Respondents Brief — Sumner v. Mata

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Supreme Court, U.S,

FILED

NOV 7 1980

No. 79-1601 |

K, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

GEORGE SUMNER, Warden of the California

State Prison at San Quentin,

Petitioner,

ROBERT MATA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIPCUIT

BRIEF FOR THE RESPONDENT

QuIN DENVER

State Public Defender

Ezra HENDON

Deputy State Public Defender

(Court-Appointed Attorney for

Respondent)

1390 Market Street, Suite 425

San Francisco, California 94102

(415) 557-1600

Attorneys for Respondent.

Washington, O.C. © THIEL PRESS © (202) 636-4521

(t)

QUESTIONS PRESENTED FOR REVIEW

Whether a party may litigate procedural questions

before this Court that have either never been raised

below or have been raised only after decision in the

Court of Appeals and therefore have not been

reached by the Court of Appeals.

Assuming such questions can be decided by this

Court, whether a defendant convicted in state court

is barred from obtaining review on federal habeas

corpus under Wainwright v. Sykes, 433 US. 72

(1977), where, despite a failure to object at his trial

in state court, the state appellate court reaches and

decides his contentions on their merits.

Ill

Again assuming the question can be reached in

this Court, whether a federal Court of Appeals’ con-

clusion that an _ identification procedure is unduly

suggestive and so unreliable as to offend federal due

process constitutes a mixed question of fact and law

which a federal court is obliged to decide inde-

pendent of any state court determination, or

whether it is a finding of fact as to which a federal

court must, under 18 USC section 2254(d), defer to

state court.

(it)

Whether under this Court’s totality of the circum-

stances test in eyewitness identification cases, a court

may consider the unnecessary failure of police offi-

cials to conduct a line-up when the identifying wit-

ness insists that a line-up is the only reliable method

of identification.

Whether, under this Court’s totality of the circum-

stances test in eyewitness identification cases, a court

may consider conduct of the police tending to focus

the witness’ attention on a particular subject.

Whether the identification procedures utilized in

this case were unduly suggestive and unreliable.

(itt)

TOPICAL INDEX

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ARGUMENT

I, Because Petitioner Has Failed To Raise His

Procedural Arguments In A Timely Fashion

Below, This Court Should Not Consider

Them. If The Court Does Reach The Merits

Of Petitioner’s Procedural Arguments They

EL ee 10

A. Trial Counsel’s Failure to Object to the

Photo Identifications in State Court.......... . 10

1. Because the Failure to Object Was

Never Argued Below as a Basis for

Binding There Had Been No Exhaus-

tion, it Cannot be Advanced Here .......... 11

2. Assuming the Court Can or Should

Hear the Argument on its Merits,

There is No Principled Reason to Hold

that a Defendant Fails to Exhaust His

State Remedies When a State Appellate

Court Reaches a Federal Constitutional

Question Which Was Not the Subject of

Objection in State Trial Court ............ 14

B. The Court of Appeal’s Alleged Failure to

Defer to State Court Findings of Fact ......... 17

Il. Because The Unnecessary Failure To Conduct

A Line-Up Was, On The Facts Of This Case,

Relevant To The Question Whether The Wit-

ness’ Identifications Were The Product Of Sug-

gestion And Were Unrealiable, The Court of

Appeals Properly Considered Such Lack of

EE EO er ara eae ee 20

A. The Totality of Circumstances Test as

Applied in This Court and as Under-

stood by the Ninth Circuit Permits Con-

III.

(tv)

sideration of All Factors Relevant to

Reliability *e5roee * ¢© @ @ ee 0@ @e#eee#eee#ee# # @

B. Necessity Has Been Considered as Part of

the Totality of the Circumstances in the

Identification Cases of This and Other

C. On This Record, The Unnecessary Failure

To Conduct A Line-up Was A Factor

Related To Reliability ............. °

The Court Of Appeals Properly Considered

Polict Conduct Tending To Focus The Wit-

ness’ Attention On A Particular Subject .

IV. The Court Of Appeals Correctly Decided

That The Identification In This Case Was

SEE Al add oe b Ob 6s oy eb we 4 ot

CONCLUSION ..ccccccervvresssccccns

TABLE OF AUTHORITIES CITED

Cases:

Brown v, Allen, 344 U.S. 443 (1953).......

California v. Taylor, 353 U.S. 553 (1957) ...

Clemons v, United States, 133 U.S. App. D.C.

27, 408 F.2d 1230 (D.C. Cir. 1968)......

Coleman v. Alabama, 399 U.S. 1 (1970) ....

Curry v. Wilson, 405 F.2d 110 (9th Cir. 1968)

cert, denied 397 U.S. 973 (1970) .......

Cuyler v. Sullivan, _. U.S. —— , 64 L.Ed.2d

Bh rr eer ee ees | a

Dorszynski v. United States, 418 U.S. 42

ti}. Parana eae erway aed aa ae ee

Duignan v. United States, 274 U.S. 195 (1927)

Fay v. Nota, 372 U.S. 391 (1963) .........

Flemmi v. Gunter, 410 F.Supp. 1361 (D.

Rhames BOPG) 6 cae t ee ck eénc ee aes eves

(v)

Cases, continued: Page

Foster v. California, 394 U.S. 440 (1969) .......... 25, 40

Frank v. Blackburn, 605 F.2d 910 (5th Cir.

BPP & 5 io the Oe S64 el eee Oo eS DS 8 26, 27, 35

_ Government of Virgin Islands v. Petersen, 553

Puma B26 (SE CR, 1977). 6 vc ev ccc seccnce serene 26

Green v. Loggins, 614 F.2d 219 (9th Cir. 1980)....... 23, 42

Gunsby v. Wainwright, 596 F.2d 654 (1979),

cert. denied, 100 S.Ct. 307 (1980)..........000 ees 19

Hale v. Henderson, 485 F.2d 266 (6th Cir. 1973) ....... 14

Imbler v. California, 424 F.2d 631 (9th Cir.

1970), cert. denied, 400 U.S. 865 ....... ce eee wees 18

Irvin v. Dowd, 359 U.S. 394 (1959) 2... eee ee we eee 14

Israel v. Odom, 521 F.2d 1370 (7th Cir. 1979)......... 26

Jenkins v. Anderson, __. U.S. —_., 65

Rie RO OG {(20GS). pee eds deca pviniccveces 11, 12

Lamb v. Zahradnick, 452 F.Supp. 372 (D. Va.

BPTEE dha adic Ur SSeS a COWS CE eee eee ones e 19

Manson v. Brathwaite, 432 U.S. 98 (1977) ......... passim

Mason v. Balcom, 531 F.2d 717 (5th Cir. 1976) ........ 18

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

cert. granted, 65 L.Ed.2d 1139 (1980)............. 23

Mock v. Rose, 472 F.2d 619 (6th Cir. 1972),

cert. denied, 411 U.S. 971 (1973) .........006.. passim

Neil v. Biggers, 409 U.S. 188 (1972) . 1... cee eee eeee 34

Palmer v. Peyton, 359 F.2d 199, 201 (4th Cir.

| Ee ee aren rar eon ar ee a dvaewteee 25

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

1971), cert. denied, 409 U.S. 1126 (1973) .......... 34

Partida v. Castenada, 524 F.2d 481 (5th Cir. 1975),

affirmed sub nom. Castenada v. Partida, 430 U.S.

8 ey rer re ee ie a ae ae ee ee 14

People v. Andrews, 14 Cal.App.3d 40, 92 Cal.Rptr.

ED (1904S) cc cccvessvevesccsnesosseccoccees 16

(vt)

Cases, continued: Page

People v. Chambers, 231 Cal.App.2d 23, 41

Cal.Rptr. 551 (1964) ...... Terrrrrereree eesee

People v. Ibarra, 60 Gal.2d 460, 340 Cal.Rptr.

te eee ee ooo ereccooes we eeees 16

People v. Kramer, 227 Cal.App.2d, 38 Cal.Rptr.

487 (1964) 7 a i a Ae oe oe oe ee oe Oe oe Oe e*enre#e#e e@eee@geedesd sie © 16

People v. Mahoney, 201 Cal. 618 (1927) ......... sooo

People v. Matteson, 61 Cal.2d 466, 39 Cal.Rptr.

Uit gerererrere eer ee ee Toereere Ceebevone's 16

People v. Underwood, 61 Cal.2d 113, 37

Cal. Rptr. 519 (1964)... . cc cccccccvcsesbecccces 16

Rummel v. Estelle, __ U.S. —— , ~~. n.7, 63

L.Ed.2d 382, 100 S.Ct. 1133 (1980) ....... eeceses 12

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

Smith v. Coiner, 473 F.2d 877 (4th Cir. 1973)

cert. denied, 414 U.S. 1115 (1974) ......... eee eee 33

Smith v. Digmon, 434 U.S. 332 (1978) 2.1... ee renee 11

Stovall v. Denno, 388 U.S. 293 (1967).......... 23, 32, 33

Townsend v, Sain, 372 U.S. 293 (1963) 2... 2. eee eee eee 18

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

a ee er eae oreo rye TTerEre 27

United States v. Ballard, 423 F.2d 127 (5th

C.. BOFED ci cee Whee ee renee eb netsocoreneses 27

United States v. Barnes, 610 F.2d 888 (D.C.

he. 207TD) ek cas TER CEC TCT COTTE L LE gensec 17

United States v. Baxter, 492 F.2d 150 (9th

Caer BOTS) o vacccen cece. WER OHeeDA eee ene ede 26

United States v. Calhoun, 542 F.2d 1094 (9th

Cir.), cert, denied, 429 U.S. 1064 (1976) ..........-. 26

United States v. Cook, 608 F.2d 1175 (9th Cir.

1979), cert. denied, 100 S.Ct. 706 (1980) .......... 23

United States v. Crawford, 576 F.2d 794 (9th

Cir.) cert. denied, 439 U.S. 851 (1978) .......5-44. 26

(vii)

Cases, continued: Page

United States v. Dailey, 524 F.2d 911 (8th Cir.

Riis ek wk ek oe ew he an whee kbs Wo F¥ dae 26, 36

United States ex rel. Kirby v. Sturges, 510 F.2d

$97 (7th Cir.), cert. denied, 421 U.S. 1016

NE itera Be Mtg wth bk: bra www lad wa ERC ab 25, 27

United States v. Field, _ F.2d —_ (No. 79-1533,

mam Gor Amgeet, B9OG. ovo ac cccsccces 22, 36, 39, 42

United States v. Lovasco, 431 U.S. 783 (1977) ....... 11, 18

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

Cir. 1977), cert. denied, 484 U.S. 1015 ............ 27

United States v. Mears, 614 F.2d 1175 (8th Cir.

I 5380 GA dh Pe 6 Ak 8 sk 6 Won 0 8 8 Oe 35

United States v. Peele, 574 F.2d 489 (9th Cir.

a a ee aren yey ee ee a eee 26

United States v. Pheaster, 544 F.2d 353 (9th Cir.

1976), cert. denied, 429 U.S. 1099 (1977) .......... 26

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

1979) = @ C-e.o oe 3 hs -e 2 Ho se | e*enreee#ee#esee#ee#*# mn i ee a me $5

United States v. Santana, 427 U.S. 38 (1976) .......... 11

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

Cir. 1970), cert. denied, 409 U.S. 1078 ............ 27

United States v. Valdivia, 492 F.2d 199 (9th Cir.

