U.S. v. Meyer
| Decision Date | 23 February 2004 |
| Docket Number | No. 02-3582.,02-3582. |
| Citation | 359 F.3d 820 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert A. MEYER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Nancy L. Kelley, Asst. U.S. Attorney (argued and briefed), Cleveland, OH, for Plaintiff-Appellee.
Charles E. Fleming (argued and briefed), Federal Public Defender's Office, Cleveland, OH, for Defendant-Appellant.
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit Judges.
COLE, J. (pp. 827-30), delivered a separate dissenting opinion.
OPINION
A jury convicted the defendant, Robert Meyer, of postal robbery in violation of 18 U.S.C. § 2114 and of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). On appeal, Meyer argues that the district court erred in denying his motion to suppress any in-court identification by the victim, and he challenges the sufficiency of the evidence. We conclude (1) that the in-court identification procedure devised by the district court was not impermissibly suggestive, (2) that, even if the process were impermissibly suggestive, the identification was independently reliable, and (3) that a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Accordingly, we affirm the judgment of the district court.
On February 24, 1997, Jarmel M. Shaw, a postal employee, was robbed at gunpoint. Shaw had completed his mail collection route and had returned to the loading dock of the Mansfield (Ohio) Main Post Office. As he moved his last pickup, a basket of first class mail, to the back of the truck, the perpetrator opened the driver's side door. He pointed a gun in Shaw's face and demanded, "Give me the cash box, give me the cash box." Shaw told the offender that he had already taken the cashbox inside. The offender then directed Shaw to move to the back of the truck and entered the vehicle and surveyed its contents. As the offender searched the truck for the keys, Shaw opened the rear door and ran across the loading dock into the post office. As he ran, Shaw heard a single gun shot, but he was unharmed.
On May 30, 1997, Terry Barrett, the postal inspector investigating the robbery, presented Shaw with a photo lineup. Specifically, Shaw was shown six photographs, five of individuals interviewed in connection with the investigation and one of a postal employee. Meyer was not yet a suspect, and his photograph was not included in the lineup. Shaw did not identify anyone as the perpetrator.
On June 19, 2000, Barrett conducted a second photo lineup. Since the May 1997 lineup, investigators had identified Meyer as a suspect, and, to create a new lineup, Barrett simply replaced the photograph of the postal employee with a photograph of Meyer taken in June 2000. The other five photographs remained the same. Shaw failed to make an identification.
Believing that he had built a strong case against Meyer, Barrett was "perplexed" when Shaw failed to identify Meyer. As Shaw prepared to leave, Barrett, "on a hunch," displayed a second photograph of Meyer, which had been taken in 1997, for Shaw. (Barrett did not show Shaw any other photographs at this time.) Barrett asked Shaw whether he recognized the man in the photograph, and Shaw immediately identified Meyer as the robber.
On August 10, 2000, Barrett conducted a third photo lineup. The first five photographs in the lineup were the five pictures used in the prior lineups. However, the sixth photograph was the 1997 picture of Meyer, which Barrett had shown individually to Shaw after the June 2000 lineup. Shaw again identified Meyer as the robber.
On February 21, 2001, the Government filed a two-count indictment against Meyer, alleging robbery of a postal employee in violation of 18 U.S.C. § 2114 and using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). Prior to trial, Meyer moved to suppress any pretrial or in-court identifications of Meyer by Shaw, arguing that the identification procedure used by Barrett was impermissibly suggestive and that this procedure would taint any subsequent in-court identification. The district court granted Meyer's motion to suppress all pretrial identifications, but it denied Meyer's motion to suppress any in-court identification. It stated that it would devise a procedure to minimize the effect of the tainted pretrial identifications.
On March 25, 2002, Meyer's jury trial began. Prior to Shaw's testimony, the district court staged a lineup in an effort to minimize the taint of the pretrial identifications. The jurors were removed from the courtroom, and Meyer was placed in the jury box with seven men of similar age and appearance. Shaw identified Meyer, and, during his testimony, he identified Meyer as the robber. Meyer objected to the identification during both the lineup and Shaw's testimony.
The jury convicted Meyer of both counts. On April 14, 2002, Meyer filed a motion for judgment of acquittal, arguing that the Government had not presented sufficient evidence to support a guilty verdict on either count, and a motion for a new trial, arguing that the impermissibly suggestive pretrial identifications tainted Meyer's in-court identification. On May 3, 2002, the district court denied both motions. It found that the Government had presented sufficient evidence to support the verdict, that the in-court identification procedure was not impermissibly suggestive, and that the in-court identification was independently reliable. On May 20, 2002, Meyer filed a timely notice of appeal.
