Brown v. Streeter, Civ. A. No. 84-0255-C.

• Decision Date: 31 December 1986
• Docket Number: Civ. A. No. 84-0255-C.
• Citation: 649 F. Supp. 1554
• Parties: Charles BROWN, Petitioner, v. Joseph STREETER, Respondent.
• Court: U.S. District Court — District of Massachusetts

649 F. Supp. 1554

Charles BROWN, Petitioner, v. Joseph STREETER, Respondent.

Civ. A. No. 84-0255-C.

United States District Court, D. Massachusetts.

December 31, 1986.

Charles Brown, pro se.

Albert F. Cullen, Jr., Cullen and Wall, Boston, Mass., Robert V. Carr, for petitioner.

Linda G. Katz, Asst. Atty. Gen., Boston, Mass., for respondent.

CAFFREY, Senior District Judge.

This matter comes before the Court on a petition for habeas corpus relief submitted by Charles Brown, who is currently serving a life sentence for murder in the first degree. After a jury trial, petitioner was found guilty and sentenced on May 17, 1976. The conviction was affirmed on direct appeal to the Supreme Judicial Court. Commonwealth v. Brown, 376 Mass. 156, 380 N.E.2d 113 (1978). Petitioner's motion for a new trial in the Superior Court was denied in December, 1981, and his request for leave to appeal that ruling pursuant to Mass.Gen.Laws ch. 278, § 33E, was denied. Order, Abrams, J., June 8, 1983, No. 83-180. The facts of this case are well summarized by the court in Brown, 376 Mass. at 157-61, 380 N.E.2d 113.

Petitioner seeks relief from this Court on three grounds. First, petitioner contends that his Fourteenth Amendment due process rights were violated when the trial court failed to exclude testimony of a pretrial photographic identification even though the prosecution failed to introduce the entire photographic array. Petitioner argues that the trial court should have excluded this evidence on the grounds that it was presumptively suggestive. Petitioner's second asserted ground for habeas relief concerns the failure of the trial court to give an instruction to the jury on the evaluation of eyewitness testimony. Finally, petitioner asserts that he was deprived of a fair trial because the prosecutor asked two questions concerning his alleged heroin habit. Petitioner has exhausted his available state remedies, therefore the petition is properly before this Court pursuant to 28 U.S.C. § 2254. After consideration of the arguments presented by both sides and for the following reasons, I rule that the petition for a writ of habeas corpus should be denied.

I. Exhaustion of Available State Remedies

Petitioner first asserts that he is entitled to habeas corpus relief on the grounds that the trial court erred when it allowed into evidence the testimony of John Kenny's pretrial identification of petitioner. Petitioner argues that, since the Commonwealth did not introduce into evidence the two thick black books containing the entire photographic array from which petitioner was identified, the testimony regarding the identification should have been excluded. According to the petitioner, the jury was deprived of the opportunity to assess whether the array was suggestive and thus weigh the probity of Kenny's identification. Absent that opportunity, the petitioner asserts that the court should have presumed the photo array to be impermissibly suggestive, and therefore excluded the evidence. Instead, the testimony was allowed and petitioner thus argues that his Fourteenth Amendment right to due process was violated.

The Attorney General relies primarily on Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) and Lacy v. Gabriel, 732 F.2d 7 (1st Cir.1984), cert. denied, 469 U.S. 861, 105 S.Ct. 195, 83 L.Ed.2d 128 (1984), to maintain that petitioner's constitutional challenge to the admission of the identification evidence was not presented to the state courts and therefore that petitioner has not exhausted available state remedies as required by the federal habeas corpus statute, 28 U.S.C. § 2254(b) and (c). The Attorney General argues that petitioner submits a new legal theory to this Court. According to the Attorney General, the petitioner's objection at trial, and on appeal in the state courts, was based on the contention that the jury could not assess the probity of Kenny's identification, whereas in this Court, petitioner's objection is based on the presumed suggestiveness of the Police Department's identification procedure. The Attorney General thus argues that petitioner neglected to present a constitutional argument in the state courts and therefore should not be permitted to make such an argument for the first time in federal court.

Petitioner maintains that his objection to the admission of the identification evidence in the state courts was, in substance, the same as the one presented here: that in the absence of the jury's opportunity to ascertain the suggestiveness of the identification procedures, the evidence should have been excluded. Petitioner relies on Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971), to argue that his objection in state court fairly presented the substance of a federal constitutional claim even though he did not cite "book and verse on the federal constitution," and thus his state remedies were exhausted.

