Johnson v. McCaughtry, 95-2275

• Decision Date: 13 August 1996
• Docket Number: No. 95-2275,95-2275
• Citation: 92 F.3d 585
• Parties: Charles E. JOHNSON, Plaintiff-Appellant, v. Gary R. McCAUGHTRY, Warden, Waupun Correctional Institution, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 585

92 F.3d 585

Charles E. JOHNSON, Plaintiff-Appellant, v. Gary R. McCAUGHTRY, Warden, Waupun Correctional Institution Defendant-Appellee.

No. 95-2275.

United States Court of Appeals Seventh Circuit.

Argued March 28, 1996.

Decided Aug. 13, 1996.

Allen E. Shoenberger, Karen S. Lentz (argued), Loyola Univ. School of Law, Chicago, IL, for Charles E. Johnson.

Paul Lundsten (argued), Office of Atty. Gen., Wis. Dept. of Justice, Madison, WI, for Gary R. McCaughtry.

Before BAUER, ESCHBACH, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Johnson was convicted by a jury of armed robbery in Wisconsin state court. After exhausting his state appeals, Johnson filed a petition for a writ of habeas corpus in district court. Johnson maintains that the exclusion of persons under the age of 25 from his jury pool by a particular jury commissioner violated his Sixth Amendment right to a jury composed of a fair cross section of the community and his right to due process. He also argues that he was denied due process by certain out-of-court and in-court identifications by key state witnesses, which he asserts were impermissibly suggestive and unreliable. The district court denied his petition, and we affirm. ¹

I.

At approximately 1:30 p.m. on February 7, 1989, two black men robbed the Crossroads Pharmacy, located in a strip mall in Menominee Falls, Wisconsin. After pretending to be shopping while the pharmacist, Thomas Welke, finished dealing with a female customer, the men came around the pharmacist's counter. The shorter man pointed a handgun at Welke's face while the taller man began to take the store's supply of Dilaudid, a controlled narcotic used as a pain killer. Both men were wearing dark clothing that largely concealed their features. The shorter man, identified at trial as Charles Johnson, was wearing a dark stocking cap lowered to his eyebrows, a jacket with a hood drawn tight around his face, and a scarf covering the base of his nose and his mouth. Welke testified that the only area of the man's face that was visible was the area between his eyebrows and the mid-bridge of his nose. He also testified that he specifically noticed the color of the man's eyes, which he thought was atypical, the color of his skin, and the pocked texture of his skin. Welke observed the shorter man for 30 to 60 seconds. The man then told Welke that nothing would happen if he did as he was told and that he should squat down and not look at them. The shorter man held a gun to Welke's head as he squatted down, while the taller man finished taking all the Dilaudid from the store's inventory. Welke continued to observe the two men via his peripheral vision. The men then attempted to get into the cash register at the pharmacy counter, but left the store when they were unable to do so.

Welke observed the thieves leave through the front door and run around the Sears store, which was located at the end of the strip mall, heading toward the back of the mall. He then went to the back door of the pharmacy, where he observed a green van driving away with a bearded white man at the wheel. Welke called the police, and when they arrived he told them what had happened, as described above. Welke estimated the shorter man to be 5' 6"' and the taller man to be 6' 3"'. According to a police report, Welke described the shorter man as in his late twenties or thirties. Johnson is between 5' 9"' and 5' 10"' tall and was 51 years old at the time.

Michael Hyland, a mall maintenance worker who had been shoveling snow at the strip mall on February 7, 1989, also saw the thieves leave the store. Hyland was sitting in his truck eating lunch when he saw the two men dash out of the pharmacy and around to the back and then the pharmacist run to the front door and yell out after them. Sensing that something was wrong, Hyland started his truck and drove around to the back of the mall. He did not see the men when he reached the back, though he did observe an old van driven by a white man with a beard. Hyland also testified that before leaving to get his lunch, he had earlier observed the two black men that ran from the store. While Hyland was shoveling snow, he had noticed the two men walking back and forth in front of the stores in the mall and observed them from as close as 15 feet. He described the two men as 5' 9"' and 6' 3"'-6' 4"' in height. Hyland stated that although the shorter man wore a scarf, it did not cover the bottom part of his face when he observed the man.