1973), cert. denied, 416 U.S. 940 (1974) ........... 26

United States v. Wade, 388 U.S. 218 (1967) ......... 35, 42

United States v. Williams, 615 F.2d 585 (3d

= ave Teer. eT PPL CRT TEER EERE ETE 17

Wainwright v. Sykes, 433 U.S. 72 (1977) ..........- passim

Warden v. Hayden, 387 U.S. 294 (1967). .......20006- 14

West v. Louisiana, 478 F.2d 1026 (1973) .........2.46. 18

Texts:

Borchard, Convicting the Innocent (1933); repr.

a eS eee ee ey ee ae ee ee 52

(vit)

Texts, continued: Page

Buckhout, The Mistaken Seven: Eyewitness Identifi-

cation of the “Gentleman Bandit”, 7 Crim.

Defense 5 (1960) . 2.6.4.6. eee eee TT ee eee eee 52

Comment, Photographic Identification: The Hid- _

den Persuader, 56 lowa L. Rev. 408 (1970).......... 28

Frankfurter, The Case of Sacco and Vanzetti

Ce SE oh eine ace acewlet th 6 rré se 6 tes 52

Grano, Kirby, Biggers and As e: Do Any Constitu-

tional Safeguards Remain Against Convicting the

Innocent? 72 Mich, L, Rev. 717 (1974) ......... 28, 29

Libling, The Use of Photographs for the Purpose of

Identification, 1978 Crim. L, Rev. 343 .........2.4.4. 28

Loftus, Eyewitness Testimony (1979). ....... 41, 48, 49, 52

Napley, Problems of Effecting the Presentation

of the Case for a Defendant, 66 Col. L.

es NOE obec ek ace kee eck pce ee sene 42

Sussman, Sugarman & Zavala, A Comparison of

Three Media Used in Identification in Pers-

onal Appearance Identification XI-7 A.

CE as oak 6 6 5 Oe eek 6 6068 68 0:8 29

Uelman, Testing the Assumptions of Neil v. Biggers:

An Experiment in Eyewitness Identification, 8

ee ee eee eee eee ee 48, 52

Wall, Eyewitness Identification in Criminal Cases

CE ph ilec hes Rede eeCO RCO eH eee See 28, 42, 45, 50

Williams and Hammelman, Identification Parades

See Gs Ba Ne EO Se ce eee eee eee teases 28

Yarmey, The Psychology of Eyewitness Testi-

SE Se Cee 6 6K). 0 66.6 be 6 86s 0 e684 ees 36, 49

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

_ No. 79-1601

GEORGE SUMNER, Warden of the California

State Prison-at San Quentin,

Petitioner,

Vv.

ROBERT MATA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT

Respondent accepts the recitations in the Brief for

Petitioner covering the opinion below, the jurisdic-

tzonal basis for this Court hearing the case, the

constitutional and statutory provisions involved, and

the chronology of the statement of proceedings in

state and federal court.

STATEMENT OF THE CASE

A.Statement of Facts

Respondent, Salvador Vargas and David Gallegos

were convicted of first degree murder in Kern

County Superior Court for the killing of Leonard Arias

while all were inmates at the California Correctional

Institute at Tehachapi, California (hereinafter

“Tehachapi”). The killing was alleged to have occurred

on October 19, 1972.

No murder weapon was ever found, and no physical

evidence existed linking any of the defendants to the

murder.! The prosecution’s case rested almost entirely

on the testimony of three inmates, Rigoberto Almen-

gor, Florence J. Allen and Paul Childress, who claimed

to have witnessed the homicide.

The identifications made by the witnesses occurred

after a series of photo identification sessions, which are

discussed in detail in the body of the argument of this

brief. The evidence presented at trial was as follows.

Childress was confined to the same dormitory in

Tehachapi as Arias, Almengor and Allen. He testified

that on October 19, 1972 as he emerged from the

bathroom in the dormitory he saw a scuffle involving

only Arias and the three defendants. He testified that

he knew both Almengor and Allen and that he did not

see either one of them at the scene. (J.A. 29; RT 328.)

Although. he claimed to have a clear view of the

incident, he saw no knives being wielded, and in fact

did not know a knife fight was in progress until he saw

l Although clothes, a knife, and grass shears were found (RT

659, 660-61) no testimony was presented linking these itcms to

the defendants.

a knife fall to the floor (J.A. 29-30; RT 330). He

testified that upon seeing the incident, he went back to

his own bunk, put away the belongings he had taken

with him to the bathroom and stood up. This all

consumed about two or three minutes and only after

this did he see the assailants fleeing the scene (J.A. 31;

RT 346). At first Childress said nothing to anyone

regarding what he had seen. However, after being

approached by a group of males of Mexican descent,

Childress became nervous and went to the authorities

(RT 283-84, 948). He indicated the nickname and the

first name of two of the people he thought had

committed the crime (J.A. 21; RT 285) and the officer

in charge took single pictures of Mata and Gallegos out

and asked Childress if these were the men he had in

mind (RT 676). Childress agreed that they were and

then went through a rolodex of inmate pictures and

chose Vargas as the third assailant. At trial, Childress

indicated that on October 19 Gallegos did not have a

mustache (J.A. 24; RT 287). Exhibit 24 which includes

a photograph of Gallegos taken on October 27 shows

Mr. Gallegos with a mustache. Childress was placed in

segregation after he identified the defendants. While

there he saw all three defendants (J.A. 25; RT 289).

Childress’ story is impeached in important respects

by Almengor and Allen both of whom testified that

they were “‘shoulder to shoulder” with Arias at the

time of the killing. In addition, Gary Darke, who

occupied the bunk nexg to Childress at the time of the

incident testified that when the stabbing occurred he

and Childress were actually playing cards and were out

of the view of the killing (RT 1093).

Almengor testified that he was on parole at the time

of the trial (J.A. 31; RT 366). He did not go to the

investigating authorities willingly but was taken into

their custody as a suspect. After the killing he found

his clothing covered with blood (J.A. 47; RT 385). At

that point he went back to the area of his own bed,

changed immediately into a full set of different clothes,

took off his shoes, and threw them a few bunks away.

He then went into the restroom, washed his hands,

using a ruse with one of the guards to do so. (J.A. 48;

RT 385-86.) When the officers searched the dormitory

and found the pants which had been discarded, Almen-

gor still did not come forward. He waited until guards

tried his pants on sixteen other inmates, and ultimately

proved to fit only him before he volunteered that he

would be “glad” to assist the officers. (J.A. 58; RT

396.) Almengor indicated that he was near-sighted and

not wearing his glasses. (J.A. 67; RT 450.) He also had

a long history of glue sniffing and had in fact been

apprehended on three separate occasions sniffing glue

while at Tehachapi (J.A. 66; RT 449).

Almengor stated that the witnesses standing by the

bulletin board turned around “real fast” (J.A. 37; RT

376.) Almengor took a few steps away from the victim

and as the attack started the only inmate he was

looking at was the ‘‘third man,” the “‘tall one” thought

to be Vargas. As the fight broke out he saw the third

individual “‘slooped and pulled away” (J.A. 40-1; RT

379-80), saw stabbing motions being made quickly at

Arias and heard Allen screaming for people to come

help (J.A. 46; RT 383). At this same moment,

Almengor testified that Mata appeared to “rush me

with a knife” (J.A. 40-1; RT 380). Almengor defended

himself by blocking the blow and throwing a kick

which pushed the assailant quickly to the door at the

other end of the corridor at least six feet away (J.A.

41; RT 380). At this point Almengor indicated that he

looked eye to eye at his assailant. (J.A. 115; RT 742.)

The attacker then turned and ran out, his back toward

Almengor.

Allen was a’member of the Nuestra Familia (J.A.

186; RT 1157). He was also on parole at the time of

the trial (RT 583). He testified that he was right next

to Arias when the incident happened (J.A. 75; RT 586)

and was distracted at the time of the attack. His

testimony was that he was “glancing up” while button- _

ing his denim jacket when the attack on Arias broke ©

out (J.A. 79, 75; RT 612, 586). Once the fight started,

Allen’s main purpose was in his words “trying to keep

from getting killed.” (J.A. 75; RT 586.) He stated that

he did not see Mata or Gallegos “‘that good” (J.A. 76-7;

RT 587) since the third man, identified as Vargas,

leaped at Allen and jabbed his knife toward him,

cutting Allen’s sleeve and scratching the skin on his

forearm. Allen stepped back a few steps and started

yelling for help (RT 389). Allen testified that his

attention during the fight was drawn to the man with

the big knife who “pretty well occupied [his] atten-

tion” and that he was “looking at the knife” rather

than the face of the assailant (J.A. 80; RT 614).

All three witnesses and all three defendants were

placed in segregation after the incident. They remained

in segregation at least until the 30th of October. During

this period of time inmates were led out to an exercise

area one at a time and could be viewed by the other

segregated inmates. (RT 361, 441, 594.) The prosecu-

tion also called Carlos Ortega who testified that Mata

and Vargas had approached him prior to the arrival of

Arias and asked that Arias be “hit.” He testified that he

tried to “cool it” with Mata and Gallegos. Ortega

admitted that he had committed perjury on other

occasions in court, that he had himself stabbed people

(RT 882) and that he had testified in another proceed-

ing in Los Angeles and that in that proceeding the

subject of the October 19, 1972 Tehachapi killings had

come up and that Ortega had never mentioned that any

of the three defendants had been involved in the

incident. He had, however, named “Bogus Pete” Nunez,

a figure initially identified by Almengor, as one of the

killers (RT 872). Moreover, Ralph Renteria, chairman

of a prison-sanctioned organization for inmates of

Mexican descent disputed Ortega’s entire account of the

history of the Mexican Mafia, of Ortega’s knowledg-

ability of the Mexican Mafia, and of Ortega’s self

proclaimed role as “chief” of the Mexican Mafia (RT

1067).

The defense called the following witnesses: Jerry

Wayne Sanford who testified that he was asleep in his

bunk when he was awakened about 1:45 p.m. and told

that there had been a stabbing. When he woke up Mata

was sitting on Mata’s own bed playing chess with an

inmate with whose name he believed to be Russell (RT

1016). In his closing argument the district attorney

admitted that “I don’t really have anything damaging to

say about [Sanford] ” (J.A. 180; RT 1279).

Similarly William Bustills about whom the district

attorney also conceded he had no adverse information

(J.A. 180; RT 1279) testified that after lunch and

before recall on October 19 Mata was playing cards

about three bunks away from Bustills’ bunk with a

“white boy” named “Russ.” (RT 1106.) In addition,

the defense called a court-appointed licensed investi-

gator named James Leon Faulkner who recounted an

interview he had had with Allen on November 22,

1972, in which Allen had indicated that the jackets of

the assailants were pulled up and the hats were pulled

down, that only one had a mustache, that he was

unable to identify any of them and that indeed they

might even have been Caucasian. (J.A. 175; RT 1117.)

According to Faulkner, Allen had “‘stated that at this

time, that from the time the incident occurred until the

time I interviewed him, that he had never gotten a

look; he had never been able to observe any of the

assailants to the extent where he could identify them.”

(J.A. 176; RT 1118.) Faulkner stated that Allen had

told him that he had seen all three defendants being

taken out of segregation together at one time to be

rephotographed and that “he assumed that since they

were the only ones in segregation that they were on the

chart, the photographic chart he was shown at a later

time—that they must be the ones that did it.” (J.A.

