these proceedings, and for this reason we do not feel
bound by these decisions.
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Section 1040 of the Evidence Code governs the disclosure
of “official information”. It provides, in part, as follows:
“(a) As used in this section ‘official information’
means information acquired in confidence by a public
employee in the course of his duty and not open, or
officially disclosed, to the public prior to the time the
claim of privilege is made.
“(b) A public entity has a privilege to refuse to
disclose official information, and to prevent another
from disclosing such information, if the privilege is
claimed by a person authorized by the public entity to
do so and:
ce * *
“(2) Disclosure of the information is against the
public interest because there is a necessity for preserv-
ing the confidentiality of the information that out-
weighs the necessity for disclosure in the interest of
justice...”
A provision for determination of a claim of privilege by
the court is set forth in section 915 of the Evidence Code.
This section provides as follows:
“(a) Subject to subdivision (b), the presiding officer
may not require disclosure of information claimed to
be privileged under this division in order to rule on the
claim of privilege.
“(b) When a court is ruling on a claim of privilege
under Article 9 (commencing with Section 1040) of
Chapter 4 (official information and identity of
informer) or under Section 1060 (trade secret) and is
unable to do so without requiring disclosure of the
information claimed to be privileged, the court may
require the person from whom disclosure is sought or
the person authorized to claim the privilege, or both,
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to disclose the information in chambers out of the
presence and hearing of all persons except the person
authorized to claim the privilege and such other
persons as the person authorized to claim the privilege
is willing to have present. If the judge determines that
the information is privileged, neither he nor any other
person may ever disclose, without the consent of a
person authorized to permit disclosure, what was dis-
closed in the course of the proceedings in chambers.”
Thus, provision is made for an in camera hearing before
the judge alone, with only the objecting party present, when
the claim of privilege is raised.
Ividence Code section 1042(a) provides for sanctions
upon the public entity invoking the privilege were neces-
sary. It states as follows:
“(a) Except where disclosure is forbidden by an act
of the Congress of the United States, if a claim of
privilege under this article by the state or a public
entity in this state is sustained in a criminal proceed-
ing, the presiding officer shall make such order or
. finding of fact adverse to the public entity bringing the
proceeding as is required by law upon any issue in the
proceeding to which the privileged information is
material.”
The Supreme Court has pointed out, in Pitchess v.
Superior Court (Echeveria), 11 Cal.3d 531, 540, the results
of the legislative enactment in the Evidence Code, as
follows:
“Evidence Code section 1040, therefore, represents
the exclusive means by which a publie entity may assert
a claim of governmental privilege based on the neces-
sity for secrecy. Evidence Code section 1042, subdivi-
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sion (a), in turn, codifies the due process demand
recognized by the United States Supreme Court that
the prosecution cannot commence criminal proceedings
‘and then invoke its governmental privileges to deprive
the accused of anything which might be material to his
defense.’ [Citations omitted.! In concert, the two pro-
visions create an orderly and fair procedure designed
to safeguard the legitimate interests of both the
government and criminal defendants.”
It is thus clear that there should be an im camera hear-
ing wherein the trial judge examines the requested evi-
dence when the privilege is invoked.
There is, however, a conflict amongst the cases as to
whether or not an adversary hearing is necessary after
the 1m camera examination of the evidence. In People v.
Superior Court (Biggs) 19 Cal.App.3d 522, in a well rea-
soned opinion the court held that the in camera hearing
provided by section 915(b) is merely a preliminary inquiry
to acquaint the judge with the nature of the government
secrets and the public necessity of confidentiality; that
thereafter, the other Evidence Code sections requiring a
preliminary determination of the foundational facts come
into play, and that an adversary hearing should be held
outside the presence of the jury to determine the necessity
of the defendant for the information and the judge should
then balance such necessity against the public necessity of
confidentiality. At such hearing, the court points out, con-
sideration of alternative evidence offered by the state could
be given, and the needs of the defendant might even be
satisfied in whole or part without destroying the confi-
dentiality of the files.
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In People v. Woolman, 40 Cal.App.3d 652, the court took
a contrary view, referring to the language of Biggs, supra,
as dicta and indicating the court’s opinion that such a
procedure would destroy the privilege the hearing is de-
signed to protect. The court held nothing more than an
im camera examination of the evidence is required.
