Evans v. Janing

• Decision Date: 28 December 1973
• Docket Number: No. 73-1156.,73-1156.
• Citation: 489 F.2d 470
• Parties: Johnson Kenneth EVANS, Appellant, v. Theodore JANING, Sheriff of Douglas County, Nebraska, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

489 F.2d 470 (1973)

Johnson Kenneth EVANS, Appellant, v. Theodore JANING, Sheriff of Douglas County, Nebraska, et al., Appellees.

No. 73-1156.

United States Court of Appeals, Eighth Circuit.

Submitted September 14, 1973.

Decided December 28, 1973.

COPYRIGHT MATERIAL OMITTED

Martin A. Cannon, Omaha, Neb., for appellant.

Mel Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for appellees.

Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

In this appeal from the order of the District Court denying habeas corpus relief, Johnson Kenneth Evans asserts two constitutional challenges to the eyewitness identifications upon which his state robbery conviction depended: (1) that the eyewitness testimony was tainted by a prior uncounselled photographic display; and (2) that the state prejudiced his defense by failing to produce evidence favorable to the accused in the form of a police report showing one eyewitness had failed to identify a photograph of Evans. We uphold the order of the District Court and affirm.

On the morning of September 20, 1968, two men entered a small grocery store in Omaha, Nebraska, owned and operated by Arthur Haffke. Haffke and his son, Warren, were the only other persons in the store. The larger of the two men asked Arthur Haffke where the milk counter was located. Haffke, suspicious because the "big fellow" had whiskey on his breath, transferred a gun from beneath the counter to his pocket. After three to five minutes, during which Haffke observed the men carefully, they returned to the checkout stand. The larger man had a carton of milk and asked for a pack of cigarettes. When Haffke opened the cash register drawer, the big man pushed him against the wall and reached into the till; then both men fled. Haffke fired his pistol, wounding the smaller man, James Nathaniel Wright. The big man escaped.

Appellant Evans promptly became a suspect because of his friendship with Wright.¹ Four days after the robbery, Evans received word that the police wanted to talk to him about the robbery. He went to the police station "to find out what it was about." He was then arrested on the robbery charge.

On September 2, 1969, nearly one year later, Evans and Wright were jointly arraigned at a preliminary hearing at which Arthur Haffke identified Evans, a Negro, as one of the robbers. Questioned about prior identification of photographs, he testified that police officers had come to his store and had shown him "a whole bunch" of photographs and had asked him, "Is that man in here that pushed you?" Haffke testified that he indicated a color photograph of a man who had a yellow streak down the center of his hair was the same man, but the streak was not there at the time of the incident; he identified Evans "by his face." Haffke further testified that his recollection at the time of the hearing was independent of the photographs.²

Evans came to trial March 10, 1970, eighteen months after the robbery. The only evidence of Evans' participation was the positive in-court identification testimony of the two Haffkes. Neither expressed any doubt that Evans was the "big fellow" who had pushed Arthur Haffke, tapped the till, and escaped. Evans' defense was based on the testimony of his employer that Evans was at work at the time of the crime. Evans also presented his probation officer, Patrick Krell, who testified that prior to and after the robbery Evans had a yellow streak in his hair. Evans' testimony in his own behalf was consistent with that of his employer and Krell.

Both Haffkes were examined generally about the appearance of the "larger" robber, but neither was asked whether the robber had a yellow streak in his hair.³ The existence of the photo display was not brought out at trial. Evans was found guilty by the jury and was sentenced to five to seven years.

Counsel for Evans on this appeal represented James Wright both in his criminal defense⁴ and in a civil suit brought by Wright against Haffke based on injuries resulting from the shooting. During the civil proceedings in Wright v. Haffke, No. 613, District Court of Nebraska, Douglas County, a police report of Sergeant John B. Gallagher surfaced, and its contents are the subject matter of this appeal.

The police report, dated September 27, 1968, reads:

I contacted HAFFKE, Art for the purpose of showing him mug photos.