177; RT 1119.) Faulkner further stated that Allen had

told him that he was “‘due to be released, and that if he

didn’t cooperate with the people from the Department

of Corrections that he wouldn’t be released at his date

that he was due.” (J.A. 178; RT 1119.) Mata also

called Reuben Lec: Schoo who confirmed the testi-

mony of the two prior inmates that Mata was in his

dorm playing chess with Russell at the time of the

incident. (RT 1128 et seq.)

SUMMARY OF ARGUMENT

Petitioner’s Procedural Arguments

Petitioner has failed to present either of his pro-

cedural arguments to the Court of Appeals in a timely

fashion. Under principles long-settled in this Court,

petitioner is therefore not entitled to review of the

procedural questions he tenders here. Not until the

petition for writ of certiorari did petitioner contend

that Wainwright v. Sykes, 433 U.S. 72 (1977) precluded

review of the eyewitness identification contention re-

spondent advanced in the lower courts. The argument

that 18 USC section 2254(d) precluded the federal

courts from relitigation of what petitioner deems to be

state court findings of fact was not presented to the

Court of Appeals until the Petition for Rehearing.

Under these circumstances petitioner’s arguments should

not be considered by this Court.

On their merits the procedural arguments have no

substance. Where a state appellate court reaches the

merits of a contention that was not the subject of an

objection at trial, the state court has construed state

law to forgive the failure to object. No principle of

comity or federalism requires a federal court to invoke

the state’s contemporaneous objection rule under such

circumstances.

Even if petitioner’s argument based on 18 USC

section 2254(d) could be reached on its merits, that

section has no relevance here. Section 2254(d) requires

federal court deference only to a state court’s finding

of primary historical fact. It does not require deference

to the conclusions to be drawn from those facts. In this

case the Court of Appeals’ decision involved only legal

conclusions such as whether the procedures used were

“suggestive” or whether the witnesses were “unduly

influenced” or whether the identification process was

constitutionally ‘‘fair.”’

Petitioner’s Arguments on the Merits

Petitioner has adopted a wooden approach in the

face of the flexible rules established by this Court in

eyewitness identification cases. In Manson v. Brath-

watte, 432 U.S. 98 (1977) and Neil v. Biggers, 409 U.S.

188 (1972) this Court required that all factors consid-

ered by a couri passing on the constitutional propriety

of a particular eyewitness identification be tied to

reliability. But in passing on those factors all circum-

stances related to reliability were to be considered.

Notwithstanding this test, petitioner has argued that in

no case should a court be permitted to consider the

unnecessary failure to conduct a line-up, or the conduct

of police officers conducting the identification which

might have focused the witness’ attention on a particu-

lar individual, or the presence of other witnesses at the

time the identification is made. Petitioner’s approach is

at odds with the “totality of the circumstances”’ test

adopted in Manson, Neil and earlier cases in this Court.

This case illustrates the point. For example, here one

of the witnesses insisted he could not make a valid

identification from photographs but had to see a

line-up. Under circumstances such as that, it-is obvious

that the failure to conduct a line-up is relevant to the

question of reliability. The witness himself is saying

that the photographs are in effect unreliable and that a

line-up would be reliable. That fact surely is relevant

and ought to be considered by a court.

The fact is, the Court of Appeals had no choice but

to reverse this conviction. The identification procedures

were unnecessarily suggestive and led to an extraor-

dinarily unreliable identification.

ARGUMENT

BECAUSE PETITIONER HAS FAILED TO RAISE HIS

PROCEDURAL ARGUMENTS IN A TIMELY FASHION

BELOW, THIS COURT SHOULD NOT CONSIDER THEM.

IF THE COURT DOES REACH THE MERITS OF PETI-

TIONER’S PROCEDURAL ARGUMENTS THEY SHOULD

BE REJECTED.

Petitioner’s handling in the lower courts of the two

procedural arguments he tenders here has been incon-

sistent, confused, and misleading to those courts. His

first procedural argument is raised for the first time in

this Court and his second was not presented in the

Ninth Circuit until after the case had been decided.

Under these circumstances, this Court should not

consider the arguments.

Although petitioner’s failure to preserve his pro-

cedural arguments disposes of them, we nonetheless

demonstrate that on their merits the claims have no

substance. With respect to petitioner’s first argument we

see that the state Court of Appeal did review respon-

dent’s federal constitutional claim on its merits and

therefore that no principle of comity or federalism is

served by a federal court declining to review the claim.

With respect to petitioner’s second procedural argument

that the Ninth Circuit did not defer sufficiently to state

court findings of fact we point out that the decision

here under review resolved a question of “mixed law

and fact’? which the federal courts were obliged to

decide independent of any state court determination.

We treat petitioner’s procedural arguments seriatim.

A.Trial Counsel’s ailure to Object to the Photo

Identifications .n State Court.

Petitioner first contends that trial counsel’s supposed

deliberate tactical choice not to object to the sugges-

tiveness of the photo identifications at trial should be

deemed a failure to exhaust remedies notwithstanding

the fact the California Court of Appeal disposed of the

identification question on its merits. Before demon-

Strating that the contention enjoys neither the support

of logic nor the benefit of precedent, we point out that

this is the first court anywhere during this litigation

that has ever been presented with this argument. Under

these conditions the issue is not properly before this

Court and should not be considered by it.

1. Because the Failure to Object Was Never Argued Below as

a Basis for Finding There Had Been No Exhaustion, it

Cannot be Advanced Here.

The rule in this Court is that issues that have not

been briefed and argued in the courts below will not be

decided for the first time in the Supreme Court in the

absence of exceptional circumstances. See, e.g., United

States v. Lovasco, 431 U.S. 783, 788-89 n.1 (1977);

United States v. Santana, 427 U.S. 38, 41 n.2 (1976);

Dorszynski v. United States, 418 U.S. 424, 431 n.7

(1974); California v. Taylor, 353 U.S. 553, 557 n.2

(1957). See also Smith v. Digmon, 434 U.S. 332, 334

(1978) (Rehnquist, J. concurring).

In Jenkins v. Anderson, U.S. , 65 L.Ed.2d

86 (1980) this Court recently applied this principle to

the identical contention being advanced here. There as

here the state sought to argue that trial counsel’s failure

to object in state court precluded federal review under

Wainwright v. Sykes, 433 U.S. 72 (1977). Noting that

the state had failed to raise the Sykes question in the

lower federal courts, this Court declined to review it on

certiorari, stating:

“Considerations of judicial efficiency demand that

a Sykes claim be presented before a case reaches

this Court. The applicability of the Sykes ‘cause’

and ‘prejudice’ test may turn on an interpretation

of state law. See Rummel v. Estelle, U.S.

, n.7, 63 L.Ed.2d 382, 100 S. Ct.

1133 (1980). This Court’s resolution of such a

state law question would be aided significantly by

the views of other federal courts that may possess

greater familiarity with [state] law. Furthermore,

application of the ‘cause’ and ‘prejudice’ standard

may turn on factual findings that should be made

by a District Court. Accordingly, we do not

consider the Sykes issue in this case.” (65 L.Ed.2d

at 92 n.1.)

Jenkins is controlling here. In their return to the

District Court’s order to show cause, the Attorney

General made no argument that trial counsel’s failure to

object in state court in any way affected his right to be

in federal court on the identification question. (J.A. 00,

Return pp. 1-2, 6-10.) The only context in which trial

counsel’s failure to object was noted by the Attorney

General was in connection with Mata’s argument that

he had been denied the effective assistance of counsel

because no effort had been made at trial to suppress

the identification of witnesses Almengor and Allen (see

jJ.A. 184, 203, Petition for Writ of Habeas Corpus, U.S.

District Court, 16-18;:Return p. 14.) In that connection

the Attorney General made no argument that failure to

object had worked a “‘procedural default” against Mata,

but only that his failure to raise the incompetence tssue

on the direct appeal of his conviction to the California

——— 9

Court of Appeal was fatal in Federal Court. This

argument, ultimately rejected by the District Court and

never renewed in the Ninth Circuit, was of course

different from the argument petitioner now makes here.

Not only did the Attorney General fail to present the

lower courts with the argument he now makes here,

when requested by the District Court to certify whether

Mata had exhausted state remedies, the Attorney

General indicated: ‘‘we state that petitioner has ex-

hausted state remedies.” (See J.A. 206, Declaration of

Jamie Jacobs-May.) In the same document the Attorney

General cited Wainwright v. Sykes to the District Court

and argued from it for the first time that Sykes

foreclosed review of the competence issue and of

another issue Mata has since abandoned. Thus, although

petitioner was aware of Sykes and made arguments

from it, he certified to the District Court that there had

been sufficient state court exhaustion and he deliber-

ately made no Sykes argument on the identification

question.

When the case reached the Ninth Circuit no argument

was presented in appellee’s brief or in th’ Petition for

Rehearing and Suggestion for Rehearing En Banc that

trial counsel’s failure to object in any way precluded

the federal courts from reaching the merits of the

identification claim. Sykes was not cited at all in the

Ninth Circuit and no argument was presented on any

issue in that Court which even suggested there had been

a procedural default against Mata in state court. The

first appearance of the argument in any form therefore

was before this Court on the petition for writ of

certiorari.

As this Court noted long ago “This Court sits as a

court of review. It is only in exceptional cases coming

here from the federal courts that questions not pressed

or passed upon below are reviewed.” Duignan v. United

States, 274 U.S. 195, 200 (1927). There are no

exceptional circumstances in this case. Petitioner had

had every opportunity to present his claims below and

has not availed himself of those opportunities. This

Court should decline to reach the question on its

merits.

2. Assuming the Court Can or Should Hear the Argument

on its Merits, There is No Principled Reason to Hold

that a Defendant Fails to Exhaust His State Remedies

When a State Appellate Court Reaches a Federal

Constitutional Question Which Was Not the Subject of

Objection in State Trial Court.

As petitioner appears to recognize, the position he

urges here on the merits does not enjoy the support of

authority. For the cases in this Court strongly suggest,

and the cases in the Courts of Appeal directly hold that

state exhaustion requirements are satisfied when a state

appellate court has passed on the merits of a claim even

though the claimant had failed to object in the trial

court. See, e.g., Warden v. Hayden, 387 U.S. 294, 297

n.3 (1967); Fay v. Nota, 372 U.S. 391, 439 (1963);

Irvin v. Dowd, 359 U.S. 394, 406 (1959); Curry v.

Wilson, 405 F.2d 110, 112 (9th Cir. 1968), cert. dented

397 U.S. 973 (1970); Hale v. Henderson, 485 F.2d 266,

269 (6th Cir. 1973), cert. denied 415 U.S. 930 (1974);

Partida v. Castenada, 524 F.2d 481, 483 (5th Cir.

1975), affirmed sub nom. Castenada v. Partida, 430

U.S. 482 (1977). The position adopted by these cases is

bottomed on those principles of comity which formed

the basis for the exhaustion requirement in the first

place. As this Court noted in Fay v. Nota, supra, “‘it

would be unseemly in our dual system of government

for a federal district court to upset a state court

conviction without an opportunity to the state courts

to correct the constitutional violation.” It follows that

where the state court has passed upon the merits of a

claim, it has seized the opportunity to correct the

constitutional violation and that no principle of federal-

ism or comity requires the federal court to stay its

hand. In such a situation the state courts have pro-

nounced themselves untroubled by any defects in state

procedure and in so doing have, in effect, authorita-

tively construed a question of state law. In other words,

whether the failure to object in state trial court

forecloses review on the merits in a state appellate

court is obviously a question of state law.