Clearly there was no error here if we follow the pre-
cepts of Woolman.
We also find that in Biggs the court states (page 532):
“In weighing the defendant’s need, the court was
not to pass upon the veracity of his claim, but only
to ascertain if a reasonable possibility existed that
the requested information might exonerate him.”
In the instant case, it is clear that the sole purpose of the
requested information was in connection with the testimony
of the witness, Ortega.’
Thus the only purpose of the evidence could have been
for impeachment of one witness; in Biggs, the purpose
was to exculpate the defendant by showing that at the time
2At the commencement of the trial, the following colloquy took
place between counsel for the defendant Gallegos, who made the
original motions, and the court:
“<Q 2 2
“THE COURT: Let me interrupt you for a moment. I am
making the statement not as fact, te to elicit information if
it is inaccurate. This whole matter turns really over a witness—
Carlos Martin Ortega—
“Mr. Simrin: Correct.
“THE COURT: Well, if that witness were not called, then
there is really no serious reason for you to urge your motion.
“Mr. Simrin: That is correct. And if the witness is not called,
on behalf of Defendant Gallegos, I would withdraw my motion.
“THE COURT: That’s what I gather from your documents.
I want to be sure I am correct.
«“ @¢ &
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of the alleged offense, the defendant was acting as an
informant and was an active undercover operator for the
Bureau of Narcotics Enforcement.
It is obvious that under any interpretation of the facts,
the required records in this case did not bear on the issue
of guilt or innocence, but only on the impeachment of a
single witness. Therefore, even under the rule enunciated
in Biggs, there is no error requiring a reversal here.
Furthermore, the evidence in the instant case is over-
whelming, with several eye witnesses as well as physical
evidence pointing to the guilt of the defendants. Any error
was therefore harmless (Chapman v. California, 386 U.S.
18; People v. Stout, 66 Cal.2d 184).
Ill. The Aranda Rule.
Appellants Mata and Vargas claim error in permitting
into evidence the testimony of one Carlos Ortega concern-
ing a conversation with their codefendant Gallegos. In
this testimony Gallegos referred to “we’’, “they”, and
“them”, presumably meaning Mata and Vargas as well as
himself, in connection with various aspects of the stabbing.
Later Gallegos wrote a note to Ortega saying that they
did their job and took pride in themselves; here Gallegos
allegedly mentioned Mata and Vargas by name.
No admonition restricting this testimony to the defend-
ant Gallegos was given by the trial judge and no caution-
ary instruction was given the jury that the testimony could
be used against that defendant only.
People v. Aranda, 63 Cal.2d 518, 530, established the rule
that when the prosecution proposes to introduce into evi-
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dence an extrajudicial statement of one defendant that
implicates a codefendant, the trial court may either (1)
permit a joint trial if deletions are made as to all impli-
cations of the codefendant; or (2) grant a severance of
trials; or (8) exclude the testimony. However, it has sub-
sequently been made clear by the cases that the failure to
object and assert one’s Aranda rights at trial constitutes
a waiver of those rights. People v. McGautha, 70 Cal.2d
770, 785; People v. Terry, 38 Cal.App.3d 432, 443.
In the present case, the only objections to Mr. Ortega’s
testimony were upon grounds other than Aranda viola-
tions. Thus, appellants have waived any Aranda rights they
may have possessed.
Furthermore, it appears that any adverse implications
of these extrajudicial statements were ambiguous at best.
Thus, even if appellants had preserved their rights on
appeal by virtue of a timely objection, it is questionable
whether the provisions of Aranda would be applicable.
And even if Aranda did apply, the evidence so overwhelm-
ingly pointed to appellants’ guilt, that any error would
be harmless. Harrington v. California, 395 U.S. 250, 252-
254 (1969) ; Chapman v. California, 386 U.S. 18, 24 (1967) ;
People v. Epps, 34 Cal.App.3d 146.
We accordingly find no reversible error here.
IV. Failure to Instruct on
Statements of Coconspirator.
The statements made by appellant Gallegos (herein-
before referred to) were admitted on representations of
the prosecuting attorney that a conspiracy existed.
