Archuleta v. Kerby, 87-2117
| Decision Date | 03 January 1989 |
| Docket Number | No. 87-2117,87-2117 |
| Citation | 864 F.2d 709 |
| Parties | Michael ARCHULETA, Petitioner-Appellant, v. Dareld KERBY, Warden, Central, N.M. Correctional Facility, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.
William McEuen, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., with him on the brief), Santa Fe, N.M., for respondent-appellee.
Before HOLLOWAY, Chief Judge, ANDERSON and EBEL, Circuit Judges.
Michael Archuleta appeals from an order of the United States District Court for the District of New Mexico denying his petition for a writ of habeas corpus. The issue on appeal is whether his due process rights were violated by the introduction at his trial of testimony concerning a show-up identification in which he was shown to witnesses while he was handcuffed and seated in a police car and the introduction of a subsequent in-court identification by those witnesses. We conclude that his due process rights were not violated. Therefore, we affirm the district court's denial of habeas corpus relief.
In September 1985, petitioner was convicted by a jury of automobile burglary and larceny under $100.00 for breaking into a van and taking a bag full of quarters. He was sentenced to a total of two years in prison for the crimes. His sentence subsequently was increased to eight years after it was determined that he was an habitual offender. He appealed to the New Mexico Court of Appeals, which affirmed his conviction. The New Mexico Supreme Court denied certiorari. He then filed a petition for a writ of habeas corpus in the United States District Court for the District of New Mexico claiming that he had been subjected to an illegal search and seizure, that there was lack of probable cause for the arrest, and that the show-up identification was improper. The district court dismissed the petition pursuant to 28 U.S.C. Sec. 2254, adopting the findings of a United States magistrate.
The relevant undisputed facts leading to petitioner's conviction are as follows. Philip Madrid III, and his father, Philip Madrid, Jr., operated a coin machine business in Albuquerque, New Mexico. On October 10, 1984, after completing their morning rounds, the Madrids were eating breakfast in a restaurant. Madrid III looked out the window of the restaurant and saw a man and a woman near the Madrids' van, in which the Madrids had left approximately $60.00 in quarters in a bank bag. Madrid III saw the man break the window of the van with a tire iron and reach into the van.
The Madrids then ran out of the restaurant and yelled at the man and the woman. Madrid III saw the face of the man and noticed that he had a bank bag tucked in his belt. Madrid III then chased the man and stopped the car in which the man was trying to escape. When the man got out of the car, Madrid III had an unobstructed view of him from about ten feet away and looked straight into his face. Madrid III then pursued the man on foot for about 500 yards, observing his build and clothing until he lost him in a trailer park. In total, Madrid III was able to observe the man for approximately two minutes.
When the police arrived at the scene of the crime, the Madrids gave them a description of the man who had broken into the van. Madrid III described him as approximately 5'9" tall, a Spanish male with dark hair and a mustache, wearing a black t-shirt with some type of emblem on it and blue jeans. Madrid, Jr. gave the police a similar description, although he estimated that the man was approximately 5'7" tall.
Based on the Madrids' description of the thief, the police detained Archuleta and brought him back to the scene of the crime approximately thirty minutes after the incident. The police displayed Archuleta to the Madrids while he was handcuffed and seated in the back seat of a police car, and the Madrids positively identified him as the perpetrator.
Before petitioner's trial, Archuleta's trial attorney moved to suppress any testimony concerning the show-up identification and any in-court identification by the Madrids. She argued that displaying Archuleta in a show-up identification while handcuffed in a police car among uniformed police officers was so suggestive that introduction of evidence of it would violate Archuleta's due process rights. She also argued that the suggestive show-up tainted any subsequent identification by the Madrids. The state conceded that the show-up was suggestive but argued that in the circumstances of this case it was reliable. The trial court admitted testimony regarding the show-up identification, and both Madrid III and his father made positive identifications of Archuleta at the trial. Archuleta contends that the introduction of this evidence violated his due process rights.
Initially, we must determine the appropriate standard of review. The Supreme Court has held that the ultimate conclusion of the constitutionality of identification procedures is a mixed question of law and fact and, as such, is subject to plenary review. Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982). Therefore, we review the conclusion that Archuleta's due process rights were not violated de novo. Nevertheless, as discussed below, there are a number of factual determinations made by the state trial court which underlie this conclusion. 1 These factual findings are entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d). Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981). 2
In examining the constitutionality of an identification procedure, a court must address two issues. The first issue is whether the identification procedure is unnecessarily suggestive. In this case the district court found, and the state has conceded, that the show-up procedure was unnecessarily suggestive.
Even if an identification procedure is suggestive, the introduction of the identification evidence does not necessarily violate a defendant's due process rights. United States v. Williams, 605 F.2d 495, 498 (10th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 189 (1979). The central inquiry is "whether under the totality of the circumstances the identification was reliable." Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). See also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977) ().
The Supreme Court has set forth five factors to be considered when evaluating the reliability of identification procedures:
1. The opportunity of the witness to view the criminal at the time of the crime;
2. The witness' degree of attention;
3. The accuracy of the witness' prior description of the criminal;
4. The level of certainty demonstrated by the witness 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, 382-83, 34 L.Ed.2d 401 (1972). See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). This court must balance these five factors against the "corruptive effect" of the identification procedures in order to determine whether the identification testimony should have been suppressed. Manson, 432 U.S. at 114, 97 S.Ct. at 2253; United States v. Thurston, 771 F.2d 449, 453 (10th Cir.1985).
An examination of the five factors in this case reveals that the identification procedure did not create a "very substantial likelihood of ... misidentification," Neil v. Biggers, 409 U.S. at 198, 93 S.Ct. at 381 (quotingSimmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)), and therefore did not violate petitioner's due process rights.
First, the Madrids had ample...
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