Opinion
No. C 96-2122 MJM
June 14, 2001
OPINION and ORDER
This matter comes before the court pursuant to petitioner Gary R. Bear's application for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. no. 1). In his petition, Mr. Bear challenges his 1981 first degree kidnapping conviction in the Iowa district court for Blackhawk County.
I. Procedural Background
In December, 1980, Gary R. Bear was charged in the Iowa district court for Blackhawk County with kidnapping in the first degree, in violation of Iowa Code § 710.2. Following a bench trial, Mr. Bear was convicted and given a mandatory life sentence.
Under I.C. § 710.2, "[k]idnapping is kidnapping in the first degree when the person kidnapped, as a consequence of the kidnapping, suffers serious injury, or is intentionally subjected to torture or sexual abuse. Kidnapping in the first degree is a class `A' felony."
Mr. Bear appealed and the Iowa Supreme Court affirmed his conviction in a per curiam, unpublished decision. State v. Bear, Ia. S.Ct. Slip Opinion #241-67133 (1982); 324 N.W.2d 727 (Iowa 1982) (table). After hearing, Mr. Bear's post-conviction petition was denied. Bear v. State, No. L 64341 (1985). Mr. Bear again appealed and the Iowa Court of Appeals affirmed the denial of post-conviction relief. 417 N.W.2d (Iowa Ct.App. 1987).
On August 2, 1989, Mr. Bear filed a habeas corpus petition in this court. At his request, that action was dismissed without prejudice on November 9, 1990. Mr. Bear filed a second petition on October 9, 1996, which, under this circuit's case law, was timely filed. See Nichols v. Bowersox, 172 F.3d 1068, 1073-74 (8th Cir. 1999) (en banc) (holding that petitioners whose convictions became final before April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), are allowed a one-year grace period from the effective date in which to commence a suit). In his petition, Mr. Bear asserts three grounds for relief: (1) ineffective assistance of trial counsel in failing to challenge the victim's pretrial and trial identifications of petitioner as the products of unnecessarily suggestive identification procedures; (2) the denial of his right to effective assistance of counsel as a result of the State's suppression of exculpatory evidence and/or his trial counsel's failure to recognize the exculpatory nature of such evidence if it was disclosed; and (3) the sufficiency of the evidence to support his conviction for first degree kidnapping.
II. Factual Background
The facts and evidence are summarized in the light most favorable to the verdict. See Hendricks v. Lock, 238 F.3d 985, 986 (8th Cir. 2001); Copeland v. Washington, 232 F.3d 969, 971 (8th Cir. 2000); Mallet v. Bowersox, 160 F.3d 456, 458 (8th Cir. 1998). Additional facts will be discussed as relevant in the court's analysis.
At the time relevant to this petition, Enola Harrington was 24 years old and lived with her parents in Cedar Falls, Iowa, while attending LPN classes at a local school. On November 26, 1980, the night before Thanksgiving, Ms. Harrington arranged to meet a friend, Barbara Ball, at a tavern in Waterloo called the Steamboat Gardens ("the Steamboat"). Ms. Harrington arrived at the Steamboat at approximately 9:30 pm. While at the Steamboat, Ms. Harrington had several drinks and socialized with numerous patrons throughout the evening. She and Ms. Ball left the Steamboat after last call, sometime between 1:45 am and 2:05 am. Ms. Harrington spent approximately 20-25 minutes in the parking lot speaking with a number of people and then left alone to drive to her house in Cedar Falls, approximately 15 minutes away.
Upon arriving at her house, Ms. Harrington unlocked her car door and was preparing to exit when a man swung open the door on her side, blocking her exit. The man called her "Deb" or "Debra" and Ms. Harrington at first thought he had merely mistaken her for someone he knew. She told him she was not "Debra," at which time he called her "bitch" and hit her in the face. He pulled her from her car and pushed and dragged her to his pickup truck. He then held her down in the seat, hitting her when she tried to move. He drove from the area until he was on a gravel road at which time he stopped his vehicle and forced her to have sexual intercourse. He asked her for some form of identification and told her that if she reported the attack he would use the information from her i.d. to come back and find her. He then drove her back to an alley near her residence and allowed her to leave.
Ms. Harrington ran to her nearby home, arriving there at approximately 3:20 am, and immediately told her parents she had just been raped. At 3:24 am, one of her parents called the police while Ms. Harrington began to make notes. She drew a rough sketch of the assailant, giving him a mustache with hair parted on the side, and noted the following: "29-30 year old male; caucasian, jacket with stripe, yellow or white; guy from Waterloo; hit me in head: jaw, ear, top head; intercourse; called me `Deb;' gravel road outside Cedar Falls; named streets in Cedar Falls; left me off at alley; Tremont behind Hauser's; Pick[up] — GM? — red interior, red outside."
Ms. Harrington's LPN class had recently heard a lecture by Cedar Falls Police Captain L.A. Jaeger on how to treat victims of rape and what to do as a victim of rape, including the importance of observing and noting as many details regarding the attack and the attacker as possible.
Within minutes after making the notes, Ms. Harrington and her parents went to the hospital. A rape examination was conducted. While at the hospital, Ms. Harrington gave her handwritten notes to Officer Moore of the Cedar Falls Police Department (CFPD), and discussed the contents. Concurrent with his conversation with Ms. Harrington, Officer Moore added to the note the words "ski" to describe the jacket the assailant was wearing; and "vertical down the front" to reflect his understanding of Ms. Harrington's comment that the stripe was "down the front" of the jacket. In his subsequent written report, Officer Moore wrote that the stripe was diagonal based on Ms. Harrington's comment that the stripe had a "point" to it. He also noted Ms. Harrington's impression that her assailant's truck was an "older, late fifties or early sixties pickup."
On leaving the hospital, Ms. Harrington met with Captain Jaeger of the CFPD at which time she gave a signed statement concerning the kidnapping/sexual abuse. Again she described an "old time truck" on which the "hood was big and rounded on the sides." At this point, she thought the seats were black. Captain Jaeger then left Ms. Harrington with Officer Schumberg who developed a composite sketch based on her description. On seeing the composite, Officer Ferro, a CFPD patrol officer, determined that it closely resembled the person he had arrested two months earlier, in September 1980. On that instance, Officer Ferro had been dispatched to investigate a red truck parked alongside the road with a possible intoxicated person inside. Upon arrival, Officer Ferro found Mr. Bear asleep in the truck in possession of a woman's purse.
Alleged discrepancies in Ms. Harrington's various descriptions of details surrounding the attack will be discussed in more depth in the court's analysis of Mr. Bear's substantive claims.
Officer Ferro relayed his opinion to Captain Jaeger, who, based on that information, assembled a photo array of seven persons for Ms. Harrington's review. All seven generally matched Ms. Harrington's description and all had mustaches. Ms. Harrington tentatively identified Mr. Bear as the person who had kidnapped and assaulted her. She qualified her identification, however, with the observation that while he appeared to be closest to the rape suspect, she thought that her attacker had fuller hair in front and a thinner face. Later that same day, Captain Jaeger drove Ms. Harrington past Mr. Bear's house so that she could more closely observe his pickup truck. According to Officer Jaeger, Ms. Harrington indicated that the interior of the truck appeared to be the same as the pickup truck in which she had been assaulted.
