Blanco v. Dugger

• Decision Date: 11 July 1988
• Docket Number: No. 87-6685-Civ.,87-6685-Civ.
• Citation: 691 F. Supp. 308
• Parties: Omar BLANCO, Petitioner, v. Richard DUGGER, Respondent.
• Court: U.S. District Court — Southern District of Florida

691 F. Supp. 308

Omar BLANCO, Petitioner, v. Richard DUGGER, Respondent.

No. 87-6685-Civ.

United States District Court, S.D. Florida.

July 11, 1988.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mark E. Olive, Chief Asst., Capital Collateral Representative, Tallahassee, Fla., for petitioner.

Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, Fla., for respondent.

REVISED MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART PETITION FOR WRIT OF HABEAS CORPUS¹

HASTINGS, District Judge.

THIS CAUSE comes before the Court upon Petitioner Omar Blanco's Petition for Writ of Habeas Corpus. After granting a stay of execution to review the claims set forth herein, presiding over an evidentiary hearing, a careful consideration of all materials submitted along with the record, and being fully advised, this Court's opinion and order are set forth below.

PROCEDURAL HISTORY

Petitioner Omar Blanco, (hereinafter referred to as "Blanco"), was tried by a jury and convicted on June 11, 1982 of first degree murder and burglary while armed with a handgun. On June 21, 1982, Blanco was sentenced to death by electrocution on the first degree murder conviction and to a consecutive sentence of seventy-five (75) years with a mandatory minimum of three (3) years imprisonment on the armed burglary conviction.

Blanco directly appealed his conviction to the Supreme Court of Florida, raising nine (9) issues, several of which are reasserted here. The Florida Supreme Court affirmed the conviction and sentences. Blanco v. State, 452 So.2d 520 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985) (hereinafter referred to as "Blanco I"). (A full description of the facts regarding this crime are set forth in Blanco I, 452 So.2d at 522-23 and are adopted by this Court for the purposes of this opinion.) On January 7, 1986, the Governor of Florida signed a death warrant for Blanco. On January 31, 1986, Blanco filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, raising eleven claims. The trial court entered a stay of execution on February 3, 1986. On that same date, Blanco also filed a state court petition for writ of habeas corpus in the Supreme Court of Florida, raising only two claims, both of which included many of the sub-issues asserted here.

After an evidentiary hearing, the trial court denied the motion for post-conviction relief on April 21, 1986 and Blanco appealed to the Supreme Court of Florida. On May 7, 1987, the Supreme Court of Florida affirmed the trial court's denial of the 3.850 motion and denied habeas corpus relief. Blanco v. Wainwright, 507 So.2d 1377 (Fla.1987), reh'g denied (July 10, 1987) (hereinafter referred to as "Blanco II").

The Governor signed a second death warrant for Blanco on August 18, 1987 with the execution date set for September 17, 1987. Blanco filed a Petition for Writ of Habeas Corpus in this Court on September 16, 1987 at 2:33 P.M. This Court, after reviewing the record and presiding over oral argument on Blanco's motion to stay execution, granted a stay. An evidentiary hearing was held on January 4 and 5, 1988, where counsel were ordered to present evidence on several claims and oral argument or additional briefs on others.

After a careful review of the record and being fully advised, this Court has examined at length the merits of all fifteen claims asserted by Blanco and its findings are set forth below.

INDIVIDUAL CLAIMS²

CLAIM I: PRE-TRIAL IDENTIFICATION PROCEDURES

A. Lineup: Identification Testimony of Thalia Vezos

Blanco was identified by Thalia Vezos as the person who shot and killed the victim. Vezos, a fourteen year old girl, was in the house when her uncle, the victim, was shot. In analyzing challenged identifications,

this circuit has adopted a two-step analysis for determining whether identifications based on a lineup or photo array are so unreliable as to violate due process. We must first decide whether the original identification procedure was unduly suggestive. If not, that ends the inquiry. If so, however, we must then determine whether the suggestive procedure, given the totality of the circumstances, created a substantial risk of irreparable misidentification at trial.

