Mata v. Sumner, No. 78-2636

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore ELY and SNEED; ELY; SNEED
Citation611 F.2d 754
Decision Date21 December 1979
Docket NumberNo. 78-2636
PartiesRobert MATA, Petitioner-Appellant, v. George SUMNER, Respondent-Appellee.

Page 754

611 F.2d 754
Robert MATA, Petitioner-Appellant,
v.
George SUMNER, Respondent-Appellee.
No. 78-2636.
United States Court of Appeals,
Ninth Circuit.
Dec. 21, 1979.
Rehearing Denied Jan. 31, 1980.

Page 755

Leonard D. Stein, San Francisco, Cal., argued for petitioner-appellant; Dennis P. Riordan, San Francisco, Cal., on brief.

Jamie Jacobs-May, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before ELY and SNEED, Circuit Judges, and TAKASUGI, * District Judge.

ELY, Circuit Judge:

Robert Mata ("appellant") appeals from the District Court's denial of his Petition for Writ of Habeas Corpus. The Petition followed the appellant's conviction of murder in a California state court and his exhaustion of all available state court remedies.

We reverse the District Court's Order upon the basis of our conclusion that state authorities violated rights given to the appellant by the federal Constitution. First, the pre-trial photographic identification procedure employed by state police was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable in-court misidentification of the appellant. Second, the admission of the in-court identification constituted error of constitutional dimension.

FACTS

This case involved a homicide at the medium security prison, C.C.I., Tehachapi, California, on October 19, 1972. The prosecution's case was based chiefly on the theory that the homicide was a result of feuding between opposing prison factions the "Mexican Mafia" and the "Nuestra Family." The homicide victim, Leonard Arias, was represented to have been a member of the "Nuestra Family." Prior to being transferred to Tehachapi, Arias had allegedly attacked a member of the "Mexican Mafia" while at another California prison, San Quentin. As a result of this attack, the "Mexican Mafia" had a "contract" out on the life of Arias. The day after his arrival at Tehachapi, Arias was fatally stabbed.

The prosecution alleged that the appellant and co-defendants Gallegos and Vargas approached Arias and began hitting him. Gallegos stabbed Arias, and one of the three defendants pulled the knife out of Arias' back. One witness, Allen attempted to help Arias, but one of the three defendants jabbed at him, ripping his jacket. Another witness, Almengor, allegedly fought with the appellant, who had a knife.

Page 756

The facts surrounding the pre-trial photographic identification procedures are set forth below:

October 19, 1972

Almengor was shown several hundred photographs of inmates. He selected eight photographs, making a positive identification of Pete Nunez as the person who did the stabbing, and tentatively identifying inmates Ramirez, Reymundo, and Vargas. He did not identify the appellant as a participant. Almengor changed his "positive" identification of Nunez when prison authorities told him that Nunez had been outside the prison on the day of the killing.

Allen was not shown any photographs on October 19th, since he asserted that he could not make any identification.

October 27, 1972

Almengor and Allen were shown twenty-four photographs of inmates, including photographs of the three defendants. Outside of Allen's presence, Almengor again tentatively identified the photograph of Vargas. Once again, however, Almengor did not identify the appellant. Moreover, Almengor stated that the photographs were too old and requested more recent ones. Allen was unable to make any identification, and he also complained that the photographs were too old.

October 27-October 30, 1972

A series of updated photographs were taken of the defendants and other inmates, but none of the photographs were useable. The photographs of the three defendants were the only ones taken a second time. The defense asserted that when the defendants were taken to be photographed, they were led out of the segregation unit in partial view of Almengor and Allen. It is disputed whether Almengor or Allen actually recognized the defendants as the persons who were to be photographed.

October 30, 1972

Almengor and Allen were shown fifteen photographs of inmates. The only updated photographs included were those of the three defendants. Not included in the group of fifteen were the photographs of Ramirez, Reymundo, and Nunez. As indicated, Almengor had previously identified these men as suspects when he had been shown photographs on October 19th. The prosecution's position was that the exclusion occurred because the correctional officers did not consider these inmates as suspects.

In an interview on October 27, 1972, Almengor had described two of the assailants as having mustaches. Six of the fifteen photographs were of inmates wearing mustaches and prison dress. Three of the six photographs were the updated photographs of the three defendants, while the other three photographs were less than a year old. Although taken at different times, most of the photographs in the line-up were similar in terms of size, color, and pose. All of the inmates pictured were of Mexican descent. From these fifteen photographs, Almengor selected those of the three defendants. As indicated above, Almengor had never, prior to this time, identified the appellant. Allen was then brought in, and while Almengor stood on the other side of the room, Allen likewise identified the three defendants. This was the first time that Allen had made an identification of any of the assailants.

The appellant asserted that Almengor was informed by prison officials that he was a suspect because of the discovery, shortly after the murder, of bloodied clothes that belonged to him. Further, it is not disputed that Almengor had asserted throughout much of the identification process that he could not make a positive identification from photographs. The prosecution conceded that Almengor requested a line-up and that this request was refused. No reason for the refusal was given.