On the morning of November 27th, Mr. Bear was approached by the CFPD in connection with the incident. Two officers came to his home and asked to speak with him regarding an assault that had taken place the previous night. Mr. Bear informed the officers that he had been in Waterloo the night before and had returned to his home at about 7 am. Mr. Bear agreed to showed the police the clothes he had been wearing and allowed them to search his truck. Later that day Mr. Bear voluntarily came to the Cedar Falls police station to meet with Captain Jaeger. He gave a statement regarding his whereabouts the night before. According to Mr. Bear, he had been at the Twin Torch Inn, a bar and lounge in Waterloo, until 2 am, at which time he went next door to the Happy Chef Diner for a cup of coffee. He said that he stayed at the Happy Chef for about 45 minutes and then drove to the home of Connie Stratton, approximately 25 minutes away in Cedar Falls. Mr. Bear stated that he arrived at Ms. Stratton's at approximately 3 am and stayed for at least an hour during which time they had sexual intercourse. He left Ms. Stratton's at approximately 4 am and drove to the home of Diane Santoiemma, in New Hartford, Iowa, approximately 25 minutes from Cedar Falls. The visit was unannounced and unplanned. He stayed until about 7 am and during his stay they had sexual intercourse. He then left, stopped for gas and drove home where he slept until being awakened by the police.
On December 4th, approximately a week after her attack, Ms. Harrington viewed a line-up at the Black Hawk County Jail. The line-up consisted of six men, all Caucasian, all of the same approximate height and build, and all with dark, full hair. Two of the men had mustaches, four did not, including Mr. Bear who had just shaved his off. Mr. Bear was the only person in the line-up who had also been included in the earlier photo array. Ms. Harrington positively identified Mr. Bear as her assailant.
On April 3, 1981, defense counsel moved for production of any statements, including handwritten notes, made by Ms. Harrington relative to the alleged assault, and any relevant written investigative reports by the CFPD on the grounds that such evidence "may prove to be exculpatory as to this Defendant when compared to evidence and testimony to be presented at trial by the Defendant and that said material may be exculpatory without it being recognized as such by anyone other than the Defendant or his attorney." Following a hearing on April 9, 1981, the trial court granted in part and denied in part the motion. The court ordered production of Ms. Harrington's hand-written notes but denied without prejudice Mr. Bear's request for written statements given by Ms. Harrington to CFPD and CFPD investigative reports. The court indicated that the statements and reports might be subject to production following in camera examination by the court or after testimony at trial of the relevant witnesses.
At trial, Ms. Harrington identified Mr. Bear as her assailant. She also identified photographs of his pickup truck as the truck that she had been attacked in, and his ski vest as the "jacket" that the assailant had been wearing that night. Mr. Bear's attorney cross-examined Ms. Harrington regarding purported inconsistencies between her post-attack statements, her deposition testimony, and her trial testimony — particularly with regard to her description of her attacker's truck and clothing.
At trial, Mr. Bear presented an alibi defense consistent with his statement to police. Numerous disinterested witnesses placed him at the Happy Chef Restaurant in Waterloo between 2 and 2:30 am on the morning in question, although, as established by the State, none saw exactly when he left. Several also testified that Mr. Bear was wearing a black leather jacket that night. Connie Stratton testified that she had seen Mr. Bear that evening at the Twin Torch Inn and that they had agreed he would come to her home later that evening. She further testified that Mr. Bear called her at her home at about 1:30 am, and said that he might be going to the Happy Chef but that he would be over some time after that. She testified that Mr. Bear arrived at her home at approximately 3 am although she did not look at the clock, that she and petitioner had sexual relations, and that he left shortly after 4 am. Finally, Diane Santoiemma testified that shortly after 4 am that morning, Mr. Bear came to her home in New Hartford, Iowa, where he remained until approximately 7 am.
The State, both in its direct case and through cross-examination, attacked Mr. Bear's alibi defense, attempting to show that while there were times at which Mr. Bear's whereabouts appeared to be accounted for, that time frame did not preclude his guilt and, in fact, the reliable evidence was consistent with him having the opportunity to commit the crime. To that effect, the State established that Mr. Bear could not be positively placed at the Happy Chef any later than 2:30 am. Further, the State, through cross-examination, established some discrepancy and uncertainty in the time table given by Ms. Stratton and Ms. Santoiemma as to Mr. Bear's arrival and departure from their homes.
One witness, a waitress at the Happy Chef, thought that Mr. Bear had perhaps been at the diner from 2 until about 2:45 am. She testified, however, that this was just an estimation as she did not recall specifically noting when he left or looking at a clock at any point while he was there.
III. Standard of Review
Mr. Bear bases his section 2254 application on three arguments:
(1) ineffective assistance of trial counsel for failing to challenge the victim's pretrial and trial identifications of petitioner as the products of unnecessarily suggestive identification procedures; (2) denial of his right to effective assistance of counsel as a result of the State's suppression of exculpatory evidence and/or his trial counsel's failure to recognize the exculpatory nature of such evidence if it was disclosed; and (3) the sufficiency of the evidence to support Mr. Bear's conviction for first degree kidnapping.
Title 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Thus, "[s]ection 2254(d) distinguishes between two types of erroneous decisions — those of law and those of fact — and treats each in separate subparagraphs." Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir. 2001). Claims of legal error are governed by the former while claims of factual error fall within the latter. See id. at 1029-30. Mr. Bear seeks relief under both subparagraphs. He argues that the Iowa courts' decisions on the issues of the effectiveness of his trial counsel and the sufficiency of the evidence were contrary to or involved an unreasonable application of clearly established federal law, and were based on an unreasonable determination of the facts in light of the evidence.
Standard of review under § 2254(d)(1)
Under § 2254(d)(1), a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court only through a showing that the state court's decision was either (1) contrary to, or (2) an unreasonable application of, clearly established federal law as determined by the Supreme Court. The Supreme Court's recent opinion in Williams v. Taylor, 529 U.S. 362 (2000), explains the meaning of those statutory concepts and the degree of deference that must be afforded to state court determinations on the merits in federal habeas proceedings concerning state prisoners under the AEDPA. See Newman v. Hopkins, 2001 WL 428238, *1-2 (8th Cir. 2001) (discussing effect of Williams).
Under Williams, a state-court decision can be "contrary to" Supreme Court precedent in one of two ways: if the state court "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or if the state court "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the precedent]." Williams, 529 U.S. at 405. Further, "the [statutory] phrase `clearly established Federal law, as determined by the Supreme Court of the United States' . . . refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 412.
An "unreasonable application" of Supreme Court precedent can also arise in one of two ways. As the Court explained:
First, a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case. Second, a state-court decision also involves an unreasonable application of this Court's precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.Id. at 407 (citing Green v. French, 143 F.3d 865, 869-70 (4th Cir. 1998)). Thus, where a state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case," that decision "certainly would qualify as a decision `involv[ing] an unreasonable application of . . . clearly established federal law.'" Id. Notably, however, "[u]nder § 2254(d)(1)'s `unreasonable application, clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411.
Applying these standards to the present case, the court's inquiry must be whether the Iowa courts reached a decision contrary to that reached by the United States Supreme Court on a question of law, or alternatively, whether the Iowa court correctly identified the applicable principles of federal law but then unreasonably applied that law to the facts of Mr. Bear's claims. See also, e.g., Newman, 2001 WL 428238 at *1-2 (discussing Williams); Weaver v. Bowersox, 241 F.3d 1024, 1029-30 (8th Cir. 2001) (same); Closs v. Weber, 238 F.3d 1018, 1020 (8th Cir. 2001) (same); Copeland v. Washington, 232 F.3d 969, 973 (8th Cir. 2000) (same).
