Petitioners Brief — Sumner v. Mata

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

——

Supreawe Capt eS

tee ea

No. 79-1601 AUGS 8 RE

=>=—— c=. oS oe ae OO SS Se Se ==

=—. orow—X—

MICHAEL icc

In the Supreme Court

OF THE

United States

October Term, 1980

GeorcE SUMNER, WAnDEN OF T!iE CALIFORNIA

StaTe Prison ar San QuENTIN,

Petitioner,

VS.

Rosert Mata,

Respondent.

BRIEF FOR PETITIONER

ey == sss = ee ied

GrorceE DEUKMEJIAN

Attorney General of the

State of California

Rosert H. Putiisosian

Chief Assistant Attorney General—

Criminal Division

Epwarp P. O’Brien

Assistant Attorney General

Gvuoria F. DEHArtT

Deputy Attorney General

DeraLtp E. GRaNBERG

Deputy Attomey General

Tuomas A. Brapy

Deputy Attorney General

JAMIE JacoBs-May

Deputy Attorney General

COUNSEL OF RECORD

6000 State Building

San Francisco, CA 94102

Telephone: (415) 557-1223

Attorneys for Petitioner

—————r EEE eS OSS SS OSS Se Se ee

BOWNE-PERNAU WALSH © 1045 SANSOME ST. © S.F., CA 94111 © (415) 961-7882

QUESTIONS PRESENTED

1. Is defendant’s claim barred from federal habeas

corpus review, and if not, are the state appellate court’s

factual findings entitled to the statutory presumption of

correctness?

A. When a state prisoner failed to object to in-

court identification testimony as required by state law,

does consideration of the issue on the merits by a state

appellate court foreclose the state from asserting the

doctrine of procedural default in a federal habeas

proceeding?

B. Assuming that the state appellate court’s action

precludes the state from asserting the doctrine of pro-

cedural default in the federal habeas proceeding, does

the presumption of correctness of Title 28, United

States Code, section 2254(d) apply to the state appel-

late court’s factual findings?

2. Did the Court of Appeals apply erroneous standards

in evaluating defendant’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

procedures constitutionally suspect?

B. Did the Court of Appeais use the correct stan-

dard to determine whether there was a substantial

likelihood of irreparable mistaken identification ?

iii

TABLE OF CONTENTS

Page

a ne re i

I No a ee 1

IE 08 Sc a ree Ok 1

Constitutional and statutory provisions involved ........ 1

een re NO oe die elen aimee 2

A. Proceedings in state COUrt ................ceccccecesceceseeeeee 2

B. Proceedings in federal court -.0..............:csccceceseeeee- 3

Bi ee IE RD ici coincemenenkoueeaeee 3

>. Bee Cee ee ee 4

C. Evidence presented at trial ............2.......cccceceeeeee 4

Be PI IE = edobeten tedden 4

2. The pretrial identification procedures .......... 9

RNR Rae rests UI pn 12

SL ARE NANOS MAM OY By OA AIR Nees IM Se cl 14

Defendant’s procedural default shorld bar considera-

tion of his claim and at the least, the state appellate

court’s factfindings should be accorded a presump-

I eC eee 14

A. Defendant’s procedural default should bar his

en: te Tederes eee sg See

b. Lf the state appellate court opinion is deemed

to waive defendant’s procedural default, it must

be accorded the statutory presumption of cor-

rectness in federal court 2... -....--n.cccsecesecoseeee 23

PREVIOUS PAGE WAS BLANK |

TABLE OF CONTENTS

The Court of Appeals applied an erroneous standard

in evaluating defendant’s claim that he was denied

due process of law by use of pretrial identification

PN aia chictiaspinicecinede Asai licenitilesnninonctanaiicndiabed:

A. The availability of a defendant for a physical

lineup does not render the use of photographic

identification procedures constitutionally suspect

B. The Court of Appeals applied an incorrect

standard in determining whether there was a

substantial likelihood of irreparable mistaken

FE TLRS UO ARN

Cg Raa NE Poe OEE ROE PA ACCES ORLA aa

0 Met oA EIR ISSIR COE RAITT CS A OO Re

Page

TABLE OF AUTHORITIES CITED

Cases

Federal: Page

Allen vy. Estelle, 568 F.2d 1108 (5th Cir. BOT -sienckis 42

Allen v. Moore, 453 F.2d 970 (1st Cir. 1972), cert.

ben. OS CON oo 42

Brathwaite v. Manson, 527 F.2d 363 (2d Cir. 1975 .... 18

Brewer v. Williams, 430 U.S. 387 4 y | SCE a

Coleman v. Alabama, 399 U.S. 1 SUIT eiinilovaccccvudeene is 36

Curry v. Wilson, 405 F.2d 110 (9th Cir. |. | eee 17

Fay v. Noia, 372 U.S. 911 (1968) 000000... 16, 17, 22. 23

Foster v. California, 394 U.S. 440 EID ocstick ecdssiccses 36

Frank v. Blackburn, 605 F.2d 910 (Sth Cir. 1979) ...... 41

Gilbert v. California, 388 U.S. 263 SEE icdinietedsc, 33

Government of the Virgin Islands v. Petersen, 533

Brom We CE AEs FUE ls cicclidili ocr meses 39

Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979) .... 41

Kirby v. Illinois, 406 U.S. 682 t : ce 32

La Vallee v. Delle Rose, 410 U.S. 690 (1973)

Manson v. Brathwaite, 432 U.S. 98 {. } REAR

iicealhanbuedibietisninncaethpeniottecuigheoaudiadbascboddl cs 19, 21, 38, 39, 45, 48

Mata v. Sumner, 611 F.2d 754 (9th Cir. 1979) 1, 31, 32, 46

Neil v. Biggers, 409 U.S. 188 (1972) o.oo...

ACEI OB ESECCOTE Ye HUN INS UREN LE 36, 37, 38, 39, 41, 43, 45, 46, 48

Parker v. Swenson, 332 F. Supp. 1225 (E.D.Mo.

PUN fap ocomstabt neaaacsinicaddlbadelanite sscassintalane eeis 45, 46

Simmons v. United States, 390 U.S. 377 (1968)...

Ksdonspimvoueshdobnhencislenpibaselesunpiceuatebabenscersoasmudies 34, 36, 37, 40, 42, 47

Souza v. Howard, 488 F.2d 462 (1st Cir. 1973) cert.

eens, O67 UG, OED iii 27, 28

Stovall v. Denno, 388 U.S. 293 (1967) ....... 33, 34, 35, 36

Thompson v. Procunier, 539 F.2d 26 (9th Cir. 1976) 16

Townsend v. Sain, 372 U.S. 293 (1963) .......... 23, 24, 27, 28

TABLE OF Au'rHORITIES CITED

CasEs

Page

United States v. Allison, 616 F.2d 779 (5th Cir.

a CRASS BEET MASE ah re RNe Meiers erent iY ACME ee REND 41

United States v. Ash, 413 U.S. 300 (1973) 0. 49

United States v. Boston, 508 F.2d 1171 (2nd Cir.

1974), cert. denied 421 U.S. 1001 ..000 40

United States v. Cueto, 611 F.2d 1056 (5th Cir.

ME Sdinticssscotakcaiccuntiddaiidcpiliaseaadalceulcahadaseaembedaatned 41

United States v. Cunningham, 423 F.2d 1269 (4th

Ce. RRR Set MD = oa NE OES DAA or vsere 37

United States v. Evans, 484 F.2d 1178 (2nd Cir.

I itd rchicinitiianianiti tibceonsccdedatis ccs sii nines Sie cacidtainpdeckdad 40, 48

United States v. Gidley, 527 F.2d 1345 (5th Cir.

1976), rehearing denied 530 F.2d 976, cert. denied

SIS IE ota ia a ai hs ee ees 40, 41, 48

United States v. Hancock, 558 F.2d 1300 (8th Cir.

1977), cert. denied 434 U.S. 872 oo...ccecceecceeeeeeeeeeee 42

United States v. Hurt, 476 F.2d 1164 (D.C. Cir.

BIND ethic taeicstanescntacesiniccdedbineans sh secant hails deanakatil 41, 42

United States v. Marchand, 564 F.2d 983 (2nd Cir.

1977), cert. denied 434 U.S. 1015 oe 40

United States v. Sanchez, 603 F.2d 381 (2nd Cir.

f : . aNANT SPE ONAN CF Bind Sa MINN EE Le Ma me OETE TT | 42

United States v. Sutherland, 428 F.2d 1152 (5th

Cir. 1970), cert. denied 409 U.S. 1078 0000. 42

United States v. Wade, 388 U.S. 218 (1967) 00000... 26, 33

United States ex rel. Harris v. State of Illinois (7th

Cir.) 457 F.2d 191, cert. denied, 409 U.S. 860

EMME wadiiccintimaupemiaicniauddnndebedmbonekactebdebiceian 26, 27

United States ex rel. Pella v. Reid, 527 F.2d 380

FE RAR TRO pescnntnsschcntniontenalinicardicasindosuaamaaiaaata 40

—

Vii

TABLE oF AUTHORITIES CITED

CasES

Page

United States ex rel. Stovall v. Denno, 355 F.2d 731

a i re ia cteicneaipeiccericecncscecnninnenecee 33

Wainwright v. Sykes, 433 U.S. 72 (1977) 13, 16, 22, 23, 24

Warden, Maryland Penitentiary v. Hayden, 387 U.S.

Re CI aia incctaciaseccnicnsaccnccccsreceses 17

State:

People v. Boothe (1977) 65 Cal.App.3d 685, 135 Cal.

Sa Pe sai eitiieeintsssiten nnnesiennserereone 20

People v. Brighain (1979) 25 Cal.3d 283, 599 P.2d

a 25

People v. Colligan (1979) 91 Cal.App.3d 846, 154

CI tr ao scceniscnccncnnccccomn 20

People v. Dobson (1970) 12 Cal.App.3d 1177, 91 Cal.

Ts Te ei cesccechnspcnencececcvcicevee 20

People v. Hawkins (1970) 7 Cal.App.3d 117, 86 Cal.