The question of whether petitioner has exhausted his state remedies turns on whether he fairly presented to the state courts the substance of the federal constitutional claim. Lacy, 732 F.2d at 10. A petitioner may not present new factual claims or legal theories to the federal court. Turner v. Fair, 617 F.2d 7, 11 (1st Cir.1980). While petitioner's claim in the state courts need not be presented in precisely the same fashion in the federal court, Lacy, 732 F.2d at 10, the state courts should have been alerted to the presence of a federal claim in order to satisfy the exhaustion requirement. Dougan v. Ponte, 727 F.2d 199, 201 (1st Cir.1984), citing Daye v. Attorney General of the State of New York, 696 F.2d 186 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984). Generally, a state court is alerted to the presence of federal claims when the petitioner cites particular provisions of the Constitution or relies on federal precedents to support his legal theory. Dougan, 727 F.2d at 201.

In this case, petitioner raised at trial the issue of the "fairness" of allowing the jury to hear testimony about the pretrial identification.¹ In his brief on appeal to the Supreme Judicial Court, petitioner challenged the validity of the identification evidence by citing two decisions of the United States Supreme Court, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Petitioner admits to this Court that he did not argue in the state courts that the Police Department procedures were suggestive. Instead, petitioner maintains that the substance of his objection in the state courts—that the potential suggestiveness of the photo array could not be ascertained by the jury—is essentially the same objection as that presented to this Court. I agree.

The Supreme Judicial Court, in its opinion in Brown, 376 Mass. at 163, 380 N.E.2d 113, reaffirmed its ruling in Commonwealth v. Gibson, 357 Mass. 45, 255 N.E.2d 742 (1970), cert. denied, 400 U.S. 837, 91 S.Ct. 75, 27 L.Ed.2d 70 (1970), that the Commonwealth is not required to produce the photo array before introducing evidence of an out of court identification. The issue in Gibson also involved a defendant's objection to the introduction of a pretrial photographic identification without the simultaneous introduction of the entire photo array. Defendant's counsel in Gibson argued that, absent the photo array, it was not possible to test the "critical identifications" under Wade, 388 U.S. 218, 87 S.Ct. 1926, and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The court in Gibson rejected this argument and held that "to require segregation of all the photographs shown to witnesses in the investigatory stage of all crimes would be to place a heavy if not intolerable burden upon investigatory processes at a time when these processes are already overtaxed, and we are not disposed to do it." Gibson, 357 Mass. at 47, 255 N.E.2d 742. Although it is preferable to preserve the photographic array, Sales v. Harris, 675 F.2d 532 (2d Cir.1982), cert. denied, 459 U.S. 876, 103 S.Ct. 170, 74 L.Ed.2d 140 (1982), there are other methods for a court to make the initial determination of whether a photographic identification procedure is impermissibly suggestive. Id. at 537-38. The Supreme Judicial Court ruled that it is sufficient to present to the jury the "complete story of the photographic identifications for such weight as they choose to give it." Gibson, 357 Mass. at 47, 255 N.E.2d 742. Federal precedent is not to the contrary. Simmons, 390 U.S. at 388-89, 88 S.Ct. at 973-74.

The court in Brown cited Gibson which is evidence of their alertness to the federal constitutional issue. I rule therefore that the Supreme Judicial Court addressed and rejected petitioner's federal claim. Accordingly, petitioner has exhausted his available state remedies as required under 28 U.S.C. § 2254(b) and (c), and the petition is therefore properly before this Court.

II. The Identification Evidence

Weighing the merits of petitioner's objection involves an inquiry into whether evidence of a pretrial photographic identification is presumptively suggestive, and therefore to be excluded, merely because the entire photo array is not introduced into evidence. In this case, John Kenny identified the petitioner's photo from two thick books containing an array of photographs. Brown, 376 Mass. at 163, 380 N.E.2d 113. The prosecution did not offer the array into evidence because it is evidently not the policy of the Boston Police Department to preserve the array once an identification is made.²

Petitioner contends the trial court erred in admitting this evidence and that the error resulted in a denial of due process under the principles set forth by the Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In Manson, the Court announced a two-pronged test to determine whether...