Green v. Loggins, No. 78-2683

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtJOHN W. PECK
Citation614 F.2d 219
PartiesJohn C. GREEN, Petitioner-Appellee, v. Otis LOGGINS, Respondent-Appellant.
Docket NumberNo. 78-2683
Decision Date25 February 1980

Page 219

614 F.2d 219
John C. GREEN, Petitioner-Appellee,
v.
Otis LOGGINS, Respondent-Appellant.
No. 78-2683.
United States Court of Appeals,
Ninth Circuit.
Feb. 25, 1980.

Page 220

Ann K. Jensen, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellant.

Thomas S. Worthington, Hovde & Worthington, Salinas, Cal., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CARTER, * PECK, ** and TANG, Circuit Judges.

JOHN W. PECK, Circuit Judge.

At a jury trial in the state court, petitioner was found guilty of violating two sections of the California Penal Code; section 187 (murder in the second degree) and section 12022.5 (use of a firearm in the commission of the named offense). After exhausting his rights of direct appeal, petitioner sought a writ of habeas corpus in the district court. Therein, petitioner argued that he had been denied constitutional due process through the admission of an in-court identification by a prosecution witness who had been involved in an encounter with petitioner prior to trial. The district court granted the writ, and the state now appeals.

There are two essential issues presently before the Court. First, can an accidental, pre-trial encounter between an accused and a prosecution witness ever support a federal habeas corpus claim? If so, second, did the district court herein properly find that petitioner had been denied constitutional due process by the admission of the challenged in-court identification?

Page 221

FACTS

The victim, Eddie Hunter, was managing a restaurant on July 13, 1975, at approximately 2:30 a. m., when he was fatally shot by an assailant with a pistol. Although petitioner admitted at trial that he had been inside the restaurant at the time of the shooting, petitioner argued in his defense that he had been simply an innocent bystander in the shooting episode.

At trial, the prosecution called four witnesses, all of whom had been present at the scene of the crime. Nonetheless, the prosecution's case rested primarily on the testimony of one witness, an eyewitness to the shooting, David Terry. In his testimony, Terry detailed the following scenario. In the early morning hours of July 13, 1975, in the restaurant which the victim managed, the victim and his assailant became involved in an argument over a dice game. A few minutes after the argument, the assailant left the restaurant, went out to his car, and removed from the car a .22-caliber pistol. (At this time, the assailant was approximately thirty feet away from the witness Terry.) After he had procured the pistol, the assailant returned to the restaurant and confronted the victim with his weapon. During the confrontation, the victim drew his own weapon, a .357-magnum revolver, and struck the assailant on the left side of his head with it. Immediately thereafter, two or more rounds of shots were fired. In his trial testimony, Terry identified petitioner as the man he had seen shoot the victim.

The events which occurred immediately following the shooting are not disputed by the parties. Within a moment or two after the shots had been fired, the victim, then fatally wounded, came out of the restaurant and walked toward the parking lot. A few seconds later, petitioner, who had been shot in the armpit area, also came out of the restaurant and stumbled across the street. A police officer, who had been dispatched to the scene of the shooting, approached petitioner, discovered his wound, and drove him to an emergency room of a nearby hospital. Although petitioner had initially stated that he had been shot while walking down the street, petitioner maintained at trial that he had been caught in the cross-fire in the restaurant.

The appeal now before the Court focuses on a series of incidents which began approximately four hours after the fatal shooting. At that time, the witness Terry viewed a photo array that had been prepared by police officials. Although the photo array included two photographs of petitioner, Terry selected a man named Hightower as the man who had fatally shot the victim earlier that morning. A few days after the shooting, Terry disappeared without explanation for a period of more than three months. During this period, the state considered dismissal of its case against petitioner due to the absence of its key witness.

Terry was eventually relocated on October 17, 1975. A short time thereafter, police scheduled a line-up in order to resolve the questions that had been raised by Terry's previous "photo array" identification of Hightower. The line-up was scheduled for Monday, October 20, 1975, and Terry was warned not to have any contact with police prior to that time. Nonetheless, and in spite of the warnings to the contrary, Terry went to a local police station on Sunday, October 19, and asked police officials to provide him with protective custody. Terry smelled of alcohol, and the police agreed to allow him to "sleep off" his intoxication in a holding cell at the station house.

As chance would have it, petitioner was being held by police at the same station house where Terry had gone to seek protective custody. Moreover, petitioner was conferring with his attorney at the exact time that Terry was in the station house on October 19. The conference between petitioner and his attorney concluded during the lunch hour, and consistent with the jail policy that no inmate was to be returned to his cell during a meal period, petitioner was placed in a holding cell the same holding cell in which Terry was sleeping. Terry awoke a short time after petitioner had been placed in the cell, and he remained there with petitioner for approximately one

Page 222

hour. Terry did not appear to recognize petitioner until, near the end of the hour period, a booking officer asked both Terry and petitioner to identify themselves by name.