Petitioner seeks to avoid the impact of these cases by

urging this Court to read the State Court of Appeal’s

ruling on the merits of the identification question as a

mere “gratuity.” (Brief for Petitioner, p. 22,) Relying

on California Evidence Code section 353, petitioner

contends that since under that statute a California

appellate court cannot reverse a conviction where there

has been no objection below, the State Court of Appeal

cannot “forgive” the procedural default created by the

failure to object at trial. Unfortunately, petitioner’s

predicate is wrong as a matter of state law.

Petitioner’s argument depends on the premise that

failure to object is a jurisdictional prerequisite to

reversal in California. For so long as the state court had

the power to reverse, it had the power to “forgive” the

default in failing to object. It is quite clear that the

failure to object in trial court is not a jurisdictional

prerequisite to reversal in California. While the usual

rule is that an objection is required, the rule has

numerous exceptions. See, e.g., People v. Andrews, 14

Cal.App.3d 40, 92 Cal.Rptr. 49 (1949) (prosecutorial

misconduct); People v. Mahoney, 201 Cal. 618, 621

(1927) (misconduct of trial judge); People v. Ibarra, 60

Cal.2d 460, 34 Cal.Rptr. 863 (1963) (counsel ignorant

of the law); People v. Kramer, 227 Cal.App.2d, 38

Cal.Rptr. 487 (1964) (defendant representing himself);

People v. Chambers, 231 Cal.App.2d 23, 41 Cal.Rptr

551 (1964) (one lawyer representing two clients);

People v. Underwood, 61 Cal.2d 113, 126, 37 Cal.Rptr.

313 (1964) (involuntary confession). Indeed, the Cali-

fornia State Assembly Committee’s comment to Evi-

dence Code section 353 specifically notes that the

section “is, of course, subject to the constitutional

requirement that a judgment must be reversed if an

error has resulted in a denial of due process of law.

People v. Matteson, 61 Cal.2d 466, 39 Cal.Rptr 1

(1964).”

In this case the Attorney General pointed out to the

state Court of Appeal that there had been a failure to

object in the trial court and that that failure should

foreclose review on the merits on the direct appeal.

(See J.A. 181, Respondent’s Brief in California Court of

Appeal Case No. 5 Crim. 1735, p. 9.) Fully aware of

that argument, the State Court of Appeal nonetheless

reached the merits. When a state appellate court speaks

directly to the merits of an appellant’s claim and in no

way acknowledges his failure to object in the trial court

we submit that it has resolved the objection question as

a matter of state law. In such a circumstance this Court

should treat the state court opinion as exactly what it

purports to be: a ruling on the merits. It is difficult to

see how the interests of either federalism or comity are

served by this Court’s dismissing as a “gratuity” what

to every outward appearance is a state court ruling on

the merits. To do so inevitably draws this Court into

resolving questions of state law contrary to the state

courts themselves,”

B. The Court of Appeal’s Alleged Failure to Defer

to State Court Findings of Fact.

Petitioner has pursued his argument that the feeleral

courts were required to defer to state court findings of

fact in much the same ‘“‘on-again-off-again” fashion as

he has his first procedural argument. Although the

argument was presented to the District Court (Return,

p. 6), it was not offered in the Ninth Circuit until after

the Court of Appeals had decided the case. Only at that

point was the 2254(d) argument tendered (Petition for

Rehearing and Suggestion for Rehearing En Banc, p.

12) and neither the majority nor the dissent in the

Court of Appeals ever reached or discussed the conten-

tion. Presenting issues for consideration in this cavalier

fashion is not, we submit, conducive to orderly

decision-making. When an issue is withheld from the

“Even if there was no state exhaustion, counsel’s failure to

object was not tactically based and therefore constituted ‘‘cause”’

within the meaning of Sykes. (See e.g., United States v. Williams,

615 F.2d 585, 591 (3d Cir. 1980); United States v. Barnes, 610

F.2d 888, 894 n.32 (DC Cir. 1979). The only detail with which

Almengor and Allen contradict Childress is that Childress failed

to place them at the scene. But there are a variety of other ways

they could have been placed at the scene. For example, both

told officers they were present and at least in Almengor’s case

the admission would have been admissible as against his interest.

In addition other inmates could have placed them both there

since both admitted they were walking shoulder to shoulder with

Arias.

Court of Appeals until the case is decided and that

Court does not decide the question, this Court has in

the past declined to reach it as well. See United States

v. Lovasco, supra, 431 U.S. at 788-89 n.1. We urge the

Court to follow that course here.

In any event, it is perfectly obvious that the Ninth

Circuit did not fail to presume as correct any “‘findings

of fact” that may have been made in state court. The

state court findings of fact which 18 USC § 2254(d)

presumes to be correct are “basic, primary, or historical

facts: facts ‘in the sense of a recital of external events

and the credibility of their narrators.’... So-called

mixed questions of fact and law, which require the

application of a legal standard to the historical-fact

determinations, are not facts in this sense.” Townsend

v. Sain, 372 U.S. 293, 309 n.6 (1963) quoting from

Brown v. Allen, 344 U.S. 443, 506 (1953) (Frankfurter,

J. concurring).

While deference to a state court’s determination of

the existence or non-existence of primary, historical

facts may be dictated by principles of comity and

judicial economy (see West v. Louisiana, 478 F.2d

1026, 1031-32 (1973) affirmed and adhered to in

relevant part in 510 F.2d 363 (5th Cir. 1975 (en

banc)), similar considerations obviously do not govern

conclusions of federal law drawn from those facts. In

the words of the Fifth Circuit in West, supra, “comity

does not govern the application by federal courts of

their independent judgment as to federal law. That is

their obligation in all cases....’ This view has been

uniformly followed in the lower federal courts. See,

e.g., Mason v. Balcom, 531 F.2d 717, 729 (5th Cir.

1976); Imbler v. California, 424 F.2d 631 (9th Cir.

1970), cert. dented 400 U.S. 865; Lamb v. Zahradnick,

452 F.Supp. 372 (D. Va. 1978).

Consistent with this view, this Court has held that

whether counsel undertook multiple representation is

not a question of fact (Cuyler v. Sullivan, U.S.

, 64 L.Ed.2d 333, 342 n.5 (1980)), and lower

courts have determined that such questions as whether

a confession was involuntary (Gunsby v. Wainwright,

596 F.2d 654 (1979), cert. denied 100 S. Ct. 307

(1980)), or whether suppressed evidence is exculpatory

(Flemmi v. Gunter, 410 F.Supp. 1361 (D. Mass. 1976))

are likewise not fact findings to which 2254(d) requires

deference.

The same principle applies to a conclusion from

primary historical facts of whether a given identification

procedure is unduly suggestive and this Court has held

as much in Neil v. Biggers, 409 U.S. 188 (1972). There

in an opinion by Mr. Justice Powell this Court reversed

the decision of two lower federal courts in an eyewit-

ness identification case over the objection of the

dissenters who claimed the majority’s action con-

travened the two-court rule under which this Court

traditionally defers to the factual findings of the lower

courts. In response, Justice Powell wrote:

“This rule of practice, under which the Court does

not lightly overturn the concurrent findings of fact

of two lower federal courts, is a salutary one to be

followed where applicable. We think it inapplicable

here where the dispute between the parties is not

so much over facts as over the constitutional

significance to be attached to them.”

A reading of the Ninth Circuit’s opinion in this case

demonstrates that it was faithful to these principles. All

the facts set forth in the opinion are drawn from the

record and do not contradict any finding of primary

fact made by the California Court of Appeal. The

number of photo spreads shown the witnesses, the

actual period of time the witnesses had to view the

assailants, the arrangement of photographs in the show

ups—all these are primary facts about which the state

Court of Appeal made no findings of fact. The con-

clusions of that court that the identifications were

not “suggested” or that the identifications were not the

result of “‘official pressure,” or that the procedures

were “fair” are precisely those ultimate conclusions of

federal law which the federal courts were required to

assess anew. If, as petitioner seems to suggest, the state

court’s conclusion that the procedures were inherently

fair is to be deemed correct under 2254(d), the

vindication of all federal constitutional rights will be

left entirely in the hands of a state court. Because

respondent believes no member of this Court is pre-

pared to accept such a novel proposition he is confident

the argument petitioner tenders here will be rejected.

BECAUSE THE UNNECESSARY FAILURE TO CON.

DUCT A LINE-UP WAS, ON THE FACTS OF THIS CASE,

RELEVANT TO THE QUESTION WHETHER THE WIT-

NESS’ IDENTIFICATIONS WERE THE PRODUCT OF

SUGGESTION AND WERE UNRELIABLE, THE COURT

OF APPEALS PROPERLY CONSIDERED SUCH LACK

OF NECESSITY. |

Petitioner urges the Court to hold that the availabil-

ity of the defendant for a physical line-up is never a

factor to be considered in passing on the constitutional

propriety of a photographic identification procedure.

The Ninth Circuit’s reliance on that factor in this case,

he argues, “resulted in an erroneous conclusion that the

defendant was denied due process of law....” (Brief

for Petitioner, p. 31.)

In this section of his brief respondent shows that

under this Court’s totality of the circumstances test any

factor which bears on the reliability of pretrial identi-

fication procedures may be considered by a court in

passing on the propriety of those procedures. We also

show that the use or non-use of a corporeal line-up can

be relevant to a determination of suggestiveness and

reliability, and that this is an example of such a case.

The opinions of this and other courts recognize that

identification procedures which would be questionable

under ordinary circumstances may be acceptable in the

face of exigent or unusual circumstances. In addition, if

no reason whatever exists for officers to utilize the

most reliable method available, an inference of manipu-

lation may in some cases be justified. Conduct by the

police amounting to manipulation of the identification

process is and always has been relevant to the ultimate

question of reliability. The Court of Appeal properly

inquired into the necessity for the authorities to forego

a line-up, and properly reversed the conviction.

A.The Totality of Circumstances Test as Applied

in This Court and as Understood by the Ninth

Circuit Permits Consideration of All Factors

Relevant to Reliability.

Manson v. Brathwaite, 432 U.S. 98 (1977), which

makes reliability “the linchpin in determining the

admissibility of identification testimony” (432 U.S. at

112) holds that reliability is a function of any and all

factors which may be relevant to that determination

and that each case is to turn on its own facts.

In Manson this Court faced a choice between two

approaches to the eyewitness identification problem. A

reading of the opinion in Manson makes it apparent

that the Court opted for the choice that was flexible

and that would permit a court to consider the great

variety of factors that present themselves in individual

cases. The “per se rule,” on the other hand, would have

excluded all unnecessarily suggestive identifications

without regard to whether they were otherwise reliable.

This Court rejected the per se rule because “its

application automatically and peremptorily, and with-

out consideration of alleviating factors, keeps evidence

from the jury that is reliable and relevant.” (432 U.S.

at 112.) The “totality of the circumstances” test was

described as an “ad hoc”’ one (432 U.S. at 110), which

looked to the five factors enumerated in Neil v. Biggers,

supra, and noted that these factors “included” those to

be considered by a reviewing court (432 U.S. 114).