BR I aca alent hb beenenibncececeeseesececentsccece 21

People v. Hoiland (1971) 22 Cal.App.3d 530, 99 Cal.

SE TO tet re cicpetencneeenecsnsceonssacees 20

People v. Johnson (1974) 38 Cal.App.3d 1, 112 Cal.

AR RE cl A 20

People v. Lawrence (1971) 4 Cal.3d 273, 93 Cal. Rptr.

SO cecaccnicie en EEO. aprisericedivsscrctsnenseccvenivee 21

People v. Robinson (1965) 62 Cal.2d 889, 44 Cal.

A EL RE SSO 20

People v. De Santiago (1969) 71 Cal.2d 18, 76 Cal.

RE ES ESTEE RE eee 20

People v. Suttle (1979) 90 Cal.App.3d 572, 153 Cal.

RE ES CREE 20, 43

People v. Young (1970) 9 Cal.App.3d 106, 87 Cal.

RI Sh SEE ENESCO SOE 20

viii

TABLE oF Autuoritirs Crrep

Constitution

United States Constitution: cies

Fourteenth Amendment 00.0.0.0.0...c.ccccccccecesescccocoececeseses.... 38

Fourteenth Amendment, section 1 oo... 2

Rules

California Rules of Court, Appellate Rules:

oc Mg nN aT EE ENT Lee: DUNE Gh) 5 AT OR LD 25

cp aren th RO Oe SE DERE, Le KAO 25

a i EN RARE i AT ON Oe a Pe ed 25

a ee aS a OO RON Fin ORIEN OCF 25

Statutes

California Evidence Code, section 353 ........................... 21

California Penal Code, section 1259 ....................... 20

Title 28, United States Code:

“nonetcs se nego che LER AE TNE 1

ee eed eh REE INTE OS: 22, 24

Section 2254(d) wee i, 1, 3, 4, 18, 23, 24, 25, 27, 28

Other Authorities

The ALI Model Code of Pre-arraignment Procedure

RIPE MINI I oss Se eae 42

—_—

No. 79-1601

In the Supreme Court

OF THE

United States

OctoBEeR Term, 1980

Grorce SuMNER, WARDEN OF THE CALIFORNIA

State Prison at San QUENTIN,

Petitioner,

vs.

Rosert Mata,

Respondent.

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported as Mata v. Sumner, 611 F.2d

754 (9th Cir. 1979). Petition for rehearing was denied De-

cember 31, 1980, and is unreported.

JURISDICTION

The jurisdiction of this Court arises under Title 28,

United States Code, section 1254(1). The petition for a

writ of certiorari was granted on July 2, 1980.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Title 28, United States Code, section 2254(d) provides

in pertinent part:

“(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

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 de-

termination 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 State Court

A jury convicted Robert Mata of first degree murder.

He did not litigate the admissibility of identification testi-

mony at trial.

The California Court of Appeal considered on the merits

an argument relating to the admissibility of the identifica-

tion testimony, notwithstanding the failure to object 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.” (Petition for

Certiorari, C-5.) Specifically, the Court of Appeal found

that the photographs displayed to the witnesses were avail-

able for cross-examination purposes at the trial, that there

was no showing of influence by the investigating officers,

that the witnesses had an adequate opportunity to view the

crime, and that the descriptions by the witnesses were ac-

curate. (Petition for Certiorari, C-4, 5.)

Defendant did not seek hearing before the California

Supreme Court.

In habeas corpus proceedings, defendant again raised

this issue, and for the first time complained that his coun-

sel was incompetent for failing to object to the identifica-

tion evidence at trial. The California Superior Court, Court

of Appeal, and Supreme Court denied these habeas corpus

petitions without opinion.

B. Proceedings in Federal Court

1. The 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 defendant’s claims were

beyond federal review because of his procedural default.

The district court proceeded to the merits of the eyewitness

identification claim and, based upon the same state court

record, denied the petition after stating somewhat erypti-

cally that “petitioner has established that irregularities

occurred in the pretrial photographic identification of peti-

tioner by witnesses Almengor and Allen.” (Petition for

Certiorari, D-3.) The court concluded that these irregulari-

ties did not taint the in-court identifications by the wit-

nesses and further 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 trial counsel was not incompetent for failing to litigate

the identification issue because the claim was “at best ar-

guable, and that any error was harmless beyond a reason-

able doubt.” (Petition for Certiorari, D-3.)

2. The Court of Appeals

The Ninth Cireuit’s opinion not only failed to acknowl-

edge our section 2254(d) argument, but also did not review

the district court’s findings. Instead, after reviewing the

trial court record, the court found itself “driven to the eon-

clusion that the photographic identification procedures was

so impermissibly suggestive as to give rise to a very sub-

stantial likelihood of irreparable misidentification.” (Peti-

tion for Certiorari, A-11.)

C. Evidence Presented At Trial

1. The Murder

Rumor that the victim, Leonard Arias, was being trans-

ferred to the California Correctional Institution at

Tehachapi preceded his arrival. (RT 638-639, 1162.) Arias,

a member of the “Nuestra Familia” stabbed a member of

the rival “Mexican Mafia” while incarcerated at San Quen-

tin; in retaliation, the “Mexican Mafia” put out a “contract”

on his life. (RT 823, 955.)

Carlos Ortega, Chief of the “Mexican Mafia” at Tehach-

api, testified that defendant Mata, and his two codefend-

ants Gallegos and Vargas were “Mafia” members. (RT

811-812, 834-844.)

Mata informed Ortega that Arias had arrived and that

they were ordered “to hit” him. (RT 822-824.) Ortega told

Mata that he did not want any trouble. (RT 824.) The

following day, October 19, 1972, Ortega met Mata and Gal-

legos, who wanted to “get down,” meaning arm themselves

with knives and stab Arias. (RT 827-828.) Vargas joined

them and said “We’ve waited long enough.” (RT 828-829.)

Mata and Gallegos left and returned about 10 minutes later.

Mata, wearing black gloves, tried to give Ortega a knife

but Ortega refused. (RT 829-830.) Mata said he had an-

other knife inside his belt. (RT 831.) When Ortega said he

did not want trouble Vargas called him a “erybaby.”

Joe Escobar, an officer of the Nuestra Familia, observed

the three defendants talking with Ortega before proceed-

ing toward dorm 8. (RT 1175-1176.) All three were wearing

watch caps, and Mata and Gallegos were wearing gloves

and blue levi jackets. (RT 1176.)

In dorm 8, the victim was socializing with his hometown

friend, Jay Allen, and a new acquaintance, Rigoberto Al-

mengor. (RT 583-584, 600.) Paul Childress, another inmate

who lived in dorm 8, knew Mata from a prior drug dealing

and noticed him standing by the bulletin board in the dorm.

(RT 268, 273.) He also observed Gallegos walking in the

dorm. (RT 271-272.)

At about 1:30 p.m., a call came over the institution’s

loudspeaker ordering all new arrivals to report to the

prison laundry room. (RT 408.) The victim, accompanied

by Allen and Almengor started out. (RT 372-373, 583.)

There was daylight in the dorm and visibility was excellent.

(RT 801, 947.)

Almengor saw two inmates standing by the bulletin board

and a third leaning against a nearby wall. They did not

live in dorm 8, and he did not know them, but had seen

Vargas before dealing drugs. (RT 374, 745, 957-958, 966.)

Allen also saw the three men. (RT 795.) Allen knew Mata

since they once resided in the same dorm. (RT 595.) In

tape recordings made during the eleven days following the

killing, both Allen and Almengor described all three as

wearing black leather gloves, state issued jackets and pants

and navy blue knit beany caps. (RT 621-622, 746, 969.)

Allen thought all three men had mustaches. (RT 621.)

Almengor described one assailant as dark complected, with

a small, thin mustache, and Vargas as “an Indian dude”

with a thicker mustache who was taller than the other two.

(RT 479, 961, 970.)

As Almengor, Allen and Arias got closer, the three

defendants pulled their hands out of their coats and at-

tacked Arias with knives. (RT 958.) Two of the knives

were small, one was long. (RT 961.) Vargas, armed with

the long knife, pulled down Arias’ shoulder and stabbed

him. (RT 749, 795-96, 959.) Vargas jabbed at Allen, and

ripped his jacket. (RT 796.)

Meanwhile, in the midst of this attack, Almengor turned

forward, he and Mata made eye contact, and Mata came

at him with a knife in his right hand. (RT 379, 747, 960.)

Mata swung twice, and Almengor tried to kick the knife

out of his hands. (RT 380.) They fought with their fists,

swinging several times at each other. (RT 380, 747, 960.)

As Mata backed off, they stood there “looking directly at

each other.” (RT 960.) Turning his attention back to the

stabbing, Almengor heard and saw a knife fall to the floor,

and saw Arias falling. (RT 381-382, 747-748.) Almengor

again looked Mata in the face, motioning that he wanted

nothing to do with this. (RT 382.) Mata seemed to under-

stand, he turned around and ran out the door, followed by

his codefendants. (RT 383, 748, 960.)

Childress testified that as he came out of the bathroom

area he heard scuffling and observed Arias, Mata, Gallegos

and Vargas fighting. (RT 275, 279.) He did not see Allen or

Almengor. (RT 303.) Childress thought it was just a fight

until he saw a small silver knife fall to the floor. (RT 276.)

He then returned to his bunk area. (RT 281.)

Allen’s screams finally drew the attention of Officer

Loomis. Allen yelled, “a guy has been stuck, get an

ambulance.” (RT 236.) Loomis opened his office door and

dialed control for assistance. (RT 237.)

