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Criminal Practice – No Habeas for Eyewitness In-Court ID

By: S.C. Lawyers Weekly staff//June 9, 2014

Criminal Practice – No Habeas for Eyewitness In-Court ID

By: S.C. Lawyers Weekly staff//June 9, 2014

Fowler v. Joyner, Warden (Lawyers Weekly No. 14-01-0520, 42 pp.) (Traxler, J.) No. 13-4, June 2, 2014; USDC at Charlotte, N.C. (Whitney, J.) 4th Cir.

Holding: At defendant’s trial for seriously wounding a motel desk clerk and fatally shooting another motel employee during an armed robbery, the trial court’s admission of an in-court identification of defendant by the owner of the restaurant adjoining the motel lobby, is not a basis for habeas relief for a North Carolina death-row inmate, the 4th Circuit says.

The trial court held that the procedures leading up to the witness’s in-court identification were not unnecessarily suggestive and that, even if they were, they did not create a substantial likelihood of irreparable misidentification. The court also held that any violation of defendant’s due process rights was harmless beyond a reasonable doubt in light of the other evidence of defendant’s guilt.

On habeas review, the district court held that the North Carolina Supreme Court reasonably applied the clearly established Supreme Court precedents in determining that the pretrial identification process in this case was not impermissibly suggestive. We agree.

Law enforcement presented two photographic arrays to the witness that included defendant’s photograph. Defendant does not argue that the photographic arrays, as individually composed, were unduly suggestive. Rather, he complains only that the pretrial procedures were unduly suggestive because he appeared in both arrays and because the witness was told that defendant would be seated between his counsel prior to the suppression hearing. While a photograph of defendant appeared in both arrays, the same photo did not appear in both, and it is undisputed that defendant’s appearance in the January 8 array was quite different from his appearance in the January 14 array and from the description provided by the witness to the authorities just after the crime. Although the witness selected the photo of defendant from the April 14 array as the one most closely resembling the man he saw on the night of the robbery, he was unable to select the same photo at the suppression hearing.

Nor are we persuaded by the witness’s claim that the state court unreasonably concluded the the prosecutor’s pre-hearing meeting with the witness was not so suggestive – singularly or in combination with the photographic arrays – as to violate defendant’s due process rights. Although the prosecutors told the witness where defendant would be seated in the courtroom, they also told him he should tell the truth if he did not recognize defendant.

Even assuming the actions of the police and prosecutor were unduly suggestive, we cannot say the state court unreasonably concluded the witness’s identification of defendant was reliable under the totality of the circumstances.

The witness observed the gunman through a glass door from a distance of 25 feet in fluorescent lighting for approximately five seconds. The accused wore no mask and nothing obstructed the witness’s view of him. The witness was able to and did observe his facial features from different angles, including when the accused looked in the witness’s direction. The witness was aware of a previous robbery at the motel and was immediately alert to the possibility that a robbery might be in progress. The witness provided a detailed description of defendant’s facial features and his clothing, which turned out to match descriptions by other witnesses who saw defendant on the night of the crime.

We also note the witness was consistently hesitant to conclusively identify a suspect from any of the photo arrays shown to him, whether or not they included a photo of defendant, instead picking photos only when he felt they resembled the culprit. When given the first chance to identify defendant in person, the witness, having been told he should only identify defendant if he was sure, was confident that defendant was the person he saw in the lobby on the night of the crime. To the extent the witness’s identifications were subject to question, the state court reasonably held it was a matter for the jury to consider and weight and not a basis for excluding the evidence altogether.

We conclude the admission of the in-court identification, even if error, was harmless.

While this appeal was pending, defendant filed a motion requesting that we designate his current, appointed counsel to be Martinez counsel, pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012), and our decision in Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013).

In North Carolina, claims of ineffective assistance of trial counsel that are apparent from the record must be brought by the prisoner on direct appeal and, as to those claims, the state collateral proceeding is not the initial review proceeding in respect to that claim. They are subject to procedural default under N.C.G.S. § 15A-1419, and the Martinez exception to Coleman v. Thompson, 501 U.S. 722 (1991), will provide the prisoner no federal habeas relief. Claims that are not so apparent, however, will fall within the Martinez exception. Defendant is not entitled to the relief he seeks before this court.

Judgment affirmed; motion denied.

Concurrence & Dissent

Davis, S.J.: I strongly disagree with the weathered notion that, when it comes to eyewitness identification evidence, courts should be content to rely on the good sense and judgment of juries. The hundreds of exonerations splashed across the headlines of popular and legal media over the last decade put the lie to the Supreme Court’s outworn hope that juries can be counted on routinely to reject unreliable eyewitness identification evidence without special guidance from courts.

Nevertheless, largely for reasons set forth in the chief judge’s thorough opinion, I concur in the judgment that defendant is not entitled to relief under 28 U.S.C. § 2254.

As for the motion to appoint counsel pursuant to Juniper, I would remand determination of the issue to the district court for its examination in the first instance. I dissent from the panel’s decision of the motion.

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