Anderson v. Maggio, 76-2750

• Decision Date: 05 July 1977
• Docket Number: No. 76-2750,76-2750
• Parties: 2 Fed. R. Evid. Serv. 106 Jordan W. ANDERSON and Clyde W. Anderson, Petitioners-Appellants, v. Ross MAGGIO, Acting Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 447

555 F.2d 447

2 Fed. R. Evid. Serv. 106

Jordan W. ANDERSON and Clyde W. Anderson, Petitioners-Appellants, v. Ross MAGGIO, Acting Warden, Louisiana State Penitentiary Respondent-Appellee.

No. 76-2750.

United States Court of Appeals Fifth Circuit.

July 5, 1977.

Alexander Wall, Sr., Baton Rouge, La. (Court-appointed), for petitioners-appellants.

David M. Miller, Ralph L. Roy, Asst. Dist. Attys., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before MORGAN and FAY, Circuit Judges, and HUNTER, District Judge. ^*

LEWIS R. MORGAN, Circuit Judge:

Brothers Jordan and Clyde Anderson were convicted of armed robbery by a jury sitting in the state judicial district court at Baton Rouge. Upon exhaustion of state remedies, ¹ the Andersons sought habeas corpus relief, pursuant to 28 U.S.C. § 2254, in the United States District Court of the Middle District of Louisiana. Without conducting an evidentiary hearing, the district court denied the Andersons' petition. Petitioners appeal that denial, urging several points of error that allegedly invalidate their state convictions and render their subsequent confinement unconstitutional.

I. Use of Photographs at Trial and Testimony on Pre-Trial Identification

Petitioners argue that the state trial court violated the constitutional standards articulated in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) when it allowed the prosecution to question state witnesses about their pre-trial identifications of the defendants and to use photographs of the defendants to bolster that testimony. That is, in addition to asking witnesses to the robbery whether they could identify the defendants as the two robbers, the prosecution also questioned three witnesses about their pre-trial identification of the defendants, inquiring whether a certain photograph was the photograph identified by the witness in his or her pre-trial identification. ² Although appellants contend that questioning at trial about a witness' pre-trial identification of a defendant is improper, relevant case law indicates that such inquiry is not only constitutional, but also would have comported with federal standards had the trial been held in federal court. See Fed.R.Evid. 801(d)(1)(C). ³ See also United States v. Keller, 512 F.2d 182 (3rd Cir. 1975); Virgin Islands v. Petersen, 507 F.2d 898 (3rd Cir. 1975); United States v. Harden, 469 F.2d 65 (5th Cir. 1972). United States v. Hallman, 142 U.S.App.D.C. 93, 439 F.2d 603 (1971); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968). In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Supreme Court discussed the propriety of such questioning as presenting a hearsay, rather than constitutional, question and noted:

There is a split among the States concerning the admissibility of prior extrajudicial identifications, as independent evidence of identity. . . . It has been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification . . . . In People v. Gould, 54 Cal.2d 621, 626, 7 Cal.Rptr. 273, 275, 354 P.2d 865, 867, the Court said: . . . '(E)vidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. . . .'

388 U.S. at 272 n.3, 87 S.Ct. at 1956 n.3 (omissions within quote from Gould are ours).

Likewise, permitting a witness to testify that he has previously identified a photograph of the defendant as the robber logically includes allowing that witness to identify at trial the particular photograph seen by him during the pre-trial investigation. See Virgin Islands v. Petersen, 507 F.2d 898 (3rd Cir. 1975). Citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), petitioners argue that showing witnesses photographs at trial to verify as those identified by them shortly after the robbery was unduly suggestive and tainted their in-court identification. Yet, Simmons and progeny deal with impermissibly suggestive pre-trial ⁴ identification procedures that create a danger that witnesses will identify a person because of the vivid impression created by his picture, not because that person was observed committing the crime in question. Simmons, however, does not address the present situation in which a witness who has previously identified a photo at an unsuggestive ⁵ pre-trial proceeding affirms his prior identification of that photo at trial.

