Herrera v. Collins
| Decision Date | 25 June 1990 |
| Docket Number | No. 89-6071,89-6071 |
| Citation | 904 F.2d 944 |
| Parties | Leonel Torres HERRERA, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Will Gray, Houston, Tex., for petitioner-appellant.
Andrea L. March, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, JOHNSON and JONES, Circuit Judges.
A jury found Leonel Torres Herrera guilty of capital murder. Punishment was assessed at death. Herrera is now before this Court on appeal from the district court's denial of his writ of habeas corpus. Concluding that the existing law warrants no other result, we affirm the district court's denial of habeas relief.
A jury found Herrera guilty of the capital murder of Enrique Carrisalez, a peace officer acting in the course of his official duties. See Tex.Penal Code Ann. 19.03 (Vernon 1977). After the jury answered the special issues affirmatively, punishment was assessed at death. See Tex.Code Crim.Pro. art. 37.071 (Vernon 1981). The Texas Court of Criminal Appeals affirmed the conviction on direct appeal. The United States Supreme Court refused to grant a writ of certiorari.
The state court issued a warrant of execution, ordering Herrera to be executed by lethal injection before sunrise on August 16, 1985. On July 2, 1985, Herrera filed an application for State writ of habeas corpus pursuant to Tex.Code Crim.Proc.Ann. art. 11.07. Relief was denied. Herrera then filed a federal petition for writ of habeas corpus and motion for stay of execution in the United States District Court for the Southern District of Texas. The federal district court granted the unopposed stay on August 12, 1985; the federal district court ultimately granted the State's motion for summary judgment and denied Herrera federal habeas relief.
Herrera has appealed the judgment of the federal district court. Herrera argues that the district court erred in concluding that two pre-trial photographic identifications by two individuals were not impermissibly suggestive so as to deny Herrera due process. The district court granted a certificate of probable cause on October 19, 1989. With Herrera's appeal properly before us, we turn now to address his contentions.
On the evening of September 29, 1981, at approximately 10:40 p.m., the body of Texas Department of Public Safety Officer David Rucker was discovered 6.2 miles east of Los Fresnos, Texas. Rucker was killed by a gunshot wound to the head. There were no witnesses to the shooting. Herrera's social security card, however, was discovered near the body. Ten minutes later, Los Fresnos police officer Enrique Carrisalez stopped a speeder traveling west on the road from where Rucker's body was found. Carrisalez parked on the shoulder with his headlights illuminating the driver's side of the speeding car. Carrisalez radioed the driver's license plate number to the dispatcher.
As Carrisalez approached the car which had been stopped, the driver of that car stepped toward Carrisalez and fired one or more shots. Carrisalez was shot in the chest. He died nine days later from the wound.
Civilian Enrique Hernandez was accompanying Carrisalez on the night of the shooting. Hernandez witnessed the shots fired on Carrisalez, and immediately took cover on the seat of the patrol car. When Hernandez looked over the dashboard again, he saw Carrisalez fire four shots as the car which had been stopped sped away. Hernandez radioed in a description of the suspect's automobile. Almost immediately afterwards, Hernandez was interviewed by police officers. A few hours later, on the morning of September 30, Hernandez gave a statement to Texas Ranger Bruce Casteel. The police then proceeded to obtain an arrest warrant for the as yet unidentified suspect.
Also on the morning of September 30, Hernandez was called to the Harlingen police station and shown a display of six photographs. Hernandez picked out three photographs and said that anyone of them could have been the killer; a photograph of Hernandez was among those selected.
The next afternoon, two officers went to the hospital room of Officer Carrisalez. The officers showed Carrisalez one photograph of Herrera and asked Carrisalez three times if he could identify it. Although Carrisalez was unable to speak, he nodded his head, thereby identifying Herrera as the assailant. Later in the day, Hernandez was shown the same photograph. He too positively identified Herrera as the gunman. The photograph was a mug shot that carried the notation "Edinburg Police Department."
On October 4, Herrera was apprehended. Two days later, Hernandez picked Herrera's photograph from a second photo lineup. The photograph of Herrera used in this instance was not the same photograph earlier shown to both Carrisalez and Hernandez.
Finally, on October 24, Hernandez picked Herrera out of a five person live lineup.
Herrera now asserts that he has been denied due process of law because the pre-trial identification procedures were impermissibly suggestive and created a substantial likelihood of misidentification such that the in-court identification was unduly tainted. We disagree, and affirm.
In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court announced the now familiar rule that a conviction based on an eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. As this Court has acknowledged, the admissibility of identification evidence is governed by a two-step analysis. 1 Initially, a determination must be made as to whether the identification procedure was impermissibly suggestive. Next, the court must determine whether, under the totality of the circumstances, the suggestiveness leads to a substantial likelihood of irreparable misidentification. See, United States v. Shaw, 894 F.2d 689, 692 (5th Cir.1990).
Hernandez:
The district court found that the procedures employed by the authorities in showing a single photograph of the suspect to Hernandez were suggestive, but not impermissibly so. 2 Even if we were to assume, however, that the procedures utilized were, in fact, impermissibly suggestive, after examining the totality of the circumstances we cannot conclude that a substantial likelihood of misidentification exists.
In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Supreme Court indicated that "reliability is the linchpin" when examining the totality of the circumstances to "determin[e] the admissibility of identification testimony." Id. at 114, 97 S.Ct. at 2253. Even an impermissibly suggestive identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability. The Supreme Court has set forth several factors to be considered when reviewing the reliability of a pre-trial identification. These factors include
(1) the opportunity of the witness to view the criminal, (2) the witness's degree of attention, (3) the accuracy of the description, (4) the witness's level of certainty (5) the elapsed time between the crime and the identification, and (6) the corrupting influence of the suggestive identification itself.
Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); see also United States v. Atkins, 698 F.2d 711, 713 (5th Cir.1983).
In the instant case, the district court did not err by concluding that these factors culminate in a finding of reliability. The district court properly considered the findings of fact made by the state district court and relied upon by the Texas Court of Criminal Appeals. These findings are entitled to a presumption of correctness which has not been rebutted by the petitioner in the instant case. See Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). 3
The district court, applying the Supreme Court's analysis from Biggers, ultimately concluded that, under the totality of the circumstances, there was no substantial likelihood of misidentification. Based on our examination of the record and the district court's application of the Biggers factors, we conclude that the district court did not err in its assessment of the totality of the circumstances.
The district court realized that Hernandez was approximately fifteen feet from the suspect and that Hernandez testified that he had about fourteen seconds during which he was looking directly at the assailant. Based on this testimony, we cannot say that the district court erred by concluding that Hernandez had ample time to get a clear view of the suspect. This is especially true where, although the shooting took place after dark, the headlights and emergency lights of the patrol car were on and the cars were positioned so that the entire left side of the assailant's car was illuminated.
The district court also agreed with the state court's finding that Hernandez could be expected to pay a higher degree of attention to details than a passer-by. Considering that Hernandez, although a civilian, had received special army training in spotting and identifying enemy aircraft and had been riding with police officers for several years, we are in agreement with the district court's assessment of Hernandez' powers of observation and recall. Similarly, we see no reason to disturb the district court's assessment of the accuracy of the description and Hernandez' level of certainty. 4 The federal district court based its conclusion that the description was accurate on findings relied on by the Texas Court of Criminal Appeals. District Court Opinion at 12...
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