In reviewing a district court's ruling on a motion to suppress, we apply the clearly erroneous standard to the district court's factual findings and the de novo standard to its legal conclusions. United States v. Dotson, 49 F.3d 227, 229 (6th Cir.1995). Whether identification evidence was "sufficiently reliable so as not to offend appellant's rights under the due process clause" is a question of law. Smith v. Perini, 723 F.2d 478, 481 (6th Cir.1983).
A conviction based on identification testimony violates the defendant's constitutional right to due process whenever the identification procedure is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir.1986) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). A defendant is denied due process "only when the identification evidence is so unreliable that its introduction renders a trial unfair." Smith, 723 F.2d at 482 (quoting Summitt v. Bordenkircher, 608 F.2d 247, 253 (6th Cir.1979)). "As long as there is not a substantial likelihood of misidentification, it is the function of the jury to determine the ultimate weight to be given to the identification." Id.; see also United States v. Hill, 967 F.2d 226, 230 (6th Cir.1992).
This court has prescribed a two-step analysis for determining the admissibility of identification evidence. Ledbetter v. Edwards, 35 F.3d 1062, 1071-72 (6th Cir.1994); Hill, 967 F.2d at 230. First, the defendant bears the burden of proving that the identification procedure was impermissibly suggestive. Id. Second, if the defendant meets this burden, the court evaluates the totality of the circumstances to determine whether the identification was nevertheless reliable. Id. The following factors guide the court's reliability analysis: (1) the witness's opportunity to view the criminal at the time of the crime; (2) the witness's degree of attention at the time of the crime; (3) the accuracy of the witness's prior description of the defendant; (4) the witnesses's level of certainty when identifying the defendant at the confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Ledbetter, 35 F.3d at 1071 (applying the Biggers factors); Hill, 967 F.2d at 230 (same). If the defendant fails to show that the procedure was impermissibly suggestive, or if the totality of the circumstances indicates that the identification was otherwise reliable, admission of the identification testimony does not violate the defendant's right to due process.
Meyer contends that the district court erred in permitting Shaw's in-court identification. He argues that the pretrial identifications in June 2000 and August 2000, which the district court deemed impermissibly suggestive, tainted Shaw's in-court identification. In fact, he charges that Postal Inspector Barrett's suggestive behavior — the display of the single photograph — was so flagrant that it rendered Shaw incapable of making an independent identification. No procedure devised by the district court, he maintains, could have eliminated the taint of Inspector Barrett's misconduct.
Meyer also contends that, under the Biggers analysis, Shaw's identification was not independently reliable. First, he insists that Shaw had limited opportunity to view the perpetrator, as, although the encounter lasted two to four minutes, Shaw was able to view the perpetrator's face for only "some fraction" of this time. Second, he questions Shaw's degree of attention, asserting that Shaw was distracted by his concern for his safety. Third, he brands Shaw's prior description inaccurate, noting that, in his initial statement to investigators, Shaw described the perpetrator as a man in his twenties or thirties and did not mention gray hair or facial hair. (At the time of the incident, Meyer was in his early forties and, apparently, had gray hair and a mustache.) Fourth, he discounts the high degree of certainty...
To continue reading
Request your trial
-
Howard v. Bouchard
...made during the commission of a crime because the witness has a reason to pay attention to the perpetrator. See United States v. Meyer, 359 F.3d 820, 826 (6th Cir.2004) (finding heightened degree of attention where witness spoke with robber and studied his features while looking for an oppo......
-
U.S. v. Budd
...in violation of 18 U.S.C. § 242. This court reviews de novo the denial of a motion for judgment of acquittal. United States v. Meyer, 359 F.3d 820, 826 (6th Cir.2004). The issue is "`whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of ......
-
U.S. v. Pacheco-Lopez
...this Court reviews the district court's factual findings for clear error and its legal conclusions de novo. United States v. Meyer, 359 F.3d 820, 824 (6th Cir.2004). Additionally, when reviewing a district court's denial of a motion to suppress, we review the evidence in the light most favo......
-
U.S. v. Sullivan
... ... was the same, he acted the same and he "handled" both robberies in the same way in that "he wanted all the same type of money, [and] he wanted us to get in the back room, but then he changed his mind." ... Two employees testified about the robbery of the PNC Bank in Taylor ... Meyer, ... Page 985 ... 359 F.3d 820, 824 (6th Cir.2004) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)) ... ...