I first showed him four colored polaroid mug photos; Two of them being Evans, Kenneth, who\'s hair had a yellow streak in front. Haffke could not pick any one from this group of photos.

I then showed Haffke three black & white regular mug photos: EVANS, OPD #68069; COLEMAN, OPD #46162 and GOODSON OPD #47187. Haffke immediately pointed to Evans, OPD #68069 stating that this look sic like the man who pushed him away from his cash register and then reached into the cash drawer and took money out and ran out of the store. This photo of Evans was taken in 1967.

Haffke stated that on the day of the robbery Evans did not have any yellow streaks in his hair.

All photos held as evidence.

Evans' motion for a new trial, based in part on the police report, was denied. The Nebraska Supreme Court affirmed the lower court's order;⁵ Evans then filed a habeas corpus petition in the United States District Court of Nebraska, which was denied by Judge Robert V. Denney; this appeal followed.

I

Appellant first attacks the photographic display because he was not at the time represented by counsel. That argument was recently laid to rest in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), in which the Supreme Court expressly held that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the government for the purpose of allowing a witness to attempt an identification of the suspect. See also United States v. Long, 449 F.2d 288 (8th Cir. 1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1973).

Next, appellant argues that Gallagher was unduly suggestive in his manner of presenting the photographs to Arthur Haffke. It is true that Evans' picture appeared in two of the four color photographs which were shown and in one of the black and white photographs which were next exhibited to Haffke. There is no evidence that Gallagher intimated to Haffke which photograph was of the suspected robber. And it may well be argued that appellant's contention that Haffke failed to identify the color photographs of Evans is inconsistent with his contention that the display was unduly suggestive. In any event, an invalid photo display only taints an in-court identification where there is no independent basis for such identification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In this case, Haffke's independent basis for identification was well established. We find no prejudice here.

II

Appellant next contends that the failure to produce the police report deprived him of due process of law. A preliminary overview of the evolving law of favorable evidence will aid in focusing upon the specific challenge presented in this case. A prosecutor has a duty to disclose material evidence favorable to the accused. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This duty is mandated by the fairness requirement of the due process clause and is consistent with his general obligation to seek justice above victory. United States v. Hibler, 463 F.2d 455 (9th Cir. 1972). This duty of candor, while substantial, is not all encompassing. It neither requires full disclosure as in civil cases⁶ nor permits a "combing of the prosecutors' files" in search of evidence possibly useful to the accused.⁷ It has been limited to evidence favorable to the accused,⁸ material to his guilt or punishment,⁹ and evidence affecting the credibility of a key witness when his reliability may be determinative of guilt or innocence.¹⁰ Unlike the exclusionary rule of Mapp and Miranda, the duty of disclosure enunciated in Brady v. Maryland is designed to assure the fundamental right to a fair trial rather than penalize law enforcement officers for conduct encroaching upon an accused's constitutional rights.¹¹ Suppression has consistently been used synonymously with nondisclosure.¹² Thus, while deliberate suppression might ease a defendant's burden of proving materiality,¹³ the duty to disclose is measured without regard for the good faith or bad faith of the prosecution.¹⁴

A three-pronged test to be applied in nondisclosure cases was announced in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562 (1972), wherein the Supreme Court stated:

The heart of the holding in Brady is the prosecution\'s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence\'s favorable character for the defense, and (c) the materiality of the evidence.

408 U.S. at 794-795, 92 S.Ct. at 2568.

We therefore must test appellant's claim of due process violation by the same considerations.

(A.) Was There Suppression?

The first question is simply whether at or before the trial the prosecutor knew or should have known of the report while defense counsel was unaware of its existence.¹⁵ County Attorney Francis R. Pane stated on April 20, 1971 that he was aware of Sergeant Gallagher's report prior to the trial, that he had seen the photographs referred to in the report, that he never advised defense counsel of the existence or contents of the report, and that he had no reason to believe that defense counsel had any knowledge of the existence of the report. Assistant Public Defender, Lynn R. Carey, Jr., one of the attorneys who conducted Evans' defense, testified at the same time that he had requested to see the police...