Armstrong v. Young
| Decision Date | 21 September 1994 |
| Docket Number | No. 91-3877,91-3877 |
| Citation | 34 F.3d 421 |
| Parties | Ralph D. ARMSTRONG, Petitioner-Appellant, v. Warren YOUNG, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John K. Smerlinski (argued), Madison, WI, for petitioner-appellant.
Sally L. Wellman, Asst. Atty. Gen. (argued), Office of the Atty. Gen., Wis. Dept. of Justice, Madison, WI, for respondent-appellee.
Before POSNER, Chief Judge, and COFFEY and ROVNER, Circuit Judges.
A jury found Ralph D. Armstrong guilty of first degree murder and first degree sexual assault, and a Wisconsin trial court sentenced Armstrong to life imprisonment plus sixteen years. The Wisconsin Supreme Court affirmed Armstrong's convictions. State v. Armstrong, 110 Wis.2d 555, 329 N.W.2d 386, cert. denied, 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983). Armstrong then petitioned for a writ of habeas corpus in the district court pursuant to 28 U.S.C. Sec. 2254. The district court denied the petition, and we affirm.
The Wisconsin Supreme Court described in detail the events that occurred on the evening of June 23 and the early morning of June 24, 1980 (329 N.W.2d at 389-90), and because we assume familiarity with its opinion, we recount the pertinent facts only briefly here. Charise Kamps was sexually assaulted and brutally murdered early on June 24. Prior to the murder, Kamps had been in the company of Armstrong, Armstrong's fiance Jane May, and his brother Steve Armstrong at May's apartment. Kamps left the apartment at approximately 10:45 p.m. on June 23 to return home. Armstrong left May's apartment shortly thereafter. The testimony that directly implicated Armstrong in Kamps' murder came from Riccie Orebia, who lived next to the victim's apartment building. 1 Orebia testified that she was sitting on her porch at approximately 12:45 a.m. on June 24 when she saw a man drive by in an older model white car with a black top. The man parked his car in a lot across the street and walked into Kamps' building. The same man left the building a short while later and crossed the street, but Orebia saw him return about five minutes later. After approximately another five minutes, the same man again left Kamps' building, and this time Orebia noticed that he was shirtless and that he was muscular. A few minutes later, the man returned, running, and again entered Kamps' building. Approximately twenty minutes passed before the man again emerged. He was still without a shirt and was running faster than before. Orebia noticed that his skin was "shining." Six or seven minutes later, the man drove out of the parking lot "very fast."
Orebia later told the police investigating Kamps' murder what she had seen. She described the man as "pretty well built" with big arms and a flat stomach, and with long dark hair. She indicated that she would recognize the man if she saw him again. The investigating officers asked that Orebia submit to hypnosis to refresh her recollection of what she had seen. Five days after Kamps' murder, she did so. Under hypnosis, Orebia described the man as being of medium height, with big arms, a small stomach, a fat nose, bushy dark eyebrows, and dark, wavy hair that covered the back of his neck.
A few days after the hypnosis session, the police arranged for Orebia to view a lineup from the spot on the porch where she had been sitting on the night of Kamps' murder. Each of the participants, including Armstrong, was handcuffed and was brought across the street by two officers. Because Armstrong refused to cooperate and went limp, the officers were required to carry him across the street, and they subsequently did the same to two other participants. Armstrong was the second man to be brought across the street, and as his head became visible above some bushes at the scene, Orebia gasped and said, "Oh my God, that's him." Armstrong was later arrested and charged with the sexual assault and murder of Kamps. After a trial, a jury convicted him of those charges.
In his federal habeas petition, Armstrong alleges constitutional error at his trial in the admission of Orebia's allegedly unreliable identification testimony. He also contends that his due process and Sixth Amendment rights were violated by the fact that Orebia had undergone hypnosis prior to identifying him in the lineup. Armstrong finally alleges a due process violation in the State's failure to disclose in discovery a parking ticket that he considers to be exculpatory. The district court rejected each of these arguments and denied Armstrong's petition.
