Montgomery v. Greer

• Decision Date: 10 February 1992
• Docket Number: No. 89-2391,89-2391
• Citation: 956 F.2d 677
• Parties: Walter MONTGOMERY, Petitioner-Appellant, v. James GREER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 677

956 F.2d 677

Walter MONTGOMERY, Petitioner-Appellant, v. James GREER, Warden, Respondent-Appellee.

No. 89-2391.

United States Court of Appeals, Seventh Circuit.

Argued April 23, 1991.

Decided Feb. 10, 1992.

Frederick F. Cohn (argued), Chicago, Ill., for petitioner-appellant.

Arleen C. Anderson, Sally L. Dilgart, Terence M. Madsen (argued), Asst. Attys. Gen., Crim. Appeals Div., Chicago, Ill., for respondent-appellee.

Before CUMMINGS, RIPPLE, and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

In 1981, after a bench trial in the Cook County (Illinois) Circuit Court, Petitioner Walter Montgomery was convicted of rape. In 1988 he filed a petition for writ of habeas corpus challenging his conviction. The district court denied relief. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

On November 17, 1976, at approximately 3 a.m., the victim left her apartment in Chicago after a disagreement with her fiance. Shortly afterwards, as she was walking down the street, a man grabbed her from behind. The man slipped a blindfold over her eyes and then held a large knife to her face. He then pushed her into the backyard of a nearby house and raped her. The yard where the rape occurred was poorly lighted, although some illumination did come from streetlights and a nearby hospital. The victim testified that, despite the blindfold, she saw her attacker at three different points during the crime, when she was able to look out from under the blindfold and see his face. At those points, according to the victim, the assailant was kneeling at her feet as she lay on the ground.

After the attacker fled, the victim walked to the emergency room of the neighboring hospital. There she spoke to police officers and described her assailant as a cleanshaven black man with a short afro haircut. She did not attempt to quantify the man's height and weight; instead she described him as "very large" and "huge." Tr. at 55. Upon further questioning, the victim, who was 5'4" tall, raised her hand as high as she could and said that he was "about that tall or taller." Id. at 55-56. The interviewing police officer reported that the attacker was 6' to 6'1" tall and over two hundred pounds. During her interview the victim stated that there was no doubt in her mind that she could identify the man again.

On November 19, 1976, the victim viewed a line-up that did not contain the defendant; she did not identify anyone as her assailant. That same day, while out of the presence of police officers, she reviewed a number of mug books and loose photos. She identified Mr. Montgomery from one of the loose photos. She stated at that time that she was not completely sure of her identification because the man in the photograph had a beard, and that she would be more certain if she could see the man in person and listen to his voice. The police did not record which loose photographs they showed the victim, but only retained the On November 27, 1976, police officers arrested Mr. Montgomery after making a warrantless entry into his home. ² After his arrest, the police put him in a line-up, and the victim identified him as her assailant. At the time of his arrest Mr. Montgomery was 6'5" and weighed between 245 and 275 pounds. He was substantially larger than any other participant in the line-up, and was the only person who was clean-shaven. The victim testified at trial that she did not know that the man whose photograph she had selected on November 19 would be in the line-up. She also stated that when she identified Mr. Montgomery in the line-up, she did not realize that she had seen his photograph before.

photograph of Mr. Montgomery that she identified. ¹

The state trial court suppressed evidence of the post-arrest line-up identification on the ground that it was the fruit of an unlawful arrest. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, it denied a motion to suppress the photo identification, although it characterized the police's failure to retain the photos as "slip-shod" and "unprofessional." Tr. at 158. It also denied a motion to suppress any in-court identification. After a lengthy evidentiary hearing, the court held that the victim's in-court identification was sufficiently independent of the post-arrest line-up to avoid suppression. Among the factors that the court looked to in finding an independent source for the identification were the ability of the victim to see her assailant, her statement in the emergency room that she was sure she could identify him again, and her photo identification of Mr. Montgomery.

