Langston v. Sherman

• Decision Date: 13 July 2018
• Docket Number: Case No. 1:17-cv-01108-DAD-SAB-HC
• Parties: DUPREE LANGSTON, Petitioner, v. STU SHERMAN, Respondent.
• Court: U.S. District Court — Eastern District of California

DUPREE LANGSTON, Petitioner, v. STU SHERMAN, Respondent.

Case No. 1:17-cv-01108-DAD-SAB-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

July 13, 2018

FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I.BACKGROUND

On February 15, 2013, Petitioner was convicted after a jury trial in the Kern County Superior Court of seven counts of robbery, attempted robbery, assault with a semiautomatic firearm, conspiracy to commit robbery, and participation in a criminal street gang. (17 CT¹ 4601-51). The trial court sentenced Petitioner to an imprisonment term of seventy-eight years and eight months. (18 CT 4933). On May 17, 2016, the California Court of Appeal, Fifth Appellate District struck the section 12022.53 enhancement on count 13 and ordered the trial court to amend the abstract of judgment to correct clerical errors. With the modifications, thejudgment was affirmed. People v. Langston, No. F067421, 2016 WL 2963353, at *37 (Cal. Ct. App. May 17, 2016). The California Supreme Court denied Petitioner's petition for review on August 17, 2016. (LDs² 8, 9).

On August 17, 2017, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). In the petition, Petitioner raises the following claims for relief: (1) the trial court's erroneous failure to bifurcate; (2) improper admission of expert testimony; and (3) improper eyewitness identification procedures. Respondent filed an answer, and Petitioner filed a traverse. (ECF Nos. 11, 16).

II.STATEMENT OF FACTS³

The crimes

Among the crimes reported in Bakersfield, Delano, and Visalia in September, October, and November 2011 were the armed robberies (only attempted in one instance) of the following eight stores: (1) Gold Buyers, Bakersfield (Sept. 30, 2011); (2) Dollars for Gold, Bakersfield (Oct. 6, 2011); (3) Advance America Cash Advance, Delano (Oct. 11, 2011); (4) Gold Rush Jewelers, Bakersfield (Oct. 22, 2011); (5) AutoZone, Bakersfield (Oct. 23, 2011); (6) Check into Cash, Visalia (Oct. 26, 2011); (7) Max Muscle, Bakersfield (Oct. 30, 2011); and (8) Allied Cash Advance, Delano (Nov. 2, 2011). Victim witnesses viewed photo lineups and identified Lawton, Langston, or both as participants in the crimes.

. . .

The evidence at trial

Gold Buyers, Bakersfield, September 30, 2011

Jacqueline Carrillo, 19 years old, testified that she was the manager of Gold Buyers at 4040 Ming Avenue in Bakersfield, a business that paid customers cash for gold jewelry. Around 2:00 in the afternoon on September 30, 2011, Carrillo was the only employee in the store. An African-American man, about six feet tall, appeared at the glass door and rang the doorbell. Carrillo buzzed him in. She testified that he was in his late 20s and wore sunglasses, a black newsboy cap, and a long-sleeve, button-down burgundy shirt. A second man, also African-American, appeared and entered with him. He was younger and shorter, about 19 or 20, around five feet two or three inches tall (thus shorter than Carrillo, who was five feet four inches tall), and around 150 pounds. The short man was wearing adark plaid, short-sleeve, button-down shirt with jean shorts.⁴ He was also wearing a black baseball cap with a sports team logo.

The short man was holding a black handgun. He jumped over the counter and knocked Carrillo down. He pinned her to the floor on her stomach, held her by the hair and put the gun to her head. He said, "Tell me where the money is, bitch? I'm going to fucking kill you." As he looked for money, he dragged her along the floor by her hair. The tall man stood behind the counter, telling the short man where to look for money. Then the short man grabbed Carrillo's arm and told her to get up. The robbers demanded to know where the safe was and said they would shoot her if she did not show them. She showed them the safe and opened it. It contained about $10,000 and some gold items. The short man took this property.

During the robbery, the tall man gave orders to the short man. The tall robber's voice was neutral, but the short one spoke loudly and was the more nervous of the two. After they took the money, they told Carrillo to buzz them out. The tall man was holding Carrillo's purse and the short one had taken her cell phone. Carrillo said she would not buzz them out unless they gave her things back to her. After taking the battery out of the phone, they complied and she buzzed them out.

