907 F.2d 581 (5th Cir. 1990), 89-4830, Smith v. Puckett

Docket Nº:89-4830
Citation:907 F.2d 581
Party Name:Edward SMITH, Jr., Petitioner-Appellant, v. Steve W. PUCKETT, Superintendent of Mississippi State Penitentiary, etc., Respondent-Appellee.
Case Date:August 07, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 581

907 F.2d 581 (5th Cir. 1990)

Edward SMITH, Jr., Petitioner-Appellant,


Steve W. PUCKETT, Superintendent of Mississippi State

Penitentiary, etc., Respondent-Appellee.

No. 89-4830

United States Court of Appeals, Fifth Circuit

August 7, 1990

Page 582

Edward Smith, Jr., Parchman, Miss., pro se.

Jeffrey N. Rosamond, Sp. Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Edward Smith, Jr. (Smith) appeals the denial of his petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. We affirm.

Facts and Proceedings Below

Smith is currently a prisoner in the Mississippi State Penitentiary serving a life sentence for murder. A jury found Smith guilty of fatally shooting James Jackson (Jackson) in 1981 as Jackson lay in a hospital intensive care unit suffering from gunshot wounds he had previously received. The Supreme Court of Mississippi affirmed the conviction. Smith v. State, 430 So.2d 406 (Miss.1983).

After exhausting state remedies, Smith filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The magistrate recommended dismissal of the habeas petition, and the district court adopted the recommendation. The court granted Smith a certificate of probable cause to appeal. The case is now before us.


Smith first argues on appeal that the state deprived him of counsel at a critical stage in the prosecution by taking a still photograph of him after his indictment and four days before his trial without the presence of his counsel. Smith was photographed alone, not in a "line-up," and none of the witnesses who testified at trial was present when the photograph was taken. There is no indication or claim that Smith said anything, or communicated in any other way, on the occasion when the picture was taken, or that the pose depicted in the photograph was in any way unusual or different from the typical "mug shot." Nor was there any evidence or claim of anything said to Smith, or done to or by

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him, on that occasion. The photograph was not introduced in evidence. There is no claim nor any indication that Smith's appearance as depicted therein differed from his appearance at trial.

The Sixth Amendment right to have counsel present at a pretrial confrontation is determined by "whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967). Contrary to Smith's position, the right to counsel at all stages of the proceedings is not absolute. Preparatory stages, "such as systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like," are not "critical stages at which the accused has the right to the presence of his counsel." Id. We hold that the photographing of Smith was such a preparatory stage; as a result, Smith was not entitled to have counsel present when his picture was taken. See United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) (post-indictment photographic display); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 1953-54, 18 L.Ed.2d 1178 (1967) (handwriting exemplar).

Smith next contends that the state violated his due process rights by showing the mentioned photograph to prosecution witnesses shortly before they appeared in court and gave their trial identification testimony. He maintains that he was prejudiced by this "unnecessarily suggestive" use of the photograph. The state responds that even if showing the photograph to witnesses was improper, there is no due process violation because the reliability of the witnesses' identification remains untainted.

The Supreme Court has asserted "that reliability is the linchpin in determining the admissibility of identification testimony" and has outlined five factors to be considered in determining the reliability of the identification evidence:

"the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

In the instant case, three nurses working in the intensive care unit of the hospital identified Smith at trial. At the time of the shooting, Teresa Martin (Martin) was drawing blood from the victim, James Jackson. She identified Smith as the man who had approached her from the left brandishing a gun. Martin related at trial that Smith said "You son of a bitch" to Jackson before shooting at his face and chest several times. Martin also testified that the unit was very well lit with fluorescent light bulbs and that she had had a clear look at the gunman. She had previously identified Smith as the gunman in a lineup, although she noticed that at the time of the lineup and trial Smith had shed the beard and mustache he had worn at the time of the shooting. 1

A second nurse, Scott Berry (Berry), was attending a surgery patient two beds down from Jackson during the shooting. Berry testified that he saw a black male enter the intensive care unit, raise a pistol, motion Martin out of the way, speak the words "You son of a bitch," and then shoot Jackson. Berry identified Smith as the gunman, although Berry too noticed that Smith had shaved the mustache and beard he had worn at the time of the shooting. On the day of the trial, Berry identified Smith as the gunman from a photo display of five photographs of black males. 2

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Another nurse, Thelma Knott (Knott), was bathing a patient in the unit at the time of the shooting. Because a curtain was partially drawn around her patient, Knott was unable to see Jackson's bed. However, Knott testified that she got a clear...

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