Washington v. Cupp
| Decision Date | 13 November 1978 |
| Docket Number | No. 77-4022,77-4022 |
| Citation | 586 F.2d 134 |
| Parties | Deone Edward WASHINGTON, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Howard R. Lonergan (argued), Portland, Or., for petitioner-appellant.
Melinda L. Bruce (argued), Salem, Or., for respondent-appellee.
On Appeal from the United States District Court for the District of Oregon.
Before DUNIWAY and CHOY, Circuit Judges, and GRANT, * District Judge.
Deone Washington was convicted in Oregon state court of attempted rape in the first degree. The state court of appeals affirmed the conviction. State v. Washington, 24 Or.App. 321, 544 P.2d 626 (1976). After exhausting state remedies, Washington sought a writ of habeas corpus in federal district court. Washington contended that police suggestions at a hospital identification procedure made later identifications by the victim inevitable, rendering their admission at his trial violative of due process. The district court adopted the magistrate's recommendation that the writ should be denied. We affirm.
On March 10, 1975, between 6:30 and 6:45 a.m., a woman was assaulted while taking a shower in a dormitory at Lewis and Clark College in Portland. Her assailant pulled her from the shower, pressed a knife against her side, and attempted to rape her. The episode lasted five to ten minutes before she was able to escape.
At approximately 7:20 a.m. the police arrived at the college. The victim described her assailant as a black male in his early twenties, five feet ten inches tall, medium to heavy build, with a round face, medium complexion, prominent cheek bones, and a high Afro haircut, wearing gray sweatpants, a dark green army jacket-type shirt, a yellow headband, and black gloves.
At 7:00 a.m. Officer Glankler stopped Washington's car about eight to twelve minutes from the college campus for a traffic infraction. Washington was given a warning and no citation was issued. The officer observed Washington to be a "negro male, five feet eleven to six feet tall, approximately 180 pounds, round face and high cheek bones and approximately a two-inch natural . . . (and) about 20 to 22 (years old)." At the time Washington wore gray sweatpants with a pair of gym shorts over them and a green windbreaker.
A short time later Officer Glankler received a police report over the radio of the attempted rape together with a description of the assailant. Realizing that the description fit that of Washington, the officer proceeded to the Identification Division and found a picture of Washington.
In the meantime the victim had been taken to a hospital for a physical examination; a tranquilizer was administered to stabilize her upset condition. Upon completion of the examination, Officer Rogers asked her if she could identify the assailant from among several photographs of young black males, one of whom was Washington. The victim having passed over Washington's photograph, Officer Rogers told her that Washington was a suspect and had been seen in the campus area approximately fifteen minutes after the incident. Washington's photograph also contained information concerning a prior rape conviction. Upon a second look, the victim stated that Washington was not her assailant though his high cheek bones were similar to those of the assailant.
On March 14, 1975, four days after the incident, police showed the victim 171 color prints. She did not identify any as her assailant. After viewing a subsequent 546 color slides, she identified a slide of Washington as her attacker. She identified Washington three months later in a six-man lineup. At trial on June 10, 1975, she made an in-court identification of Washington.
Washington contends that police suggestions at the attempted hospital identification made the later identifications of him inevitable, so that their admission at trial violated due process.
Although an initial identification procedure can be so suggestive as to taint all later identifications, the Supreme Court has instructed that " convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground 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, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). See United States v. Rich, 580 F.2d 929, 935 (9th Cir. 1978); United States v. Jones, 512 F.2d 347, 351 (9th Cir. 1975); United States v. Lincoln, 494 F.2d 833, 840 (9th Cir. 1974). The same standard should be applied in evaluating the reliability of an out-of-court identification alleged to have been improperly tainted by earlier suggestive identification procedures. Manson v. Brathwaite, 432 U.S. 98, 106-07 n.9, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Cf. Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Based on the Simmons standard, we reject Washington's claim.
In Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), the Supreme Court wrote:
(T)he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
See Manson, 432 U.S. at 114, 97 S.Ct. at 2253; Stoval v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Based on these criteria, the victim's later identifications of the slide, at the lineup, and in the courtroom were highly reliable.
1. Opportunity to view. The victim had an excellent opportunity to view her attacker. The dormitory shower was well-lit at the time of the assault. The victim was able to view the perpetrator for five to ten minutes...
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