Standard of review under § 2254(d)(2)
"Claims of factual error are subjected to the standard enunciated in § 2254(d)(2); section 2254(e)(1) then establishes a presumption of correctness in favor of state court findings of fact." Weaver, 241 F.3d at 1030. Accordingly, the court's review presumes that the Iowa Courts found the facts correctly unless Mr. Bear rebuts that presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Weaver, 241 F.3d at 1030 ("[O]n habeas review, we accord state trial courts broad latitude in determining questions of fact by virtue of the statutory presumption in favor of state court fact-finding."). "It bears repeating that even erroneous fact-finding by the [state] courts will not justify granting a writ if those courts erred `reasonably.'" Id.
Section 2254(e)(1) provides:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue shall be presumed correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
IV. Discussion
A. Ineffective Assistance of Counsel
Mr. Bear contends that he was denied his constitutionally guaranteed right to the effective assistance of counsel when his trial lawyer failed to challenge pretrial and trial identifications and failed to discover and/or investigate exculpatory evidence regarding the assailant's presence at the Steamboat on the night of the attack. The Sixth Amendment right to effective counsel is clearly established. See Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court explained that a violation of that right has two components:
The court recognizes that Mr. Bear's conviction became final in 1982 and Strickland was not decided until 1984. Thus, strictly speaking, Strickland was not "clearly established federal law as determined by the Supreme Court" at the time his conviction became final. See 28 U.S.C. § 2254(d)(1). However, because it can be said that Strickland was a natural extension of prior Supreme Court precedent recognizing that "the right to counsel is the right to effective counsel," McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970), this court finds it appropriate — as did the Iowa courts — to analyze Mr. Bear's claims under the guidelines elaborated upon in Strickland. Cf. Hendricks, 238 F.3d at 989 (applying Supreme Court precedent decided after conviction became final on grounds that "the principles underlying the rule [of the case] are general and have long been clear").
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. at 687, quoted in Williams, 529 U.S. at 390. Thus, Strickland requires a showing of both deficient performance and prejudice. However, "a court deciding an ineffective assistance claim need not address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. "If it is easier to dispose of an ineffectiveness claim on grounds of lack of sufficient prejudice, . . . that course should be followed." Id.
To establish unreasonably deficient performance, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. The "reasonableness of counsel's challenged conduct [must be reviewed] on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. There is a strong presumption of competence and reasonable professional judgment. Id. The court must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance." Id.
To establish prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. In other words, "the question is whether there is a reasonable probability that, absent those errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. In answering that question, the court "must consider the totality of the evidence before the judge or jury." Id.
Ineffectiveness of counsel is a mixed question of law and fact and thus on habeas review a federal court is not bound by a state court's conclusion that counsel was effective. See id. at 698. That said, however, "state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254(d)." Id.
After identifying Strickland as governing Mr. Bear's ineffective assistance claims, the Iowa Court of Appeals rejected Mr. Bear's contentions, holding the following:
With regard to the other contentions, which included failure by trial counsel to attack the alleged suggestive identification procedures, failure to adequately review the police reports, failure to depose the police officers, and failure to move for a continuance to permit the investigation of such matters, Bear has failed to show that but for such failures, the result of the trial would have been different. We have no reason to think that depositions of the police would disclose anything more than was already encompassed in their detailed reports. The victim unequivocally identified Bear as her assailant on three different occasions. In addition, following our law on this matter, we find counsel need not pursue every path; the duty for counsel to investigate every path isn't without an end. Trial counsel's efforts and decisions on investigation tactics were reasonable and undoubtedly were a product of his judgment after a review of the information before him at the time. We find, after a review of the totality of the circumstances, that trial counsel's performance was within the range of normal competency and that a different outcome would not have resulted if trial counsel, in fact, had committed the alleged professional errors.
417 N.W.2d at 474.
This court will now address Mr. Bear's specific claims to determine whether the Iowa Court of Appeals' decision was either "contrary to, or involved an "unreasonable application of," the law established by Strickland, or whether the factual determinations underlying the decision were unreasonable in light of the evidence.
1. Trial counsel's failure to challenge pretrial and trial identifications
Mr. Bear first contends that his trial counsel, Richard Knock, was ineffective in failing to challenge the victim's pretrial and trial identifications as the product of unnecessarily suggestive identification procedures. Mr. Bear's claim encompasses Ms. Harrington's physical identification of him as her assailant as well as her in-court identification of his truck and jacket. As evident from the above-included excerpt, the Iowa Court of Appeals found fatal deficiencies in Mr. Bear's Strickland showing on both issues. As to Ms. Harrington's identification of Mr. Bear as her assailant, the court observed that "[t]he victim unequivocally identified Bear as her assailant on three different occasions." Bear, 417 N.W.2d at 474. This finding evinces the court's conclusion that the physical identification procedures were not constitutionally flawed. As to Ms. Harrington's identification of Mr. Bear's truck and jacket, the court found that Mr. Bear could not show that counsel's failure to challenge the identification procedures had affected the outcome of the trial. See id. This court, too, will treat as distinct Mr. Bear's claims regarding identification of him as the assailant from his claims regarding identification of his clothing and vehicle.
(a) Identification of Mr. Bear as the assailant
The Supreme Court has recognized a due process right to exclude identification testimony that results from unnecessarily suggestive procedures that may lead to an irreparably mistaken identification. See Stovall v. Denno, 388 U.S. 293, 302 (1967). Thus, Mr. Bear's ineffective assistance claim based on Ms. Harrington's identification testimony is potentially valid under Strickland only if the court finds that the identification procedures utilized were constitutionally flawed. Because "[i]t is the likelihood of misidentification which violates a defendant's right to due process," Neil v. Biggers, 409 U.S. 188, 198 (1972), review of any such challenge must focus on the reliability of the identification testimony. See id. Accordingly, an identification derived from unnecessarily suggestive procedures need not be excluded if the totality of the circumstances indicates that the identification is reliable. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Biggers, 409 U.S. at 198.
Courts employ a two-step analysis to determine the admissibility of identification testimony. First, the defendant must prove that the identification procedure was impermissibly suggestive. See id. at 198-99. If so, the court determines whether the testimony was nonetheless reliable using the five factors enumerated in Biggers:
(1) the witness' opportunity to view the defendant at the time of the crime;
(2) the witness' degree of attention at the time of the crime;
(3) the accuracy of the witness' description of the defendant prior to the identification;
(4) the witness' level of certainty when identifying the defendant at the confrontation; and
(5) the length of time elapsed between the crime and confrontation.See id. at 199-200. When assessing reliability, courts may also consider the strength of other evidence against the defendant. See, e.g., United States v. Rogers, 73 F.3d 774, 778 (8th Cir. 1996) (holding identification reliable because other evidence showed at least two other witnesses identified defendant).
Mr. Bear's contentions of impermissibly suggestive influence are premised on the fact that Ms. Harrington's mother worked at the CFPD as a dispatcher and was therefore allegedly feeding information to her daughter that would result in her selecting him from the line-up. Mr. Bear also argues that because he was the only suspect included both in the photo array and the lineup, Ms. Harrington's lineup identification was tainted. On the record before this court, both allegations are without merit. Mr. Bear has failed to prove that Ms. Harrington received improper identifying information from her mother or elsewhere and, under the facts of this case, the mere fact that Mr. Bear was included in both the photo array and the lineup does not negate the validity of the lineup or the in-court identification.
