Harris v. Wyrick, 80-1880

• Decision Date: 20 March 1981
• Docket Number: No. 80-1880,80-1880
• Citation: 644 F.2d 710
• Parties: Andrew Lee HARRIS, Appellant, v. Donald W. WYRICK, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 710

644 F.2d 710

Andrew Lee HARRIS, Appellant, v. Donald W. WYRICK, Appellee.

No. 80-1880.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 9, 1981.

Decided March 20, 1981.

Andrew F. Puzder, St. Louis, Mo., for appellant Andrew Lee Harris.

John Ashcroft, Atty. Gen., Jerry Short, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, Chief Judge, and STEPHENSON and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

Andrew Lee Harris was convicted after trial by jury in a Missouri state court of first degree robbery by means of a dangerous and deadly weapon. On appeal, the Missouri Court of Appeals affirmed. State v. Harris, 571 S.W.2d 443 (Mo.App.1978). The appeals court denied a motion for rehearing or transfer to the Missouri Supreme Court. Harris subsequently filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition was denied by the district court ¹ based on the Report and Memorandum of a federal magistrate. ² This appeal followed.

Harris raises two issues: (1) that the pretrial identification procedure used in his case was impermissibly suggestive, and (2) that his right to trial by jury chosen from a fair cross-section of the community was violated through the exclusion of women under the Missouri jury selection system. We affirm.

On January 25, 1975, Isaac Guyton was robbed at knife-point by four persons whom he had voluntarily allowed into his apartment. Guyton testified that he knew one of the persons to be Doris Johnson, to whom he had earlier lent money. Guyton was told by the group to lie on the floor and was threatened with a knife by one of the robbers who demanded money. Upon telling them that he had no money, Guyton was bound, and a pillowcase was placed over his head. This all happened one or two minutes after the robbers entered Guyton's apartment. After hearing them leave, Guyton successfully untied himself. He then went to his front door and noticed one of the group loading clothing into a blue 1967 Pontiac with a damaged front left fender. Guyton telephoned the police and told them on their arrival that one of the robbers was Doris Johnson. He also described the other persons, the goods taken, and the damaged Pontiac. Shortly thereafter, police stopped a car matching the description given by Guyton about half a mile from the scene of the robbery. The four occupants of the car were placed under arrest and taken to the police station, where Guyton was asked to identify suspects in the robbery. There was testimony by Guyton that the police summoned him to the station with the words, "we got the man that robbed you."

At the police station, Guyton viewed all four of the people arrested as they sat in one room. The police apparently made no attempt to locate others similar in appearance to defendant Harris or the other suspects. Also, some of the recovered property was placed on a table in the same room with the suspects. The confrontation occurred at about 10:55 p. m., a little more than an hour after the robbery. Guyton positively identified Harris as one of the participants in the robbery. Harris was wearing a jacket that had been in Guyton's apartment.

Due process requires us to suppress the pretrial identification if, under the totality of the circumstances, the confrontation procedure "was so unnecessarily suggestive and conducive to irreparable mistaken identification" as to be fundamentally unfair to the defendant. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). We have previously disapproved as unnecessarily suggestive confrontation procedures similar to those employed in this case. See Pratt v. Parratt, 615 F.2d 486 (8th Cir. 1980); Sanchell v. Parratt, 530 F.2d 286 (8th Cir. 1976). Here, the magistrate found no circumstances which might have rendered use of such pretrial identification procedures necessary and therefore found them unnecessarily suggestive. ³ We agree.

Evidence of suggestive confrontation procedures, however, without more, does not require a holding that the Due Process Clause of the Fourteenth Amendment has been violated. Pratt v. Parratt, supra, 615 F.2d at 488; see Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). As we stated in United States v. Anderson, 618 F.2d 487, 491 (8th Cir. 1980), "(t)he central question is whether under the 'totality of the circumstances' the identification was reliable even though the procedure was suggestive." See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, supra. We noted further that the factors to be considered in evaluating the likelihood of mistaken identification include "the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." United States v. Anderson, supra, 618 F.2d at 491-92, citing Neil v. Biggers, supra.

Applying the above factors to this case, we find that the identification was sufficiently reliable. The victim, Isaac Guyton, testified that he was able to see the robber for one to two minutes in a well-lighted...