In respect to Allen, appellant pointed to the fact that Allen originally stated that he could make no identification. Appellant also asserted that the California Department of Corrections "reminded" Allen of his upcoming parole date and threatened to transfer him, if he failed to cooperate, to another institution, a facility wherein his life would be in danger. Finally, appellant asserted that Allen told one Faulkner, a

Page 757

private investigator for the appellant, that (1) the incident lasted only a few seconds, and Allen did not get a good enough look at any of the assailants to identify them; (2) throughout the investigation Allen had maintained that he could not identify the assailants, and that he would take a lie detector test to substantiate this; (3) Allen assumed the three defendants must have been the ones who committed the murder because he saw them being taken to be photographed the second time; (4) Allen was due for parole and was under pressure from the Department of Corrections to make an identification.

The prosecution contended that the appearance of the appellant in the updated photograph was significantly different than the original photograph which had been taken three to eight months earlier. Furthermore, the prosecution relied upon Allen's testimony that he had feigned an inability to make an identification because he was attempting to avoid involvement. In addition, the prosecution contended that Allen denied that correctional officers attempted to influence him and repudiated much of what Private Investigator Faulkner had testified that Allen had told him earlier. Finally, the prosecution pointed to evidence that Allen and Almengor did not ascertain the identity of who was being photographed a second time and thus did not "correctly select" the defendants on this basis.

DISCUSSION

I.

The presence of counsel is not constitutionally required during a pre-trial photographic display for purposes of suspect identification. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). Such identification, however, may be challenged as violative of due process when the procedure is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The validity of a photographic identification is to be evaluated in light of the particular facts and surrounding circumstances of each case. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Calhoun, 542 F.2d 1094, 1104 (9th Cir. 1976), Cert. denied, 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d 781 (1977). A conviction "based on eyewitness identification at trial following a pretrial identification by photograph will be set aside . . . (as a denial of due process) only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971.

Our Circuit has generally followed a two-part approach in determining the admissibility of an in-court identification. See, e. g., United States v. Valdivia, 492 F.2d 199, 210 (9th Cir. 1973), Cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974); United States v. Crawford, 576 F.2d 794, 797 (9th Cir.), Cert. denied, 439 U.S. 851, 99 S.Ct. 157, 58 L.Ed.2d 155 (1978). First, the Necessity of the photographic identification procedure is considered. Id. In this case, appellant was an inmate at the Tehachapi facility and was placed in segregation after the stabbing. It seems quite clear, therefore, that there was no necessity here to use photographic identification procedures. While lack of necessity is not a Per se ground for rejection of the identification, See United States v. Calhoun, supra, 542 F.2d at 1104; United States v. Valdivia, supra, 492 F.2d at 210, we have consistently held...

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17 practice notes
  • Carriger v. Stewart, No. 95-99025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 17, 1997
    ...one of these facts. Compare Mata v. Sumner, 696 F.2d 1244 (9th Cir.1983), Mata v. Sumner, 649 F.2d 713 (9th Cir.1981) and Mata v. Sumner, 611 F.2d 754 (9th Cir.1979) with Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 ......
  • Mata v. Sumner, No. 78-2636
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 20, 1983
    ...constitutional right to due process of law. The United States Supreme Court vacated and remanded our initial disposition, Mata v. Sumner, 611 F.2d 754 (9th Cir.1979), citing our failure to apply the presumption of correctness mandated by 28 U.S.C. Sec. 2254(d) to the factual determinations ......
  • Sher v. Stoughton, No. 77-CV-402.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 10, 1981
    ...the applicability of Sumner v. Mata, supra, to the disposition of Sher's petition for a writ of habeas corpus. A. In Mata v. Sumner, 611 F.2d 754 (9th Cir. 1979), the Ninth Circuit reversed the denial of a petition for a writ of habeas corpus, which had been filed pursuant to 28 U.S.C. § 22......
  • U.S. v. Huberts, Nos. 79-1828
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 12, 1980
    ...2568, 2578-79, 37 L.Ed.2d 619 (1973); Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); Mata v. Sumner, 611 F.2d 754, 757-58 (9th Cir. 1979); United States v. Lewis, 465 F.2d 959, 960-62 (9th Cir. The validity of photographic identification is to be evalua......
  • Request a trial to view additional results
17 cases
  • Carriger v. Stewart, No. 95-99025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 17, 1997
    ...one of these facts. Compare Mata v. Sumner, 696 F.2d 1244 (9th Cir.1983), Mata v. Sumner, 649 F.2d 713 (9th Cir.1981) and Mata v. Sumner, 611 F.2d 754 (9th Cir.1979) with Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 ......
  • Mata v. Sumner, No. 78-2636
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 20, 1983
    ...constitutional right to due process of law. The United States Supreme Court vacated and remanded our initial disposition, Mata v. Sumner, 611 F.2d 754 (9th Cir.1979), citing our failure to apply the presumption of correctness mandated by 28 U.S.C. Sec. 2254(d) to the factual determinations ......
  • Sher v. Stoughton, No. 77-CV-402.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 10, 1981
    ...the applicability of Sumner v. Mata, supra, to the disposition of Sher's petition for a writ of habeas corpus. A. In Mata v. Sumner, 611 F.2d 754 (9th Cir. 1979), the Ninth Circuit reversed the denial of a petition for a writ of habeas corpus, which had been filed pursuant to 28 U.S.C. § 22......
  • U.S. v. Huberts, Nos. 79-1828
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 12, 1980
    ...2568, 2578-79, 37 L.Ed.2d 619 (1973); Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); Mata v. Sumner, 611 F.2d 754, 757-58 (9th Cir. 1979); United States v. Lewis, 465 F.2d 959, 960-62 (9th Cir. The validity of photographic identification is to be evalua......
  • Request a trial to view additional results

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