One and one-half minutes after hearing the fight in dorm

8, inmate Juan Olvera saw Gallegos coming from nearby

dorm 6. (RT 512.) Gallegos was in a hurry and told Olvera,

“Tf they ask about me, tell them I’ve been with you for the

last hour.” (RT 513.) Gallegos was nervously clenching a

pair of black leather gloves. (RT 514.) A short time later,

Joe Escobar saw Gallegos in the library. Gallegos seemed

very different—pale and excited. Olvera saw Gallegos and

another inmate exchanging a magazine containing a piece of

shiny metal. (RT 1179.) From Gallegos’ gestures, Escobar

knew something had happened to Arias. (RT 1178-1180.) At

that moment recall sounded. (RT 1180.) At about 2:00 p.m.,

a search of the institution was conducted. (RT 658.) A knife

was discovered in the trash can of dorm 5, and a blue levi

jacket with blood on the sleeve was found under bunk 56

of that dorm. (RT 659, 660-661.) Almengor testified that

this knife looked like Mata’s knife. (RT 380.) Mata

resided in bunk 60 of this dorm. (RT 658, 662.) A long,

prison-made knife was found on the stairway to dorm 8, and

a broken grass shear blade was found on the floor between

the door of dorm 8 and the spot where Arias’ body had

fallen. (RT 668-670.) Bloody pants and shoes belonging to

Almengor were found in his dorm. (RT 963-964.)

The following day, Paul Childress was approached by

several inmates of Mexican descent who asked to read his

magazines. He had never spoken with these inmates before

and felt uneasy about their approach. (RT 283-284, 952.)

Later that afternoon, he saw two of the defendants walk-

ing around in the yard below. He was frightened because

he knew that they had seen him. (RT 948-949.) As he

walked toward the prison control, Childress was followed

by four or five inmates, one of whom appeared to be Mata.

(RT 284, 949.)

Childress asked to speak to the officer in charge, and was

escorted to Sergeant Mills’ office. (RT 284). He told Mills

what he had seen, identifying Mata and Gallegos by name.

(RT 285, 693, 947-948.) Childress identified photographs of

Mata and Gallegos. (RT 285-286, 676, 681.) After looking at

about seventy photographs from dorms 5 and 7, he finally

identified Vargas’ picture from the photos of inmates in

dorm 6. (RT 681-682.)

On October 20, Gallegos was en route to another institu-

tion with Ortega and several other inmates. (RT 836-837.)

Ortega testified that Gallegos admitted, “My knife broke

when I hit him. We all worked out on it.” (RT 838.)

At trial, Allen and Almengor made definite in-court

identifications of Mata and Gallegos, but repudiated their

pretrial identifications of Vargas and would not identify

him in court. (RT 375, 404, 418-419, 425-426, 587, 597,

623-624.) Defendant’s defense was alibi. He offered three

witnesses who testified that he was on his own bed playing

cards near the time that the stabbing occurred. (RT 1016,

1106, 1131.)

2. The Pretrial Identification Procedures

October 19, 1972

Allen and Almengor were both interviewed the evening

of the stabbing. (RT 710, 719-720, 914, 923-924.) Allen

asserted an inability to make any identifications and was

not shown any photographs. (RT 719-720, 924.) Almengor

asked to be shown photographs of the Mexican population

on the medium side of the facility, and was shown the

rollodex of about 200 photographs of all inmates on that

side. (RT 397, 914, 959.) Almengor named “Bogus” Pete

Nunez as one of the assailants—a name provided to him

by other inmates based upon his description. (RT 399-400,

711.) Almengor identified the photograph of Nunez but was

not positive saying it looked similar to the assailant. (RT

398-400, 711, 780-781.) He also tentatively identified defend-

ant Vargas, and inmates Ramirez and Reymundo. (RT 914-

915.) Almengor testified that he selected eight photographs

as bearing similarity to the three assailants. (RT 401, 466.)

Almengor requested larger, more recent photographs. (RT

401.) Almengor also requested a line-up, which prison

officials agreed to provide; however, the line-up never

occurred and Almengor never renewed his request. (RT

497, 781.)

October 27, 1972

Thereafter, major prison inmate disturbance prevented

contact with Allen and Almengor for the purpose of making

identifications until October 27, 1972. (RT 725, 927.)

Allen was shown a group of photographs (Exhibit 23)"

including pictures of Mata, Gallegos and Vargas. The

names of the inmates were concealed. (RT 720.) Allen again

claimed an inability to make an identification, complaining

that the photographs were too old. (RT 720-721, 924.)

Almengor also viewed Exhibit 23 with the names of the

inmates concealed. (RT 715.) Outside Allen’s presence,

Almengor again tentatively identified defendant Vargas.

(RT 487, 959.) He asked for more recent photographs, feel-

ing that the appearance of inmates represented in the

photographs had changed. (RT 716, 959-960.)

18Exhibits 23 and 24, the photographic spreads in question, were

transmitted to this Court by the Clerk for the United States Court

of Appeals for the Ninth Circuit on April 15, 1980.

Acting on this request, a number of inmates were photo-

graphed but due to a mistake by the photographer, the

pictures did not come out. (RT 716.) The three defendants

were photographed a second time, and other photographs

were reproduced to the same size. (RT 716.) All fifteen

photographs which are included in Exhibit 24 are black and

white, and are the same size, have the same quality of “new-

ness” and are of inmates of Mexican descent.

Defendant asserts that Almengor and Allen knew that

new pictures of the suspects had been taken. Almengor

testified that he knew Gallegos was being photographed but

was unaware Mata and Vargas were with him; Allen tes-

tified at trial that he was unaware that any of the three

were being photographed. (RT 444-446.) Private investi-

gator Faulkner testified that Allen told him the following:

that Allen identified defendants because they were the only

ones in segregation whose pictures appeared in the photo-

graphic display and he was under Department pressure to

make an identification; that he did not observe the assail-

ants well enough to identify them; that only one assailant

had a mustache and that they could have been Caucasian.

(RT 1118-1119.) Allen testified that he did not recall mak-

ing these statements. (RT 634, 645-646.)

Defendant also attacks the photographie display, assert-

ing that the defendants were posed identically, and were the

only ones in prison clothing wearing mustaches. Exhibit 24

contains seven other inmates with mustaches, three of whom

are also wearing prison clothing: G. H. Delgado, M. S.

Medina and J. A. Ortiz.

October 30, 1972

On October 30, 1972, Almengor and Allen were shown

the group of photographs introduced as Exhibit 24. First

Almengor was shown the display with the inmates’ names

concealed ; he identified Mata, Gallegos and Vargas. He was

able to identify Mata because “he was looking at me eye to

eye, you know, at the time of the stabbing, at the time of

the stabbing when he backed up.” (RT 742.)

Allen was brought in next, and while Almengor stood on

the other side of the room, Allen likewise identified Mata,

Gallegos and Vargas as the assailants. (RT 722.) Allen

testified that when he was first shown pictures he did not

make any identifications because he did not want to get

involved. (RT 650.) His identifications were based upon his

observations at the scene, and the correctional officers did

not influence his identifications. ‘RT 650.)

SUMMARY OF ARGUMENT

Defendant made a tactical decision to withhold objection

to identification testimony at his state trial. Dissatisfied

with his murder conviction, he urged on direct appeal that

two eyewitness identifications were tainted by suggestive

pretrial procedures. The state appellate court rejected this

claim, holding these procedures to be “inherently fair.” On

federal collateral review of this issue a circuit court ma-

jority ignored the state appellate court factfindings as

well as the district court decision and reversed the convic-

tion, based upon its own de novo factfindings drawn from

the same “cold” state court record.

Two doctrines which serve to limit unwarranted federal

reversals of legitimate state court convictions have been

violated. One is the rule which bars federal habeas corpus

review to a state prisoner who has failed to raise issues in

state court in compliance with state procedural rules absent

a showing of “cause” and “prejudice”. Wainwright v. Sykes

433 U.S. 72 (1977). The other is the requirement that fed-

eral habeas corpus courts defer to state court factual find-

ings rendered after full and fair hearings. La Vallee v.

Delle Rose 410 U.S. 690 (1973) ; 28 U.S.C. § 2254(d).

Defendant’s tactically motivated procedural default

which does not satisfy the Wainwright “cause” and “preju-

dice” standard was not excused by the state appellate court

when it rejected defendant’s identification contention. Cali-

fornia’s contemporaneous objection rule does not preclude

this gratuitous consideration. Rather, it hoids that there

shall be no reversal of a judgment absent a timely and spe-

cifie objection. It follows that absent a reversal or an ex-

pressed intent to forgive a procedural default, a California

appellate court does not forgive this procedural default

by stating reasons for the rejection of a claim.

If it is determined that the state appellate court forgave

the default by reaching the merits, the state appellate

court’s resolution of the facts must be accorded the statu-

tory presumption of correctness. First, it is intolerably in-

consistent to hold that a state appellate court opinion has

the foree of removing a bar to federal review but has no

substantive meaning. Next, both the letter and spirit of

section 2254(d) compel the conclusion. Finally, federal law

supports this result.

The Court of Appeals applied an incorrect standard in

determining whether the pretrial identification procedures

gave rise to a very substantial likelihood of irreparable

misidentification. In following a two-part approach, first

equating lack of “necessity” for use of photographic iden-

tification procedures with a finding of impermissible sug-

gestiveness the court departed from the decisions of this

Court and of the majority of other federal and state courts.

It gave considerable weight to a factor which has no bear-

ing on the reliability of the eyewitness evidence and no

relation to the function of the Due Process Clause in the

area of identification evidence. The second part of the

Court of Appeals’ “two-part approach” failed to follow the

standards previously established by this Court’s cases.

Application of this erroneous standard predictably led the

court to an erroneous result.

ARGUMENT

DEFENDANT’S PROCEDURAL DEFAULT SHOULD

BAR CONSIDERATION OF HIS CLAIM AND AT

THE LEAST, THE STATE APPELLATE COURT'S

FACTFINDINGS SHOULD BE ACCORDED A PRE.-

SUMPTION OF CORRECTNESS

A. Defendant’s Procedural Default Should Bar His Claim

in Federal Court

At trial, defendant did not object to his in-court identifi-

cations by the three eyewitnesses, Childress, Almengor and

Allen. However, the reliability of these identifications was

the focal point of defendant’s trial. The photographie dis-

plays were introduced into evidence; the eyewitnesses were

examined and cross-examined extensively as to their obser-

vations and the identification procedures employed; the

correctional and law enforcement officials who conducted

the pretrial identification procedures gave detailed accounts

of them; tape recorded conversations of the three eye-

witnesses with the authorities made at or near the time of

these pretrial identifications were introduced into evidence;

defense counsel argued in summation that these identifica-

tions were unreliable.

