Cronnon v. State of Ala.

• Decision Date: 08 January 1979
• Docket Number: No. 77-3393,77-3393
• Citation: 587 F.2d 246
• Parties: Johnny Lee CRONNON, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 246

587 F.2d 246

Johnny Lee CRONNON, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 77-3393.

United States Court of Appeals Fifth Circuit.

Jan. 8, 1979.

Myron K. Allenstein, Gadsden, Ala. (Court-appointed), for petitioner-appellant.

William J. Baxley, Atty. Gen., David W. Clark, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before COLEMAN, CLARK and RUBIN, Circuit Judges.

COLEMAN, Circuit Judge.

This is a case in which a man convicted of the particularly revolting murder of a fifteen year old female was nailed by the tattoo of a nude woman on his left forearm.

Relying on the contents of the state court records, the District Court denied Johnny Lee Cronnon's petition for habeas corpus.

Cronnon was convicted of first degree murder in the Circuit Court of Etowah County, Alabama. ¹ We have already rejected a claim that the evidence was insufficient to convict, Cronnon v. Alabama, 5 Cir. 1977, 557 F.2d 472. ² We remanded, for consideration on the merits, claims which the District Court had declined to reach. On remand, that Court again denied habeas corpus relief. The case is here again. For the second time, we affirm.

I.

Cronnon first contends that the state trial court denied him due process by permitting an in-court identification which was based, at least in part, upon an unduly suggestive pretrial photographic identification.

Although the facts are discussed in detail in the reported opinion of the Alabama Court of Appeals, 56 Ala.App. 192, 320 So.2d 697 (1975), ³ we briefly note the basic outline.

In Gadsden, Alabama, at about 8:55 p. m. on April 12, 1974, Jeanne Marie Aiello, a fifteen-year-old, left on foot for the C-Mart Grocery Store. Across the street from the C-Mart was the Zippy Mart. At the Zippy Mart, Donovan Hawthorne was sitting in his car while his wife was inside shopping. He saw the girl walk to, and return from the C-Mart.

Hawthorne also observed a blond haired male pull into the Zippy Mart parking lot shortly after the girl walked by on her way to the C-Mart. The male went inside the Zippy Mart, where he remained for about two minutes:

walked in went in the front went down in front and went over to the bookstand and turned around and looked out the window, walked back across and down in front of the counter and around toward the back and turned around and come back around to the peanut stand and picked up a bag of peanuts and bought them and come out.

320 So.2d at 700.

Hawthorne then observed the individual head toward his car, which was parked near the dirt road running between the girl's home and the Zippy Mart. However when Hawthorne next looked, the man had disappeared but his car was still there. Shortly afterwards, Hawthorne observed Miss Aiello, returning from the C-Mart, walk down this particular dirt road. About one or two minutes later Hawthorne heard the car "crank up" and observed it going down that dirt road in the same direction Miss Aiello had taken. About a minute later the car turned around and drove off the dirt road onto the highway "at a pretty high rate of speed and almost run into us".

Early the next morning the girl's body was found, nude and mutilated. Hawthorne heard about it on the radio and that afternoon he gave a written statement to the police. He provided the police with a detailed description of the male he had observed. The man was described as a 20-24 year old white male who was about 5'8 -5'9 tall and weighed about 160-170. He had "Blonde Hair with a black streak in his hair on the right side" and, further, he had a mustache. Hawthorne also pointed out that the man had a tattoo of a woman on his left forearm. Finally, the man had driven a "1966 Chev. White Impala" with a loud muffler.

In addition to providing a written statement, Hawthorne unsuccessfully attempted to identify the male suspect from a set of photographs which the police brought to his house.

About one or two months after the murder, police officers brought Hawthorne six mug shots. He identified Cronnon as the man he had seen, as above related.

At trial Hawthorne identified Cronnon as the individual he had observed at the Zippy Mart.

Cronnon contends that such in-court identification was inadmissible due to the suggestive police identification procedures followed prior to trial and, further, that the court below erred in failing to hold an evidentiary hearing at which such contentions could be proved.