II. Admission of Gun Into Evidence

Appellants also argue that Melinda Moore's testimony was not, under Louisiana law, a sufficient basis upon which to admit the gun into evidence. ⁶ Yet, the mere violation of evidentiary rules by the state trial court does not in itself invoke habeas corpus relief, but only where the violation of the state's evidentiary rules results in a denial of fundamental fairness should habeas be granted. Woods v. Estelle, 547 F.2d 269 (5th Cir. 1977). As a guideline to applying the criterion of fundamental fairness, the erroneous admission of prejudicial evidence can justify habeas corpus relief only if it is "material in the sense of a crucial, critical, highly significant factor." Hills v. Henderson, 529 F.2d 397 (5th Cir. 1976), quoting Corpus v. Beto, 469 F.2d 953 (5th Cir. 1972), cert. denied 414 U.S. 932, 94 S.Ct. 236, 38 L.Ed.2d 162. Whether the trial court violated Louisiana law or acted imprudently under federal standards of evidence in admitting the gun solely on the testimony of Melinda Moore, the admission of the gun into evidence did not constitute a violation of due process and, thus, does not justify federal habeas corpus relief.

III. Newly Discovered Evidence

Petitioners further allege that the district court's denial of their petition, without holding an evidentiary hearing, was improper in light of their allegations ⁷ of newly discovered evidence in particular, state witness Madison's affidavit recanting his trial testimony. ⁸ In their appellate brief, ⁹ petitioners also include an affidavit from a Johnny Rogers, a fellow inmate of the Andersons', in which Rogers confesses to the crime and exculpates petitioners. Yet, in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the definitive opinion on the standards for determining when an evidentiary hearing should be held to examine allegations contained in a habeas corpus petition, the Supreme Court stated that "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on habeas corpus." 372 U.S. at 317, 83 S.Ct. at 759. Similarly, in Shaver v. Ellis, 255 F.2d 509 (5th Cir. 1958), this court held:

Questions of guilt or innocence are not matters to be considered upon petition for habeas corpus. . . . Newly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not to its legality . . . (T)he confession 'might be urged as the proper subject for executive clemency, but it affords no basis for judicial action.'

255 F.2d at 511 (citation omitted). Thus, neither Madison's recantation nor Rogers' confession is sufficient to require habeas relief.

IV. Insufficiency of the Evidence

Petitioners' most substantial basis for requesting habeas corpus relief is that the evidence presented at their state trial was too weak to support a conviction. Our review of the record in the state trial confirms petitioners' argument that the State did adduce little evidence against them. Thus, the only evidence upon which a conviction could have been based was the testimony of two witnesses: Melinda Moore and Donald Madison. Melinda Moore, who was only eleven years old at the time of the robbery, identified Jordan Anderson as one of the robbers. She made this identification, notwithstanding her admission that she was in the store for only a moment during the robbery and that the robber whom she identified wore a mask. Donald Madison, an employee at the Ragusa grocery store, testified that a man, whom he later identified as Jordan Anderson, came into the store the night before the robbery and looked around before finally buying a pack of cigarettes. According to Madison's testimony, that same man bought another pack of cigarettes the morning of the robbery, after which he and another person, whom the witness identified as Clyde Anderson, sat in front of the store in a red Chevrolet for several hours. The man and the car were still in front of the store shortly before noon when Madison left to make a delivery. On his way back to the store, some 15-30 minutes later, Madison saw a red car that he perceived to have been the same car that had been parked in front of the store, speeding down Napolean Street. Other witnesses testified that the robbery occurred while Madison was making the delivery, that the robbers left the store in a red Chevrolet that had been parked outside it, and that the robbers were followed up Napolean Street as they made their get-away.

We do not gainsay petitioners' argument that the evidence upon which they were convicted was weak. Indeed, if we were reviewing this case on direct appeal to determine whether the evidence was sufficient to support their conviction, we cannot be certain that we would deny relief to these two defendants. We are not hearing a direct appeal, however, but are deciding the merits of a habeas corpus petition from a state prisoner. To...