Why did defense counsel, who demonstrated an under-

standing of the legal concept of suggestive pretrial identifi-

cation procedures, fail to object? The defense chose to use

Almengor and Allen to impeach Childress’ identification.

Paul Childress approached Albert Mills, a correctional

officer and told him he saw the three men who stabbed the

victim. Childress knew and named defendant Mata to Mills

(RT 285, 693, 947-948). Given this identification, the only

available tactic was impeachment. Inconsistencies existed

between Childress’ testimony and that of eyewitnesses

Almengor and Allen, most notably that Childress claimed

a clear view of the assault but said he did not see Almengor

and Allen at the murder scene. Defense counsel argued

that Childress did not see Almengor and Allen because he

did not witness the stabbing scene; and that Allen and

Almengor were at the scene but their identifications

resulted from suggestive pretrial identification procedures

and were unreliable (RT 1332-1338).

Faulty identification was the heart of this defense. The

thoroughness with which defense counsel explored the pre-

trial identification procedures, and the use of this evidence

to impeach Childress’ identification leads ineluctably to the

conclusion that a trial court objection was deliberately with-

held, a tactical decision which satisfies the deliberate by-

pass test of Fay v. Noia, 372 U.S. 911 (1963) and, a fortiori,

fails the “cause” and “prejudice” standard of Wainwright v.

Sykes, 433 U.S. 72 (1977).

To excuse defendant’s procedural default is to award

him a windfall second trial. At trial he withheld his con-

stitutional claim for his own benefit; dissatisfied with the

verdict, he convinced the federal Court of Appeals on

collateral review that the admission of those identifications

requires reversal. We submit the Great Writ was not

intended to reduce a state criminal trial to a “dry run.”

Nor should federal courts deem the state appellate court’s

rejection of this claim on the merits a relief from default.

The District Court held that defendant’s three claims’

were not barred from federal review either because they

were raised on direct appeal or because, on state collateral

review a summary denial is assumed by federal courts to

be a decision on the merits. Thompson v. Procunier, 539

F.2d 26, 28 (9th Cir. 1976) ; Petition for Writ of Certiorari,

D2-D3.

The Ninth Circuit, in concert with many circuits, holds

that by addressing a claim on the merits, a state appellate

court is deemed to waive any procedural default by a fed-

1Those three claims include: (1) admissibility of the identifi-

cations presently before this Court; (2) incompetency of counsel for

failing to object to the in-court identifications; (3) a discovery issue.

Only the first two issues were pursued before the Court of Appeals

for the Ninth Circuit.

eral habeas applicant. See Curry v. Wilson, 406 F.2d 110,

111-112 (9th Cir. 1968).

This rule rests upon footnote 3 of Warden, Maryland

Penitentiary v. Hayden, 387 U.S. 294, 297, n.3, (1967) :

“The State claims that, since Hayden failed to raise

the search and seizure question at trial, he deliberately

bypassed state remedies and should be denied an

opportunity to assert his claim in federal court. See

Henry v. Mississippi, 379 U.S. 443; Fay v. Nota,

372 U.S. 391. Whether or not the Maryland Court of

Appeais actually intended, when it reversed the state

trial court’s denial of post-conviction relief, that

Hayden be afforded a hearing on the merits of his

claim, it is clear that the trial court so understood

the order of the Court of Appeals. A hearing was held

in the state court, and the claim denied on the merits.

In this circumstance, the Fourth Circuit was correct

in rejecting the State’s deliberate-bypassing claim.

The deliberate-bypass rule is applicable only ‘to an

applicant who has deliberately by-passed the orderly

procedure of the state courts and im so doing has for-

feited his state court remedies.’ [Emphasis in quote. ]

But see Nelson v. California, 346 F.2d 73, 82 (C.A.

9th Cir. 1965).”

The state action confronting this Court in Warden in-

cluded a reversal of conviction by the Maryland appellate

court, and a new hearing on the merits by a trial court that

understood the reversal to require that Hayden be afforded

a hearing on the merits of his claim. While this state action

meant that Hayden had not “forfeited his state court reme-

dies” within the meaning of Fay v. Noia, supra, we submit

not all action taken by a state appellate court forgives a

defendant’s procedural defaults.

Agreeing on this point, the Second Circuit in Brathwaite

v. Manson, 527 F.2d 363 (2d Cir. 1975), suggested that not

all kinds of state court review estop the state from assert-

ing a “deliberate by-pass” resulting from the breach of its

contemporaneous objection rule. The court explained:

“... It is, of course, true that plenary consideration

of such an objection by a state appellate court meets

the exhaustion requirement even though, under ordi-

nary procedural rules, the court was not obliged to give

this. However, our reading of its opinion leads us to

believe that the Supreme Court of Connecticut consid-

ered the point on a more limited basis, :iamely, whether

even if petitioner’s objections were sound, ‘substantial

injustice resulted’ from receipt of the indentifications.

It is doubtful whether such limited review would meet

the exhaustion requirement if Connecticut provided

a method for raising the federal claim in a collateral

attack ... [and] [f]or the same reason, namely, the

State’s failure to raise the point here, we need not con-

sider whether Fay v. Noia, supra, 372 U.S. at 426-34,

438-40, 83 S.Ct.822, would be read today as relieving

Brathwaite, in federal habeas, of his counsel’s pro-

cedural default, even though, for the reason indicated

above, we doubt whether the Connecticut Supreme

Court’s limited consideration of Brathwaite’s objec-

tions would bring the case within the principle of

Warden v. Hayden 387 U.S, 294, 297 n.3, 87 S.Ct. 1642,

18 L.Ed.2d 782 (1967), that a state may not assert

‘deliberate by-pass’ when a petitioner’s constitutional

claims have in fact been passed upon by a state court

despite breach of a contemporaneous objection rule.”

Id. at 366.

When Manson v. Brathwaite 432 U.S. 98 (1977) reached

this Court, the merits of the identification issue were ad-

dressed because petitioner Manson asserted no claims relat-

ing to respondent’s failure to make a contemporaneous

objection:

“Although no objection was made in the state trial

to the admission of the identification testimony and the

photograph, the issue of their propriety as evidence

was raised on the appeal to the Supreme Court of

Connecticut. Petitioner has asserted no claims related

to the failure of the respondent either to exhaust state

remedies or to make contemporaneous objections. The

District Court and the Court of Appeals, each for a

somewhat different reason, App. to Pet. for Cert. 7a-

8a; 527 F.2d, at 366, concluded that the merits were

properly before them. We are not inclined now to rule

otherwise.” Jd. at 103, n. 7.

We ask this Court to find that defendant’s failure to

object to the in-court identifications admitted at trial re-

sults in procedural default of the issue regardless of the

state appellate court’s rejection of this claim on the merits.

From the standpoint of California statutory law we

submit defendant’s procedural default was not forgiven.

California’s contemporaneous objection rule, codified in

1965, provides:

“A verdict or finding shall not be set aside, nor shall

the judgment or decision based thereon be reversed,

by reason of the erroneous admission of evidence

unless:

(a) There appears of record an objection to or a

motion to exclude or to strike the evidence that was

timely made and so stated as to make clear the specific

ground of the objection or motion; and

(b) The court which passes upon the effect of the

error or errors is of the opinion that the admitted

evidence should have been excluded on the ground

stated and that the error or errors complained of re-

sulted in a miscarriage of justice.” West’s Annotated

California Codes, Evid. Code § 353.’

There exists abundant California authority upholding

this principle and its application to in-court identification

testimony. People v. De Santiago (1969) 71 Cal.2d 18, 22

[76 Cal.Rptr. 809]; People v. Robinson (1965) 62 Cal.2d 889,

894 [44 Cal.Rptr. 762]; People v. Colligan (1979) 91 Cal.

App.3d 846, 850 [154 Cal.Rptr. 389]; People v. Suttle

(1979) 90 Cal.App.3d 572, 580 [153 Cal.Rptr. 409];

People v. Boothe (1977) 65 Cal.App.3d 685, 690 [135 Cal.

Rptr. 570]; People v. Johnson (1974) 38 Cal.App.3d 1,

6 [112 Cal.Rptr. 834]; People v. Hoiland (1971) 22 Cal.

App.3d 530, 541 [99 Cal.Rptr. 523]; People v. Dobson,

12 Cal.App.3d 1177, 1181-1182 [91 Cal.Rptr. 443]; People v.

Young (1970) 9 Cal.App.3d 106, 109 [87 Cal.Rptr. 767];

*See also Penal Code section 1259 which states: “Upon an appeal

taken by the defendant, the appellate court, may without exception

having been taken in the trial court, review any question of law

involved in any ruling, order, instruction, or thing whatsoever said

or done at the trial or prior to or after judgment, which thing was

said or done after objection made in and considered by the lower

court, and which affected the substantial rights of the defendant.

The appellate court may also review any instruction given, refused

or modified, even though no objection was made thereto in the lower

court, if the substantial rights of the defendant were affected

thereby. (Emphasis added. )”

People v. Hawkins (1970) 7 Cal.App.3d 117, 124 [86 Cal.

Rptr. 428].

California Evidence Code section 353 prevents an appel-

late court from forgiving a procedural default based upon

lack of compliance with this contemporaneous objection

rule. Section 353 provides in mandatory language that

there shall be no reversal of a judgment absent a timely

and specific objection. The California Legislature by use

of this language has placed a substantive limitation on

judicial review, as an appellate court cannot reverse a

conviction in the absence of compliance with this statutory

provision, and hence it is without jurisdiction to forgive

this procedural default.

Even if a state reviewing court has the jurisdiction to

reverse absent compliance with this statute, the action

taken by the Fifth District Court of Appeal did not forgive

defendant’s procedural default. For the statute does not

®The application of the contemporaneous objection rule to in-court

identification testimony reflects a persistent theme running through

the case law of both this Court and the California courts regarding

the nature of such evidence.

“It is part of our adversary system that we accept at trial much

evidence that has strong elements of untrustworthiness—an

obvious example being the testimony of witnesses with a bias.