Finally, the court noted that “[a] gainst these [Neil v.

Biggers factors] is to be weighed the corrupting effect

of the suggestive identification itself.” {Jbid.)

Neil v. Biggers is likewise bottomed on a “weighing

[of] all the factors” (409 U.S. at 201) relevant in a

given case to the question of reliability. The five

considerations listed by Biggers were not offered as

exclusive ones as this Court made clear when it again

noted that “the factors to be considered in evaluating

the likelihood of misidentification include” the five

enumerated factors. 409 U.S. at 199 (emphasis added).

This reading of the totality of the circumstances test

is thoroughly understood in the Ninth Circuit. In

United States v. Field, F.2d , (No. 79-1533,

9th Cir. August, 1980), the Ninth Circuit noted this

Court’s injunction in Simmons, supra, 390 U.S. at 384,

that “each case must be considered on its own facts”

and stated that Circuit had ‘followed this articulation

of the due process standard [stated in Simmons] in

numerous cases” including Mata v. Sumner, 611 F.2d

754 (9th Cir. 1979), cert. granted 65 L.Ed.2d 1139

(1980). See also, e.g., United States v. Cook, 608 F.2d

1175 (9th Cir. 1979), cert. denied 100 S. Ct. 706

(1980) (‘each case must be considered on its own

facts”). The Field court than made clear the considera-

tions which govern its review of eyewitness identifi-

cation questions as follows:

“Our review of the District Court’s admission of

the in-court identifications ... focuses exclusively

on their reliability. Since ‘[i]t is the likelihood of

misidentification which violates a defendant’s right

to due process.” [quoting from Nez v. Biggers,

supra, 409 U.S. at 198] even ‘a suggestive and

unnecessary identification procedure does not vio-

late due process so long as the identification

possesses sufficient aspects of reliability.’ ”’ [Quot-

ing from Manson v. Brathwaite, supra, 432 U.S. at

110.]

Field then set out the five-factor approach of Manson

and Biggers and stressed that the analysis mandated by

those cases “includes” but is not limited to those five

factors. Any factor, the Court noted, which may be of

assistance to a reviewing tribunal and relevant to a given

case should be considered in carrying out the Manson

mandate. In Green v. Loggins, 614 F.2d 219, 222 (9th

Cir. 1980), the Ninth Circuit made explicit that “the

deterrence of [police] conduct is not the primary

purpose behind judicial review of tainted eyewitness

identification testimony. Rather a court reviews a

challenged in-court identification essentially to deter-

mine whether the witness’ testimony retains sufficient

indicia of reliability.” 614 F.2d at 222.

B. Necessity Has Been Considered as Part of the

Totality of the Circumstances in the Identifica-

tion Cases of This and Other Courts.

At the outset it is crucial to understand what this

Court did and did not hold on the question of necessity

in Manson v. Brathwaite, and, more important, in Nei

v. Biggers. In neither case did this Court hold that

necessity may never be considered. Rather, Biggers

rejected the notion that an unnecessarily suggestive

identification by definition and “without more”’ violates

due process. The question Biggers addressed was

“whether... unnecessary suggestiveness alone requires

the exclusion of evidence.” 409 U.S. at 199 (emphasis

added). And Manson actually appeared to recognize

that there can exist factors which may “alleviate”? an

otherwise suggestive identification.*> Biggers and Manson

thus clearly do not hold that necessity or the lack of it

may not be considered at all, but only that lack of

necessity without more and unconnected to considera-

tions of reliability is not a ground for invalidating an

identification. Indeed, necessity has been a factor in

several of the eyewitness identification decisions of this

Court.

In Simmons v. United States, 390 U.S. 377, 384

(1968), in assessing the propriety of a photographic

“The per se rule, however, goes too far since its application

automatically and preemptorily, and without consideration of

alleviating factors, keeps evidence from the jury that is reliable

and relevant.” 432 U.S. at 112 (emphasis added).

identification againsi the standard there adopted and

still in use, this Court stated that “[i]n the first place,

it is not suggested that it was unnecessary for the FBI

to resort to photographic identification in this in-

stance.” And in Stovall v. Denno, 388 U.S. 293, 302

(1967) the Court upheld a one-person show-up con-

ducted in a hospital room because “thé Showing of [the

defendant] to [the witness] in an immediate hospital

confrontation was imperative.”

In rejecting the per se rule as overly rigid and

automatic, this Court in Manson looked to the opinion

of Mr. Justice (then Judge) Stevens in United States ex

rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir.), cert.

denied 421 U.S. 1016 (1975). See Manson, supra, 432

U.S. at 112. There the totality of the circumstances test

was divided into three parts as follows:

“Three different aspects of the ‘totality of the

circumstances’ have been noted in cases testing the

admissibility of pretrial identification evidence.

The suggestive aspects of the procedures were

emphasized in Palmer v. Peyton, 359 F.2d 199,

201 (4th Cir. 1966) and Foster v. California, 394

U.S. 440, 442-43; the justification for using a

suggestive procedure was the apparent basis of

decision in Stovall v. Denno, 388 U.S. 239, 302;

and the reliability of the identification was critical

in Neil v. Biggers, 409 U.S. 188, 199; and Coleman

v. Alabama, 399 U.S. 1, 5-6.” (510 F.2d at

402-03, emphasis in original, footnotes omitted.)

After noting that there was no justification for

failure to conduct a corporeal line-up, the Seventh

Circuit stated “But as the Court squarely held [in

Biggers| these two defects without more, do not

necessarily result in a deprivation of due process.”

Necessity in one form or another is widely recog-

nized as a factor to be considered as part of the totality

of the circumstances. See, e.g., United States v. Craw-

ford, 576 F.2d 794, 797-98 (9th Cir.), cert. denied 439

U.S. 851 (1978); United States v. Peele, 574. F.2d 489,

490 (9th Cir. 1978);4 Frank v. Blackburn, 605 F.2d

910, 913 (5th Cir. 1979) (single person show-up may

be made necessary and acceptable by exigent circum-

stances); Israel v. Odom, 521 F.2d 1370, 1373 (7th Cir.

1979) (“If...suggestiveness is found, the court

must... consider whether any unusual or exigent cir-

cumstances existed which might, at least in part, have

justified the use of the faulty procedures.”); United

States v. Dailey, 524 F.2d 911, 914 (8th Cir. 1975)

(lack of necessity to show witness’ photographs of

defendant prior to trial); Clemons v. United States, 133

U.S. App. D.C. 27, 408 F.2d 1230, 1245-46 (D.C. Cir.

1968); Government of Virgin Islands v. Petersen, 553

F.2d 324, 327 (3rd Cir. 1977).

These cases make clear, then, that totality of the

circumstances is a standard embracing exactly what it

means—all circumstances affecting reliability—and that

while necessity alone is not a valid basis for reversal it

is a factor which can be considered, especially where—as

here—necessity and reliability are bound up with one

another.°

+See also United States v. Valdivia, 492 F.2d 199 (9th Cir.

1973), cert. denied 416 U.S. 940 (1974); United States v.

Baxter, 492 F.2d 150 (9th Cir. 1973); United States v. Pheaster,

544 F.2d 353 (9th Cir. 1976), cert. denied 429 U.S. 1099

(1977); United States v. Calhoun, 542 F.2d 1094 (9th Cir.), cert.

denied 429 U.S. 1064 (1976).

5 The Fifth Circuit in some of its cases has taken the view that

“the fact that there may have been time for a line-up can play

[footnote continued]

While lack of necessity is clearly not per se a basis

for reversal, and while the existence of necessity will

not render “a blatantly suggestive and totally unreliable

identification admissible” (United States ex rel, Kirby v.

Sturges, supra, 510 F.2d at 403 n.15) the propriety of

an inquiry into necessity is widely recognized. The

reason is not difficult to discern. There is an undoubted

law enforcement interest in identification evidence,

both to free the innocent and to convict and apprehend

the guilty. While there is clearly a line beyond which an

identification becomes so suggestive that no amount of

necessity will icgitimize it, the fact is necessity or the

lack of it has been a part of the equation in cases in

this Court and the lower federal courts. Second, as we

see in greater detail in Argument III, infra, the methods

employed by law enforcement in conducting eyewitness

identifications are relevant both to suggestiveness and

reliability. A manipulated procedure can unduly suggest

no part in whether the photographic spread was impermissibly

suggestive.” United States v. Allison, 616 F.2d 779, 783 (5th Cir.

1980). In that Circuit in assessing suggestibility it is ‘only the

picture spread itself [that] must be evaluated ... — 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 just not relevant to a determination of the

impermissibly suggestive issue.” United States v. Sutherland, 428

F.2d 1152, 1156 (5th Cir. 1970), cert. denied 409 U.S. 1078

(1972); United States v. Ballard, 423 F.2d 127 (5th Cir. 1970).

But see Frank v. Blackburn, supra, 605 F.2d 910. And see also

United States v. Marchand, 564 F.2d 983, 995 (2d Cir. 1977),

cert. denied 434 U.S. 1015. This formulation, taken literally,

may well go too far. It is of course true that if a reliable method

of identification has been used it ought not to matter that a

more reliable method could also have been used. But it does not

follow that where the more reliable method is in fact the only

reliable method, that a court cannot consider (a) the failure to

employ the more reliable method and (b) the absence of

necessity to by-pass that method.

an unreliable answer to the witness. Where the most

reliable method of identification is deliberately by-

passed by the police for no reason whatever, an

inference of manipulation may be justified.

With these considerations in mind we now examine

the relevance to reliability in this case of the unneces-

sary failure to hold a line-up.

C.On This Record, The Unnecessary Failure To

Conduct A Line-up Was A Factor Related To

Reliability.

It is generally recognized that a line-up is a more

reliable method of identification than a photographic

display. See Wall, supra; Simmons v. United States,

supra, 390 U.S. at 383; see Grano, Kirby, Biggers and

Ashe: Do Any Constitutional Safeguards Remain

Against Convicting The Innocent? 72 Mich. L. Rev.

717, 769 (1974); Libling, The Use of Photographs for

the Purpose of Identification, 1978 Crim. L. Rev. 343,

345; Williams and Hammelman, I/dentification Parades,

1963 Crim. L. Rev. 479 484; Comment, Photographic

Identification: The Hidden Persauder, 56 Iowa L. Rev.

408 (1970); Comment, 1972 Utah L. Rev. 100, 104.

In this case that assessment is borne out by the

statements of the witnesses themselves. In the first

place both witnesses complained repeatedly about the

quality of the photographs.

The inadequacy of the photo spread was explained to

the officers again and again. Both Allen and Almengor

complained of the age of the photos (J.A. 97-8, 79; RT

715-16, 595-96), of the changed appearance that might

have taken place because of the age of the photos, of

the fact that they could not tell the height and body

build of the assailants from the photos, of the fact that

the photographs altered the complexion of the assail-

ants, of the fact that the photos were in black and

white rather than color (J.A. 62; RT 424-25).® In light

of these limitations and even after having seen the last

photo spread (Exh. 24), Almengor insisted on seeing a

corporeal line-up (see RT 716, 721).

