Cikora v. Dugger

Citation840 F.2d 893
Decision Date25 March 1988
Docket NumberNo. 87-5360,87-5360
PartiesPeter Brian CIKORA, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Ira N. Loewy, Bierman, Sonnett, Shohat & Sale, P.A., Pamela Perry, Miami, Fla., for petitioner-appellant.

Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.

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

Before KRAVITCH and CLARK, Circuit Judges, and ESCHBACH *, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Peter Brian Cikora challenges his state conviction for grand theft and burglary with a weapon. In his federal habeas petition, Cikora claims that the state trial court violated his constitutional rights (1) when it admitted evidence of an out-of-court identification allegedly based on an impermissibly suggestive photo array, and (2) when it refused to allow Cikora to present one Charles Donorvitch to the jury to show that Donorvitch closely fit the description of the burglar given by witnesses immediately after the crime.

I.

On the night of August 12, 1982, Karen Hudson and her daughter Bobbie Lynn Hudson were staying at the Hollywood, Florida home of Janie Hernandez. At about 10:00 p.m., Hernandez heard a knock at the door. She did not open the door; instead she looked through a blue stained-glass "jailhouse door." A man outside, bending over as if in pain, asked to use the telephone, but Hernandez refused.

At about 1:00 a.m., Karen Hudson was awakened by barking dogs. The three women got up and looked around, but they could not see anything. An hour later, Karen Hudson looked out the living room window and saw a man on the ground on his hands and knees. Although the man had a stocking over his face, Hudson was able to observe that he had light brown hair and dark eyes. The police were called, but they found nothing.

At 6:30 a.m., the three women heard a loud noise at the front door. Karen Hudson looked out her bedroom window and saw a man hitting the door, about four to five feet away. In the five seconds in which Hudson was able to observe the man, she noticed that he had light brown hair and dark eyes. His face was not covered.

Karen Hudson ran to phone the police and to get Hernandez, who tried to hold the door. The man soon shred the door, however, and entered the house. Hernandez hid; Karen Hudson dropped the telephone and ran down the hallway. The man chased her, and she turned around to face him. He yelled at her before hitting her over the head and across the face. When Bobbie Lynn Hudson called at him to stop, he ran out of the house.

Karen Hudson then phoned the police. As she picked up the telephone, she saw the man get into Hernandez' car; she screamed at him, and he turned towards her before stepping into the car. Hernandez ran across the street to her neighbor's house. From the neighbor's doorway, Hernandez saw the man try to unlock her car. She was able to observe him for four minutes, although she was seventy-five feet away and admitted that it was difficult for her to see at the time.

Following the incident, Deputy Cloud of the Broward County Sheriff's Office arrived at the Hernandez house. After speaking with Hernandez and Karen Hudson, Cloud put together a composite description of the intruder: a white male in his mid-twenties, approximately 5'7" tall, 165 pounds, with short to medium light brown hair. Hernandez and Hudson had not observed any facial hair, scars, marks, or tattoos. Cloud then learned from a neighborhood resident that Cikora fit the composite description and lived in the neighborhood. Cloud telephoned Cikora, who came over. According to Cloud's testimony, Cikora at the time had a full blond or sun-bleached moustache that could have blended into his face.

Deputy Sheriff Edward Baker then took over the case. Baker secured a photograph of Cikora from the Sheriff's Office and put this photograph together with five others to produce a photographic lineup. All of the photos showed white males; four showed men with full moustaches, one showed a man with a goatee and sparse moustache, and the photo of Cikora showed only a sparse moustache. Only Cikora's photo had height markings.

One month after the burglary, Officer Baker asked the three women to examine the photographic lineup. Baker asked Hernandez and Bobbie Lynn Hudson to turn away while he showed the array to Karen Hudson. Baker stated, "These are pictures of six white males. One of them is believed to be the suspect. I would like you to view them and pick out who you feel is the white male that was at your residence on this particular night." Karen Hudson pointed to the picture of Cikora. Baker then followed the same procedure with Hernandez, who also pointed to the photograph of Cikora, although she indicated that she was not one hundred percent certain of her identification. Bobbie Lynn Hudson was unable to identify Cikora. None of the women communicated during the selection process, and Officer Baker did not indicate any woman's selection to the others. Prior to trial, defense counsel moved to suppress the out-of-court identification on the ground that the photo array was impermissibly suggestive. The court denied this motion.