While identification testimony is significant evidence, and,

unlike the presence of counsel, 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 causing doubts as to the

accuracy of the identification—including reference to both any

suggestibility in the identification procedure and any counter-

vailing testimony such as alibi.” Manson v. Brathwaite, 432

U.S. 98, 113-114, n.14 (1977) (citations omitted). See People

v. Lawrence (1971) 4 Cal.3d 273 [93 Cal.Rptr. 204].

preclude a court from gratuitously setting forth its reasons

for rejecting a claim as meritless; rather, it provides for

no reversal of the judgment. Thus, it follows that a court

does not forgive a procedural default unless that court

reverses a judgment despite the default. Accordingly, justi-

fying a federal reversal of a state conviction on grounds

that the state court’s affirmance on the merits reflects its

disinterest in enforcing state procedural rules is, at best,

self-indulgent fiction.

A recent change in federal law reinforces our view.

In Wainwright v. Sykes, 433 U.S. 72, 89 (1977), this Court

rejected the deliberate by-pass standard announced in

Fay v. Nowa and acknowledged that Fay v. Noia put state

appellate courts in a very difficult position:

“The refusal of federal habeas courts to honor con-

temporaneous objection rules may also make state

courts themselves less stringent in their enforcement.

Under the rule of Fay v. Nova, 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 tribunal.

Thus, their choice is between addressing the issue not-

withstanding the petitioner’s failure to timely object,

or else face the prospect that the federal habeas court

will decide the question without the benefit of their

views.” Id. at 89-90.

Justice Brennan’s dissent likewise perceives that col-

lateral review afforded by Fay has a bearing on the states’

selection and enforcement of procedural requirements,

since a state concerned about its “primary factfinding role

as authorized by § 2254 and Townsend v. Sain, 372 U.S. 293

(1963)” is foreed to “liberalize” and “streamline” state

rules that “otherwise might serve to bar such state partici-

pation.” Jd., Dissent, p.111, n.10.

In response to Fay’s opening the doors to federal col-

lateral attack, state appellate courts attempted to protect

convictions from federal court scrutiny to the greatest

extent possible by setting forth their reasons for the rejec-

tion of a claim. This Court closed those doors somewhat

in Wainwright v. Sykes. This state court device, made

necessary by Fay, should not now be transmogrified into

the key which reopens those doors. For this reason, we

conclude that unless a California court opinion expresses

the intent to forgive a procedural default, its explanation

for rejecting a claim on its merits should not be deemed

a waiver of state procedural rules.

B. If The State Appellate Court Opinion Is Deemed

to Waive Defendant’s Procedural Default, It Must Be

Accorded The Statutory Presumption Of Correctness

In Federal Court

If defendant’s failure to object at trial to in-court iden-

tifications is deemed forgiven by federal courts because a

state appellate court addresses the merits of the claim, the

state appellate court must then be treated as the factfinder

for purposes of federal review. A contrary rule: (1) pro-

motes discord between the state and federal systems by

taking the incongruous position that the written words of

a state appellate court have the force of removing a bar

to federal review but are otherwise meaningless in federal

court; (2) violates the letter and spirit of section 2254(d) ;

and (3) contravenes existing federal law.

In Wainwright v. Sykes, 433 U.S. 72 (1977), this Court

demonstrated a willingness to accept the burden of state

appellate court presumptive validity when the benefit of

federal collateral review flows from a state appellate court

decision. This assumption is implicit in the majority’s

observation that an appellate court passes on issues for the

first time to give the federal habeas court the benefit of

their views. Jd. at 89-90. The dissent was more explicit,

noting that states will relax enforcement of procedural

rules “to the extent that a state desires to have input into

the process of developing federal law, and seeks to guar-

antee its primary factfinding role as authorized by § 2254

and Townsend v. Sain, 372 U.S. 293 (1963).” Jd., dissent,

at 111 n.10.

Section 2254(d) provides in part:

“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 juris-

diction 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... .”

The literal requirements of this section are satisfied by

an appellate court serving as the state’s factfinder: An

appellate court is a State court of competent jurisdiction;

both the State and the habeas applicant are parties to an

appeal; the appellate court’s decision is evidenced by a

written opinion; the appellate court’s determination is made

after a hearing on the merits of a factual issue which

includes the trial court record, the written briefs of both

parties arguing the merits of a claim, and an oral argu-

ment, unless waived by both parties. People v. Brigham

(1979) 25 Cal.38d 283, 599 P.2d 100, [157 Cal.Rptr. 905];

California Rules of Court, Appellate Rules 13, 14, 22, 23.

Likewise, the congressional intent underlying the pre-

sumption created by section 2254(d) can be satisfied only

by our construction of this provision.

The Senate Judiciary Committee’s report reveals the

purpose of section 2254(d):

“In their report to the Judicial Conference of the

United States, the Habeas Corpus Committee, com-

posed of Circuit Judges Simon E. Sobeloff, Phillip

Forman, Luther M. Swygert, J. Skelly Wright, and

Orie L. Phillips (Chairman), wrote:

‘It is the opinion of your committee that the pro-

posed legislation, if enacted, will be a strong induce-

ment to the States that have not already done so

to provide adequate postconviction remedies and pro-

cedures and to make and keep available records of

evidentiary matter in criminal proceedings to safe-

guard the constitutional rights of defendants.’ ” Sen-

ate Report (Judiciary Committee) No. 1797, Oct. 18,

1966.

Following a procedural default in a trial court, if appel-

late factual findings are not accorded a presumption of

correctness, a state appellate court has no incentive to

review a defendant’s constitutional claims. Thus, a defend-

ant is left without this state postconviction remedy and,

ultimately, is left without federal review of federal claims.

Circuit courts unanimously accord presumptive validity

to a state appellate court finding of a basis for an in-court

identification independent of pretrial procedures.

In United States ex rel. Harris v. State of Illinois, (7th

Cir.) 457 F.2d 191, cert. denied, 409 U.S. 860 (1972), peti-

tioner objected to his in-court identification at trial, the

trial court found the pretrial procedures violated United

States v. Wade, 388 U.S. 218, 240-241 (1967), and admitted

the in-court identification utilizing an improper eviden-

tiary standard placing the burden on defendant to prove

the in-court identification was not of an independent nature.

Petitioner urged this error upon the Illinois Supreme

Court, requesting a reversal of his conviction, or at least,

remand to the trial court to hold a hearing on the inde-

pendence of the in-court identification utilizing a proper

evidentiary standard. The Illinois Supreme Court made no

recognition of this contention other than by finding itself,

after a brief review of the circumstances, that the in-court

identification had an origin independent of the pretrial

identification.

“Because the Supreme Court of Illinois made such a

finding of independence, this Court must determine if

a reviewing court which does not hear testimony and

which only has a cold record in front of it may properly

make such a factual determination concerning the con-

stitutional guarantee recognized by Wade ... While

we believe that the trial court is the most proper place

for that determination to be made, we cannot conclude

that such a resolution by a reviewing court when the

record is adequate amounts in and of itself to any

constitutional deprevation. We thus conclude that,

so long as the record was adequate for such action,

the Illinois Supreme Court could, under Wade and

Gilbert, determine if the in-court identification had an

independent basis. . .

Section 2254(d) of Title 28 of the United States

Code likewise focuses our attention on the appellate

record. That section compels a federal court to pre-

sume as correct any determination on the merits of a

factual issue made by a state court after a hearing in

proceedings to which the applicant for the writ and

the state were parties, unless the federal court con-

cludes that such determination is not fairly supported

by the record.” Jd. at 195-196.

Similarly, the First Circuit in Souza v. Howard (1st Cir.

1973) 488 F.2d 462, cert. denied, 417 U.S. 933 addressed

appellant’s contention that a state appellate court is not

a state court trier of fact within the meaning of Town-

send or a state court of competent jurisdiction on a factual

issue within the meaning of § 2254(d).

“Appellant’s position on this issue cannot be recon-

ciled with the action taken by the Supreme Court

in Neil v. Biggers, supra where it held that although

a pre-trial identification might have been suggestive,

nevertheless, under the totality of circumstances, the

witness’ in-court identification was reliable. There, in

passing on the cold record, the author of the majority

opinion said:

‘... Weighing all of the factors, we find no substan-

tial likelihood of misidentification. The evidence was

properly allowed to go to the jury.’ [409 U.S. page 201,

93 S.Ct. page 383.]

Only two jurisdictions have passed directly on the

subject and they have decided adversely to appellant’s

contention. They held that a reviewing court has au-

thority to decide on the record the independent sources

of in-court identification. United States ex rel. Harris

v. State of Illinois, 457 F.2d 191 (CAT 1972); United

States v. York, 188 U.S.App.D.C. 197, 426 F.2d 1191,

1193 (1969); Clemons v. United States, 133 U.S.App.

D.C. 27, 408 F.2d 1230, 1248 (1968). In those cases,

the courts of appeals concluded that there is no sound

reason why a state appellate court, when the record

is adequate, should not make findings on the issue.”

Souza v. Howard, supra, 488 F.2d 462 at 468.

This leads us to the conclusion that the presumption

of correctness must apply if the state court record satisfies

the requirement of § 2254(d) and Townsend v. Sain, 372

U.S. 293 (1963).

This Court held in Townsend that “. . . a federal court

must grant an evidentiary hearing to a habeas applicant

under the following circumstances: If (1) the merits of the

factual dispute were not resolved in the state hearing; (2)

the state factual determination is not fairly supported

by the record as a whole; (3) the fact-finding procedure

employed by the state court was not adequate to afford a

full and fair hearing; (4) there is a substantial allegation

of newly discovered evidence; (5) the material facts were

not adequately developed at the state-court hearing; or

(6) for any reason it appears that the state trier of fact did

not afford the habeas applicant a full and fair fact hear-

ing.” 372 U.S. at 313. Here, neither the District Court nor

the Court of Appeals held an evidentiary hearing, despite

an invitation to do so by defendant. Supplemental Points

and Authorities in Support of Petition for Writ of Habeas

Corpus filed April 12, 1978. Since an evidentiary hearing

must be held where circumstances indicate state court fac-

tual findings may be unreliable, implicit in the failure of

these courts to hold an evidentiary hearing, is their deter-

mination that the state court record is adequate as a basis

for reliable factual findings.

