Hudson v. Sowders

• Decision Date: 12 March 1981
• Docket Number: No. C 80-0602-L(B).,C 80-0602-L(B).
• Citation: 510 F. Supp. 124
• Court: U.S. District Court — Western District of Kentucky
• Parties: Joe Eddie HUDSON, Petitioner, v. Dewey SOWDERS, Warden, et al., Respondents.

510 F. Supp. 124

Joe Eddie HUDSON, Petitioner, v. Dewey SOWDERS, Warden, et al., Respondents.

No. C 80-0602-L(B).

United States District Court, W. D. Kentucky, Louisville Division.

March 12, 1981.

Thomas E. Clay, Louisville, Ky., for petitioner.

Steven L. Beshear, Atty. Gen., Frankfort, Ky., for respondents.

MEMORANDUM

BALLANTINE, District Judge.

Petitioner was indicted in May of 1975 for the murder and armed robbery of a Brink's guard. The incident occurred on February 10, 1975, at the Southland Mall J. C. Penny's in Louisville, Kentucky. Petitioner's trial began on May 16, 1978, and lasted three days. The Commonwealth's case primarily consisted of eyewitness testimony by Nellie Parker, a J. C. Penny's sales clerk, testimony of Harold Crump, an accomplice, and testimonial and physical evidence tending to corroborate Crump's testimony. Petitioner did not present a defense. The jury returned a verdict of guilty on both counts, recommending death on the murder count and twenty years on the armed robbery count. On appeal, the Supreme Court of Kentucky affirmed on the issue of guilt but reversed the death penalty, remanding for imposition of a life sentence on the murder count. After review of fourteen assignments of error unrelated to the death penalty issue, the state court held them to be without merit or harmless beyond a reasonable doubt.

Petitioner instituted this action seeking habeas corpus relief, and the matter is before the Court on the motion of respondent to dismiss. The Court will discuss each of petitioner's five claims separately.

I.

Petitioner first alleges that the failure of the Commonwealth to disclose exculpatory evidence prior to trial deprived him of a fair trial, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Petitioner has divided the allegedly exculpatory evidence into three categories:

1) The failure of Nellie Parker to identify petitioner from pretrial photo displays and her selection of photographs of other individuals as "look-alikes."

2) The failure of Mr. and Mrs. Benjamin Levinson to identify petitioner from a pretrial photo display as a tenant of an apartment owned by them at 1722 Esquire.

3) Pretrial identification of individuals other than petitioner.

The standards by which the Commonwealth's conduct is to be measured were set out by the Supreme Court of the United States in Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2567-68, 33 L.Ed.2d 706 (1972):

"The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence."

It becomes apparent in light of these standards that petitioner's claim is meritless.

First, the Court has serious doubts as to whether the evidence complained of was suppressed. Ms. Parker's participation in pretrial identification procedures was disclosed to defense counsel at a suppression hearing prior to trial and Ms. Parker underwent extensive cross-examination on the subject during trial. The Levinson's inability to identify petitioner on April 5, 1976, was disclosed to defense counsel at a suppression hearing prior to their testimony and the jury was recalled to hear a stipulation to that effect. The misidentification evidence was made available to defense counsel during trial and three detectives were thoroughly cross-examined as to each misidentification. In United States v. Clark, 538 F.2d 1236, 1237 (6th Cir. 1976), the Sixth Circuit held:

"We do not believe that this case approaches the abuse of due process found in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). * * Assuming however, that there had been suppression of an important item of evidence from appellant's counsel, such suppression plainly did not continue throughout the trial. Full disclosure was made on the third day of the trial, not only to appellant's counsel, but subsequently before the jury which convicted appellant."

Clark is particularly applicable to the case at bar. Brady dealt with suppression of evidence until after trial. Here, the problem is the timing of disclosure, not total suppression. Inasmuch as full disclosure was made before the trial ended and the evidence was exhaustively developed on cross-examination, no error occurred. See United States v. McPartlin, 595 F.2d 1321 (7th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979); United States v. Pollack, 534 F.2d 964 (D.C.Cir.), cert. denied, 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976).

Further, it is questionable whether the evidence complained of was favorable to the defense. There is authority for the position that nonidentification of a defendant or identification of a non-defendant is not exculpatory. United States v. Rhodes, 569 F.2d 384 (5th Cir.), cert. denied, 439 U.S. 844, 99 S.Ct. 138, 58 L.Ed.2d 143 (1978); United States v. Palmer, 536 F.2d 1278 (9th Cir. 1976); Sweatt v. Commonwealth, 550 S.W.2d 520 (Ky.1977). However, another line of cases holds that such evidence is exculpatory. Grant v. Alldredge, 498 F.2d 376 (2d Cir. 1974); Evans v. Janing, 489 F.2d 470 (8th Cir. 1973). The Court need not resolve the issue, however, because the Court is of the opinion that the evidence, even if favorable to the defense, was not material. Exculpatory evidence is material under Brady if it "creates a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). In the case at bar, all of the evidence complained of was presented in detail to the jury, which found petitioner guilty beyond a reasonable doubt. The failure to provide such evidence prior to trial did not infringe petitioner's right to a fair trial.

II.

Petitioner's second claim is aimed at the pretrial identification procedures. He argues that he was denied due process of law because the pretrial identification by Ms. Parker and the Levinsons was impermissibly suggestive and because the Commonwealth failed to produce photo displays shown to Ms. Parker and the Levinsons.

"The standard by which we must test a claim that an in-court identification has been so tainted by a previous photographic identification as to require exclusion," United States v. Ayendes, 541 F.2d 601, 604 (6th Cir. 1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 789, 50 L.Ed.2d 779 (1977), was defined by the United States Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The Court held in Simmons that:

"Each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S.Ct. at 971.

In the case at bar, Ms. Parker testified that she spoke to and observed the participants in the robbery and shooting and that her identification was based solely on her recollection of the incident. She did not waiver from her positive in-court identification despite extensive cross-examination on the matter. The Court is persuaded that here, as in Ayendes, there was no substantial likelihood of irreparable misidentification.

Nor is the Court of the opinion that the failure accurately to reconstruct all photo displays shown to Ms. Parker amounted to a denial of due process. In fact, it is not clear from the record that the Commonwealth failed to produce all photo displays shown to Ms. Parker. In any event, petitioner waived any error by choosing not to accept the trial court's offer to suppress evidence relating to photographs viewed by Ms. Parker.

Petitioner's attack on the identification procedures with respect to the Levinsons must likewise fail. The Levinsons identified petitioner as a tenant in their apartment, not as a participant in the crime. The testimony of the Levinsons had no bearing on petitioner's guilt other than to corroborate a minor detail of Crump's accomplice testimony. Simmons is simply not applicable in a situation such as this.

The Commonwealth conceded that it failed to preserve the photo displays shown to the Levinsons. Petitioner's discovery motion, however, sought photographs in which any person was identified as a participant in the crime or in which petitioner was not identified as a participant. Since the Levinsons did not identify petitioner as a participant, there was no error of constitutional magnitude in the failure of the Commonwealth to produce such photographs.

III.

Petitioner's third claim is based upon the trial court's failure to give the instructions tendered on the presumption of innocence and reasonable doubt.

The failure to give a requested instruction on...