Thigpen v. Cory, No. 85-1641

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtNATHANIEL R. JONES; DAVID A. NELSON; Black's
Citation804 F.2d 893
PartiesWillie Arthur THIGPEN, Petitioner-Appellant, v. Duane CORY, Respondent-Appellee.
Docket NumberNo. 85-1641
Decision Date19 December 1986

Page 893

804 F.2d 893
Willie Arthur THIGPEN, Petitioner-Appellant,
v.
Duane CORY, Respondent-Appellee.
No. 85-1641.
United States Court of Appeals,
Sixth Circuit.
Argued Aug. 15, 1986.
Decided Oct. 27, 1986.
Rehearing and Rehearing En Banc Denied Dec. 19, 1986.

David R. Rhein argued, Brown, Todd & Heyburn, Louisville, Ky., for petitioner-appellant.

Jan J. Raven argued, Detroit, Mich., for respondent-appellee.

Before JONES and NELSON, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

At a jury trial in the state court, petitioner, Willie Arthur Thigpen, was found guilty of armed robbery and possession of a firearm during the commission of a felony. After exhausting his rights of direct appeal, he sought a writ of habeas corpus in the district court. He argued that he was denied constitutional due process by the admission of the robbery victim's in-court identification of him. He also argued that a number of state law errors made by the

Page 894

trial court deprived him of a fundamentally fair trial. The district court denied the writ, and petitioner now appeals.

The robbery victim and sole eyewitness, Robert Jackson, was working alone inside a gasoline station at 2:00 a.m. on February 7, 1981, when he saw two men approaching from the left side of the gas station, which was unlit and dark. The man in front, later identified as Jeffrey Thigpen, was holding a battery. From inside the station Jackson told the men that he would not charge the battery. Jeffrey then asked Jackson through a crack in the door if he would buy it. When Jackson hesitated, Jeffrey walked past Jackson into the station and placed the battery on the floor.

Jackson now was facing Jeffrey inside the station, and the second man was behind Jackson just inside the door. Jeffrey asked Jackson to "fire it up," referring to the battery. Before Jackson could reply, however, the second man put a gun to the back of Jackson's head and told him to "give it up." Only then did Jackson realize that the men intended to rob him. When Jackson started to speak, the second man told him to "shut up." At that point Jackson briefly turned to look at the man behind him, but testified that "most of the time" he looked at Jeffrey.

Next, Jeffrey searched Jackson for money while the second man remained "on [Jackson's] back," where Jackson "didn't pay too much attention" to him. After taking the money Jackson had in his pockets, Jeffrey insisted that there was more money in the station. Jackson acknowledged that there was, and led the two robbers to a "sort of dark" back room where he had hidden some money. Both robbers were behind Jackson as he walked to the back room.

From this point on, Jackson testified that he "really wouldn't be paying attention" to the two men's actions. The second man told Jackson to get under a desk, and a little later Jackson realized they had left. Jackson testified that his total contact with the two men lasted from one to five minutes. Of that time, he testified that he looked at the second man "not too much." He got a "real good look at Jeffrey," but "not a good look at" the second man.

Police officers arrived at the station approximately five minutes after the robbery. Jackson described the robbers as two black males, approximately six feet tall, with medium complexions. He indicated that one of the robbers was wearing a short, brown jacket, but otherwise could not remember any identifying details about the robbers, including their clothing, weight, hairstyle, or facial hair.

The police officers followed two sets of footprints in the snow, which led from the service station to a house several blocks away. While outside the house, the officers heard voices arguing inside. Willie Thigpen, the petitioner in this case, admitted the police officers into the house and allowed them to search the premises. Upon searching the house, the officers found two handguns as well as a canister of pennies resembling the one taken from the service station during the robbery. They also found Willie Thigpen's brother, Jeffrey, hiding in the basement of the house with a sheet over himself. They arrested both Jeffrey and Willie.

Willie Thigpen's version of these facts at trial was that he had been home that night since around 9 p.m., and that he had been eating pizza and playing with his cat when his brothers Jeffrey and Oakland came in. He said they offered him a canister of pennies, which he refused. When Oakland saw the police outside, both Oakland and Jeffrey ran to the back of the house. Willie contended that Oakland had hidden upstairs where he was not found because there were no lights. (Oakland, confessing to the robbery after Willie's conviction, corroborated Willie's version of the facts.)

Willie and Jeffrey Thigpen appeared in a line-up approximately nine hours after the robbery. Including the two brothers, there were only five men in the line-up. Jackson immediately identified Jeffrey Thigpen but did not say anything about anyone else in the line-up. The policeman conducting the line-up testified that he would have prevented

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anyone in the line-up from "making faces" if he had noticed it, and that no "face-making" was brought to his attention. After Willie was not identified, the police released him.

Twelve days after the robbery, Jackson saw Willie Thigpen at Jeffrey's preliminary examination. When asked at Willie's trial what made him notice Willie at Jeffrey's preliminary examination, Jackson stated: "Like I said, I seen him when he was in the line-up when they sit and look like the same people, they looked different." But Jackson told no one, except allegedly his girlfriend, that he recognized Willie at this point.

Approximately two months after this, Jackson testified at Jeffrey's trial. A policeman testified at Willie's trial that Willie sat with his brother Jeffrey in the courtroom. Jackson testified that Willie came in and sat down next to Jackson, and Jackson then recognized him. When asked what went through his mind at that time, Jackson testified "same thing, I seen him in the lineup. I seen him a few times, and I think that's the man that robbed me, yeah." During Jeffrey's trial, Jackson told an official that Willie was the second robber. Willie was subsequently arrested.