It is quite clear, however, that the Ninth Circuit did not

accept the state court’s factual findings. The state found

no showing of influence by the investigating officers, yet the

Ninth Circuit found that “considerable pressure from both

the prison officers and opposing prison factions had admit-

tedly been brought to bear on both witnesses.” Petition for

Certiorari, A-10. The state’s finding is supported by the

record and is not clearly erroneous: while the witnesses

were encouraged to make an identification, the pretrial

procedures were fair and did not suggest a particular

identification.

The Ninth Circuit found that the photographic display

was unfair in that prior “mistaken” selections had been

removed, the number of photographs drastically reduced,

and only new photographs of appellant and his co-defen-

dants were included. Petition for Certiorari, A-10. The

state court concluded that the procedures were inherently

fair but noted that any possibility of prejudice could be

brought out given the preservation and availability of the

photographs at trial. The state’s finding is supported by

the photographic spreads of October 27 and 30: they are

not impermissibly suggestive on their face, the absence

of photographs of Ramirez, Reymundo and Nunez do not

render the October 30, spread suggestive since fifteen pho-

tographs remained, and defendant Mata’s appearance in

both exhibits does not suggest his identification, since his

appearance had changed so drastically. In short, the pho-

tographic spreads did not focus attention upon defendant.

The Ninth Circuit also rejected the state’s determina-

tions that the witnesses had an opportunity to view the

crime and that their descriptions were accurate. Instead,

the Ninth Circuit found the identifications untrustworthy

because “the violence accompanying the incident and the

threat presented by the knife would have, quite likely,

diverted the witnesses’ attention.” Petition for Certiorari,

A-9. While the federal court’s finding is based upon specu-

lation, the state court’s finding is supported by the record.

Allen already knew Mata since, at one time, they resided

in the same dorm. Almengor testified that he and Mata

stared at each other, fought with each other, and communi-

cated with each other. The lighting conditions were excel-

lent. The, witnesses described the clothing, facial hair, phy-

sical features and race of the assailants as well as the

weapons they were carrying. These descriptions were accu-

rate and sufficiently detailed. The first time a photograph

reflecting defendant’s true appearance was presented to

the witnesses they identified him and their identifications

were certain. For these reasons, we conclude that the state

court’s findings are supported by the record and are not

clearly erroneous.

THE COURT OF APPEALS APPLIED AN ERRONEOUS

STANDARD IN EVALUATING DEFENDANT'S

CLAIM THAT HE WAS DENIED DUE PROCESS OF

LAW BY USE OF PRETRIAL IDENTIFICATION

PROCEDURES

The Court of Appeals held that a court should follow a

“two-part approach” in determining whether a conviction

based on eyewitness identification testimony should be set

aside on the ground that a pretrial photographic identifica-

tion procedure was so impermissibly suggestive as to give

rise to a very substantial likelihood of irreparable mis-

identification. 611 F.2d at 757. The first part of this ap-

proach involved consideration of the “necessity of the

photographic identification procedures.” Jd. The second

part of the approach involved consideration of “‘whether

there was a very substantial likelihood of irreparable mis-

identification.” Jd. at 758 (citation omitted).

We submit that the Court of Appeals’ “two-part ap-

proach” is inconsistent with the approach developed in this

Court’s cases and applied by the vast majority of other

federal and state courts. Its application in this case re-

sulted in an erroneous conclusion that defendant was denied

due process of law by reason of the pretiral photographic

identification procedures employed.

A. The Availability of a Defendant for a Physical Lineup

Does Not Render the Use of Photographic Identifica-

tion Procedures Constitutionally Suspect

Since defendant Mata was a state prison inmate at the

time the photographic identification procedures were uti-

lized, the Court of Appeal quickly concluded that there was

no necessity for their use.* This conclusion was apparently

based on tacit assumptions that “necessity” could not be

shown in a situation where the suspect was in custody and

that the burden of showing “necessity” was on the prosecu-

tion, even in the absence of an objection to the admission

of the identification evidence. Neither of these assumptions

is supported by any cogent reason. Furthermore, the court’s

conclusion overlooks the fact that the state court record

suggests valid reasons why resort to photographic identifi-

cation procedures was required. As stated in the dissenting

opinion of Judge Sneed, the case arose in the unique world

of a prison. 611 F.2d at 760-761. The inmate witnesses

were understandably reluctant to come forward and be

identified as informants. Moreover, there was evidence

showing that there was a major inmate disturbance at the

prison before and during the time the identification proce-

dures were conducted. Under these circumstances, the

Ninth Circuit’s conclusion of lack of necessity was not sup-

ported by the record.

Discussing the weight to be given lack of necessity, the

court held:

“While lack of necessity is not a per se ground for

rejection of the identification, we have consistently

‘The court gratuitously assumed from the state court record that

use of photographie identification procedures, instead of a corpo-

real lineup, “stemmed from the reluctance of the prison officials to

provide [defendant Mata] with the assistance of counsel which

would be required in a line-up procedure.” 611 F.2d at 759, n. 1.

This statement does not account for the fact that the right to

counsel at a lineup comes into being only when a person has been

formally charged with a criminal offense. Kirby v. Illinois, 406 U.S.

682 (1972). The initial accusatory pleading in this case was not

filed until November 6, 1972 (CT 4), well after the identification

procedures in issue here.

held that necessity is an important factor to be con-

sidered in judging the validity of the identification pro-

cedures.” Jd. at 757 (citations omitted).

Nothing in this Court’s 1967 trilogy of cases regarding

pretrial identification procedures, United States v. Wade

388 U.S. 218 (1967); Gilbert v. California 388 U.S. 263

(1967) ; and Stovall v. Denno 388 U.S. 293 (1967), supports

a conclusion that lack of “necessity” for use of a particular

procedure for pretrial identification enters into the as-

sessment of whether the procedure actually used violated

the suspect’s due process rights. Stovall was the first case

in which this Court expressly recognized that a conviction

could be attacked on the ground that a confrontation be-

tween the defendant and a witness was so unnecessarily

suggestive and conducive to irreparable mistaken identifica-

tion as to result in a denial of due process of law. It is true

that in Stovall, which involved the “widely condemned”

practice of showing a single handcuffed suspect to a wit-

ness, the Court stressed that there was no practical alter-

native under the circumstances. Jd. at 302. However, the

Court’s brief discussion of whether that confrontation re-

sulted in a denial of due process did not articulate a de-

tailed standard to be applied in determining such claims.*®

’The Court’s discussion of this issue stated only that the “totality

of the circumstances” surrounding the confrontation must be ex-

amined and that, under the circumstances of this case, an imme-

diate confrontation in the witness’ hospital room was “imperative.”

A portion of the en banc opinion of the Court of Appeals for the

Second Circuit, United States ex rel. Stovall v. Denno 355 F.2d 731,

735 (2nd Cir. 1966), is quoted in support of this latter statement.

The Court of Appeals’ opinion also contained an extensive dis-

cussion of other “circumstances” which led it to reject the defend-

-ant’s due process claim. These included such matters as the wit-

In short, Stovall does not hold, or even suggest, that lack

of “necessity” for use of a particular procedure would

weigh in favor of a finding that the suspect’s due process

rights were violated.

In Simmons v. United States 390 U.S. 377 (1968), the

first of this Court’s cases dealing with a pretrial identifica-

tion by photograph, the Court framed one of the issues

before it as whether the “pretrial identification by means of

photographs was in the circumstances so unnecessarily

suggestive and conducive of misidentification as to deny

[the defendant Simmons] due process of law.” /d. at 381.

In the course of its opinion the Court noted that, despite

the hazards of initial identification by photograph, “this

procedure has been used widely and effectively in criminal

law enforcement... .” Jd. at 384. Thus, the Court was un-

willing to prohibit the use of photographic identification

procedures, either in the exercise of its supervisory power

over the lower federal courts or as a matter of constitu-

tional law. Jbid. It held that cases involving use of such

procedures must be judged by the same general standard

which was applied in Stovall to determine whether a cor-

poreal showup prior to trial resulted in a denial of due

process :

“... [E]Jach case must be considered on its own facts,

and... convictions based on eyewitness identification

at trial following a pretrial identification by photo-

graph will be set aside on that ground only if the

photographic identification procedure was so imper-

missibly suggestive as to give rise to a very substantial

ness’ opportunity to view the suspect at the scene of the crime and

the lighting conditions at that time. Id. at 738. These circumstances

were not expressly mentioned in this Court’s opinion.

likelihood of irreparable misidentification. This stand-

ard accords with our resolution of a similar issue in

Stovall v. Denno... .” Id. at 384.

Applying this standard to the case before it, the Court

noted that, in the first place, it had not been suggested that

it was “unnecessary” to use photographic identification

procedures. Use of such procedures was justified by the

fact that the suspects were still at large when the pictures

were shown to the witnesses and the fact that “[i]t was

essential for the FBI agents swiftly to determine whether

they were on the right track.” Jd. at 384-385. The justifica-

tion for this method of procedure was “hardly less compel-

ling than that which we found to justify the ‘one-man

lineup’ in Stovall v. Denno, supra.” Id. at 385. The Court

then noted that, in the second place, under the cireum-

stances of the case there was little likelihood that the pro-

cedures utilized led to misidentification of Simmons. bid.

In analyzing the reasons for this conclusion, the Court dis-

cussed such things as the lighting at the scene of the crime,

the period of time the witnesses saw the man they later

identified as Simmons, the length of time between the crime

and the viewing of the photographs, the circumstances

under which the photographs were shown to the witnesses

and their degree of certainty regarding their selection. [bid.

The Court stated that, “Taken together, these circumstances

feave little room for doubt that the identification of Sim-

mons was correct, even though the identification procedure

employed may have in some respects fallen short of the

ideal.” Jd. at 385-386 (footnote omitted). It is noteworthy

that, although the Court’s opinion mentioned the reasons

why the particular photo identification procedures were

employed, it did not suggest that lack of “necessity” for use

of photo identification procedures would weigh in favor of a

finding that their use violated the suspect’s due process

rights.

In Foster v. California 394 U.S. 440 (1969), a case in-

volving two lineups and a showup involving the same de-

fendant, the Court applied the general test of Stovall to

reverse the defendant’s conviction. It did not mention the

“necessity” or lack of necessity for the use of the particu-

lar procedures.