To support his constitutional arguments relating to the lineup and hypnosis procedure, Armstrong relies primarily on two depositions Orebia had provided to Armstrong's counsel prior to trial. Those depositions contradict Orebia's other testimony in this case, as she maintained in the depositions that the man she had seen leaving Kamps' building was not Armstrong and that the police had used highly suggestive tactics during hypnosis and at the lineup to convince her to say otherwise. Because the events surrounding those depositions are important to whether we should permit Armstrong to rely on them here, we describe those events in some detail.
After Orebia had identified Armstrong at the July 3, 1980 lineup, she testified at a preliminary hearing in the case on September 2, 1980. She again identified Armstrong at that hearing as the man she had seen on the night of Kamps' murder. Five days later, however, on September 7, Orebia wrote a letter to the prosecutor in which she indicated that the case had upset her greatly, that she had been unable to sleep at night, and that she had sought help at a mental health facility. Orebia also questioned in the letter why she had even bothered to speak up and then stated: "I have tried my best to assist in this case, but my own personal safety and well being at this time [are] my number one concern." (March 19, 1981 Tr. at 256-57.)
The September 7 letter did not indicate that Orebia was attempting to terminate her involvement in the case, but a month later, she was arrested, apparently for disorderly conduct, and while in jail on that charge, she was approached by Armstrong. 2 It is unclear what, if anything, Armstrong may have said to Orebia, but after her release, Orebia contacted Armstrong's counsel and indicated that her earlier identification had been in error. Armstrong's counsel preserved Orebia's recantation at a November 5, 1980 deposition, during which Orebia attested that while she had been in jail, she had noticed that Armstrong was taller than the man she had seen (Nov. 5 Orebia Dep. at 4, 7-8), and that the police had threatened her with a perjury charge if she "blew this case." (Id. at 10, 24.) Orebia claimed that since she had first identified Armstrong, the police had been going out of their way not to pick her up for prostitution or related offenses, and that the police had offered to buy her a telephone and to find her a nicer apartment. (Id. at 22-24.) She indicated unequivocally that Armstrong was not the man she had seen entering and exiting Kamps' building on the night of the murder. (Id. at 4, 17.) She also stated that the police had attempted to influence her recollection under hypnosis by planting pictures of Armstrong and his automobile in the room. (Id. at 12-14.) As to the lineup, Orebia explained that the police had told her prior to the lineup that the man who committed the murder was in custody and that he would be in the lineup. (Id. at 5, 8.) She also indicated that most of the men participating in the lineup were police officers who were wearing the same wig, which they seemed to be passing to one another before crossing the street. (Id. at 6.)
Orebia was subsequently arrested again, this time for carrying a concealed weapon (an Exacto knife). She again saw Armstrong while detained in jail, and he allegedly told Orebia not to talk to the detectives. The police also repeatedly asked Orebia if she had spoken to any of Armstrong's attorneys, and she denied having done so. It frightened her that the police were picking her up, charging her, and then dropping the charges or letting her out on her own recognizance when she did not ask to be released. Orebia believed the officers were "hassling" her by being too lenient. In a subsequent statement made to Armstrong's counsel on November 10, Orebia indicated that she wanted to leave town for awhile because she was so upset but that she would return to testify on Armstrong's behalf at trial.
On November 21, 1980, Armstrong moved to suppress the Orebia identification on the ground that the lineup had been unduly suggestive, that she had been hypnotized prior to the lineup, and that the police had made improper threats and promises to Orebia prior to the lineup. The state trial court conducted a lengthy hearing on Armstrong's motions and heard testimony from a number of witnesses, including Orebia. At that hearing, Orebia reverted to her original testimony implicating Armstrong. She explained that she had lied to Armstrong's counsel and in the depositions because she had wanted to destroy her own credibility so she would not be required to testify at Armstrong's trial. She indicated that she was not intimidated by the police, nor was she afraid that she would be charged with perjury or other offenses if she changed her testimony. On the basis of this and other testimony, the trial court denied Armstrong's motions to suppress and permitted Orebia's identification testimony at trial. Armstrong's counsel used the depositions to impeach Orebia at trial, but the jury apparently believed her explanation for lying and also believed that she had reverted back to the truth at trial.
In considering Armstrong's challenge to the identification testimony...
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