Second, Almengor testified repeatedly that he needed

a physical line-up in order to make a positive identifica-

tion. The transcript of this trial is replete with

references by Almengor that he could not make a

positive identification from photographs and that he

needed to see a line-up. He stated:

“I never made a positive identification [from

the photographs]. I told [the officers] that until I

see the men, I will [not] be able to give a full,

positive identification.” (J.A. 63-4; RT 437:9-11.)

And again

“Q. Okay and you said that you couldn’t be

positive unless you saw them [the defendants] in a

line-up. Right?

“A. Yes, sir.” (RT 437:18-20.)

And again

“I never made a positive identification. I told

Lt. King ‘when I see the men before me present at

the preliminary, I'll be able to give you a full

identification, unless you want to show me a

line-up.’ ” (J.A. 67; RT 457:11-14.)

6 As to the relatively greater reliability achieved through use of

color photographs rather than black and white ones, see

Sussman, Sugarman, & Zavala, A Comparison of Three Media

Used in Identification in Personal Appearance Identification XI1-7

A. (Zavala Ed.) (1970) discussed in Grano, supra, 72 Mich. L.

Rev. at 768-69.

And again

“Q. Did you tell them [the officers] you

weren’t making any positive identification and you

wanted to see the person in person?

“A. Yes, sir.

“Q. You wanted to see a line-up?

“A. Yes, sir.

“Q. And was anything said to you about pro-

viding a line-up to you?

“A. Yes, sir. They were going to provide a

line-up, and then something came about, and they

did’t ever—it never came. I just didn’t say nothing

about it no more.” (J.A. 71; RT 496-97.)

And again

“Q. Am I correct that you asked the prison

officials if you could see these people in person?

“A. Yes, I wanted to see them in person.

“Q. Were you ever given the opportunity to see

them in a line-up?

“A. No, sir.” (RT 425:9-14.)

This testimony was confirmed by the investigating

officer (RT 932:12-14) and by a tape of an interview

Almengor gave correctional authorities during the in-

vestigation. (RT 783.)

Third, this record contains proof of the importance

of a line-up to a reliable identification. After having

tentatively identified Vargas from Exhibit 24 on Octo-

ber 30, 1972,’ Allen and Almengor left the room and

"It is worth noting in the case of Almengor that Vargas was

identified on October 30 only because he had been identified in

[footnote continued]

were being escorted back to their cells when they saw

Vargas in the shower. At that point, the witnesses with

Vargas before them knew immediately that their photo-

graphic identification had been erroneous and they so

informed the correctional authorities. (J.A. 72; RT

500-02.)

The witnesses’ combined insistence that the photo-

graphs they were presented with were inadequate, their

statements that they needed to see the defendants in a

line-up in order to make a reliable identification, and

their recanting of their identification of Vargas upon

seeing him before them were all facts affecting the

reliability of the photographic spread itself. It is absurd

to suggest—and this Court has never suggested—that

under these circumstances the failure to conduct a

line-up could not be considered as part of the sugges-

tiveness-reliability equation. And once it is conceded

that failure to conduct a line-up is a factor tied to

reliability, necessity must also be considered. For, as

already noted, exigent circumstances and police manipv-

lation can both be relevant to the propriety of

identification procedures.

This record makes it perfectly obvious that there was

no reason whatever not to give the witness the line-up

he told the officers he needed to make a reliable

pretrial identification.

previous photographs (RT 463). Thus however old were the

photographs and however different were the appearances of the

defendants between the time their pictures were taken in

Exhibits 23 and the time they were taken in Exhibit 24, their

appearances were not sufficiently different to prevent Almengor

from identifying Vargas.

The dissenting opinion below and petitioner both

base their argument that necessity existed in this case

on the conditions which existed in Tehachapi immedi-

ately following the incident, and on the need to

maintain the anonymity of potential eyewitnesses.

Whatever their general merit, these contentions are

belied by the record in this case.

In the first place, prison riot conditions to the

contrary notwithstanding, in creating the photographs

for Exhibit 24 officials at Tehachapi risked no greater

disruption than if they had actually conducted a

line-up. For in order to compile the photographs for

Exhibit 24 the officials first brought some 15 inmates

from their cells and had each photographed. They then

took the three defendants out again and had them each

separately photographed. (RT 716-18.) It is difficult to

understand why, having gone this far, the officers were

unwilling to place the same or a series of smaller groups

in physical line-ups.

Second, anonymity of the witnesses could have been

assured by any number of simple devices such as a

sheet or a piece of plywood with a hole in it, or by a

properly placed mirror. Moreover, here we have three

witnesses who were removed to segregation precisely

because they were already known to the remaining

inmate population as potential informants.

This is not a case where the photo spreads were all

shown immediately after the crime or where there was

a pressing need to move quickly to aprehend the

suspect. See, e.g., Stovall v. Denno, supra; Mock v.

Rose, 472 F.2d 619, 621 (6th Cir. 1972), cert. denied

411 U.S. 971 (1973). Here photographs were continu-

ously shown to the witness over a period of 11 days

from the killing of Arias and while all potential suspects

were incarcerated and could not flee. Moreover, from

October 20th on when Childress came to the officers,

three suspects were apprehended and known to the

police. Nor is this a case in which the witness could not

participate in a line-up (see Stovall), or where there

were no suspects comparable in appearance to the

defendants to place in the line-up (cf. Smith v. Coiner,

473 F.2d 877, 881 (4th Cir. 1973), cert. denied ‘414

U.S. 1115 (1974).

Whatever the realities of prison life and whatever the

flexibility that must be accorded prison officials in

maintaining order and discipline in prison, the state can

have no interest in the use of procedures which lead to

the conviction of innocent people, whether they are

inmates or not. Indeed, the hostilities, tensions, and

potential for retaliation that can be created when the

wrong man is convicted in prison argue strongly that

prison order is actually undermined by the use of

procedures which create a likelihood an innocent person

will be convicted.

THE COURT OF APPEALS PROLERLY CONSIDERED

POLICE CONDUCT TENDING TO FOCUS THE WIT-

NESS’ ATTENTION ON A PARTICULAR SUBJECT.

Respondent also contends that it was improper for

the Court below to consider either “conduct on the

part of the police tending to focus attention of [sic] a

particular subject” or “presence or absence of other

witnesses at the time of the improper identification and

the possible prejudicial influence of one witness’ opin-

ion on another’s recollection.” (Brief of Petitioner at p.

46, quoting from Parker v. Swenson, 332 F.Supp. 1225,

1230-31 (E.D. Mo. 1971), cert. denied 409 U.S. 1126

(1973).) The presence of other witnesses was in

actuality not considered by the Court below, although

because this Court considered precisely this factor in

Manson v. Brathwaite, supra, 432 U.S. at 116,® there is

nothing improper about doing so in the right case.

Petitioner’s position with regard to both factors

results again from his overly rigid interpretation of this

Court’s opinions in Manson and Biggers. As we have

already seen, the five-factor test of those cases is a

flexible one which permits a court to consider any

matter relevant to the question of reliability. Against

the five factors must be weighed “the corrupting effect

of the suggestive identification itself.” (432 U.S. at

114.) Obviously relevant to whether the effect is, in

fact, “corrupting” is the conduct of the police in

focusing a witness’ attention on the accused. No one

would seriously contend, for example, that a court

should be powerless to consider the fact that while

presenting the witness with a photographic display that

is fair on its face, a police officer was pointing to the

picture of the accused and telling the witness that the

accused is in fact the culprit. While a court may not

examine police conduct for the purpose of deterring it,

it is required to do so in order to decide whether the

conduct impermissibly suggested an identification to the

witness and hence undermined the reliability of the

witness’ identification.

Bie .. [S]ince Glover examined the photograph alone, there

was no coercive pressure to make an identification arising from

the presence of another.”

This Court’s eyewitness identification cases recognize

the relevance of police conduct and are filled with

concern for procedures used by the police. In United

States v. Wade, 388 U.S. 218, 228 (1967) the Court

stated that “a major factor contributing to the high

incidence of miscarriage of justice from mistaken

identification has been the degree of suggestion inherent

in the manner in which the prosecution presents the

suspect to witnesses for pretrial identification.” In

Coleman v. Alabama, 399 U.S. 1, 6 (1970) the court

rejected an eyewitness identification contention noting

that “the record is utterly devoid of evidence that

anything the police said or did prompted [the witness’]

virtually spontaneous identification of petitioners... .”

And in Simmons v. United States, supra, 390 U.S. 377,

385 the court noted: ‘Each witness was alone when he

or she saw the photographs. There is no evidence to

indicate that the witnesses were told anything about the

progress of the investigation or that the FBI agents in

any other way suggested which persons in the pictures

were under suspicion.”

Lower federal courts have likewise looked to actions

by the police in presenting a photographic display as

part of the manner in which the prosecution presents

the suspect to the witness for pretrial identification.

Thus the Fifth Circuit in Frank v. Blackburn, supra,

605 F.2d 910, 913 upheld a conviction in part because

“there were no words or actions by police aggravating

the suggestiveness of the confrontation.”” Accord United

States v. Sanchez, 603 F.2d 381 (2d Cir. 1979)

(question is whether police practices corrupted the

identification); United States v. Mears, 614 F.2d 1175,

1177 (8th Cir. 1980) (‘a display is not impermissibly

suggestive where the agent does not direct the witness’

attention to any particular photo”); United States v.

Dailey, supra.

It is also widely recognized among psychologists that

“the expectations or hypotheses of an authority can

influence the behavior of others” and that police

practices in conducting pretrial identification procedures

afford a classic opportunity to transmit those influences

to a witness. See Yarmey, The Psychology of Eyewit-

ness Testimony, 154 (1979).

The Ninth Circuit has spoken most cogently to this

contention in United States v. Field, supra. There the

court analyzed the so-called Parker factors along with

the test set forth in Manson and Neil and concluded

there simply was no conflict between them. This

analysis, we submit, is correct and was correctly applied

here. It recognizes that suggestiveness is a treshhold

consideration and that reliability is the central concern.

It also acknowledges that any factor relevant to

suggestiveness or reliability is useful to a court in

discharging its Biggers-Manson mandate. An examination

limited solely to the photo display itself without

conduct associated with the display, such as gestures or

words by the police pointing to a given suspect or

conversations among the witnesses which “persuade”

some of them that a given suspect is the culprit,

overlooks clearly relevant matters. The underlying ques-

tion, after all is, whether the person being identified is

being chosen on the basis of the witness’ recollection of

past events or because the identification was planted in

the witness’ mind by someone else.

Again, because it contains extensive evidence of

suggestive police practices, the present record illustrates

the point.

Both the District Court and the Court of Appeals

recognized, in the words of the District Court, “that

irregularities occurred in the pretrial photographic iden-

tification.” (Appendix to Petition for Certiorari, D-3.

See also A-6 through A-11.) These conclusions are

amply supported by the record. The suggestiveness of

the identification procedures used in this case is a

function of several factors which tended to point the

witnesses away from a selection of the choices which

they would have made on their own and toward a

desired result.

First, as already pointed out, notwithstanding the

witnesses’ insistence that the photographs being pre-

sented to them were for one reason or another

inadequate and unreliable, and notwithstanding Almen-

gBor’s repeated statements that he could not make a

proper identification without a line-up, no such line-up

was held. Since there was no reason for failure to hold

the line-up, we can only conclude the action in failing

to assemble one was deliberate. Once it became appar-

ent to the investigating authorities that the chance

physical display of Vargas to Allen and Almengor had

changed the witnesses’ minds and that they had

retracted their identification of Vargas, the failure to

conduct a line-up became, frankly, unforgiveable. Fail-

ure to hold a line-up constituted one sign among many

that the authorities were interested in obtaining the

identification they preferred rather than in the one the

witnesses were prepared to give them.