In Coleman v. Alabama 399 U.S. 1 (1970), the Court con-

sidered a claim of denial of due process by reason of a

stationhouse lineup which was alleged to be unduly preju-

dicial. The Court carefully recounted the circumstances of

the witness’ observation of the defendants at the scene of

the crime and the circumstances of the lineup, as well as

several interviews between the police and the witness in

the interval between the two events. The Court concluded

that the trial court could properly find that the witness’

identifications were entirely based on his observations at

the scene of the crime and were not induced by the conduct

of the lineup. In doing so it looked at the totality of the

circumstances and did not articulate a more detailed stan-

dard than that which was employed in Simmons.

That the presence or absence of “necessity” for use of a

particular identification procedure does not enter into the

determination of whether the procedures used violated a

suspect’s due process rights became more explicit in the

Court’s subsequent cases regarding the effect of pretrial

identification procedures on in-court identifications.

Neil v. Biggers 409 U.S. 188 (1972), was similar to

Stovall in that the suspect was identified at a single-person

showup. The Court’s opinion is especially significant be-

cause it synthesized for the first time the general principles

to be gleaned from the Court’s earlier cases and articulated

them with greater precision.® The Court stated:

“Tt is, first of all, apparent that the primary evil to

be avoided is ‘a very substantial likelihood of irrep-

arable misidentification.’ Simmons v. United States,

390 U.S., at 384. While the phrase was coined as a stan-

dard for determining whether an in-court identification

would be admissible in the wake of a suggestive out-of-

court identification, with the deletion of ‘irreparable’

it serves equally well as a standard for the admissi-

bility of testimony concerning the out-of-court iden-

tification itself. It is the likelihood of misidentification

which violates a defendant’s right to due process... .

Suggestive confrontations are disapproved because

they increase the likelihood of misidentification, and

unnecessarily suggestive ones are condemned for the

further reason that the increased chance of misiden-

tification is gratuitous.” Jd. at 198 (footnote omitted).

The Court then stated that:

“What is less clear from our cases is whether .. .

unnecessary suggestiveness alone requires the exclu-

sion of evidence. While we are inclined to agree with

the courts below that the police did not exhaust all pos-

sibilities in seeking persons physically comparable to

respondent [in order to construct a lineup], we do not

think that the evidence must therefore be excluded. The

purpose of a strict rule barring evidence of unneces-

sarily suggestive confrontations would be to deter the

*The Simmons standard had been criticized as being vague and

difficult to apply. In United States v. Cunningham 423 F.2d 1269,

1272 (4th Cir. 1970), the Court stated that “articulation of the test

describes a result but not how the result is reached.”

police from using a less reliable procedure where a

more reliable one may be available, and would not be

based on the assumption that in every instance the

admission of evidence of such confrontation offends

due process.” Jd. at 198-199.

In Manson v. Brathwaite 432 U.S. 98 (1977), a case in-

volving a pretrial identification made after a police officer

viewed a single photograph of the defendant, the Court

stated that admission of evidence concerning a suggestive

and unnecessary pretrial identification procedure would not

violate due process as long as the identification itself pos-

sessed sufficient aspects of reliability. No evidence was

offered as to why the single photo was shown to the wit-

ness, instead of a photo array. At trial the officer testified

regarding his identification of the photograph and also

identified the defendant in person. This Court, in holding

that evidence of the pretrial identification was properly

admitted, reaffirmed the view expressed in Netl v. Biggers

that reliability is the linchpin in determining the admis-

sibility of identification testimony regarding confrontations

and that the factors to be considered were those set forth

in Nei v. Biggers, 432 U.S. at 114. The Court declined the

opportunity to formulate an automatic rule of exclusion of

evidence of pretrial identifications made following sugges-

tive and unnecessary pretrial identification procedures. Jd.

at 110-113. In doing so the Court stressed that the standard

to be applied in determining whether such evidence should

be admitted or excluded was the standard of fairness re-

quired by the due process clause of the Fourteenth Amend-

ment. Jd. at 113. This standard protects the defendant’s

evidentiary interest in excluding unreliable evidence, an

interest already protected by the right of cross-examination

and by the other incidents of our adversary system. Jd. at

113-114. In the absence of a finding that, under all the cir-

cumstances, there has been a very substantial likelihood ot

irreparable misidentification, a court should admit iden-

tification evidence. “Short of that point, such evidence is

for the jury to weigh. We are content to rely upon the

good sense and judgment of American juries, for evidence

with some element of untrustworthiness is customary grist

for the jury mill. Juries are not so susceptible that they

cannot measure intelligently the weight of identification

testimony that has some questionable feature.” Jd. at 116.

Thus, the Court concluded that the failure to use a pro-

cedure such as a photographic array, which would have

enhanced the reliability of the identification testimony,

went only to the weight to be accorded this evidence—

not its admissibility.

The Ninth Cireuit’s approach is also contrary to the

decisions of other circuits which have attempted to articu-

late definite standards to be applied in determining whether

a defendant’s due process rights have been violated be-

cause of pretrial identification procedures.’

7One case decided by the Court of Appeals for the Third Circuit

took an approach which was somewhat similar to that of the Ninth

Circuit. In Government of the Virgin Islands v. Petersen 553 F.2d

324 (3rd Cir. 1977), a witness was shown only two photographs,

both of the same suspect. The Government conceded that this pro-

cedure was suggestive. The Court of Appeals, in determining

whether this procedure was so impermissibly suggestive as to give

rise to a very substantial likelihood of misidentification, looked first

to “the necessity for photographic identification as a method of

zeroing in on a suspect of a serious crime still at large” and then

at circumstances indicating that the witness had a substantial in-

dependent basis for making the identification. Id. at 327. Since the

factor of “necessity” was present, the court did not discuss the

effect which a finding of lack of “necessity” would have on its ulti-

mate decision on the constitutional issue.

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 require-

ment.”

To the same effect are United States ex rel. Pella v. Reid

527 F.2d 380, 384 (2nd Cir. 1975) and United States v.

Boston 508 F.2d 1171, 1176-1177 (2nd Cir. 1974), cert. de-

nied 421 U.S. 1001.

In United States v. Evans 484 F.2d 1178, 1184 (2nd Cir.

1973), the court, citing earlier Second Circuit cases, stated

that the Simmons test is “a two-fold one.” “...[T]o sus-

tain the exclusion of identification testimony, there had to

be a showing both of impermissibly suggestive procedures

and of the substantial likelihood of misidentification. Where

one or both were lacking, this court concluded that eyewit-

ness identification testimony was to be admitted.” Jd. at

1184; see also United States ex rel. Pella v. Reid, supra,

527 F.2d at 383-384. The court specifically rejected a con-

tention that “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. 7d. at 1186, n. 8.

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 viewed a photo spread approxi-

mately two weeks before trial, the court stated that the

Simmons standard “has developed into a two-prong test.”

Id. at 1350. The Fifth Circuit’s two prongs were markedly

different from the Ninth Cireuit’s. The Fifth Circuit iden-

tified them as:

“First, the court must decide whether or not the

photographie display was impermissibly suggestive.

Second, the court must determine whether such a dis-

play created a substantial risk of misidentification at

trial.” Jd. at 1350.

Discussing the first “prong” the court stated:

“In determining whether the photographie display

was impermissibly suggestive, we evaluate only the

picture spread itself—whether other more desirable

methods of identification were available or whether

there was a compelling need for a photographic dis-

play are not relevant in the determination.” Jd. at 1350.

Similarly, in United States v. Allison 616 F.2d 779, 783

(5th Cir. 1980), the court stated:

“'. .L[ T]he fact that there may have been time for a

lineup can play no part in whether the photographic

spread was impermissibly suggestive. ‘Whether other

more desirable methods of identification (e.g., a line-up)

were available, or whether there was a compelling need

for speedy identification are... not relevant to a deter-

mination of the impermissible suggestiveness issue.’ ”

Gidley has been consistently followed in the Fifth Cir-

cuit. Among the recent cases following it are Frank v.

Blackburn 605 F.2d 910 (Sth Cir. 1979) (rehearing en bane

granted) and Hudson v. Blackburn 601 F.2d 785 (5th Cir.

1979). To the same effect is United States v. Cueto 611

F.2d 1056 (5th Cir. 1980).

In United States v. Hurt 476 F.2d 1164 (D.C. Cir. 1973),

the court held that the five factors enumerated in Neil v.

Biggers are to be considered only if the identification pro-

cedures are found to be suggestive. /d. at 1167-1168. The

court also held that there is no absolute constitutional right

to a lineup. Jd. at 1168.

Other cases are instructive not because they expressly

state that “necessity” for use of photographic identification

procedures in a particular case is irrelevant to determina-

tion of a defendant’s constitutional claim, but because they

determine constitutional claims regarding photographic

identification procedures without any reference to the

“necessity” for their use or to whether a corporeal lineup

could or should have been held in their stead. For example,

in United States v. Sutherland 428 F.2d 1152, 1155 (5th Cir.

1970), cert. denied 409 U.S. 1078, the court suggested a

uniform procedure for the trial of cases in which a Simmons

issue is present. Later cases in the Fifth Circuit have held

that this procedure is equally applicable to all genre of iden-

tification techniques. See Allen v. Estelle 568 F.2d 1108,

1110-1111, n. 2 (5th Cir. 1978). To the same effect are

United States v. Sanchez 603 F.2d 381 (2nd Cir. 1979);

United States v. Hancock 558 F.2d 1300 (8th Cir. 1977),

cert. denied 434 U.S. 872; and Allen v. Moore 453 F.2d 970

(1st Cir. 1972), cert. denied 406 U.S. 967.

The Ninth Circuit’s approach is not supported by author-

ities outside the federal court system. The ALI Model Code

of Pre-arraignment Procedure (1975) does not prohibit or

restrict the use of photographic identification procedures to

situations where photographic identification (as opposed to

a corporeal lineup) is “necessary.” The comments to sec-

tion 160.2 of the Model Code (dealing with the conduct of

identification procedures) note that, “most courts recognize

no ban on photographic identification when the defendant

is in custody and a lineup is feasible.” Jd. at 440.