An employee of the Sears store had noticed the green van in the parking lot that morning and recorded the license plate number. The employee noticed the van because it was parked in an area behind Sears usually reserved for delivery trucks. The license plate number led the police to Charles Appleby, the owner and driver of the van. Appleby refused to talk to the police about the robbery unless he was given immunity from prosecution by the district attorney's office. Appleby was granted immunity after he promised to give information and to testify against the other two robbers. Appleby testified that the other two men were Charles Johnson (the shorter man) and Johnson's half-brother Mario Roth (the taller man). ² Appleby testified that he was in the pharmacy a few days before the robbery to have a prescription for Dilaudid filled. This was corroborated by Welke's testimony about filling a single Dilaudid prescription just prior to the robbery. Appleby acknowledged that he was addicted to Dilaudid and that he noticed that the Dilaudid at the Crossroads Pharmacy was readily accessible behind the pharmacist's counter, i.e., "easy to steal." Later Appleby talked to Roth about the possibility of stealing the Dilaudid, and on the evening of February 6 they surveyed the pharmacy, noting the absence of security cameras, and determined that the Dilaudid would indeed be easy to steal.

Appleby testified that on February 7, the day of the robbery, he learned from Roth that his brother "Chuck" would also participate. Appleby testified that he knew Charles Johnson prior to that time. The group met at a home in Menominee and proceeded to the Crossroads Pharmacy, where they carried out the robbery. Appleby testified that they discussed how the robbery would be carried out on the way to the pharmacy and that Johnson participated in the discussion. The plan was that Appleby would be the getaway driver and the other two would pull off the theft. Appleby testified that after Johnson and Roth came running around to the van, he drove away, and they went off and divided the Dilaudid among the three of them. Appleby acknowledged that he was under the influence of Dilaudid at the time of the robbery. Appleby also testified that later in the day on February 7, he was involved in a car accident that landed him in the hospital. His initial conversations with the police about the robbery occurred during the four days he was in the hospital as a result of this accident and was heavily sedated.

After Appleby named Johnson and Roth as his accomplices, the police showed Welke, Hyland, and Appleby photo line-ups. The witnesses viewed the photo arrays on February 23, sixteen days after the robbery. In one photo line-up the witnesses were given seven pictures to view, including one of Johnson. Six of these pictures had a pastel, unmarked background and were identified as Menominee Falls police photographs. The other picture, the one of Johnson, had a different colored background and contained a height chart. According to this height chart, Johnson was between 5' 9"' and 5' 10"' tall.

When Welke viewed the photo line-ups, he used his fingers to cover the area in each photo that he was unable to observe on the day of the robbery and focussed on the eyes and the cheekbone area. Welke identified the photograph of Johnson as the shorter man who had held the gun to his face. Welke testified that in identifying the shorter robber, he focussed upon the placement and color of his eyes, as well as the complexion of his skin. Appleby likewise picked out Johnson from the line-up, though Hyland was unable to do so. All three men identified Johnson as the shorter robber at trial. ³ In addition, Welke, Hyland, and the Sears employee all identified pictures of Appleby's green van as the one they had seen at the Crossroads Pharmacy the day of the robbery.

Johnson's main defense was that he had been misidentified, and the cross examinations of Welke and Hyland focussed on the reliability of their identifications. The cross examination of Appleby centered on his inability to remember various details from the day of the crime-such as the address where the men met, whether he picked up Johnson or not, what route he took to the pharmacy, etc.--and his possible motivation to frame Johnson due to an earlier deal or unpaid debt between the two.

II.

Johnson's trial occurred on August 15-17, 1989, and he was convicted by the twelve-person jury of armed robbery. Because Johnson challenges the process by which his jury was impanelled, it is necessary to explain in some detail the manner in which juries are formed in Waukesha County, Wisconsin, at least at the time of Johnson's trial in 1989. ⁴ Prior to Johnson's trial there were three jury commissioners in Waukesha County, each of which represented a different geographical section of the county. Each commissioner was given a county-wide listing of names supplied by the State Department of Transportation. The lists were alphabetized and contained the names of all county residents with driver's licenses. The lists provide each person's name, address, date of birth, and driver i.d. number. Each commissioner would then use these lists to produce shorter lists of potential jurors residing in their assigned geographic area. Whenever the county clerk requested potential juror names, the three commissioners would provide the clerk with names from their region.

Commissioner Dorothy Betker testified...