At Willie's trial the evidence against him consisted of the handguns and the can of pennies recovered during the police search, Jackson's testimony concerning the robbery and identification, and the testimony of police officers concerning the search, apprehension and identification of Willie and Jeffrey Thigpen. Based on that evidence, Willie was convicted.

A conviction based on identification testimony following pretrial identification violates the defendant's constitutional right to due process whenever the pretrial identification procedure is so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Because "reliability is the linchpin" of this analysis, Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), courts have used two steps to find the use of identification testimony unconstitutional. First, the court evaluates the undue suggestiveness of the preidentification encounters. If the encounters were unduly suggestive, the court evaluates the "totality of the circumstances" to determine whether there are nevertheless sufficient independent indicia of reliability. See, e.g., id.; Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972).

In arriving at the conclusion that the pre-identification encounters in this case were not unduly suggestive, both the state appellate court and the federal district court relied on the fact that police machinations did not cause the confrontations between the witness and the defendant. This was an erroneous basis for decision, for the deterrence of police misconduct is not the basic purpose for excluding identification evidence. See Neil v. Biggers, 409 U.S. at 198-99, 93 S.Ct. at 381-82; Green v. Loggins, 614 F.2d 219, 222 (9th Cir.1980). Because it "is the likelihood of misidentification that violates a defendant's right to due process," Neil v. Biggers, 409 U.S. at 198, 93 S.Ct. at 381-82, only the effects of, rather than the causes for, pre-identification encounters should be determinative of whether the confrontations were unduly suggestive. In other words, we adopt the Ninth Circuit's holding in Green v. Loggins, 614 F.2d 219 (9th Cir.1980) (Peck, J., sitting by designation), that,

a court is obligated to review every pre-trial encounter, accidental or otherwise, in order to insure that the circumstances of the particular encounter have not been so suggestive as to undermine the reliability of the witness' subsequent identification.

Id. at 223.

In the case at hand it is undisputed that the witness encountered the defendant three times prior to identifying him as the second robber: at the line-up, at Jeffrey's preliminary examination, and at Jeffrey's trial. Although only one of these confrontations was caused by the police, we consider

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all three to determine whether unduly suggestive encounters occurred.

An individual's appearance in a line-up suggests to a witness that the person is in police custody for some reason. Even if the police do not indicate that the people to be viewed are all suspects for that particular crime, seeing a man in a small line-up for a crime is likely to associate that person with the crime to some degree in the witness' mind. Indeed, in the case at hand, every time Jackson was asked about his thoughts when he later encountered Willie, Jackson testified that his immediate thought was that he had seen Willie in the line-up for the robbery. The suspicion planted in Jackson's mind by Willie's presence in the...

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  • Castor v. Warden, Case No. 2:16-cv-0050
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 13 Abril 2017
    ...that is so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); see also Stovall v. Denno, 388 U.S. 293 (1967). "It is th......
  • U.S. v. Budd, No. 05-4098.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 13 Agosto 2007
    ...Budd actually stepped on Moore's back twice—once before the pants-hiking incident and once after. 13. Budd's citation to Thigpen v. Cory, 804 F.2d 893, 896-897 (6th Cir.1986), is inapt. In that case, this court concluded that an eyewitness's line-up identification was unreliable under the f......
  • Reese v. Fulcomer, No. 90-5825
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 15 Octubre 1991
    ...particularly given that the victim did not identify the petitioner until the third suggestive procedure. Similarly, in Thigpen v. Cory, 804 F.2d 893 (6th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3196, 96 L.Ed.2d 683 (1987), the court held as "unduly suggestive" the victim's encounte......
  • Robertson v. Abramajtys, No. 99-CV-71557-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • 5 Abril 2001
    ...totality of the circumstances" to determine whether there are nevertheless sufficient independent indicia of reliability. Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir.1986). It is the effect of any identification encounters rather than their cause that determines their suggestiveness. Theref......
  • Request a trial to view additional results
95 cases
  • Castor v. Warden, Case No. 2:16-cv-0050
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 13 Abril 2017
    ...that is so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); see also Stovall v. Denno, 388 U.S. 293 (1967). "It is th......
  • U.S. v. Budd, No. 05-4098.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 13 Agosto 2007
    ...Budd actually stepped on Moore's back twice—once before the pants-hiking incident and once after. 13. Budd's citation to Thigpen v. Cory, 804 F.2d 893, 896-897 (6th Cir.1986), is inapt. In that case, this court concluded that an eyewitness's line-up identification was unreliable under the f......
  • Reese v. Fulcomer, No. 90-5825
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 15 Octubre 1991
    ...particularly given that the victim did not identify the petitioner until the third suggestive procedure. Similarly, in Thigpen v. Cory, 804 F.2d 893 (6th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3196, 96 L.Ed.2d 683 (1987), the court held as "unduly suggestive" the victim's encounte......
  • Robertson v. Abramajtys, No. 99-CV-71557-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • 5 Abril 2001
    ...totality of the circumstances" to determine whether there are nevertheless sufficient independent indicia of reliability. Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir.1986). It is the effect of any identification encounters rather than their cause that determines their suggestiveness. Theref......
  • Request a trial to view additional results

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