U.S. ex rel. Kosik v. Napoli, 85-2451

• Decision Date: 26 February 1987
• Docket Number: No. 85-2451,85-2451
• Citation: 814 F.2d 1151
• Parties: UNITED STATES of America ex rel. Joseph KOSIK, Jr., Petitioner-Appellant, v. Richard NAPOLI, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1151

814 F.2d 1151

UNITED STATES of America ex rel. Joseph KOSIK, Jr. Petitioner-Appellant, v. Richard NAPOLI, Respondent-Appellee.

No. 85-2451.

United States Court of Appeals Seventh Circuit.

Argued Feb. 11, 1986.

Decided Feb. 26, 1987.

Susan G. Feibus, Louis B. Garippo, Ltd., Chicago, Ill., for petitioner-appellant.

Timothy Joyce, Cook County State's Atty. Office, Chicago, Ill., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

Before CUDAHY and POSNER, Circuit Judges, and ESCHBACH, Senior circuit judge.

ESCHBACH, Senior Circuit Judge.

This case presents an appeal from a district court's denial on summary judgment of a writ of habeas corpus under 28 U.S.C. Sec. 2254. The only grounds alleged in support of the request for the writ are that unnecessarily and unduly suggestive pretrial confrontations tainted the two trial identifications of the petitioner, Joseph Kosik, and made those identifications so unreliable that their admission violated Kosik's Fourteenth Amendment right to procedural due process. For the reasons stated below, we reject that contention and will affirm the district court.

I

In determining the facts of this case, we are required by 28 U.S.C. Sec. 2254(d) to presume the accuracy of the findings of the state courts. ¹ Sumner v. Mata, 449 U.S. 539, 544-47, 101 S.Ct. 764, 767-69, 66 L.Ed.2d 722 (1981); see also Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 382, 78 L.Ed.2d 187 (1983); Burns v. Clusen, 798 F.2d 931, 940-41 (7th Cir.1986); Holleman v. Duckworth, 700 F.2d 391, 395 (7th Cir.), cert. denied, 464 U.S. 834, 104 S.Ct. 116, 78 L.Ed.2d 116 (1983). The Illinois appellate court in the direct appeal of the instant case provided a detailed account of the evidence at trial. People v. Kosik, 110 Ill.App.3d 930, 66 Ill.Dec. 555, 443 N.E.2d 238 (1983). The following factual summary is based on that opinion. ²

On July 22, 1979, at about 1:00 a.m. four men were standing on the northwest corner of Division Street and Cicero Avenue in Chicago. A dark-colored car traveling north on Cicero made a left-hand turn onto Division. As it made its turn onto Division gunshots were fired from the passenger's side of the car, hitting one of the four men twice. The shooting victim, Saul James, Jr., was paralyzed as a result.

All four men who had been standing near the street corner testified as eyewitnesses at the trial of Joseph Kosik. All four testified to the facts recited above. Three of them testified that there were two white men in the car. ³ Another three also testified that the entire incident took a very short time, their estimates ranging from a few seconds to two minutes. ⁴ The Illinois appellate court found that the area was "well-lighted" and that the entire incident "occurred quickly."

The two primary eyewitnesses, the victim, James, and his cousin, Charles Lemon, also testified more specifically about both the car and its occupants. Both testified that the car was a 1975 or 1976 black Buick Century. One of the other witnesses also offered the testimony that the car was a dark blue or black 1975-77 Buick Regal or Century with a dark vinyl roof and opera windows. Lemon read "JJK2" on the car's license plate, and James saw that the first three letters were "JJK." Lemon also observed a little flower, or flowers, hanging from the rear view mirror. James observed opera windows on the car. Both men testified to having seen the faces or profiles of the driver and the passenger. James described the driver after the incident as having long, dark hair and a mustache, and being in his twenties. At trial he added that the driver's hair was curly and he had a beard. Both James and Lemon testified that the passenger had blond hair and severe acne.

Lemon further testified that after the shooting he went back to the area of the incident and found in the neighborhood a 1976 black Buick Century with the license plate "JJK235," which he identified as the car used in the shooting. At trial he identified pictures of the car. He waited in the area until he saw someone come out of a nearby house. Before the individual approached the car Lemon recognized him as the driver he had seen during the shooting. Later in the day, Lemon again returned to the area, saw the driver again, and followed him around the block, where he saw the driver engaged in conversation with a man Lemon identified as the passenger who had fired the shots. When Chicago police detective Mook met with Lemon about one month after the shooting, Lemon positively identified Kosik from a photo array.