Second, the officers informed Almengor that all of

his initial choices had been “wrong.” Following a

careful and deliberate review of many pictures on

October 19 (RT 779) Almengor selected four individ-

uals as the culprits: “Bogus Pete’? Nunez, Vargas and

two other inmates named Ramirez and Reymundo (RT

399-400, 766, 914-15). The identification of Nunez had

several important indicia of reliability. Almengor’s iden-

tification of his was “positive” (RT 711). Nunez was

chosen after Almengor had overheard talk among

people in the dormitory that Nunez had actually

committed the crime. Following these conversations

Almengor in point of fact selected Nunez’s photograph

even though the names on all the photographs were not

visible and even though Nunez’s appearance on October

19 was different from the way he appeared in the

photographs.? Even though Almengor’s independent

9 Nunez apparently had longer hair on October 19 than in the

photograph and he did not have a moustache in the photograph

but did on October 19. (RT 712.) In this respect his situation

was exactly the same as Mata’s.

A study of the record reveals a strong likelihood that the

identification of ‘Bogus Pete’ Nunez was, in fact, reliable.

Although, Officer King told Almengor that Nunez was on outside

work crew on the afternoon of October 19, 1972, there is

actually a strong indication that Nunez was still on the prison

grounds at the time Arias was killed.

Prosecution witness Officer Thompson, who was head of the

outside work crews at Tehachapi on October 19, 1972, testified

that there was a standing order for his work crews to leave the

prison gates by 1:00 p.m., daily (RT 772). Despite the standing

order, however, occasionally the crews left later than 1:00. (RT

774.) Thompson never checked his crew book, on October 19 or

any other date, to determine who was on his crew, and what

time the crew actually left prison grounds. (RT 775.) The crew

book in which were kept official records of all people going out

[footnote continued]

identification of Nunez corresponded with an apparent

consensus among other inmates and was made notwith-

standing important differences between Nunez’s appear-

ance on October 19 and his appearance in the photo-

graphs, the police rejected the identification and told

Almengor they were rejecting it. Officer King testified:

“I told Mr. Almengor that Bogus Pete Nunez could

not have been involved in the incidents since we

knew that he was outside the security area on a

work detail at the time of the incident.” (J. A.

95-6; RT 713.)

In United States v. Field, supra, a witness to a bank

robbery was shown a photographic spread. According ta

the court “[w]hen shown the photo spread and asked

to identify the man he had seen in the bank, Kotzen

[the witness] selected a photograph other than Field’s

[the defendant’s] photograph. The agent told Kotzen

that his selection was wrong and Kotzen then selected

Field’s photograph.” The court included this conduct

among its reasons for holding “that the pretrial focusing

on Field outweighs any indicia of reliability detected in

Kotzen’s identification.” United States v. Field, supra.

Obviously, if investigating authorities are aiming for an

identification which is derived wholly from the witness

and is not the product of their own suggestion, they

will not inform the witness that he has made a “wrong

with Officer Thompson, and the times of departures and returns,

was lost. (RT 774.) No verification from prison records can be

made as to whether Nunez was actually on the work crew of

October 19, 1972, and/or what time the crew left the grounds.

Furthermore, the testimony of Carlos Ortega places Nunez in

the dormitory at or near the time of the killing (RT 832), and in

testifying about the killing in another proceeding in April, 1973,

Ortega implicated Nunez. (RT 872.)

choice.” In fact, in such a situation there would be no

concept of a wrong choice.

Third, the officers removed all selections they re-

garded as “mistaken’’ from all subsequent displays.

After Almengor “misidentified” Nunez, Reymundo, and

Ramirez, and identified Vargas on October 19, the

officers removed the photographs of Nunez, Reymundo,

and Ramirez from all future displays and none of the

three ever appeared again (RT 925) (Exhibits 23, 24).

This conduct is especially difficult to understand

because while there was an assertion that Nunez could

not have participated in the killing because he was

outside the grounds (but see discussion supra) there is

no explanation for why the officers no longer regarded

Reymundo and Ramirez as suspects. That the investi-

gating officers were not interested solely in removing

tentative or uncertain identifications is demonstrated

further by the fact that Vargas’ photograph was not

removed notwithstanding the equally tentative and

uncertain nature of Almengor’s identification of him.

The only reason Vargas’ photograph would have been

retained and the others eliminated is that the investigat-

ing officers had a belief in Vargas as a suspect which

they sought to transmit to or have confirmed by

Almengor.

Fourth, while removing wrong identifications the

officers continued to show the photographs of the

defendants in all three photo spreads. The continued

and recurrent use of a defendant in a series of corporeal

or photographic displays has been condemned by this

Court in Foster v. California, 394 U.S. 440, 443 (1969)

and in Simmons v. United States, supra, 390 U.S. at

384 where the Court noted that the danger of improper

suggestion “‘will be increased if the police show [the

witness] the pictures of several persons among which

the photograph of a single... individual recurs.” The

effect of previous exposure to a photograph on a

subsequent corporeal identification has also been noted

in the literature. See, e.g., Loftus, Eyewitness Testi-

mony, 150-52 (1979) (photo-biased line-ups). In such a

situation the subtle but real cumulative effect of

suggestion is apparent.

The photographs of Mata, Vargas, and Gallegos

recurred in all displays while other supposed misidenti-

fications were removed. While the appearances of the

defendants had changed by October 19, Almengor was

still able to identify Vargas from old photographs and

was prepared to make an identification of Nunez

notwithstanding that he like Mata had grown hair and a

mustache after the taking of the original photographs.

In addition, between October 19 and October 30 all

defendants were in segregation with the witnesses and

could be seen on a daily basis taking exercises. It is no

wonder therefore that by the time Almengor had seen

Mata’s photograph for the third time on October 30

this identification became “certain.”

Fifth, the record strongly suggests that the witnesses

were permitted to view the three defendants and only

three defendants before they were rephotographed on

October 27. The evidence revealed that after Almengor

expressed difficulty making an identification from pho-

tographs, the authorities undertook an elaborate plan to

present a series of new photographs to the witnesses,

To accomplish this they brought approximately 15

inmates to be photographed but the inmate photo-

grapher taking the pictures in some way erred and the

photos did not come out. The authorities then brought

Mata, Gallegos, and Vargas, and only these three, back

to be photographed again on October 27.

While Almengor and Allen professed at trial not to

recall seeing the three being taken out to’ be photo-

graphed the record as a whole strongly suggests other-

wise. At the preliminary hearing Almengor specifically

stated that he saw all three being taken out together on

October 27 and prior to trial (See RT 445-46). Allen

told James Faulkner, a licensed defense investigator

appointed by the court, that “at the time these

defendants were taken out to be photographed they

were the only ones taken out of segregation to be

photographed. And, apparently, there was [sic] some

recent photographs taken. So he [Allen] assumed that

since they were the only ones in segregation that they

were on the chart, the photographic chart he was

shown at a later time—that they must be the ones that

did it.” (J.A. 177; RT 1119.)

These exposures of the defendants to the witnesses

prior to the photographic displays were highly sugges-

tive. Permitting the defendant to be seen prior to the

witness’ attempt to identify him under conditions

which suggest he is a suspect is a technique which has

been widely condemned both by this Court (United

States v. Wade, supra, 388 U.S. at 234), the lower

courts (United States v. Field, supra; Green v. Loggins,

supra, 614 F.2d at 223), and the commentators, (see

Wall, supra, at 48; Napley, Problems of Effecting the

Presentation of the Case for a Defendant, 66 Col. L.

Rev. 94, 99 (1966).) The suggestive power of such an

exposure is obvious and leaves the witness with the

precise conclusions Allen claimed he was led to in this

case.

For all these reasons the identification procedures

were suggestive and the Court of Appeals was justified

in considering them.

THE COURT OF APPEALS CORRECTLY DECIDED

THAT THE IDENTIFICATION IN THIS CASE WAS

UNRELIABLE.

Having shown that the Court of Appeals considered

proper factors in passing on the questions of suggesti-

bility and reliability and that the identification pro-

cedures were suggestive, we now examine this record to

determine whether, notwithstanding the suggestiveness,

the identifications were unreliable and gave rise to a

substantial likelihood of irreparable misidentification.

A few preliminary considerations are important.

First, as we have seen, while some physical evidence

was recovered, there was virtually none which linked

the defendants with the crime. The case therefore

depended on the eyewitnesses. Second, these witnesses

were extraordinarily unsympathetic and unreliable.

Almengor himself was a suspect in the case because

he attempted to hide blood soaked clothing and did not

approach the police until confronted with the clothes.

He was also near-sighted and was not wearing his glasses

on the day of the attack, was an inveterate glue sniffer,

and testified under promises of leniency. Allen was

likewise testifying under promises that he would be

considered for an earlier parole, he was a member of

the Nuestra Familia, had failed to make any identifica-

tions until October 30 and was, as Judge Sneed

recognized in his dissent below, a rank opportunist.

Thus, for example, while he and Almengor both knew

they had misidentified Vargas. Allen said nothing to the

authorities about it. When asked if he had spoken up he

answered “no, I just kept it to myself ...I mean wihai

good would it do me to tell anybody?” (J.A, 82-3; RT

623.)

In addition these identifications bear several impor-

tant signs of unreliability.

First, the initial identifications—a strong indication of

reliability—were in both cases suspect. Allen first

claimed he could see nothing, that the attack had

happened so fast he was unable to view the incident,

and that he could make no identification whatever. He

confirmed this in his statements at the preliminary

examination, at trial, and in his statements to Investi-

gator Faulkner. He told Faulkner, for example, that he

could not recall if the assailants had mustaches, if they

were Mexican or Caucasian, or what they were wearing.

(RT 633.) Almengor on the other hand made three

“wrong” choices in his first attempted identification,

failed to make any identification of Mata in the second

photo display, and finally chose Mata only on the third

time. As soon as both witnesses were exposed to a

physical view of one of the defendants, they retracted

the identification and continued to maintain they had

misidentified Vargas.

An important part of the Court’s determination in

Biggers that the identification had been reliable was the

fact that “the victim made no previous identification at

any show-ups, line-ups, or photographic showings. Here

record for reliability was thus a good one, as she had

previously resisted whatever suggestiveness adheres in a

show-up.” 409 U.S. at 201. The accuracy and spe-

cificity of the initial identification has long been

recognized as an important part of the reliability

analysis mandated by Biggers and Manson. Thus, Wall,

supra, lists as one of the “danger signals” which

“should give warning that the identification may be

erroneous” the following two: (1) “The Witness Ori-

ginally State That He Would Be Unable to Identify

Anyone” and (2) Before Ideniifying the Defendant at

the Trial, the Witness Erroneously Identified Some

Other Person.” (Pp. 90, 101.) Each danger signal is

present in this case, Allen stated he would be unable to

identify anyone and Almengor “misidentified” three

individuals at the initial identification. Thus in contrast

to the witness in Biggers, the “record for reliability” of

these witnesses was extremely poor.

Second, neither witness enjoyed a good opportunity

to view the defendants. Allen was distracted altogether.