The District Court properly resolved the identification claim without resorting to an evidentiary hearing. A federal habeas court is not required to hold such a hearing unless, at a minimum, the habeas corpus applicant Alleges facts which, if proved, would entitle him to relief. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); See also Bloodworth v. Hopper, 5 Cir. 1976, 539 F.2d 1382, 1384; United States v. Smith, 5 Cir. 1977, 546 F.2d 1275, 1279, and cases cited therein.

Moreover, there was a detailed court record as to how the identification was accomplished.

The question, then, is whether the in-court identification followed a photographic identification procedure which was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" and thus was constitutionally inadmissible. See Manson v. Brathwaite, 432 U.S. 98, 109-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

(The) inquiry is whether the identification procedure was unnecessarily suggestive; if so, the court must then determine whether the procedure created a substantial risk of misidentification.

Swicegood v. Alabama, 5 Cir. 1978, 577 F.2d 1322, 1325.

See also United States v. Smith, supra, 546 F.2d at 1279, and cases cited therein.

Cronnon maintains that the photographic array in the second identification session was "unnecessarily suggestive" because the Cronnon photograph was the only one of the six photographs showing an individual with blond hair. Even if it be conceded that the pretrial identification procedure was unnecessarily suggestive, there are no facts in dispute which would tend to establish that the procedure created a substantial risk of misidentification. What we have here is an argument over the legal implications to be drawn from undisputed facts. An evidentiary hearing is not required under such circumstances. Anderson v. Maggio, 5 Cir. 1977, 555 F.2d 447, 452-53.

The District Court held that the admission of the in-court identification did not deprive Cronnon of due process. This was not error. Even if it is assumed that the pretrial identification procedure was " unnecessarily suggestive" it must nonetheless be remembered that "reliability is the linchpin in determining the admissibility of identification testimony". Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court suggested a number of factors to be considered in resolving the reliability inquiry:

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Id. at 199-200, 93 S.Ct. at 382.

From the undisputed testimony in the trial transcript, it is evident that the in-court identification was sufficiently reliable. Hawthorne had a good opportunity to view Cronnon. Hawthorne testified that the Zippy Mart had lights in front and was "fairly well lit up". Hawthorne watched Cronnon inside the store, and there is no argument that it was not well lighted. Hawthorne paid a great deal of attention to Cronnon, as manifested by his detailed account of Cronnon's physical characteristics and his activities in the area. It can be argued that he had no special reason for observing the then unknown male, but the fact remains that he did pay close attention to him.

Hawthorne provided an essentially accurate description of Cronnon. There was some discrepancy in his descriptions of Cronnon's appearance with respect to the hair style, length, and tint and as to Cronnon's weight. The evidence showed that a few days after the murder Cronnon's hair was dyed a different color by his stepmother. Moreover, any discrepancies must pale in comparison to the remainder of Hawthorne's description which is not claimed to be inaccurate. For example, Hawthorne noted that the man he observed had a tattoo of a nude woman on the inside of his left forearm. Indisputably, Cronnon had such a tattoo.

There is no dispute that the photograph picked out by Hawthorne was that of Cronnon.

The photographic identification was made two months after the murder and ordinarily "(T)his would be a seriously negative factor." However, Hawthorne made no identification at the first photographic session and thus demonstrated a "record for reliability". Neil v. Biggers, supra at 201, 93 S.Ct. at 383.

Moreover, Hawthorne testified that he saw Cronnon pick up a bag of "peanuts" while he was in the Zippy Mart. The wife of defendant's first cousin testified that Cronnon had been staying in their home for two or three weeks. When he got home "around 10 p. m." on the night of the murder, he had a bag of pistachio nuts, which he said he had gotten "at the store".

II. Withheld Evidence

On motion for new trial Cronnon argued that the government withheld molds of tire and foot prints, which were assumed to be exculpatory, and thus deprived Cronnon of a fair trial, as guaranteed by the Due Process Clause of the Fourteenth Amendment, under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96...