Cikora v. Wainwright, 85-6247-CIV.

Citation661 F. Supp. 813
Decision Date07 April 1987
Docket NumberNo. 85-6247-CIV.,85-6247-CIV.
PartiesPeter Brian CIKORA, Petitioner, v. Louie L. WAINWRIGHT, et al., Respondents.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

Ira N. Loewy, Miami, Fla., for petitioner.

Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, Fla., for respondents.


MARCUS, District Judge.

THIS CAUSE has come before the Court upon the Report and Recommendation of Magistrate Peter L. Nimkoff. Petitioner Peter Brian Cikora filed a Petition for Writ of Habeas Corpus with this Court on March 18, 1985.1 He argues first that he was deprived of his Fourteenth Amendment right to due process by an impermissibly suggestive photo-lineup combined with a substantial likelihood of misidentification under the totality of circumstances presented in the case. Petitioner argues second that his Sixth Amendment right to compulsory process and his Fourteenth Amendment right to due process were violated by the trial judge's refusal to permit him to exhibit before the jury another individual, also in jail, matching the description of the perpetrator of the crime. Magistrate Nimkoff found that the photo-lineup was "impermissibly suggestive." Nevertheless, he concluded that the "substantial likelihood of misidentification" was cured by the direct and cross-examination of the victims at trial, and therefore that Petitioner's due process rights were not infringed. With regard to the jury view, however, the Magistrate concluded that the trial judge's ruling violated Petitioner's Fourteenth Amendment right to present relevant non-testimonial evidence. Accordingly, and on this basis, Magistrate Nimkoff recommended that the Writ of Habeas Corpus issue.

We have reviewed the entire record de novo and both parties' objections to the Magistrate's Report and Recommendation. For the reasons elaborated at length below, we find first, that the photo-lineup neither was impermissibly suggestive nor was so unreliable as to implicate the Petitioner's due process rights; second, that the constitutional dimensions of the jury view issue were properly advanced before the Florida appellate court and hence were exhausted in state proceedings and preserved for habeas corpus review; and finally, that the denial of the jury view did not violate Petitioner's rights to compulsory process or due process as secured by the Sixth and Fourteenth Amendments. Accordingly, we conclude that the Writ of Habeas Corpus may not issue.

I. Facts
A. The Crime

The instant case arises from a burglary which occurred at the Hollywood home of Janie Hernandez on August 13, 1982. (R. 33). A detailed discussion of the facts surrounding the burglary and the witnesses' various opportunities to observe the perpetrator is crucial to our determination of the constitutionality of admitting into evidence the photo identifications. Likewise, an overview of the testimony proffered and presented at trial is essential to a determination of the constitutionality of the judge's decision to prevent the jury view.

Ms. Hernandez' cousin, Karen Hudson, and her daughter, Bobbie Lynn Hudson were spending the night of August 12, 1982 with Ms. Hernandez. (R. 51-52). At approximately 10:00 p.m. that evening, Ms. Hernandez answered a knock at the door. (R. 103). She did not open the door, but looked through a blue-stained glass "jail-house door." (R. 104). A man outside, bending over as if in pain, asked to use the phone, and Ms. Hernandez refused. (R. 103-04). During this whole incident, Ms. Hudson remained in a nearby room. (R. 53). Although she heard Ms. Hernandez speaking, she could not hear the other party. (R. 53).

At approximately 1:00 a.m. that evening, Ms. Hudson was awakened by the sounds of dogs barking. (R. 55). She, Janie, and Bobbie Lynn got up, looked around, but could not see anything suspicious. (R. 55). At approximately 2:00 a.m., Ms. Hudson went to the living room window, looked down, and saw a man on the ground on his hands and knees. (R. 56). The man had a stocking over his face, but Ms. Hudson was nevertheless able to observe that he had light brown hair, and dark eyes. (R. 57). When the man saw her looking down at him, he got up and ran. (R. 57). The police were called to the house but found nothing. (R. 57-58). Approximately one hour later, another occupant of the house saw a shadow move in the backyard. (R. 58). The police were called again, with the same result. (R. 108).

