Grubbs v. Hannigan

• Decision Date: 06 January 1993
• Docket Number: No. 91-3303,91-3303
• Parties: Clarence E. GRUBBS, Petitioner-Appellant, v. Robert D. HANNIGAN; Attorney General of Kansas, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1483

982 F.2d 1483

61 USLW 2467

Clarence E. GRUBBS, Petitioner-Appellant, v. Robert D. HANNIGAN; Attorney General of Kansas Respondents-Appellees.

No. 91-3303.

United States Court of Appeals Tenth Circuit.

Jan. 6, 1993.

Tom Jacquinot (Kathleen Levy, on the brief), Staff Counsel, Kansas Defender Project, University of Kansas School of Law, Lawrence, KS, for petitioner/appellant.

Kyle G. Smith, Asst. Atty. Gen., Kansas Bureau of Investigation, Topeka, KS, for respondents/appellees.

Before BRORBY, Circuit Judge, SETH, Senior Circuit Judge, and EBEL, Circuit Judge.

EBEL, Circuit Judge.

In this appeal, the appellant is seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. The appellant was convicted by a jury in the district court of Shawnee County, Kansas of raping and robbing two women, T.J. and S.S. The appellant collaterally attacks these convictions on two grounds: 1) that the evidence supporting his conviction for the rape and robbery of T.J. was insufficient, and 2) that the admission of S.S.'s pre-trial identification testimony violated his right to due process. We find these arguments to be without merit and therefore affirm. ¹

FACTS

On October 22, 1985, S.S. was working as a receptionist in an optometrist's office in Topeka, Kansas. At 4:35 p.m., just after the office closed, a black man walked into the lobby and approached S.S.'s desk. The man told S.S. that he had missed an appointment and wanted to reschedule it. As S.S. looked down at her appointment book, the man walked behind S.S. and put his hand over her mouth. In his other hand The night of the attack, S.S. gave a statement to the police in which she described the man who raped and robbed her as a black male in his early twenties, 5'8" tall, 160 pounds, with a smooth, clean face and a short afro hair style. She viewed a six-picture photo-lineup but determined that her assailant was not among these pictures. The next week she was shown another six-picture photo-lineup which included the picture of the appellant and one picture from the previous lineup. Upon viewing the second photo-lineup, S.S. immediately identified the appellant as her assailant.

                he brandished a knife.   He instructed S.S. to lie down on the floor in front of her desk and proceeded to rape her.   After raping S.S., the man took $62.00 from S.S. and left the office
                

On October 28, 1985, T.J., a 17-year-old high school student, was working at a dry cleaning store in Topeka, Kansas. At approximately 6:00 p.m., a black man entered the store and asked about cleaning prices. T.J. answered his inquiry and returned to her work at the back of the store. Instead of leaving the store, the man came around the counter and headed toward T.J. When T.J. asked him what he was doing, he pulled a knife and instructed T.J. to lock the front door. He proceeded to take $100.00 from the cash register and a money bag sitting on the counter. After taking the money, the man pushed T.J. to the back of the store where he raped her.

Following the attack, T.J. called the police and was taken to the police station. She described the man who raped and robbed her as a black male, 5'7"' tall, 137 pounds, with straight hair and a smooth complexion. She also described his attire as a black jacket with a gold stripe down the left side of the chest and a pair of three color fatigue pants. The police later discovered a jacket and a pair of pants matching this description in the appellant's bedroom closet. Fibers found on the jacket were tested by Phillip Aviles, a fiber expert from the Kansas Bureau of Investigation, and were found to match other fibers found on T.J.'s clothing and on the floor where she was raped, though these fibers were determined to be available from a number of sources.

While at the police station, T.J. looked through approximately 50 photographs but determined that her assailant was not among them. The following day, she viewed a six-picture photo-lineup containing the picture of the appellant and immediately identified him as her assailant.

The night of the attack T.J. was also taken to a local hospital where seminal fluid samples were taken from her vagina. These samples were transported to the Kansas Bureau of Investigation, along with blood samples taken from T.J. and the appellant. Forensic examiner Susan Scholl subjected each of these samples to blood group substance testing, which identifies the subtype of a particular enzyme found in human blood known as PGM. The seminal fluid sample taken from T.J. showed the presence of a PGM subtype of 2 ⁺1 ⁺. The blood sample taken from T.J. contained a PGM subtype of 1 ⁺. The blood sample taken from the appellant contained a PGM subtype of 1 ⁺1 ^-. Scholl retested blood samples from both T.J. and the appellant and found the same results. Based on the test results, Scholl concluded that the seminal fluid taken from T.J. could not have come from the appellant.