About one-and-a-half months after the shooting, Lemon was present at two lineups containing the same individuals. Both included Kosik. Lemon failed to recognize him. Some time between the shooting and the lineups (and after Kosik's first conversation with Detective Mook), Kosik shaved off his mustache and cut his hair.

James, the victim, was the other witness who identified Kosik as the driver. James was also shown a photo array before the preliminary hearing. At that time he was in the hospital under medication. He selected a picture and stated that "this might be him [the driver]," but at this point did not make a positive identification. The picture was of Kosik. Kosik's picture in this photo array and in the one Lemon viewed had been taken before he cut his hair and shaved off his mustache.

James and Lemon later appeared at a preliminary hearing held about two months after the incident. Both men positively identified Kosik as the driver. When they made their identifications on the record Kosik's case had already been called and Kosik had moved from a full gallery to a position near his attorney. James testified at trial that he had positively recognized Kosik among several others in the gallery before the case was called at the preliminary hearing. ⁵

Kosik testified at trial in his own behalf, alleging that he had been elsewhere at the time of the shooting incident. He testified that the license plate number "JJK235" was for a 1975 black Buick Century registered to him and he identified photographs of the car. These were the same photographs Lemon identified as depicting the car used in the shooting. Kosik further testified that his car had a "poppy" or "donut" "something like a Veteran's Day" symbol hanging from the rear view mirror. Kosik admitted that he cut his hair and shaved off his mustache after his initial conversation with Detective Mook. He said it was his practice to do this periodically.

At trial, Lemon and James both positively identified Kosik as the driver of the car in the shooting. Kosik was convicted on an accountability theory of armed violence and aggravated battery in the shooting of James. On direct appeal the armed violence conviction was vacated, and the case was remanded for the trial court to issue a new sentence on the remaining aggravated battery conviction. Only this latter conviction is before this court in the appeal at bar.

II

Kosik alleges only two grounds for the writ, both under the same theory of law. ⁶ He asserts that the trial identifications of him by both James and Lemon violated his right to procedural due process because they were so tainted by unconstitutionally suggestive identification procedures used at the preliminary hearing that they gave 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); accord Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 2248-49, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 196-97, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972); United States v. Goodman, 797 F.2d 468, 470 (7th Cir.1986); United States ex rel. Moore v. Illinois, 577 F.2d 411, 413-14 (7th Cir.1978), on remand from 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), cert. denied, 440 U.S. 919, 99 S.Ct. 1242, 59 L.Ed.2d 471 (1979).

The test we must apply here is a well settled, two-part inquiry. Under the first prong, the federal district court below found that the procedures used at the preliminary hearing were unduly suggestive. Under the second prong an identification after unduly suggestive procedures will still be admissible if it is not so unreliable under the totality of the circumstances that it creates a very substantial likelihood of irreparable misidentification. Brathwaite, 432 U.S. at 109-14, 97 S.Ct. at 2250-53; Biggers, 409 U.S. at 198-99, 93 S.Ct. at 382; United States v. Briggs, 700 F.2d 408, 412 (7th Cir.), cert. denied, 462 U.S. 1110, 103 S.Ct. 2463, 77 L.Ed.2d 1340 (1983) & 461 U.S. 947, 103 S.Ct. 2129, 77 L.Ed.2d 1307 (1983). In holding that the identifications possess sufficient indicia of reliability to prevent a very substantial likelihood of irreparable misidentification we assume, without deciding, that the pretrial confrontations under the circumstances of this case were unduly suggestive. ⁷

While this second prong requires a determination of reliability upon the totality of the circumstances, the Supreme Court has also identified several specific factors to look to in determining the reliability of the identification. These factors are:

The opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting influence of the suggestive identification itself.

Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; accord Biggers, 409 U.S. at 199, 93 S.Ct. at 382; Goodman, 797 F.2d at 470; Moore, 577 F.2d at 414.

It is, of course, not our function in this setting to judge the ultimate accuracy of the identifications; that decision was made by the jury in its role as finder of the facts. ⁸ Our role is the much more...