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Appellants Vargas and Mata contend that in admitting
into evidence these statements as an exception to the
hearsay rule, the court should have instructed the jury
on the law pertaining to the testimony of a coconspirator,
sua sponte. No such instructions were requested by appel-
lants at the trial.
Appellants contend that the giving of the appropriate
conspiracy instructions would have required the jury to
determine whether there was in fact a conspiracy and that
appellant was a member of it before the jury could consider
the incriminating statements by codefendants to implicate
appellant; they further contend that existence of a con-
spiracy is a preliminary fact that mu:t be found by the
trial court before statements made during such conspiracy
are admissible. (Evidence Code section 403; People v.
Goldberg, 152 Cal.App.2d 562.)
But appellants have made no showing that a sua sponte
instruction is required. Even in the analogous situation
involving the duty to instruct as to the utilization of acecom-
plice testimony, not all failures to so instruct constitute
reversible error (People v. Gordon, 10 Cal.3d 460, 470-473).
In such case a miscarriage of justice should be declared only
when the court, after an examination of the entire cause,
including the evidence, is of the opinion that it is reasonably
probable that a result more favorable to appellants would
have been reached in the absence of error. (People v.
Gordon, supra, at 470.)
In this case, other evidence sufficiently pointed to the
guilt of all three appellants. Eyewitness testimony placed
all of the appellants at the scene of the murder and partici-
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pating in it. Physical evidence, including gloves, a knife,
and a jacket with blood on it were found. Statements of
various defendants were included in the testimony. After an
examination of the entire cause, including the evidence, the
court is of the opinon that it is not reasonably probable
that a result more favorable to appellants would have been
reached had the court given the conspiracy instruction.
Thus any failure on the part of the trial court to instruct
sua sponte did not substantially prejudice appellants and
was not reversible error.
V. Claims of Error in Admission of Evidence.
Various alleged errors in the admission of evidence are
cited as grounds for reversal. Appellant Gallegos claims
error in the receipt of evidence relating to the Mexican
Mafia and Nuestra Faiilia was prejudicial. He concedes
that evidence relating to the existence of these two prison
groups was proper; he contends, however, that the trial
court committed reversible error in permitting testimony
as to activities of these organizations relating to acts of
violence occurring at other institutions in which appellant
was not involved.
The activities of the rival inmate factions were the basis
of showing motive in the prosecution’s case. In connection
with these activities, it was within the sound discretion of
the trial court to admit evidence of the nature of the group
and the nature of their activities in general in institutions;
absent this latter evidence, testimony as to their existence
would be meaningless, The admission of such evidence being
within the sound discretion of the trial court, it will not be
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disturbed on appeal absent a showing of abuse of such
discretion. (People v. Archerd, 3 Cal.3d 615.)
Appellant Mata contends that the trial court erred in
admitting the hearsay. evidence of one Albert Mills, who
testified as to statements another witness, inmate Chil-
dress, made prior to trial concerning the fact that he had
witnessed a killing and feared for his life. Immediately
thereafter Childress identified the defendants as the per-
petrators from photographs. Evidence of such a statement
was admitted to corroborate identification at the trial, and
also as independent evidence of identification. This was
proper pursuant to Evidence Code section 1238. (People
v. Gould, 54 Cal.2d 621, 626; People v. Imbler, 57 Cal.2d
711, 716.)
VI. Misconduct of Prosecutor.
Appellant Mata contends that the prosecuting attorney
was guilty of prejudicial misconduct in asking the witness
Schoo on cross-examination, “Isn’t it a fact that you used
to earry his shank for him?” Schoo was an alibi witness for
the defendant Mata. No objection to the question was made
at the time it was asked.
’Evidence Code section 1238 provides:
“Evidence of a statement previously made by a witness is not
made inadmissible by the hearsay rule if the statement would
have been admissible if made by him while testifying and:
“(a) The statement is an identification of a party or another
as a — who participated in a crime or other occurrence;
“(b) The statement was made at a time when the crime or
other occurrence was fresh in the witness’ memory; and
“(c) The evidence of the statement is offered after the wit-
ness testifies that he made the identification and that it was a
true reflection of his opinion at that time.”