ACCIDENTAL NATURE OF THE ENCOUNTER

The state courts and the district court herein all agreed that the jailhouse encounter between petitioner and the witness Terry had been an accidental, inadvertent encounter. The state argues, with reference to this finding, that an accidental, pre-trial confrontation between an accused and a prosecution witness can never support a state prisoner's claim of a due process violation. We disagree.

The state's argument is premised on the incorrect conclusion that the fundamental purpose of judicial review in the context of a pre-trial confrontation is the deterrence of culpable police conduct. The state argues, based on this conclusion, that an accidental encounter should never give rise to habeas corpus relief because the exclusion of the challenged in-court identification will not serve any deterrent purpose. Although we recognize that there is no intentionally wrongful police conduct involved in an accidental encounter, we also recognize that the deterrence of such conduct is not the primary purpose behind judicial review of tainted identification testimony. Rather, a court reviews a challenged in-court identification essentially to determine whether the witness' testimony retains sufficient indicia of reliability. In Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1976), the Supreme Court stated clearly that ". . . reliability is the linchpin in determining the admissibility of identification testimony . . ." which may have been affected by a pre-trial confrontation. It is certainly possible that an in-court identification by a prosecution...

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52 practice notes
  • Thigpen v. Cory, No. 85-1641
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 19, 1986
    ...the basic purpose for excluding identification evidence. See Neil v. Biggers, 409 U.S. at 198-99, 93 S.Ct. at 381-82; Green v. Loggins, 614 F.2d 219, 222 (9th Cir.1980). Because it "is the likelihood of misidentification that violates a defendant's right to due process," Neil v. Biggers, 40......
  • Brisco v. Ercole, Docket No. 05-4339-pr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 13, 2009
    ...United States v. Rogers, 126 F.3d 655, 659 (5th Cir.1997); United States v. Emanuele, 51 F.3d 1123, 1128 (3d Cir.1995); Green v. Loggins, 614 F.2d 219, 225 (9th We too have acknowledged the significance of such evidence before and after Brathwaite. Again, in Reid, Judge Friendly observed th......
  • Graham v. Solem, No. 82-1371
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 5, 1984
    ...ability to perceive or remember should not enter into the process of determining an identification's reliability. Green v. Loggins, 614 F.2d 219, 225 (9th Cir.1980). Compare Manson, 432 U.S. at 116, 97 S.Ct. at 2253 (fact that defendant was found at the scene of the crime and admitted being......
  • Abdur-Raheem v. Kelly, No. 96-CV-3851 ERK.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 28, 2000
    ...United States v. Rogers, 126 F.3d 655, 659 (5th Cir. 1997); United States v. Emanuele, 51 F.3d 1123, 1128 (3d Cir.1995); Green v. Loggins, 614 F.2d 219, 225 (9th Cir.1980). All of these cases cite Justice Stevens's Brathwaite concurrence. In at least two of the circuits with holdings reject......
  • Request a trial to view additional results
52 cases
  • Thigpen v. Cory, No. 85-1641
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 19, 1986
    ...the basic purpose for excluding identification evidence. See Neil v. Biggers, 409 U.S. at 198-99, 93 S.Ct. at 381-82; Green v. Loggins, 614 F.2d 219, 222 (9th Cir.1980). Because it "is the likelihood of misidentification that violates a defendant's right to due process," Neil v. Biggers, 40......
  • Brisco v. Ercole, Docket No. 05-4339-pr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 13, 2009
    ...United States v. Rogers, 126 F.3d 655, 659 (5th Cir.1997); United States v. Emanuele, 51 F.3d 1123, 1128 (3d Cir.1995); Green v. Loggins, 614 F.2d 219, 225 (9th We too have acknowledged the significance of such evidence before and after Brathwaite. Again, in Reid, Judge Friendly observed th......
  • Graham v. Solem, No. 82-1371
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 5, 1984
    ...ability to perceive or remember should not enter into the process of determining an identification's reliability. Green v. Loggins, 614 F.2d 219, 225 (9th Cir.1980). Compare Manson, 432 U.S. at 116, 97 S.Ct. at 2253 (fact that defendant was found at the scene of the crime and admitted being......
  • Abdur-Raheem v. Kelly, No. 96-CV-3851 ERK.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 28, 2000
    ...United States v. Rogers, 126 F.3d 655, 659 (5th Cir. 1997); United States v. Emanuele, 51 F.3d 1123, 1128 (3d Cir.1995); Green v. Loggins, 614 F.2d 219, 225 (9th Cir.1980). All of these cases cite Justice Stevens's Brathwaite concurrence. In at least two of the circuits with holdings reject......
  • Request a trial to view additional results

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