The appellant was indicted for raping and robbing both T.J. and S.S., and these charges were tried together before a jury in Shawnee County, Kansas. At trial, S.S. testified as to her pre-trial identification of the appellant and stated that she was certain about her identification. S.S. testified that the assailant had been "within a foot" of her face at the time of the rape, and that she had concentrated on his face in order to "remember what he looked like." S.S. also stated that she recognized the appellant from a previous visit to the office.

On cross-examination, S.S. admitted that three of the men in the second photo-lineup had hairstyles significantly different from that of the appellant and that a fourth man had a swollen eye. She also admitted that the police had informed her prior to the T.J. also testified about her pre-trial identification of the appellant and stated that she was positive of her identification. T.J. testified that the appellant's face was "within inches" of her own at the time of the rape and, like S.S., she "intentionally look[ed] at his face" in order to identify him. T.J. concluded her testimony by identifying the clothes found in the appellant's closet as the clothes worn by the man who raped and robbed her. Following T.J.'s testimony, the parties stipulated that T.J. was a virgin prior to the rape.

                second photo-lineup that they had a suspect and that she therefore assumed that the photo-lineup contained the suspect's picture.   S.S. stated that she was unaware, however, that any of the pictures in the second photo-lineup had been reused from the first photo-lineup.
                

In addition to the testimony of the victims, the state presented the testimony of Aviles and Scholl. ² Aviles testified as to the matching fibers he found on the appellant's jacket, T.J.'s clothing, and the floor of the dry-cleaning store. He stated on cross-examination, however, that the fibers in question were quite common and could have come from "a number of different sources."

Scholl testified that the blood group substance tests she performed eliminated the appellant as a possible donor of the seminal fluid sample taken from T.J. She also testified that blood group substance testing was a well-tested and accurate scientific procedure and that it would yield consistent results provided "the procedure was done correctly." Scholl testified that the procedure was performed properly in this case.

The appellant testified on his own behalf. He stated that between 3:20 p.m. and 4:50 p.m. on October 22, 1985, he was visiting his foster mother, Helen Kingcannon. Kingcannon confirmed that the appellant had been to visit her, but could not confirm the time or date. The appellant also testified that on October 28, 1985, he was at home with his wife from 5:00 p.m. to 8:00 p.m., at which time he began moving from one apartment to another with the help of his uncle, Reverend Ronald Lassiter. The appellant's wife corroborated his testimony. However, Detective Halford testified that when he initially interviewed the appellant and his wife they told him that Reverend Lassiter had begun helping them move between 5:30 and 6:00 p.m.

The jury found the appellant guilty on all counts. The Kansas Supreme Court affirmed the appellant's conviction and the United States District Court for the District of Kansas rejected the appellant's petition for habeas corpus 771 F.Supp. 1159.

DISCUSSION

I. Was there Sufficient Evidence to Sustain the Conviction for Raping T.J.?

The appellant's first claim is that the evidence supporting his conviction for the rape and robbery of T.J. was insufficient. ³ The evidence supporting a conviction is insufficient if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Thurston, 771 F.2d 449, 452 (10th Cir.1985). "If substantial evidence supports the verdict, it cannot be set aside." United States v. Leach, 749 F.2d 592, 600 (10th Cir.1984).

In this case, there was strong evidence indicating that the appellant committed the rape and robbery in question. T.J. immediately identified the appellant upon viewing his picture in a photo-lineup and testified at trial that she had a good opportunity to view her assailant at the time of the rape. Additionally, the police discovered a jacket and a pair of pants in the appellant's bedroom that matched T.J.'s initial description of her assailant's attire, and fibers discovered on the jacket matched fibers found at the scene of the crime and on T.J.'s clothing. Finally, the appellant's alibi testimony was inconsistent with the testimony of other witnesses.

The appellant does not dispute that this evidence, standing alone, would be sufficient to support his conviction. However, the appellant argues that this evidence is insufficient in light of the blood test evidence presented by Susan Scholl. According to the appellant, this evidence indicated that he was not...