The court first notes that Ms. Harrington's physical identification of her assailant has changed very little from her initial descriptions immediately following the attack. That description was, and is, a close match to Mr. Bear, including his race, height, build, hair coloring and style, and mustache. Ms. Harrington's post-attack notes are substantially consistent with her statement to Captain Jaeger, which in turn closely matches the composite sketch developed in conjunction with Officer Schumberg. Ms. Harrington's mother was not present while she gave her police statement to Captain Jaeger, and neither were present while Ms. Harrington developed the composite of her assailant. There is no evidence that the photo array was in any way tainted — all seven men included had dark hair and mustaches. From that array, Ms. Harrington selected Bear as the man who most closely resembled her attacker. A week later, she positively identified Bear as her assailant in a line-up. Again, there is no evidence that the lineup was in any way tainted — all six men were close in height, build and appearance.
Given the above, the fact that Mr. Bear was the only suspect included in both the appropriately conducted photo array and subsequent lineup does not in itself make the identification unnecessarily suggestive. See, e.g., Alabama v. Johnson, 620 So.2d 709, 713 (Ala. 1993) ("[T]he mere fact that [the witness] was shown [defendant's] picture and also saw him in the line-up does not establish any impropriety in the identification process."); Missouri v. Glessner, 918 S.W.2d 270, 277 (Mo.Ct.App. 1996) (citing cases where no error found where defendant was only suspect included in both photo array and lineup, and citing other cases so holding). Nor do Ms. Harrington's cautionary comments with regard to the photo array lend a per se taint to the subsequent physical lineup or the in-court testimony. See Graham v. Solem, 728 F.2d 1533, 1545 (8th Cir. 1984) ("Some initial hesitancy on the part of the victim does not necessarily render the identification unreliable. . . . Indeed, we should encourage thoughtful reserve by a victim to the end of sparing suspects a hasty, ill-considered, positive identification.") (citations omitted); Jones v. Director, Patuxent Inst., 351 F. Supp. 913, 937 (D.Md. 1972) (rejecting extension of Foster and noting that "to hold otherwise . . . would necessitate the conclusion that, once a witness failed to identify a person [in] a properly conducted [procedure], that witness would be barred from thereafter making an identification"); Pella v. Reid, 527 F.2d 380, 384 (2d Cir. 1975) (after witness failed to identify defendant from photo array but positively identified him in live lineup, the court held that "[w]hile [the witness's] initial inability to identify [defendant] at the line-up and his subsequent ability some three days later to make an identification from photographs taken of that same line-up might raise some doubts as to the reliability of his recollection, those doubts are not so substantial as to warrant a finding of `unnecessary' or `impermissible' suggestion"); Alabama v. Johnson, 620 So.2d 709, 713 (Ala. 1993) (identification reliable where defendant's picture was included in two photographic arrays and a live lineup before witness could identify him); Illinois v. Moore, 365 N.E.2d 1356, 1358-61 (Ill.App.Ct. 1977) (identification reliable where witness assisted in development of composite sketch but then only tentatively identified defendant in subsequent photo array and lineup before later positively identifying him at trial).
Further, the court rejects Mr. Bear's unsupported allegation that because Ms. Harrington's mother works in the CFPD she was inevitably tainting the investigation and the identification procedures. There is no evidence to that effect, aside from Captain Jaeger's testimony that, as could be expected, he did keep Ms. Harrington's mother apprised of the investigation as it progressed. That fact alone is insufficient in itself to make an otherwise appropriately-conducted procedure unconstitutional.
Mr. Bear's reliance on Foster v. California, 394 U.S. 440 (1969), in which an identification procedure was deemed unnecessarily suggestive under the totality of the circumstances is inapposite. A brief recitation of the facts in Foster demonstrates the extent to which that case is materially factually distinct:
Petitioner was charged by information with the armed robbery of a Western Union Office. . . . Except for the robbers themselves, the only witness to the crime was Joseph David, the late-night manager of the Western Union office. After [petitioner] had been arrested, David was called to the police station to view a lineup. There were three men in the lineup. One was petitioner. The other two men were short — five feet, five or six inches. Petitioner wore a leather jacket which David said was similar to the one he had seen underneath the coveralls worn by the robber. After seeing this lineup, David could not positively identify petitioner as the robber. He `thought' he was the man, but he was not sure. David then asked to speak to petitioner, and petitioner was brought into an office and sat across from David at a table. Except for the prosecuting officials there was no one else in the room. Even after this one-to-one confrontation David still was uncertain whether petitioner was one of the robbers: `truthfully — I was not sure,' he testified at trial. A week or 10 days later, the police arranged for David to view a second lineup. Petitioner was the only person in the second lineup who had appeared in the first lineup. This time David was `convinced' petitioner was the man.Id. at 441-42. The Supreme Court concluded that, in their totality, "the suggestive elements in this identification procedure made it all but inevitable that David would identify petitioner whether or not he was in fact `the man.'" Id. at 443.
Unlike Foster, this case presents no evidence that Mr. Bear was ever singled out by the police or that the witness was coerced by the police to choose him. The only similarity between Foster and the case at bar is that in both cases the accused suspect was the only individual included in more than one identification procedure and the witness failed to firmly identify the defendant in the first procedure. Even that fact is not particularly analogous as there is a significant difference between a failure to identify an individual in previous physical lineups (as in Foster) and a failure to identify someone in a previous photo-array (as here). While the former inconsistency is not easily explained, the latter is easily reconciled by the difference between a two-dimensional black-and-white face-shot and a three-dimensional live viewing. Mr. Bear has not cited, and this court has not found, any case law which would suggest that the conclusion in Foster can be extended to the slim facts raised by Mr. Bear. Rather, courts have repeatedly emphasized the layers of impropriety in Foster underlying the decision — from the physical discrepancies of the suspects, the identifying clothing, and particularly the extended one-on-one showup. See, e.g., United States v. Donaldson, 978 F.2d 381, 386-87 (7th Cir. 1992) (holding that repetition of defendant's picture in multiple identification procedures does not in itself trigger Foster exclusion); Preacher v. Estelle, 626 F.2d 1222, 1223 and n. 4 (5th Cir. 1980) (rejecting Foster analogy despite fact that defendant included in two photo arrays and only light skinned black in lineup); Pella, 527 F.2d at 384-85 (witness unable to identify defendant until third attempt but distinguishing Foster since no one-on-one confrontation); Moore, 365 N.E.2d at 1361 (rejecting Foster analogy where only similarity is defendant's inclusion in photo array and lineup).
In sum, the court finds nothing impermissibly suggestive in the procedures about which Mr. Bear complains. However, even had there been, Mr. Bear's claim would still fail because under the five-factor test of Biggers Ms. Harrington's in-court identification of Mr. Bear as her assailant was nevertheless reliable. She had ample opportunity to view the defendant at the time of the crime, both when he first approached her in her car and during her assault. See, e.g., U.S. v. Lank, 108 F.3d 860, 862 (8th Cir. 1997) (identification reliable because witness observed defendant for 10 minutes from very short distance); Levasseur v. Pepe, 70 F.3d 187, 195 (1st Cir. 1995) (identification reliable because victim observed defendant during rape). Her post-attack notes evidence a remarkable degree of attention given the circumstances. See, e.g., United States v. Dowling, 855 F.2d 114, 117 (3d Cir. 1988) (identification reliable because witness made deliberate effort to effectively observe suspect so as to provide police with description). And the accuracy of her description prior to identification is significant. See, e.g., Levasseur, 70 F.3d at 195 (identification reliable because victim described details about defendant's face and build, despite failure to mention neck scar and tattoos on arms); United States v. Causey, 834 F.2d 1277, 1285 (6th Cir. 1987) (identification reliable because witness's description was unequivocal and accurate regarding race, sex, age, hair length and facial hair); Johnson v. Dugger, 911 F.2d 440, 449 n. 16, 451 (11th Cir. 1990) (identification reliable because the witness gave different police officers multiple, nearly identical descriptions 15-30 minutes after the crime). While Ms. Harrington qualified her identification of Mr. Bear from the photo array, her level of certainty in the line-up identification was high. As noted above, the court will not completely discount the validity of a line-up identification merely because when faced with a two-dimensional photo array the victim showed some hesitation. And finally, the lineup identification occurred within a relatively short time — approximately one week — after the attack. See, e.g., United Sates v. Salameh, 152 F.3d 88, 125-27 (2d Cir. 1998) (identification approximately one week after bombing reliable); United States v. Johnson, 114 F.3d 435, 442 (4th Cir. 1997) (identification from a photograph 6 days after crime reliable); Kordenbrock v. Scroggy, 919 F.2d 1091, 1103 (6th Cir. 1990) (en banc) (identification "less than a month" after crime reliable).