In California, the state in which the crime occurred, it is

clear that necessity for the use of photographic identifica-

tion procedures plays no part in the determination of their

constitutional validity. In People v. Suttle (1979) 90 Cal.

App.3d 572, 153 Cal.Rptr. 409, a case in which a witness

was asked to view a number of pictures after the defendant

had been arrested, the court held that reference to the Neil

v. Biggers criteria is not required in a situation where the

pretrial identification procedure was not initially shown to

be so suggestive as to lead to misidentification. The court

also stated that:

“Appellant does make the novel assertion that a

corporeal lineup should have been employed since he

was already in custody. He contends that ‘identifica-

tion from a still photograph is substantially less reli-

able than identification of an individual seen in person.’

(People v. Gould (1960) 54 Cal.2d 621, 631 [7 Cal.Rptr.

273, 354 P.2d 865].) The Supreme Court in Gowd cited

Wigmore’s treatise on Evidence for the quoted proposi-

tion. While we do not contradict such a source, it ap-

pears to us that the question regarding the reliability

of identification procedures has always been whether

the particular procedure employed is suggestive on the

one hand, or reliable on the other. There is no require-

ment, constitutional or otherwise, that the most reliable

technique be used. Here, since the photo identification

was not suggestive, we will not go further by holding

that a corporeal lineup should have been used since

appellant was in custody and that his constitutional

rights were violated because the police failed to do so.”

Our conclusion that the Ninth Cireuit was ineorrect in

holding that necessity fur the use of photographic identifica-

tion procedures enters into the determination of whether

their use in a particular case violated a defendant’s due

process rights is fortified by reference to the nature of the

due process interest involved. This Court’s cases were

aimed at protection of his interest in excluding evidence

which is especially unreliable. It is the likelihood of mis-

identification which violates his right to due process. Thus,

the ultimate focus should be on the reliability of the

evidence, which is the “linchpin” in determining the admis-

sibility of identification testimony following pretrial con-

frontations. Necessity or lack of necessity for use of a

particular pretrial identification procedure simply has no

bearing on its reliability and thus should have no place in

the determination of admissibility of subsequent identifica-

tion testimony.

A simple hypothetical illustrates this point. Assume a case

identical in all respects to the instant case, with the excep-

tion that immediately after the crime defendant Mata and

his codefendants escaped from prison and remained at large

until after October 27. They were then apprehended some

distance away from the prison but were hospitalized be-

cause they were gravely ill. New photos of them were taken

and were included in the group shown to the witnesses on

October 30. These additional facts would probably convince

the Ninth Cireuit that it was “necessary” to use photo-

graphic identification procedures. This, in turn, would have

a significant bearing on the resolution of their claims that

the pretrial identification procedures violated due process.

But these additional circumstances, assuming that they

were not known to the witnesses, would have no conceivable

bearing on their decision to select a particular photograph.

They would not alter the degree of suggestiveness present

in the photographic identification procedures or the chance

that an improper selection would be made.

B. The Court of Appeals Applied an Incorrect Standard

in Determining Whether There Was a Substantial

Likelihood of Irreparable Mistaken Identification

The Ninth Circuit’s approach equates lack of necessity

for the use of photographic identification procedures with

impermissible suggestiveness and requires a court, without

a further showing, to proceed from a finding of lack of

necessity to application of the criteria for determining

whether the identification evidence possesses sufficient

aspects of reliability to justify its admission. But the test

applied is not the one first enunciated in Ned v. Biggers

and reaffirmed in Manson v. Brathwaite. Rather, the Ninth

Circuit applied the test established by the United States

District Court for the Eastern District of Missouri in a case

decided before Biggers and Manson. Parker v. Swenson

332 F.Supp. 1225, 1230-1231 (E.D.Mo. 1971). See also U.S.

v. Field, No. 79-1533 (9th Cir. Aug. 1, 1980).

Compare and contrast these disparate sets of factors:

(1) The opportunity of the 1. “The length of time and the

witness to view the crim- conditions under which a

inal at the time of the witness was able to observe

crime. the perpetrator during the

commission of the crime.

(2) The witness’ degree of 2. The similarity of the descrip-

attention. tion given by‘a witness im-

mediately after the crime to

the physical characteristics

of the individual he subse-

quently identifies. \,

(3) The accuracy of the wit- 3. Conduct on the part of the

ness’ prior description of police tending to focus at-

the criminal. tention of a particular sub-

ject.

(4) The level of certainty 4.

demonstrated by the wit-

ness at the confrontation.

Presence of other witnesses

at the time of the improper

identification and the pos-

sible prejudicial influence of

one witness’ opinion on an-

other’s recollection.”

Parker v. Swenson 332 F.

Supp. 1225, 1230-1231 (F.D.

Mo. 1971).

(5) The length of time be-

tween the crime and the

confrontation.

Neil v. Biggers, 409 U.S.

188, 199-200 (1972),

The Parker test is fatally defective in that under its fac-

tors (3) and (4) are included the very elements of sug-

gestiveness which are supposed to be placed to one side

in order to evaluate the independent basis for the identifi-

cation. It also fails to consider two of the five factors set

forth by this Court: the level of certainty demonstrated by

the witness at the confrontation, and the length of time

between the crime and the confrontation.

After applying the Parker test, the Ninth Circuit refers

to lack of “necessity” again—this time as a factor in its

determination of whether use of the photographie identifiea-

tion procedure was so impermissibly suggestive as to give

rise to a very substantial likelihood of irreparable misiden-

tification. 611 F.2d at 759. In so doing, it departs even

further from this Court’s decisions and the decisions of the

other circuits.

C. Conclusion

We share the Ninth Circuit’s belief that the appropriate

standard for determining the admissibility of evidence of

identifications made by witnesses who have participated in

pretrial confrontations with the persons or pictures of pos-

sible suspects consists of two parts. As was noted above, we

disagree with the Ninth Circuit’s definition of those two

parts. We submit that the initial focus of inquiry should

be on the pretrial confrontation and the circumstances sur-

rounding it with a view to determining whether that con-

frontation was so impermissibly suggestive that, all other

things being equal, it might reasonably be expected to lead

the witness to a mistaken identification. The focus of this

inquiry is on the degree of suggestion present in the partic-

ular procedures utilized.

This Court has stated that, as a general rule, corporeal

identification procedures are normally more accurate than

photographic identification procedures. Simmons v. United

States, swpra, at 386, n. 6. We have no reason to quarrel

with this general statement. However, it is also true that

any identification procedure has some greater or lesser

degree of suggestiveness. Although the police may at times

use “blank” identification procedures, in which the persons

or pictures of suspects have not been included, a witness

may well assume that they have not arranged an identifica-

tion procedure merely to waste time. He may well assume

that the police have some reason to believe that at least one

of the individuals whose person or picture he will view

might be involved in the crime. At the very least, he may

assume that the individuals before him may share some

characteristic which indicates that they might conceivably

be involved in the crime. Any such procedure is also “sug-

gestive” in the sense that, for the moment at least, the wit-

- ness’ attention has been directed to a finite number of per-

sons or pictures, to the exclusion of all others.

The determination of impermissible sugge<tiveness is not

subject to generalities. It does not matter that corporeal

identification proceedings may, as a general rule, be more

accurate than photo identification procedures. Photo iden-

tification procedures may be scrupulously fair. A physical

lineup may consist of a giant and seven dwarves. Gener-

alities simply do not assist in the resolution of these par-

ticular cases.

Only if it appears that the identification procedures

actually used were impermissibly suggestive in that they

singled out a particular suspect in such a manner as to give

rise to a substantial likelihood that he could be misidentified

does it become necessary for a court to apply the second

part of the test for determining whether there has been a

denial of due process. This part of the due process test is

also a practical one, based on the facts of the particular

ease. It asks whether in fact there has been a very substan-

tial likelihood of misidentification. The factors enunciated

in Neil v. Biggers and Manson v. Brathwaite are considered

at this point, as well as any other circumstances bearing

on the likelihood of misidentification.

Thus, we adhere to the standard enunciated by the Second

Cireuit in cases such as United States v. Evans, supra,

and by the Fifth Circuit in cases such as United States v.

Gidley, supra, as being faithful and practical applications

of the teachings of this Court’s cases.

Such a standard is in harmony with this Court’s general

statement in United States v. Ash (1973) 413 U.S. 300, 321:

“We are not’ persuaded that the risks inherent in

the use of photographic displays are so pernicious that

an extraordinary system of safeguards is required.”

It is also in harmony with the notion that the due process

clause, to the extent that it should be applied to exclude

identification evidence, should be result-oriented. Thus, it

should be applied to exclude otherwise admissible evidence

only when it appears that there has been a very substantial

likelihood of irreparable misidentification. As stated by the

Chief Justice in his dissenting opinion in Brewer v.

Williams (1977) 430 U.S. 387, 425:

“Recognizing that ‘[i]t is the likelihood of misidenti-

fication which violates a defendant’s right to due pro-

cess,’ Neil v. Biggers [supra, at 198], we exclude

evidence only when essential to safeguard the integ-

rity of the truth-seeking process. The test, in short,

is the reliability of the evidence.”

For the reasons stated in our previous argument, we

believe that the Ninth Circuit’s application of an erroneous

standard led it to an erroneous result and that application

of the proper standard must lead to a conclusion that

defendant Mata was not denied due process by reason of

the admission of identification evidence at his trial.

CONCLUSION

For the foregoing reasons, we respectfully submit that

the decision of the Court of Appeals should be reversed and

defendant’s petition for writ of habeas corpus be denied.

Dated: August 26, 1980.

Grorce DEUKMEJIAN DeraLp EK. GRaNnBERG

Attorney General of the Deputy Attorney General

State of California

Rosert H. Purirosian THomas A. Brapy

Chief Assistant Attorney General— Peputy Attorney Gener al

Criminal Division

JAMIE Jacoss-May

’

Epwarp P. O’Brien Deputy Attorney General

Assistant Attorney General

Guortia F. DeHarr COUNSEL OF RECORD

Deputy Attorney General Attorneys for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.