Based on the in-court identification and circumstantial evidence, the court found Mr. Montgomery guilty of rape, and he received a sentence of imprisonment for forty years to life. The Illinois Appellate Court affirmed his conviction in an unpublished opinion, and the Illinois Supreme Court denied leave to appeal.

B. District Court Proceedings

Having exhausted his state remedies, Mr. Montgomery filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Illinois. He raised three issues. He argued, first, that the trial court impermissibly considered the photo identification in determining whether the in-court identification was influenced by the suppressed post-arrest line-up. Because the police did not retain a list of the photos that it showed to the victim, he argued, the photo identification was unconstitutionally suggestive and therefore should have been suppressed. Second, he contended that the trial court failed to hold an adequate hearing to determine the suggestiveness of the photographic identification. Third, he argued that the in-court identification itself was unconstitutional because it was based on the photo identification and the suppressed post-arrest line-up.

The district court rejected all of these arguments. It held, first, that Mr. Montgomery's claim that the photo identification was unconstitutional was untenable in light of the Supreme Court's decision in Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988), that the failure of the police to retain potentially exculpatory evidence will not violate due process, absent a showing of bad faith. As an alternate ground, the court held that sufficient independent evidence existed of the in-court identification's reliability to make any reliance on the photo identification

                harmless.   The district court next held that the trial court's refusal to grant Mr. Montgomery an evidentiary hearing on the photo identification was both precluded from review on the grounds of waiver and, in any event, not such an "egregious departure[ ] from accepted standards of legal justice" that it would violate procedural due process.  Montgomery v. Greer, No. 88 C 9250, mem. op. at 10, 1989 WL 54969 (N.D.Ill. May 17, 1989).   Finally, the court held that the in-court identification was permissible because the post-arrest line-up was not unduly suggestive and also because sufficient indicia of the in-court identification's reliability existed to ensure that there was no substantial likelihood of irreparable harm.   Among the factors that the court looked to to determine the in-court identification's reliability were:  (1) that the victim gave a detailed description of her assailant immediately after the attack and expressed confidence in her ability to recognize him;  (2) that the victim identified the photograph of Mr. Montgomery two days after the attack;  and (3) that the victim did not identify anyone in the initial line-up that did not include Mr. Montgomery.   The district court also noted that the victim's description was based on ample opportunity to see the defendant during the commission of the crime and that the victim's testimony indicated that her full attention was on the attacker
                

II

ANALYSIS

A. Guiding Principles

When reviewing a court's decision to grant or deny a petition for writ of habeas corpus, we consider all questions of law de novo. Matta-Ballesteros v. Henman, 896 F.2d 255, 258 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 209, 112 L.Ed.2d 169 (1990). Factual issues that have been determined by the state trial or appellate courts are presumptively correct. 28 U.S.C. § 2254(d); see also Andersen v. Thieret, 903 F.2d 526, 530 (7th Cir.1990) (citing Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981)); United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1153 (7th Cir.1987). The constitutionality of an identification is a mixed question of law and fact that is not governed by the statutory presumption of section 2254(d). Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam). "In deciding this question, the federal court may give different weight to the facts as found by the state court and may reach a different conclusion in light of the legal standard. But the questions of fact that underlie the ultimate conclusion are governed by the statutory presumption.... Thus, whether the witnesses ... had an opportunity to observe the crime or were too distracted; whether the witnesses gave a detailed, accurate description; and whether the witnesses were under pressure ... are all questions of fact as to which the statutory presumption applies." Id. (emphasis in original); see also Griswold v. Greer, 712 F.2d 1200, 1204 (7th Cir.1983).

B. Arguments on Appeal

1. The photo identification

Mr. Montgomery first challenges the victim's photo identification. He claims that, because the Chicago police failed to preserve the photographs that they showed the victim, her photo identification of him was per se suggestive. ³ Consequently, he contends, the state trial judge should not have relied upon it in determining that the in-court identification was independent of the suppressed post-arrest line-up.

We believe that ...