Wicks v. Lockhart

• Decision Date: 05 August 1983
• Docket Number: No. PB-C-81-409.,PB-C-81-409.
• Parties: Wayne WICKS, Petitioner, v. A.L. LOCKHART, Director Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

569 F. Supp. 549

Wayne WICKS, Petitioner, v. A.L. LOCKHART, Director Arkansas Department of Correction, Respondent.

No. PB-C-81-409.

United States District Court, E.D. Arkansas, Pine Bluff Division.

August 5, 1983.

COPYRIGHT MATERIAL OMITTED

Robert A. Newcomb, Little Rock, Ark., for petitioner.

C. Randy McNair III, Asst. Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM AND ORDER

EISELE, Chief Judge.

The Court has received a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 from Wayne Wicks, an inmate at the Cummins Unit of the Arkansas Department of Correction. Petitioner's claim that he is being unlawfully incarcerated is based upon the following grounds: (1) The evidence presented at his trial was insufficient to sustain the verdict; (2) The prosecution failed to disclose evidence favorable to the defense; and (3) Petitioner's counsel was ineffective which had the effect of denying to him his right to a fair and impartial jury under the Sixth Amendment.

In December of 1978, petitioner was charged, by an information containing two counts, with having raped the same woman twice, once on August 17, 1978, and again on September 26, 1978. On March 26, 1979, a jury in the Yell County Circuit Court found him guilty of rape, and he was sentenced to life imprisonment. Petitioner's conviction and sentence were affirmed by the Arkansas Supreme Court in an opinion delivered on October 20, 1980. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). On November 2, 1981, the Arkansas Supreme Court denied petitioner permission to proceed under Rule 37 of the Arkansas Rules of Criminal Procedure. Therefore, petitioner has met the exhaustion requirement of 28 U.S.C. § 2254(b).

After reviewing the state court proceedings, pursuant to Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts, this Court determined that an evidentiary hearing was needed to further develop the record in connection with the claims of ineffective assistance of counsel and failure of the prosecutor to disclose favorable evidence. The hearing was conducted by United States Magistrate Robert W. Faulkner on May 20, 1982, in Little Rock, Arkansas. Petitioner appeared and was represented by Robert A. Newcomb of Little Rock, while respondent was represented by C.R. McNair III, Assistant Attorney General.

From the testimony obtained at that hearing and from the record as a whole, this court finds that the petitioner's petition for habeas corpus must be granted on the ground that he was denied effective assistance of counsel which had the effect of denying to him his right to a fair trial under the Sixth Amendment. Petitioner's other grounds, however, do not entitle him to relief. Each of the grounds will be addressed below.

INSUFFICIENCY OF THE EVIDENCE

Petitioner first asserts that there is insufficient evidence that he was guilty beyond a reasonable doubt of each rape with which he was charged. In assessing this claim, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In addition, Jackson requires that this Court give great deference to the Arkansas Supreme Court's rejection of the petitioner's claim of evidentiary insufficiency.

Petitioner argues that he was able to establish an alibi for the second rape and that the victim did not report either rape until two weeks after the second attack. He concludes that this raises a reasonable doubt of his guilt and therefore no rational trier of fact could have concluded that he had committed the second rape. The respondent argues that the Arkansas Supreme Court found that the evidence at trial presented a proper question of fact for the jury.

This Court, after reviewing the evidence, agrees with the respondent and finds that the factual issues were properly before the jury. Furthermore, viewing the evidence in a light most favorable to the prosecution, the evidence was clearly sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that the petitioner committed each of the two rapes charged. Nevertheless, as will be shown below, it is impossible to determine if the jury actually convicted the petitioner on one, both or either of the two separate charges of rape.

DISCLOSURE OF EVIDENCE FAVORABLE TO THE DEFENSE

Petitioner asserts that the prosecution failed to disclose evidence favorable to his defense in violation of his due process rights. In support of his contention, petitioner relies on the testimony of the officer who initiated the investigation of the rapes, the former deputy prosecuting attorney and his trial counsel. He seeks to establish that the initial identification of petitioner by the victim was unduly suggestive and that the prosecution's failure to disclose the suggestive procedure amounted to a denial of due process.

At the evidentiary hearing, Officer Ottie Talkington, the investigating officer, testified that he interviewed the victim after she reported the rapes. Based upon the description she was able to give of her attacker, Officer Talkington became suspicious of petitioner because he matched the physical description. Later Officer Talkington and Monte Sims, Chief Deputy of the Yell County Sheriff's Department, again interviewed the victim. Officer Talkington testified that he carried a folder containing a single photograph of petitioner and, during the interview, the photograph inadvertently fell out of the folder. He stated that the victim, upon seeing the picture, immediately identified petitioner as her assailant.

The officers were later told by the deputy prosecutor, Tom Donovan, that it was improper to base the identification of petitioner on the viewing of a single photograph. The officers then prepared a photographic spread consisting of nine photographs, including one of the petitioner, which was not the same one the victim had seen earlier. Again, she was able to identify petitioner from the photographs.

Petitioner's claim rests on two theories. He argues first that the single photograph display presented to the victim violated his due process rights under Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1973). He then argues that the prosecution's failure to inform him of this single photograph identification was yet another violation of his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Petitioner claims that had he known of the identification procedure he could have had the victim's in-court identification testimony suppressed as "tainted" or, alternately, he could have used the information to impeach her identification testimony. The first question this Court must address is whether the single photograph identification by the victim amounted to a violation of a petitioner's due process rights.

Single Photo Display

At the outset, this Court recognizes the gravity of the identification issue in this case. The outcome of the trial turned almost solely on the identification of petitioner as the rapist. Furthermore, the only identification testimony presented was that of the rape victim. Under Arkansas law, however, the testimony of the rape victim need not be corroborated in order to obtain or sustain a conviction. Bailey v. State, 227 Ark. 889, 302 S.W.2d 796 (1957), cert. denied, 355 U.S. 851, 78 S.Ct. 77, 2 L.Ed.2d 59 (1957).

The United States Supreme Court has recognized the danger of suggestiveness in photographic identifications, particularly when only one picture is displayed and it is of the defendant. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1967). Such a procedure can result in the witness "retaining in his memory the image of the photograph rather than that of the person actually seen, reducing the trustworthiness of subsequent line-up or courtroom identification." Id. at 383-84, 88 S.Ct. at 971. Not all suggestive identification procedures, however, violate due process rights. The proper standard to be applied in these instances was laid down in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (police station showup), and restated in Simmons. It requires that "convictions based on eyewitness identification at trial following a pre-trial 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, 390 U.S. at 384, 88 S.Ct. at 971.

This Court recognizes that the showing of the single photograph of petitioner to the victim, whether by accident or design, was a highly suggestive procedure. Nevertheless, the suggestiveness of the procedure itself is not sufficient to constitute a violation of the petitioner's due process rights. He must also show that the viewing of the photograph by the victim meets the "substantial likelihood of irreparable misidentification" prong of the Simmons' test. The question, therefore, is "whether under the `totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382. That case set forth specific factors to be considered in evaluating the likelihood of irreparable misidentification, including:

... 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.

Id. at 199-200, 93 S.Ct. at 382.

Applying these factors to the facts presented here, the Court finds no...