The court received copies of the composite drawing prepared by Ms. Harrington, as well as the photo array and line-up photos. The court cannot help but note the remarkable similarity between the composite drawing, made a few hours after the rape, and the photo of the petitioner. The resemblance is so close that a law enforcement officer quickly recognized the composite drawing as a likeness of the petitioner.
Thus, the Biggers factors confirm this court's conclusion that Ms. Harrington's identification of Mr. Bear was made in accordance with his due process rights. Any motion to exclude that identification based on due process grounds would have been properly denied. Accordingly, the Iowa courts' determination that Mr. Bear's trial attorney was not ineffective in failing to make any such challenge is neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent.
(b) Identification of Mr. Bear's truck and clothing
The Supreme Court has not addressed whether its decision in Stovall extends to identification testimony of inanimate objects. Those courts which have addressed the issue appear to have unanimously held that it does not. See United States v. Zenone, 153 F.3d 725 (4th Cir. 1998); Johnson v. Sublett, 63 F.3d 926 (9th Cir. 1995); Dee v. State, 2001 WL 430819 (Ga. 2001); Hughes v. State, 735 So.2d 238, 261 (Miss. 1999); People v. Miller, 535 N.W.2d 518, 523 (Mich.Ct.App. 1995); Brooks v. State, 560 N.E.2d 49, 57-58 (Ind. 1990); Arizona v. Roscoe, 700 P.2d 1312 (Ariz. 1984) (en banc); State v. Cyr, 453 A.2d 1315, 1317-18 (N.H. 1982); State v. King, 639 P.2d 809, 811-12 (Wash.Ct.App. 1982); Iowa v. Bruns, 304 N.W.2d 217 (Iowa 1981); Commonwealth v. Carter, 414 A.2d 369 (Pa. 1980); People v. Coston, 576 P.2d 182, 185 (Colo.Ct.App. 1977); Inge v. Commonwealth, 228 S.E.2d 563, 567 (Va. 1976).
Several of the above-cited cases involved in-court automobile identifications under facts similar to those at bar. In Roscoe, a kidnapping case in Arizona, a witness at trial identified the defendant's automobile and testified that he had seen the car leaving the area of the crime at a high speed. 700 P.2d at 1323-24. The witness had originally told the police that the car he had seen was a 1978 or 1979 Ford. Id. He later identified defendant's 1967 Rambler from a picture show to him by the police. Id. The defendant on appeal claimed that the police should have utilized a line-up procedure for the identification. Id. The Arizona Supreme Court, sitting en banc, rejected the defendant's argument, noting that "[b]y the great weight of authority, the right to pretrial identification procedures is inapplicable to items of physical evidence." Id. at 1324 (citations omitted). The Roscoe court held that "[f]actors surrounding automobile identifications, such as the suggestiveness of the proceedings, affect only the weight, and not the admissibility, of the evidence." Id. (citation omitted). Applying this reasoning to the evidence at issue, the court observed:
The differences between a 1967 Rambler and a 1978 Ford are easy to convey to the jury. Reasonable cross-examination could easily have elicited the admission that when his memory was unaided by police the witness recalled having seen a 1978 Ford and that after seeing photographs of a single car, he changed his mind and identified a 1967 Rambler. We believe it was for the jury to decide whether the identification in court was dependable and accurate.Id.
Similarly, in Bruns, the Iowa Supreme Court, in declining to extend the accused's right to a fair pretrial identification of his person to the pretrial identification of items of physical evidence, explained:
The pretrial identification by a victim of a car in which the crime occurred does not implicate the due process rights of a defendant. . . . While the procedure used here, identification of an impounded car by a young victim at the request of the police, may make the evidence of the identification suspect, it does not give rise to a claim of denial of due process that will result in the suppression of the evidence. If the identification of the car was suspect, the credibility of the identification witnesses could properly be placed before the trier of fact by cross-examination and final argument. The weight of the identification evidence is for the trier of fact.304 N.W.2d at 219 (citations omitted); accord Johnson, 53 F.3d at 931-32 (holding that although the argument "deserves credit for creativity, Stovall and its progeny do not require car line-ups" and there is "no authority holding that a defendant's due process right to reliable identification procedures extends beyond normal authenticity and identification procedures for physical evidence offered by the prosecution") (citation omitted); Zenone, 153 F.3d at **7 (holding due process clause inapplicable to witness identification of the distinct weapons the robbers used to link defendant to the crime).
A Pennsylvania court discussed the rationale behind the distinction:
[W]e reject the assumption implicit in [appellant's] argument; namely, that the requirements for a non-prejudicial identification of an individual are similarly necessary for the identification of an object. One of the purposes of invoking such stringent requirements in testimony relating to the identity of the accused is the enormous probative weight of such evidence, ofttimes deciding the issue by its admission alone. Identification of an item of real evidence, however, does not generally have this effect. Consequently, it has never been the case that identification of an object must be subject to the same precautions given the identification of a person. Rather, any uncertainty in the description, or suggestivity in a prior identification, goes to the weight to be accorded the testimony, not its admissibility. (citations omitted).Carter, 414 A.2d at 373 (rejecting defendant's challenge to identification testimony regarding a brown bag and pipe displayed as a weapon in a robbery due to allegedly suggestive "on-the-scene" identification); accord Miller, 535 N.W.2d at 523 ("The risks inherent in a misidentification of inanimate objects produced in the thousands are not the same as the risks of misidentification of unique human beings."); King, 639 P.2d at 811-12 ("[A] witness who identifies a piece of clothing which is essentially the same in appearance as hundreds of thousands of others is not only more likely to change his mind, but his credibility before the trier of fact may be readily challenged."), quoted in Roscoe, 700 P.2d at 1324.
As the above case law makes clear, any motion to exclude the truck or jacket identification testimony would surely have been denied and the denial would not have been unreasonable under established federal law. Thus, it cannot be said that defense counsel's failure to make a motion that would have been futile can support an ineffective assistance claim. Although the court recognizes the possibility of taint from the CFPD's decision to bring Ms. Harrington to view the truck the day after her attack, the appropriate redress is cross-examination. Defense counsel cross-examined both Ms. Harrington and Captain Jaeger regarding discrepancies over time in Ms. Harrington's description of her assailant's pickup and jacket. He emphasized the difference between her initial statement that the pickup was an older model — 1950s or '60s — with a big hood and rounded fenders, while Mr. Bear's truck was a 1970 squared off model. He elicited Ms. Harrington's admission that prior to viewing Mr. Bear's truck she had never told police that the truck had a white top. He questioned discrepancies in her description of the make of the truck and he brought out arguable changes in her testimony regarding whether, and to what extent, there was legible stenciling on the back of the pickup. Defense counsel's cross-examination regarding the jacket was equally vigorous.
