Gregory-Bey v. Hanks
| Decision Date | 13 June 2003 |
| Docket Number | No. 01-1066.,01-1066. |
| Parties | Lawrence GREGORY-BEY, Petitioner-Appellant, v. Craig A. HANKS, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Nathaniel Cade, Jr., Michael Best & Friedrich, Howard B. Eisenberg (argued), Milwaukee, WI, for petitioner-appellant.
James B. Martin (argued), Office of the Attorney General, Indianapolis, IN, for respondent-appellee.
Before COFFEY, MANION, and WILLIAMS, Circuit Judges.
In November 1985, two men robbed a McDonald's restaurant in Indianapolis, Indiana. During the course of the robbery, the men locked five of the employees in the freezer of the restaurant and proceeded to murder the manager. Three months after the crime, four of the five surviving employees identified Lawrence Gregory-Bey ("Gregory-Bey") as one of the perpetrators of the crime. After a Marion County, Indiana jury convicted Gregory-Bey of murder, robbery, criminal confinement, and a host of other offenses associated with the McDonald's crime, Gregory-Bey's direct appeal languished in the Indiana state court system for nearly ten years before it was finally resolved. While Gregory-Bey waited for the state court system to resolve his direct appeal, he filed a petition for habeas corpus relief in the Southern District of Indiana, which we allowed to proceed in spite of the procedural requirement that he exhaust his state remedies, due to the inordinate delay and malfunctioning of the Indiana state court system, through no fault of the defendant. The federal district court for the Southern District of Indiana denied Gregory-Bey's petition, and he appeals. We affirm.
The two robbers entered the Indianapolis McDonald's restaurant shortly after 7 a.m. on November 17, 1985. After drinking some coffee and remaining on the premises until all the other customers in the restaurant departed, the two men brandished handguns, announced themselves as robbers, and ordered the five employees (Angela Grinter, Urhonda Graham, Patrice Hampton, Kathryn Blakely, and Sonia Meads) and the assistant manager (DeWayne Bible) to the back of the store. The robbery itself lasted about five to ten minutes and netted the men slightly over $1,000. The robbers, not satisfied with their illicit proceeds, forced all but one of the employees into the freezer room, while keeping one as a hostage. In an act of bravery, Bible asked the criminals to take him as their hostage rather than his employee, and they did so, locking the other five employees in the restaurant's freezer. Approximately five minutes later, the employees in the freezer heard two or three gunshots. After waiting several minutes and when the employees were no longer able to hear the voices of the robbers, believing that they had departed, the employees kicked the locked freezer door open. Upon exiting the freezer, they discovered Bible's body, lying on the floor in a pool of blood with two closely spaced gunshot wounds at the base of his head (execution style).
Shortly thereafter, the police arrived and they separated the witnesses and proceeded to tape record statements from each of them concerning the details of the crime, including their respective descriptions of the criminals. The victims estimated that over the course of the robbery, they had five to ten minutes to view the faces of the robbers. Their descriptions of the robbers' features were relatively consistent, varying only in the amount of detail provided. They described one of the suspects (whom they later identified as Gregory-Bey) as a dark-skinned African American male, between 5'10" and 6'1" in height, with a slight build (125-130 pounds), uncombed or matted Afro, a small amount of facial hair or thin beard, and pock-marks or acne scars on his face.
After providing the police with descriptions of the two robbers, three of the witnesses—Grinter, Graham, and Hampton —met collectively with a police artist and provided a description that was subsequently used in the creation of composite sketches of the two robbers. Police placed copies of these sketches in the vicinity of the crime scene, resulting in the police receiving several tips.
In the weeks following the robbery, the police received information that Gregory-Bey might have been involved in the McDonald's robbery and Bible's murder. Accordingly, the police produced a black-and-white photograph of Gregory-Bey from the Indianapolis Police Department and placed it among a set of at least a half dozen other black and white photographs of black men, which they displayed to the victims in hopes of getting a positive identification of the robbers. (R. at 406.) The record is clear that these photos were of poor quality and that no witness was able to positively identify the suspect from the photo display. (R. at 472-73, 543, 577-78, 612-13, 636-37.)