Carrillo and Sergeant Brent Stratton testified about photo lineups Carrillo viewed on October 4, 2011. While investigating a suspect ultimately not charged in the case, Stratton created a photo lineup not including Lawton or Langston. Carrillo made no selection. Carrillo and Detective James Dossey testified that Dossey showed Carrillo two photo lineups on November 8, 2011. One included Langston and the other included Lawton. Carrillo identified Langston as the short robber. She did not select anyone in the lineup that included Lawton.

Carrillo testified that, in January 2012, she met a police officer at the courthouse and was asked to look through a window in a courtroom door. This was on the day of the preliminary hearing. Three African-American men were inside the courtroom sitting at a table. The officer asked Carrillo whether the robbers were among the men. Carrillo could not see the men well enough to identify any of them. She said they were too far away. She picked out one man, however, and said he definitely was not one of the robbers. Sergeant Stratton testified that the three men in the courtroom at that time were Lawton, Langston, and Harper. Harper was the one Carrillo singled out as not having been involved.

During trial, after Carrillo described her recollection of the robbers' appearance as "very vague," the prosecutor asked her whether anyone in the courtroom looked like the perpetrators. Carrillo said Langston looked like the short robber, based on his height and the lower part of his face. "He had the hat on which was kind of low; so I could just make out more so the bottom part of his face," she said. Carrillo then testified that Lawton looked like the other robber. She relied on height and the lower part of the face in Lawton's case as well. "Since he had a hat and glasses on, it's really hard for me to make out the eyes," she testified. When Lawton and Langston stood together, the difference in height looked the same as the difference in height between the robbers. Carrillo said she was "80 percent sure" of her identifications of each defendant.

On cross-examination, Carrillo said she remembered the short robber's height because he was a couple inches shorter than she was. When Carrillo and Langston stood together in the courtroom, however, Carrillo conceded that Langston was about an inch taller than she was.

Catherine Bloxham testified that she worked in an office in the same building as Gold Buyers. Carrillo came to Bloxham's office and called the police after the robbery. Bloxham recalled seeing two men enter Gold Buyers shortly before. She saw them from about 15 feet away through the glass front of her office. A few minutes later, she saw them leave. She had seen the same men at the door of Gold Buyers about three days earlier. On November 8, 2011, a detective showed Bloxham a photo lineup including Lawton and another including Langston. Bloxham selected Lawton but identified no one in the lineup including Langston. Bloxham testified that the photo she selected looked most like one of the men she saw, but she was not certain. When asked if she could identify the defendants at trial, she said she "couldn't make a positive identification." Like Lawton and Langston, the robbers were a taller, huskier man and a shorter, more slender one, and their skin tones were similar to those of the robbers. Bloxham could not testify to any additional similarities.

A surveillance video showing parts of the robbery was played for the jury and some still photos taken from the video were presented. The images do not clearly show the robbers' faces, but their heights, builds, and clothing can be seen. The clothing is as Carrillo described, and one robber is taller and stockier than the other. The tall robber's cap has a white logo on the back. The right back pocket of the short robber's shorts has a white fleur-de-lis design.

Detective James Dossey testified that he had had multiple contacts with Lawton over the years. Dossey had studied the surveillance video and still photos from the Gold Buyers robbery and opined that the tall robber was Lawton.

An evidence technician testified that he extracted a one-to-two-second portion of the surveillance video in which the tall robber grasps a black case in his hand. The technician made a loop of this portion, so the grasping motion is shown repeatedly. In this video, the end of the tall robbers' right index finger can be seen to be missing, cut off between the second and third knuckles. Breon Mosley, an acquaintance of defendants', testified that Lawton had a missing right index finger.

Lawton and Langston were pulled over and arrested while driving a white minivan on November 3, 2011. A police officer testified that the van contained various items of clothing, including a pair of denim shorts. The shorts had a white fleur-de-lis emblem on the right back pocket. The shorts and a photograph of the shorts were shown to the jury. Carrillo testified that the logo on the shorts found in the van was the same as the logo on the shorts worn by one of the robbers.

On the day of the arrest, the police searched the home of Jamiya Chandler, known as Red, a girlfriend of Lawton's. An officer testified that among the items found was a dark blue hat. The hat had a white Kangol logo on the back and the officer described it as a golf hat. The hat and photographs of it were shown to the jury. It resembled the hat seen on the

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