In sum, the court concludes that defense counsel was not ineffective in his treatment of the identification testimony regarding Mr. Bear's pickup truck and clothing. Further, the court agrees with the Iowa courts that, given the validity of Ms. Harrington's identification testimony regarding Mr. Bear himself, any alleged deficiencies regarding the treatment of the truck or the clothing — even if they could be proven — did not undermine the reliability of the verdict. Thus, Mr. Bear cannot establish Strickland prejudice on this issue.
2. Investigation of exculpatory evidence
Mr. Bear makes separate but related Sixth Amendment claims regarding the treatment of various allegedly exculpatory pieces of evidence. He argues that the State interfered with his ability to receive effective counsel when it failed to produce prior to trial, or at all, certain exculpatory statements, police reports and other evidence. He also argues that his trial attorney provided ineffective assistance when he failed to recognize and independently investigate exculpatory evidence. While the claims inevitably overlap somewhat, to the extent possible the court will treat each claim as distinct.
(a) State-caused ineffective assistance
In support of his claim that the State interfered with the ability of his trial counsel to render effective assistance, Mr. Bear points to several acts or omissions by the government: (1) the government misled Mr. Bear's attorney by telling him that there was nothing helpful in statements police took from witnesses at the Steamboat; (2) the government failed to disclose prior to trial Ms. Harrington's written statement in which she commented that the assailant said "[she] had seen [him] at the Steamboat" and that the assailant might have been a "short guy" at the Steamboat; (3) the government failed to disclose prior to trial police investigative reports that included a statement by Mr. Draper, a Steamboat customer, that there may have been someone at the bar that night who resembled the composite sketch of the assailant; (4) the government never disclosed a hand-drawn "map" of the Steamboat bar with an "X" on it that allegedly illustrated where the matching suspect was sitting; and (5) the government failed to produce photographs of tire tracks taken from the alley where Ms. Harrington was left after the attack.
"Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense." Strickland, 466 U.S. at 686 (citing Geders v. United States, 425 U.S. 80 (1976) (bar on attorney-client consultation during overnight recess); Herring v. New York, 422 U.S. 853 (1975) (bar on summation at bench trial); Brooks v. Tennessee, 406 U.S. 605, 612-13 (1972) (requirement that defendant be first defense witness); and Ferguson v. Georgia, 365 U.S. 570, 593-96 (1961) (bar on direct examination of defendant)). In the case at bar, Mr. Bear's charge of state-caused interference with his Sixth Amendment right is premised on his allegations of Brady violations and police misrepresentations.
Aspects of Mr. Bear's substantive claims were addressed both on direct review by the Iowa Supreme Court and on post-conviction review by the Iowa Court of Appeals. On direct appeal, the Iowa Supreme Court, after recognizing that the issue was governed by Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Agurs, 427 U.S. 293 (1968), concluded the following:
In this case the content of the assailant's statement to the victim, for whatever it was worth, was divulged to the fact finder and made a part of the record. We are not convinced by defendant's argument that prior knowledge of this information would have prompted a further investigation. He did not ask for a continuance, although trial was to the court. In his new trial motion he did not assert the discovery of any additional evidence. . . . Assuming this evidence was material, furnishing the statement to defendant prior to the victim's cross-examination satisfied the rule's requirements, and the Jencks Acts procedures this court has adopted.
No. 241/67133, slip opinion, at p. 5.
In post-conviction proceedings, the trial court similarly concluded that production of Ms. Harrington's statement and Captain Jaeger's report at trial satisfied Brady and Agurs. The trial court also found that Mr. Knock's "failure to more thoroughly investigate the witnesses from the Steamboat Gardens was a tactical decision, not ineffective assistance of counsel." No. L 64341, at p. 4. With regard to the Draper statement, the trial court found that Mr. Bear became aware of that information during the trial testimony of Captain Jaeger in that, pursuant to a Jencks request, Jaeger's report containing the Draper information was given to defense counsel.
On appeal, the Iowa Court of Appeals found the allegedly withheld evidence immaterial and inconclusive: "The bar patron's statement was equivocal; the photographs taken were of such poor quality they were considered worthless. The statement and photographs [of tire tracks] do not appear to be favorable to [Mr.] Bear as they were inconclusive." 417 N.W.2d at 470. As to the map that allegedly marked the location of the assailant at the Steamboat, the court found it "inconclusive and immaterial to [Mr.] Bear's defense. It was a part of the State's investigation which supported neither the State's nor [Mr.] Bear's positions." Id. The court found the map "merely potentially helpful to the defense and . . . therefore immaterial." Id. (citing U.S. v. Bagley, 473 U.S. 667 (1985)). In that respect, the court noted that the State is not required "to make a complete and detailed accounting to the defense of all police investigatory work on a case." Id. (citing Moore v. Illinois, 408 U.S. 786, 795 (1972) and United States v. Jackson, 579 F.2d 553, 560 (10th Cir.) ("The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense."), cert. denied, 439 U.S. 981 (1978)). In light of the above findings, the Iowa Court of Appeals concluded that Mr. Bear failed to show prejudice since "had any of the evidence not been `withheld' the outcome of the trial would have been the same." Id.
The Iowa courts' conclusions were neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent, and were premised on reasonable determinations of fact. Brady and Agurs require the prosecution to disclose evidence favorable to an accused when such evidence is material to guilt. See Brady, 373 U.S. at 87; Agurs, 427 U.S. at 107-111. Although the government's duty to disclose continues throughout the proceedings, see Mooney v. Holohan, 294 U.S. 103, 108 (1935), late disclosure of Brady material is not reversible error unless the defendant can show that the delay denied him a fair trial. See, e.g., Madsen v. Dormire, 137 F.3d 602 (8th Cir. 1998) (no Brady violation in belated disclosure of incompetence of state forensic chemist because defendant could have sought independent forensic testing and did not request continuance for such testing at time of disclosure); United States v. O'Keefe, 128 F.3d 885, 898-99 (5th Cir. 1997) (no Brady violation in belated disclosure of FBI report containing inconsistent statements of key government witnesses because report was used by defendant to conduct thorough cross-examination of witness at trial); United States v. Walton, 217 F.3d 443, 450-51 (7th Cir. 2000) (no Brady violation in delayed disclosure of arguably material phone records because defendant's ability to make effective use of evidence at trial obviated reasonable probability that outcome was prejudiced); United States v. Alvarez, 86 F.3d 901, 905 (9th Cir. 1996) (no Brady violation in belated disclosure of facially exculpatory notes taken by surveillance officer because defendant was able to cross-examine surveillance officer after disclosure and thus was not prejudiced by delay); United States v. Scarborough, 128 F.3d 1373, 1375-76 (10th Cir. 1997) (no Brady violation in belated disclosure of exculpatory fingerprint evidence at end of trial because defendant thoroughly cross-examined expert concerning evidence, even though earlier disclosure might have had positive effect on defense strategy).