According to Allen’s testimony he was “glancing up”

while buttoning his denim jacket when the attack on

Arias broke out. (J.A. 80, 75; RT 612, 586.) Once the

fight started, Allen’s main purpose was “trying to keep

from getting killed.” Allen testified that “well, the

other two [referring to Mata and Gallegos] I couldn’t

see that good” (J.A. 76; RT 587). The third man

(Vargas) leaped at Allen and jabbed his knife toward

him, cutting Allen’s sleeve and scratching the skin on

his forearm. (J.A. 78; RT 588.) Allen stepped back a

few steps and started yelling for help. (RT 589.) As he

did so, he noticed Almengor fighting “‘with someone”

but he did not know with whom. (RT 589.) Allen did

not even know where Almengor was when the correc-

tional officer arrived at the scene as the fight broke up.

(RT 590.) Allen testified that his attention during the

fight was drawn to the man with the big knife.

“A. I was looking at the man with the big

knife.

“Q. You got a good look at him?

““A. Yeah, I seen him.

“Q. And he pretty well occupied your attention

from then on didn’t he?

“A. That’s right.

“Q. And were you looking at the knife or did

you get a good look at his face?

**A. No, I was looking at the knife.” (J.A. 80;

RT 614.) |

Allen testified further that he essentially never took his

eyes off the man with the big knife. (J.-A. 81; RT 617.)

And even as to this man, Allen’s identification was so

uncertain that he subsequently retracted it and main-

tained through the trial that Vargas was in fact

innocent.

Almengor’s opportunity to view was not considerably

better. Almengor testified that before the attack, he

had been anticipating trouble. (RT 413.) Almengor was

walking with the victim, Arias, toward a bulletin board

just outside the dormitory. Almengor testified that

Arias was talking to him as they were walking. (RT

390.) Although Almengor noticed three inmates stand-

ing by the bulltein board, he “didn’t pay them no

attention.... Well, I wasn’t really noticing if there was

anybody else around. My attention was if I seen any

Mexican guys inside the dorm because that’s the real

danger I had my eyes on.” (J.-A. 61; RT 415.) The

three inmates, according to Almengor, were looking at

the bulletin board, with their faces turned toward the

board and away from Almengor. (RT 415.) Although

Almengor is nearsighted, he was not wearing his glasses.

The inmates who were standing by the bulletin board,

turned around “‘real fast”? (J.A. 37; RT 376). Almengor

took a few steps away from the victim (J.A. 38; RT

377). As-the attack on Arias started, the only inmate

Almengor was looking at was the “third man,” the “tall

one,” thought to be Vargas. Almengor testified to

staring at this third man as the man pulled a knife out

of Arias’ back. (RT 418.) Almengor stated that the

third man was the person he remembered rmost clearly

from the fight. (RT 420.) As the fight broke out,

Almengor looked over at Allen, and saw the third man

“slooped and pulled away...” (RT 379-80) from Arias,

saw stabbing motions being made quickly at Arias, and

heard Allen screaming for people to come and help.

(RT 383.) At this same moment, Almengor testified,

respondent appeared to “rush me with a knife” (J.A.

42; RT 380). Almengor defended himself by blocking

the blow and throwing a kick which pushed respondent

quickly to the door at the other end of the corridor, at

least six feet away. (RT 380.) Respondent then turned

and ran out. As he was running away, his back was

toward Almengor.

Although Almengor had face-to-face contact with

respondent, it was for only a very few seconds, and was

during a highly charged, fast-moving fight, which by

Almengor’s own testimony, lasted but a few moments.

Almengor stated that the “third man,” on whom he

was concentrating, and whom he saw stab Arias, was

the one inmate he had the best opportunity to view.

(RT 420.) With the exception of the brief moment of

eye contact which occurred in the midst of great

commotion, Almengor was never paying attention to

respondent.

Both of these observations were made under condi-

tions of extreme stress, conditions which have been

shown to cause poor performance in simulated eyewit-

ness identifications. Loftus, supra, Eyewitness Identifi-

cation, at 153- 56 and see Uelman, Testing | the Assump-

tions of Neil v. Bigger An Experiment in Eyewttness

Identification, supra, 8 Crim. L. Bull, 358 (1980).!°

Third, the prior descriptions by both witnesses were

not only mistaken but very vague.

Almengor’s prior description of respondent is devoid

of any significant detail. When Almengor described

respondent as wearing denim blues and a prison issue

hat (RT 376) he could have been talking about the

entire population of Tehachapi. This part of his

description is therefore meaningless. Almengor also

noted only that respondent had a thin moustache and

wore black leather gloves. But even this description was

inaccurate since Exhibit 24 reveals that respondent’s

moustache on October 19 was in fact full and bushy.

Allen’s description of Mata was, like Almengor’s

quite vague: state clothes, moustache, state-issued

beanie, and gloves. (RT 621-22.) In addition, Allen had

stated at one point that he did not get enough of a

look at the attackers during the fight to make any

reliable identifications. (RT 630.) Despite the fact that

Allen had known respondent personally, before the

stabbing incident (RT 595), he had neither been able to

name him nor to give a detailed description of him.

(RT 595.) Allen told a defense investigator that he

101 this article the author, a law school professor, tested the

abilities of law students accurately to identify a man and a

woman involved in a simulated, unannounced fracas in his class.

The rate of erroneous identifications was in excess of 70%.

made a positive identification of respondent only after

the prison officials reminded him he was coming up for

parole. (RT 634.35.)

Fourth, neither witness demonstrated a high level of

certainty at the time of the final identifications. As we

have seen, Allen had earlier indicated that he could not

make any identifications and Almengor’s previous iden-

tifications had all been wrong. In addition, despite the

fact that they were prepared to make an identification

of Vargas on the 30th of October, when they saw

Vargas in person immediately after having made the

identification they retracted it.

Eleven full days passed between the time of the

incident and the time of the final identification. Much

has been written on the effect of the passage of time

on the retention of information in memory. See, e.g.,

Loftus, supra, Eyewitness Testimony, 65 and studies

there cited; Yarmey, supra, The Psychology of Eyewit-

ness Testimony, ch. 4. Among many studies noted bt

Loftus, supra, is one in which she and others demon-

strated that by the time two days had passed between

the incident and the identification, subjects asked to

retain significant details of a previously presented event .

were performing at about a 50% rate, a figure which,

the study concluded, ‘‘means that the subjects are

simply guessing.” Loftus at 65. These performances

were noted over intervals of time during which no

additional information was introduced to the subjects.

That of course was not the case here. Almengor was

told that he had previously made wrong choices and

those wrong choices were removed. He was also shown

a series of photographs containing the pictures of the

defendants over and over again.

So unreliable were the identifications that the prose-

cutor was forced to acknowledge in his opening

statement that the witnesses had “had difficuy identi-

fying the assailants.” (J.A. 6; RT 223.) In Wall’s classic

account, Eyewttness Identification in Criminal Cases,

there are listed twelve “Danger Signals” which “should

give warning that the identification may be erroneous.”

Eight of them apply to this case.

Here one witness originally stated that he would be

unable to identify anyone and another erroneously

identified other inmates. Although Allen knew the

defendant prior to the crime he made no accusations

against him when questioned by the police. Dis-

crepancies existed between the witness’ original descrip-

tion of the perpetrator of the crime and the actual

description of the defendant. Almengor had erroneously

identified three other inmates, one of them “posi-

tively,” before naming Mata. The witnesses had a

limited opportunity to see the defendant. A period of

eleven days elapsed in the identification. The crime was

committed by a number of people.!!

The complete list is as follows:

“The Witness and the Person Identified Are of Different

Racial Groups; During his Original Observation of the

Perpetrator of the Crime, the Witness Was Unaware That a

Crime Situation Was Involvéd; A Considerable Period of

Time Elapsed Between the Witness’s View of the Criminal

and His Identification of the Defendant; The Crime Was

Committed by a Number of Persons; The Witness Fails to

Make a Positive Trial Identification; The Witness Originally

Stated That He Would Be Unable to Identify Anyone; The

Identifying Witness Knew the Defendant Prior to the

Crime, But Made No Accusation Against Him When

Questioned By the Police; A Serious Discrepency Exists

[footnote continued]

The conclusions drawn by the Court of Appeals from

this record are all amply supported and its judgment,

therefore, must be affirmed. !*

Between the Identifying Witness’s Original Description of

the Perpetrator of the Crime and the Actual Description of

the Defendant; Before Identifying the Defendant at the

Trial, the Witness Erroneously Identified Some Other

Person; Other Witnesses to the Crime Fail to Identify the

Defendant; Prior to Trial the Witness Sees the Defendant

But Fails to Identify Him; Before the Crime Was Com-

mitted, the Witness Had a Very Limited Opportunity to

See the Defendant.”

2 Petitioner makes no argument here that any error that may

have been committed was harmless beyond a reasonable doubt.

Clerely it was not. The case was based solely on eyewitness

testimony. Of the three eyewitnesses who testified, only

Childress’ testimony was untainted, and even his testimony was

weak. As developed more fully in the statement of the case,

supra, while Childress claimed to have had a clear view of the

incident, he stated that only the three defendants were present.

Yet Allen and Almengor placed themselves at the scene as well.

In addition, his bunk-mate testified Childress was actually playing

cards with him at time of the killing and could not have seen the

stabbing. While respondent has not challenged Childress’ identifi-

cations, they were less than solid, First his account of the

identification procedures and Officer Mills’ differ in important

respects. (Compare, e.g., RT 285-86 with RT 688.) Second, at

least according to the investigating authorities, Childress’ own

identification was made from single, isolated pictures of Mata

and Gallegos. (RT 688.) He described Gallegos as with a

moustache—which was apparently untrue. (See Exhibit 24.)

Moreover, even if Childress’ testimony was wholly reliable, the

jury was confronted with a case in which two of three

eyewitnesses had made constitutionally suspect identifications.

The Court of Appeals was correct in concluding that error

committed under such circumstances cannot be harmless.

CONCLUSION

Those involved in the trial of criminal cases have long

known that faulty eyewitness identifications are re-

sponsible for the conviction of many innocent people.

See, e.g., Borchard, Convicting the Innocent (1933;

repr. 1961); Frankfurter, The Case of Sacco and

Vanzetti (1927; repr. 1962). Recent studies confirm

both the inherent unreliability of eyewitness identifica-

tions and the prejudicial impact such identifications

tend to have upon juries. See, e.g., Loftus, supra;

Uelman, supra. Daily stories such as those of a priest

who was wrongly accused of robbery on the basis of no

fewer than seven “‘eye-witnesses” illustrate the persis-

tence of the problem. (See Buckhout, The Mistaken

Seven: Eyewitness Identification of the “Gentleman

Bandit,’”” 7 Crim. Defense 5 (1980).) Against this

background the Court of Appeal conducted a careful

review of this record, and arrived at the only plausible

conclusion:

In the chaos and confusion at Tehachapi on October

19, 1972, the need to isolate some culprits unfor-

tunately overwhelmed the duty to isolate the right

ones. The Court of Appeals acted responsibly in the

face of this fact. In so doing, the Court of Appeals

remained faithful to the teachings of this Court and its

judgment must, therefore, be affirmed.

Respectfully submitted,

QuIN DENVER

State Public Defender

EZRA HENDON

Deputy State Public Defender

(Court-Appointed Attorney

for Respondent).

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.