Williams v. Weldon, 826 F.2d 1018, 1021 (11th Cir.1987). "Reliability is the linchpin in determining the admissibility of identification testimony." Williams, 826 F.2d at 1021, citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

Here, Ms. Vezos identified Blanco in a lineup conducted only one day after the murder. (T. 91-92). A police detective cautioned Ms. Vezos to view the entire lineup before making her decision (T. 101-102). After viewing all the lineup participants, she then positively identified Blanco as the person who shot her uncle (T. 102). While Blanco and the other four lineup subjects were approximately the same height, Blanco claims that his facial hair and manner of dress differentiated him from the others.

This Court has examined the photographs of the lineup viewed by Ms. Vezos and agrees with the trial court that Blanco's appearance was in no manner substantially distinguishable from the others to render the procedure impermissibly suggestive. Accordingly, the lineup did not violate due process under the test of Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), which requires that "the conduct of identification procedures ... not be ... `unnecessarily suggestive and conducive to irreparable mistaken identification.'" Foster, 394 U.S. at 442, 89 S.Ct. at 1128.³

Blanco also contends that a full record of this issue was not developed at trial, thereby precluding an informed and reasoned decision regarding the constitutionality of the lineup. This Court disagrees. The record is replete with evidence and testimony regarding the identification procedures (T. 90-92; 101-102; 158-159; 898-900). Additionally, this Court has independently reviewed the lineup photographs and has determined that the standard enunciated by the United States Supreme Court in Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) has been met. That standard is, that the trial court's findings are "fairly supported by the record." Therefore "the presumption of correctness ... controls." Sumner, 455 U.S. at 593, 102 S.Ct. at 1305.⁴

B. Show Up: Identification Testimony of George Abdeni

Mr. George G. Abdeni, the victim's neighbor, immediately after the murder, observed a "form dressed in a sort of a grayish jogging suit pass by in front of the house on the lawn, not on the street, and go towards bayview" (T. 794). Pursuant to the description given by Abdeni and Vezos, a "Be On the Lookout" (BOLO) police order was issued throughout the area. The BOLO described the suspect as follows:

1. Race and sex: Latin male

2. Height: 5'10"

3. Hair: Black and curly

4. Complexion: Dark

5. Facial Hair: Moustache

6. Clothing: Gray or light-green sweat-suit

7. Location: Last seen running in an easterly direction

(T 814).

Blanco was seen near the victim's home and stopped by a police officer, Officer Price (T. 813-836). Officer Price determined that Blanco fit a majority of the seven part BOLO (T. 816). On this basis, Officer Price correctly determined that he had probable cause, arrested Blanco, and then brought him to the scene of the crime. The police presented Blanco to Abdeni to determine if Blanco was the person who Abdeni had seen (T. 820). Although Abdeni had difficulty ascertaining whether the form he described was that of a woman or a man, he immediately identified Blanco as the person he had spotted leaving the victim's house (T. 805).

The seminal case regarding the constitutionality of show-ups is Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The Neil v. Biggers standard was recently reiterated in Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir.1987):

Factors considered in determining reliability include "the opportunity to view the witness 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."

In essence, the test probes the reliability of the identification.

Although a show-up was arguably not the best method to conduct an identification, the "totality of the circumstances" demonstrates that the police "did not aggravate the suggestiveness" of the showup, and therefore, "the confrontation was not impermissible." Johnson, 817 F.2d at 729; See also Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977). Here, the record establishes that Abdeni had sufficient opportunity to observe the person leaving the premises to give a description of the suspect's form and clothing (T. 66-67; 795). Moreover, Abdeni told the police and later, the jury, that he could only recognize the suspect's body form and type of clothing and that Blanco fit both criteria (T. 72-76; 803-809).

Additionally, the jury heard all the evidence and was given the opportunity to disregard that identification or assign less credibility to Abdeni's testimony. The record belies Blanco's argument that trial counsel failed to develop inconsistencies in Abdeni's testimony (T. 799-808; 810-812). Contrary to Blanco's assertion, on cross-examination, defense counsel, Mr. Tenbrook, brought the discrepencies in the identification to the jury's attention, including Abdeni's inability to observe the suspect's head through the trees in front of the victim's house, Abdeni's uncertainty as to the sex of the person, and the overall vagueness of the description (T. 799-808; 810-812).

Such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of

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