The police department refused to terminate their investigative efforts just because of the lack of an identification from the admitted poor quality of the initial photos presented. Detective Fred Jackson next secured a (color) photo of Gregory-Bey from the police department's photo lab. This photo (marked as State Exhibit 3A, and included in the record before us on appeal), while apparently more clear than the original photo, still did not reveal the subject's features in detail sufficient for any of the witnesses to make a positive identification of the suspect, as the face is largely shadowed. Two months after the crime, Jackson displayed this photo, within a stack of twenty-seven other color photos, to witnesses Blakely, Graham, Grinter, and Hampton individually. All four testified that although they felt the man pictured "looked like" one of the robbers, they still couldn't be sure because the picture wasn't clear. (R. at 414, 425-26, 544, 581, 593-94, 616-17, 640-41, 1057, 1163.)1
Detective Elmer Combs was also in possession of another (color) photo of Gregory-Bey (marked as State Exhibit 4, and included in the record before us on appeal), but this photo was much clearer than the one Jackson had. The face in Combs' photo is clearly visible, and the defendant's features (acne, facial hair, hair style) are clearly distinguishable. Shortly thereafter, he displayed this different picture of Gregory-Bey in another photo array with five other pictures to the victim-witnesses. When the witnesses were shown this markedly different photo individually, their reactions were decisive and swift. Within "seconds," each of the four witnesses—Blakely, Graham, Grinter, and Hampton—individually and positively identified Gregory-Bey as one of the robbers. (R. at 436, 438, 440, 544-46, 592, 614-16, 640.)2 The witnesses' identifications were made independently of each other, and without any assistance or suggestions from the detectives.3 Blakely and Graham even began to "shake" when seeing a clear picture of the face of the perpetrator.4 Thus, the record reflects that four of the five surviving victims individually selected Gregory-Bey's photograph from the six-picture photo spread.
Based upon these positive identifications recounted above (from four out of the five surviving victim witnesses), the police arrested and took Gregory-Bey into custody on March 2, 1986, and the following day arranged for a physical identification lineup of six men, enacted in the presence of Gregory-Bey's counsel. Before viewing the lineup, the police instructed the witnesses about certain guidelines for the lineup procedures. Specifically, the police stated to the witnesses that the suspect "may or may not be in the line-up" and also that they were "not to talk to each other about anything."5
The witnesses viewed the lineup in two separate groups. First, Blakely, Grinter, and Graham viewed the lineup and were given a numbered form to mark if they were able to identify the suspect (each person in the lineup had a number). Blakely immediately picked Gregory-Bey out of the lineup and marked her form accordingly.6 Blakely later stated at her deposition that as she did so, she overheard Grinter and Graham whispering to each other, contrary to the instructions to refrain from talking, and heard them saying that they were scared to pick the perpetrator, for fear of being identified. Graham also testified that she had "whispered [to Grinter] in the conference room" after the lineup procedure was completed about who was in the lineup and that Graham told Grinter that she "thought it was number five." Additionally, Graham remarked that Grinter had whispered that she believed the suspect was "number three." Grinter, however, testified that this exchange took place when the witnesses were riding home together in the company of each other after the identification lineup procedure, and not in the conference room at the police station. In any event, because of their respective fears that the suspect could see them through the glass, neither Grinter nor Graham marked their identification forms while viewing the lineup.7 Next, Hampton and Meads viewed the lineup, and neither of them made a positive identification of Gregory-Bey at that time. Hampton, repeating the same fear expressed by Grinter and Graham that she could be seen through the glass, refused to give the police a positive identification.
Shortly after the lineup, Graham, Grinter, and Hampton made contact with the police and informed them that they had seen one of the robbers in the lineup, but were afraid to select him because they were fearful that he might have been able to see them as they made their identifications.8 Shortly thereafter, the police arranged for Grinter, Graham, and Hampton to view a videotape of the lineup at another identification procedure and once again Gregory-Bey's counsel was present during the witnesses' viewing of the videotape. All three witnesses were deposed by defense counsel immediately after viewing the videotape lineup and each one...
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