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It would appear that the question was appropriate in
order to show bias on the part of the witness. No claim of
dishonesty or deception on the part of the prosecutor is
made (See People v. Beivelman, 70 Cal.2d 60, 75-77). We
find no basis for the claim of misconduct.
The judgment is affirmed.
/8s/ GINSBURG, J.*
We concur:
/s/ BROWN (GEO. A.), P.J.
/s/ GARGANO, J.
* Assigned by Chairman of Judicial Council.
Appendix D
In the United States District Court
For the Northern District of California
No. C-77-2801 SAW
Robert Mata, :
Petitioner,
vs. ;
George Sumner,
Respondent(s).
y
[Filed May 23, 1978]
JUDGMENT
In accordance with the accompanying order,
IT IS HEREBY ADJUDGED that the petition for
habeas corpus is denied.
Dated: May 22, 1978.
STANLEY A. WEIGEL
Judge
D-2
In the United States District Court
For the Northern District of California
No. C-77-2801 SAW
Robert Mata, 7
Petitioner,
vs.
4
George Sumner,
Respondent. '
[Filed May 23, 1978]
ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS
Robert Mata, imprisoned in San Quentin State Prison,
Tamal, California, has petitioned for habeas corpus. An Or-
der to Show Cause was filed on January 19, 1978, and a
Return to said Order was filed on February 28, 1978. Peti-
tioner filed a Traverse on April 4, 1978. Both parties have
filed additional memoranda.
Respondent’s first contention is that petitioner’s claim
cannot be addressed on the merits because he failed to raise
some of them in the state courts. Wainwright v. Sykes, 433
U.S. 72 (1977). While it is true that petitioner did not raise
all his claims on direct appeal to the state courts, he did
raise his other claims in a petition for state habeas corpus.
While that petition was denied without opinion, for pur-
poses of habeas corpus review it is assumed that the state
court addressed the merits of the petition. Thompson v.
Procunier, 539 F.2d 26, 28 (9th Cir. 1976). Thus petitioner
D-3
has raised all the issues now raised in this proceeding to
the California courts. Wainwright is therefore inapplicable.
On the merits, the Court concludes that the petition must
be denied. While petitioner has established that irregulari-
ties occurred in the pre-trial photographic identification of
petititioner by witnesses Almengor and Allen, these irregu-
larities did not so taint the in-court identifications of peti-
tioner by these witnesses as to establish a constitutional
violation under Simmons v. United States, 390 U.S. 377,
384 (1968). See United States v. Baxter, 492 F.2d 150, 172
(9th Cir. 1973), cert. denied, 414 U.S. 801 (1973), 416 U.S.
940 (1974). Moreover, even if the testimony of Allen was
tainted, the positive identification of petitioner by witness
Childress and the strong one by Almengor makes the error
harmless beyond a reasonable doubt. Chapman v. Cali-
forma, 386 U.S. 18 (1967).
Petitioner’s argument that he did not receive effective
assistanee of counsel is predicated solely upc 1 what he
conceives to be the egregious constitutional violation
involved in the photo-identification procedure. Inasmuch as
petitioner’s Simmons claim is at best arguable, his counsel
was not incompetent in failing to seek suppression of
petitioner’s in-court identification, whichever standard of
competency is employed. De Kaplany v. Enomoto, 540 F.2d
975 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1075
(1977). It is therefore unnecessary to consider which
standard the Ninth Circuit will ultimately choose for deter-
mining the competency of counsel. Cooper v. Fitzharris,
551 F.2d 1162 (9th Cir. 1977), petition for rehearing en
banc granted,
D-4
Petitioner’s final argument, that the California Court of
Appea! lacked an adequate record before it to enable it to
review petitioner’s appeal, also lacks merit. Petitioner was
entitled to a record of sufficient completeness to enable the
appellate court to find error, if there was error, in the
proceeding below. Draper v. Washington, 372 U.S. 487,
497-98 (1963). That is precisely what petitioner received.
IT IS THEREFORE HEREBY ORDERED that the
petition for a writ of habeas corpus is denied.
Dated: May 22, 1978.
STANLEY A. WEIGEL
Judge
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