Around 6:30 a.m. the occupants of the house heard a loud noise at the front door. (R. 59). From the middle bedroom where she was, Karen Hudson looked out the window and could see the front door which was about four to five feet away. (R. 60). It was just turning daylight. (R. 59). She saw a man hitting the door trying to come in. (R. 60). She observed that he had light brown hair and an orangish-color shirt on with light sleeves, dark pants, and darker eyes. (R. 61). He did not have a stocking covering his face. (R. 61). She yelled at him and observed him through the window—about four to five feet from the door—for about five seconds before running to get Janie. (R. 61-62). As Janie then ran to hold the door, Karen called the police. (R. 62). The man soon shred the door to pieces and came through the door. (R. 62). Janie ran and hid behind the wall in the kitchen (R. 114), and Karen dropped the phone and ran down the hallway into the back bedroom (R. 62-63). The man chased after her down the hallway and she turned around to face him. (R. 63). For a few seconds, as she faced him, he screamed at her "where's the dough?" (R. 63), before hitting her on the head with a black object. (R. 64). After he hit her, she fell to the floor and then he hit her across the face and arm. (R. 65). When Bobbie Lynn screamed at him to stop, he turned and ran out of the house. (R. 67). Ms. Hudson ran to call the police. (R. 93). As she picked up the phone she observed the intruder get into a Mercury Cougar car owned by Janie Hernandez. (R. 93). Ms. Hudson screamed and the intruder turned towards her before getting into the car. (R. 95).

During this whole incident Janie Hernandez hid in the kitchen from which she could not see any other part of the house. (R. 114). After it was all over, she ran across the street to her neighbor Bernice Terry's house (R. 114-15), from whose doorway she was able to observe the man leave the house and try to unlock her car. (R. 115). She was about 75 feet away from the man at the time and was able to observe him for "a good four minutes." (R. 116). Although she admitted that it was hard for her to see, she did state that she "saw something like him." (R. 117).

B. Identification of the Petitioner Prior to Trial

Deputy Cloud from the Broward County Sheriff's Office came to the Hernandez house following the incident. (R. 186). From speaking with Janie Hernandez and Karen Hudson, Deputy Cloud was able to put together a composite description of the man: a white male in his mid-twenties, approximately 5'7", 165 pounds, short to medium light brown hair, wearing a rustcolored T-shirt with a white stripe around the shoulder seam, and dark pants or blue jeans. The witnesses did not observe any facial hair, scars, marks, tatoos, or jewelry. (R. 188-9, 193, 204). Later that afternoon, after being told by an individual outside Ms. Hernandez' residence that the Petitioner, Peter Cikora, fit that description (height, weight, and hair color) and lived in the neighborhood, Deputy Cloud went to the address that had been given him. (R. 191-92). The Petitioner was not home at the time, but when called, came right over. (R. 192). Deputy Cloud testified that the Petitioner had a full mustache which was blond or sun-bleached. (R. 193, 196). The Petitioner volunteered to go over and have the victims look at him. (R. 196). Deputy Cloud declined, however, because normal police procedure was not to do a face-to-face identification any more than an hour after the incident. (R. 198).

Deputy Sheriff Edward Baker of the Broward County Sheriff's Office then took over the investigation of the case. (R. 152-53). Detective Baker secured a photograph of the Petitioner from the Broward County Sheriff's Office. (R. 154). He put this photograph together with five others to produce a photographic lineup. (R. 7). All of the photos showed white males with similar hair, complexions and facial characteristics. Four of the photos showed men with full mustaches, one showed a man with a goatee and sparse mustache, and the photo of the Petitioner showed only a sparse mustache. Only the photo of the Petitioner, however, contained height markings.

The photographic lineup was held at the Broward County Sheriff's Office on September 13, 1982, one month after the incident. (R. 7). Janie Hernandez, Karen Hudson, and Bobbie Lynn Hudson were present. (R. 7). Officer Baker asked Janie and Bobbie Lynn to turn away while he showed the photo array to Karen Hudson. (R. 8). He then allegedly said, "These are pictures of six white males. One of them is a, 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." (R. 9). Karen Hudson pointed to the picture of the Petitioner and then signed a form indicating her choice. (R. 9). The officer then followed the same procedure with Janie Hernandez. (R. 10). She too pointed to the picture of the Petitioner, although she indicated that she was not one hundred percent sure it was him. (R. 10). Bobbie Hudson was unable to pick out the Petitioner. (R. 10). None of the women communicated during the selection process nor did Officer Baker indicate to any of them the other's choice. (R. 11) Prior to trial, defense counsel moved to suppress the out-of-court identification on the grounds that the pre-trial photo array was unnecessarily suggestive. Following a hearing (R. 5-31), this motion was denied by the court. (R. 31).

C. Testimony at Trial and the Jury View

Ms. Hudson and Ms....

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  • Cikora v. Dugger, 87-5360
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