Brady does not, however, mandate open file discovery. See Kyle v. Whitley, 514 U.S. 419, 437 (1995); Pennsylvania v. Ritchie, 480 U.S. 39, 59-61 (1987). The government need not disclose neutral, irrelevant, speculative, or inculpatory evidence, nor evidence available to the defense from other sources. See, e.g., United States v. Sumner, 171 F.3d 636, 637 (8th Cir. 1999) (no Brady violation because fingerprints that did not match defendant's prints were of little or no import); Hoke v. Netherland, 92 F.3d 1350, 1357 (4th Cir. 1996) (no Brady violation in failure to disclose past sexual partners of rape victim because defendant could have discovered relationships through reasonable and diligent investigation). Its obligation to disclose favorable evidence is limited to evidence that is material to the defendant's guilt. See Brady, 373 U.S. at 87. In United States v. Bagley, the Court held that evidence is material if there is a reasonable probability that disclosure of the evidence would have changed the outcome of the proceeding. 473 U.S. 667, 682 (1985) (plurality opinion); see, e.g., Spivey v. Head, 207 F.3d 1263, 1284 (11th Cir. 2000) (no right to habeas relief because nondisclosure of witness' statement and detective's report did not create reasonable probability of different outcome, even though the documents did contain favorable information that may have helped defense). The question is whether in the absence of the suppressed evidence the defendant "received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyle v. Whitley, 514 U.S. 419, 434 (1995). Therefore, to demonstrate a reasonable probability of a different outcome, the defendant must show that "the favorable evidence [withheld] could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 434.
This court agrees with the Iowa courts that in this instance the government's belated production of Ms. Harrington's statement and Captain Jaeger's report at trial did not violate Brady. Mr. Bear has failed to show that the delay hindered his ability to present his case. Ms. Harrington's statement and Captain Jaeger's report including the Draper information were turned over during the trial. No motion for continuance was made and defense counsel cross-examined both Ms. Harrington and Captain Jaeger regarding the contents of the documents and the possibility of a suspect in the Steamboat the night of the attack. While Mr. Bear challenges his attorney's conduct with regard to those tactical decisions, any alleged prejudice from that conduct cannot be said to be "state-caused." The same conclusion holds with regard to Mr. Bear's allegations of State misrepresentations regarding the police investigation into the crime. In this case, defense counsel's decision to forego independent investigation of the Steamboat was apparently based on his understanding that there was nothing to be gleaned from that source. During post-conviction proceedings, Mr. Knock could not specify from whom he had gotten that information — whether it was the police or the county attorney — or what precisely he was told. On such insufficient evidence, the court cannot find that defense counsel's failure to investigate the Steamboat was state-caused.
In his brief, Mr. Bear argues that the statement by Draper (included in Captain Jaeger's report) was not turned over during trial based, apparently, on defense counsel's failure to question Captain Jaeger regarding that information or call Mr. Draper as a witness. There is nothing in the record to support Mr. Bear's allegation. The trial transcript shows that the report was produced pursuant to a Jencks request following Captain Jaeger's direct testimony and may have been made accessible even earlier. See Trial Tr., at p. 287 (following Captain Jaeger's direct examination, defense counsel made the following remark and comment: "Your Honor, could I exercise my discretion under the Jenck's [sic] Act and require that the county attorney furnish me a copy of Mr. Jaeger's report at this time? I have seen it before, but I would like to review it again."). Thus, any failure by defense counsel to address the Draper statement was not state-caused.
Finally, with regard to the tire track photographs and the Draper "map," the court agrees with the Iowa courts' findings and conclusions. Both the district court and Court of Appeals found the photographs of such poor quality as to be worthless. As the photographs are not a part of the record before this court, it cannot be said that the Iowa courts' findings on this issue are unreasonable. The same holds for the unmarked and unlabeled "map" which was allegedly based on information derived from Mr. Draper. And in light of the fact that Draper's name and statement were disclosed during trial, the "map" (assuming materiality) was merely cumulative evidence and the failure to disclose it did not affect the outcome of the trial.
In sum, the court agrees with the Iowa courts that the allegedly withheld or belatedly disclosed evidence did not constitute a Brady violation nor did the State "cause" Mr. Bear's counsel to forego independent investigation of all avenues of defense available to him. Accordingly, the court concludes that Mr. Bear's claims of state interference with his Sixth Amendment right to effective assistance of counsel are without merit and will not support a grant of habeas relief.
(b) Failure to recognize and investigate exculpatory evidence
As touched on above, Mr. Bear next contends that his trial attorney unreasonably failed to employ his own investigative resources to conduct a defense investigation of the witnesses at the Steamboat. He further contends that his attorney failed to recognize the significance of the exculpatory evidence turned over to him pursuant to Jencks and consequently unreasonably failed to move for a continuance so that further investigation could be done.
Under Strickland, "[c]ounsel has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." Strickland, 466 U.S. at 688 (citation omitted). As to pretrial investigative choices, the Strickland Court explained the duty as follows:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgment.Id. at 690-91.
During the PCR trial, Mr. Knock testified that his pretrial investigative focus was on establishing the elements of Mr. Bear's alibi defense. His understanding from discussions with police personnel was that there was nothing in the statements of the Steamboat patrons that would be helpful to his defense; thus, he did not conduct an independent investigation of Steamboat personnel or customers. He testified that had he been in possession of the statements and/or reports that suggested a possible connection between the attack and the Steamboat, he would have pursued that line of investigation. As to Mr. Knock's trial tactics, Mr. Bear contends that on receipt and review of Ms. Harrington's post-attack statement and Captain Jaeger's investigative report — both of which suggest the possibility that the assailant was at the Steamboat the night of the attack — Mr. Knock should have moved for a continuance to investigate the lead. When questioned as to his failure to do so, Mr. Knock testified that because six months had passed since the incident, he felt that any leads were too stale to bear fruit. Accordingly, he considered his best strategy to explore the possibility through cross-examination of both Ms. Harrington and Captain Jaeger. The Iowa Court of Appeals rejected Mr. Bear's ineffective assistance claim, holding that, under the totality of the circumstances, trial counsel's "efforts and decisions on investigation tactics were reasonable and undoubtedly were a product of his judgment after a review of the information before him at the time." Bear, 417 N.W.2d at 474.
With regard to Mr. Knock's decision against seeking a continuance after production of Ms. Harrington's statement and Captain Jaeger's report, the court agrees that, given the information available to him, Mr. Knock reasonably concluded that a continuance would be futile and he would be better-served by exploring the potentially exculpatory evidence through cross-examination. However, with regard to Mr. Knock's pretrial investigation decisions, although every effort must be made "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time," Strickland, 466 U.S. at 689, it is at least questionable whether Mr. Knock's failure to even cursorily investigate the bar where the victim spent the entire evening immediately preceding her rape was a reasonable investigation tactic. Had he done so, he would have likely learned early on that there was at least a possibility of a connection between the bar and the rape, a theory which would have bolstered his alibi defense.
The court need not decide the issue, however, because even assuming arguendo that Mr. Knock's conduct in this respect was deficient, Mr. Bear falls far short of establishing that he was prejudiced by the absence of an independent investigation. See Strickland, 466 U.S. at 697 (holding that a defendant's failure to satisfy one prong of the ineffective counsel test negates a court's need to consider the other); see also, e.g., Graham v. Dormire, 212 F.3d 437, 440 (8th Cir. 2000) (court need not determine whether counsel's performance was deficient because defendant was not prejudiced); Gilbert v. Moore, 134 F.3d 642, 654 (4th Cir. 1998 (en banc) (court need not examine reasonableness of counsel's failure to investigate circumstances of crime, to interview witnesses, to examine physical evidence, or to confer substantially with defendants because defendants failed to show how alleged deficiencies prejudiced the case). The record shows that the police investigated Ms. Harrington's statement that her attacker said that "[she] had seen [him] at the Steamboat" by interviewing others who had been there on the evening of the attack. Captain Jaeger's report notes that one patron — Mr. Draper (who had spent much of the evening with Ms. Harrington) — equivocally stated that he "somewhat recall[ed] a man fitting that general description sitting at the bar during that night but could never swear that this was the same person." The police followed through on this lead by showing the sketch to the waitress and bar staff that would have waited on anyone sitting at the bar that night. None could recall a person fitting that description. The "closest match" that police could come up with was investigated and eliminated as a suspect based on significant physical distinctions from Ms. Harrington's description as well as the fact that he did own a truck. The police reasonably concluded that the slim leads potentially placing the assailant in the Steamboat on the evening of the attack were inaccurate.