At trial, Karen Hudson and Hernandez positively identified Cikora as the man who broke into the Hernandez home. Officer Baker testified as to each woman's out-of-court identification. Five witnesses testified for the defense. John Gaetz testified that he was friendly with both Hernandez and Cikora, and that he had seen Hernandez and Cikora together before the night of the crime. Four defense witnesses testified that the photograph of Cikora used in the photographic lineup had been taken a considerable time before the burglary. Cikora testified that he had been shooting pool until 2:30 a.m. on the night of the burglary and then went home. He also exhibited tattoos on his back, chest, and arm.

As part of the defense strategy, counsel subpoenaed Charles Donorvitch, a prisoner that Cikora had met in the Pompano, Florida jail. Counsel argued that, as Donorvitch lived in Hernandez' neighborhood and fit the description of the burglar given by the witnesses to Detective Cloud, he should be brought into court for the jury to observe. 1 The trial judge expressed concern about parading Donorvitch before the jury, although he suggested that calling Donorvitch as a witness might be a different matter. The state moved to exclude Donorvitch, and the trial court granted the motion.

Cikora was convicted and sentenced to concurrent prison terms of fifteen years and five years. The Florida District Court of Appeal affirmed the conviction, 450 So.2d 351. Cikora then filed his petition for habeas corpus in federal district court. The Magistrate recommended that the writ issue on the ground that the photographic lineup was impermissibly suggestive. The district judge concluded, however, that Cikora's rights were not violated by either the admission of the identification based on the photo lineup or the exclusion of Donorvitch, and denied relief, 661 F.Supp. 813.

II.

This court consistently has followed a two-step analysis in assessing the constitutionality of a trial court's decision to admit out-of-court identifications. First, we must determine whether the original identification procedure was unduly suggestive. Dobbs v. Kemp, 790 F.2d 1499, 1506 (11th Cir.1986), modified in part on other grounds, 809 F.2d 750 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). If we conclude that the identification procedure was suggestive, we must then consider whether, under the totality of the circumstances, the identification was nonetheless reliable. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); Dobbs, 790 F.2d at 1506. This second stage involves consideration of five factors identified by the Supreme Court in Neil v. Biggers: opportunity to view, degree of attention, accuracy of the description, level of certainty, and length of time between the crime and the identification. 409 U.S. at 199, 93 S.Ct. at 382.

Initially we must address our standard of review of the district court's conclusion that the identification procedure was not impermissibly suggestive. The district court's ultimate conclusion, taking into consideration the five factors of the Neil v. Biggers test, that Cikora was not deprived of due process by the admission of the out-of-court identification, is subject to plenary review as a mixed question of fact and law. Cf. Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam) (ultimate conclusion of whether admission of identification testimony deprived defendant of due process is mixed question of fact and law to which presumption of correctness on habeas proceedings does not apply). But as previously explained, this ultimate conclusion must be preceded by several intermediate determinations. If we conclude that the photo array was not impermissibly suggestive we need not proceed to the five factors of the Neil v. Biggers test.

Although we have found no Supreme Court or Eleventh Circuit decisions directly on point, the former Fifth Circuit consistently applied the "clearly erroneous" standard, on habeas proceedings as well as on direct appeals, to conclusions of the district courts that a pretrial identification procedure was not impermissibly suggestive. See, e.g., Doescher v. Estelle, 616 F.2d 205, 206 (5th Cir.1980); United States v. Diecidue, 603 F.2d 535, 565 (5th Cir.1979), cert. denied, 446 U.S. 912, 100 S.Ct. 1842, 64 L.Ed.2d 266 (1980); United States v. Francoeur, 547 F.2d 891, 894 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977); cf. United States v. Merkt, 794 F.2d 950, 958 (5th Cir.1986) (citing Diecidue ), cert. denied, --- U.S. ----, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987). 2 Nor do we view ...

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