Mr. Bear has presented nothing to suggest that had Mr. Knock investigated the Steamboat prior to trial his independent investigation would have rendered results different from those obtained by the police. See, e.g., Witherspoon v. Puckett, 210 F.3d 901, 903 (8th Cir. 2000) (counsel's failure to interview a key eyewitness to the crime was not ineffective assistance because defendant was not able to show prejudice from counsel's error). Without any such evidence, the only reasonable conclusion is that the resulting trial would have been conducted in precisely the same manner — presentation of evidence supporting an alibi defense along with cross-examination regarding the possibility of another suspect. That possibility was adequately highlighted through Mr. Knock's cross-examination of Ms. Harrington and Captain Jaeger. Because Mr. Bear has not shown that the verdict was unreliable or fundamentally unfair, his ineffective assistance claim fails. See Strickland, 466 U.S. at 668 ("[T]he purpose of the `effective assistance' guarantee of the Sixth Amendment is . . . to ensure that criminal defendants receive a fair trial.").
Given these findings, this court further concludes that Mr. Knock's failure to make note of (or elicit testimony regarding) the Draper statement was neither objectively unreasonable nor prejudicial. The statement was equivocal at best and merely cumulative of Ms. Harrington's statement which was subject to proper cross examination.
B. Sufficiency of the Evidence
Finally, Mr. Bear challenges the validity of his conviction on due process grounds, implicitly relying on 28 U.S.C. § 2254(d)(2) to argue that absent the "unreasonable determination of the facts" by the state trial court there was insufficient evidence adduced at trial to support his conviction. The court does not agree. There was ample evidence to support the government's theory of the case and Mr. Bear has failed to present clear and convincing evidence that the Iowa courts made any unreasonable findings of fact. See 28 U.S.C. § 2254(e)(1) (imposing presumption of correctness on State determinations of factual issues which can only be rebutted by clear and convincing evidence); Weaver, 241 F.3d at 1030 (citing the "broad latitude" accorded state trial court fact-finding on habeas review).
This court has already held that Ms. Harrington's identification testimony was constitutionally valid. See discussion, supra. Every Iowa court to review this case has reasonably found her testimony both credible and persuasive. The trial court noted that Ms. Harrington's "description of her assailant as to height, weight, age, color and style of hair and mustache, drawing of his face, all given prior to her later seeing the defendant or being shown his picture turned out to be remarkably accurate." Iowa v. Bear, No. 19789, Special Findings of Fact, Conclusions of Law and Judgment, May 15, 1981, at p. 6, aff'd, No. 241/67133 (Iowa S.Ct. 1982), slip opinion, at 2-3 (noting trial court's "extensive finding of fact, detailing substantial evidence connecting defendant with the kidnapping and sexual abuse, and affirming the sufficiency of evidence supporting the conviction); see also Bear v. Iowa, 417 N.W.2d 467, 474 (Ia. Ct. App. 1987) (noting that the "victim unequivocally identified Bear as her assailant on three different occasions").
Similarly-detailed findings were made by the trial court regarding Ms. Harrington's identification of Mr. Bear's truck and jacket. See Iowa v. Bear, No. 19789, at pp. 6-7. Having thoroughly reviewed the trial transcript, this court concludes that Mr. Bear has failed to rebut the presumptive correctness of the state trial court's determination regarding the validity and accuracy of that testimony. The discrepancies dwelt on by Mr. Bear are not significant enough to mandate rejection of Ms. Harrington's testimony. The similarities far outweigh the differences (in both nature and quantity) and given the circumstances surrounding her attack the court agrees that her descriptions held up under cross-examination. Thus the trial court's factual findings to that effect were not unreasonable.
As to the remainder of the evidence, much of the trial court's discussion was devoted to the "sharply disputed" evidence presented regarding the timing of events surrounding the attack and Mr. Bear's alibi defense. In that regard, the trial court made the following relevant findings of fact:
[T]he victim did not leave the Steamboat . . . until a few minutes after 2:00 a.m. She then remained in the parking lot of that establishment talking with other persons for approximately one-half hour and did not start to drive home until sometime after 2:30 a.m. She then drove directly to her parents' residence in Cedar Falls and arrived there at about 2:45 a.m. The fact that defendant may have been at the Happy Chef in Waterloo, Iowa as late as 2:30 a.m. would not preclude him from having left there at that time and driven to and arrived at the victim's residence at the same time as she arrived at approximately 2:45 a.m.Iowa v. Bear, No. 19789, Special Findings of Fact, Conclusions of Law and Judgment, May 15, 1981, at p. 2.
While crediting much of the testimony given by disinterested witnesses, the trial court apparently discredited the testimony of Ms. Stratton that Mr. Bear arrived at her home at 3 am. Again, upon thorough review of the trial transcript, the court cannot hold these findings unreasonable. Neither Ms. Stratton nor Ms. Santoiemma were disinterested witnesses. Both were subject to close cross-examination which highlighted discrepancy and uncertainty in their testimony as to Mr. Bear's arrival and departure times from their respective homes. The state trial court had the particular vantage to observe them and assess their credibility, and it was that court's prerogative to weigh their testimony as it saw fit. See Riggins v. Norris, 238 F.3d 954, 955 (8th cir. 2001) (affirming denial of writ under § 2254(d)(2) on grounds, inter alia, that "[a]lthough [petitioner] argues his testimony was credible (and that there was no evidence presented during the state court evidentiary hearing contradicting his testimony), the state trial court was certainly entitled to disbelieve [petitioner's] self-serving testimony . . ."); Loeblein v. Dormire, 229 F.3d 724, 726 (8th Cir. 2000) ("[T]he trier of fact is entitled to make the ultimate decision of whether testimony is to be believed.").
In sum, the court concludes that Mr. Bear has failed to establish the requisite showing for habeas relief either under § 2254(d)(2). Ms. Harrington positively identified her assailant, his clothing and his vehicle. And viewing the evidence in the light most favorable to the verdict, the State showed that Mr. Bear's whereabouts at the time of the attack could not be conclusively established and presented a time frame in which Mr. Bear and Ms. Harrington were in the same area at the same time heading in the same direction. Because Mr. Bear cannot denigrate the Iowa trial court's factual determinations, the court cannot conclude that the state trial court's decision, or the Iowa Supreme Court's affirmance, was "based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d)(2). And given the correctness of those determinations, there was more than sufficient evidence to support the conviction.
V. Conclusion
In reviewing the totality of the circumstances, the court finds that Mr. Bear has failed to show that he was denied the effective assistance of counsel as that right has been articulated in Strickland. The decision against challenging the admissibility of the identification testimony in this case was not deficient. As to the failure to conduct an independent investigation regarding potential witnesses and evidence, the court concludes that Mr. Bear has failed to show that he was prejudiced by the alleged deficiencies. Mr. Bear's due process claim fails as well. The trial court's findings amply support the conviction and Mr. Bear has failed to overcome the statutory presumption of correctness underlying those findings. Accordingly, the state courts' decision on these matters did not violate the standard enunciated in 28 U.S.C. § 2254(d), and Mr. Bear's petition for a writ of habeas corpus shall be denied.
ORDER
For the reasons discussed herein, it is ORDERED:
Gary R. Bear's petition for a writ of habeas corpus is DENIED.
Done and so ordered this 14th day of June, 2001.