Opinion
Cause No. IP 94-903-C H/G.
November 29, 2000
ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS
Lawrence Gregory-Bey is serving what amounts to more than a life sentence in an Indiana prison after being convicted on several charges arising from an armed robbery and murder at an Indianapolis McDonald's restaurant on November 17, 1985. Gregory-Bey seeks habeas corpus relief pursuant to 28 U.S.C. § 2254(a).
Gregory-Bey has filed three petitions during the course of this action — the original petition on June 13, 1994, an amended petition on June 24, 1997, and a second amended petition on May 11, 1998. The latter two were filed by court-appointed counsel for Gregory-Bey. At this point, the operative petition is the second amended petition, which cured a problem posed by the amended petition. The amended petition was a "mixed" petition that included both exhausted claims and some new and unexhausted claims that had just arisen from Gregory-Bey's re-sentencing in state court on September 23, 1996. This court addressed that problem in an Entry dated April 9, 1998, and the second amended petition removed the unexhausted claims.
Gregory-Bey's second amended petition is ripe for decision on the briefs and the expanded record, which includes state court records and evidence submitted during and after an evidentiary hearing conducted on October 1, 1999. For the reasons explained in this Entry, the court finds that Gregory-Bey is not entitled to the relief he seeks in this action.
Background
The crimes are described in Gregory-Bey v. State of Indiana, 669 N.E.2d 154 (Ind. 1996) ("Gregory-Bey II"), in which the Supreme Court of Indiana decided Gregory-Bey's direct appeal:
On November 17, 1985, two men entered an Indianapolis McDonald's shortly after 7 a.m. One of the men was later identified as Lawrence Gregory-Bey. After drinking several cups of coffee and waiting until two other customers left the building, the two men brandished handguns, ordered the five McDonald's crew members to the back of the store, and forced them to their knees. One of the robbers cleaned out the cash registers, and the other shoved the assistant store manager, Dewayne Bible, to the store's safe and forced him at gunpoint to open it. Between the money in the cash registers and the previous night's receipts in the safe, the robbers took a total of $1,069.95. Over Bible's objection, the robbers forced the six employees into the freezer, even denying Bible's request to turn the freezer off. The robbers then took the store keys from Bible and ordered one of the crew employees out of the freezer. Heroically, Bible asked the robbers to take him instead, so they substituted Bible for the employee and locked the five crew members inside the freezer.
Approximately five minutes later the crew heard two or three gunshots. After the employees no longer could hear the robbers, they began to kick at the freezer door, and eventually freed themselves. Upon exiting they found the body of Dewayne Bible lying in a pool of blood on the stockroom floor with two closely spaced gunshot wounds to the rear base of his head.
669 N.E.2d at 156-57 (footnote omitted).
During several months of investigation, the surviving witnesses looked at numerous photographs of potential suspects. Four of the witnesses eventually identified Gregory-Bey as one of the robbers. Gregory-Bey was charged with murder, felony murder, conspiracy to commit robbery, robbery, six counts of criminal confinement, and carrying a handgun without a license. The reliability of the surviving witnesses' identifications was the central issue contested at trial. Gregory-Bey was convicted of these offenses and sentenced on December 17, 1986, to a total of 281 years in prison. On December 28, 1986, his trial counsel filed a praecipe to start an appeal, but no further action was taken on the appeal for several years.
In 1990, Gregory-Bey filed a petition for a federal writ of habeas corpus in this district. It was dismissed without prejudice on April 16, 1990. In June 1990, trial counsel filed a motion to correct errors in the state trial court. After more delays and the appointment of new appellate counsel, on March 9, 1992, the Supreme Court of Indiana granted Gregory-Bey permission to file a very belated appellate brief.
In 1994, with his state court appeal still pending before the Supreme Court of Indiana, Gregory-Bey again filed a petition for writ of habeas corpus in this court, initiating this action. This court dismissed the petition without prejudice for failure to exhaust state court remedies. Gregory-Bey appealed. On July 11, 1996, the Seventh Circuit reversed and remanded, finding that the delays in the state courts had been excessive and unjustifiable as a matter of law, so that those remedies were not effective to protect Gregory-Bey's federal constitutional rights. Gregory-Bey v. Hanks, 91 F.3d 146, 1996 WL 394011 (7th Cir. July 11, 1996) (unpublished) ("Gregory-Bey I"). The Seventh Circuit expressly contemplated the prospect that the state courts could rule soon, but instructed this court to consider Gregory-Bey's claims on their merits:
The circumstances here differ [from those in Allen v. Duckworth, ¶ F.3d 458 (7th Cir. 1993)] because Indiana has not handed down an appellate decision. Rather, the ball seems to be rolling again suggesting only that Gregory-Bey's case will be decided — we cannot say soon, although it may be soon. Who knows what new barriers Gregory-Bey will encounter? Neither party has supplemented the record with evidence indicating that Gregory-Bey's case has been decided, or even that it is slated for oral arguments. Because his case is still pending, Gregory-Bey can demonstrate continued inordinate delay. Only when the Indiana Court of Appeals renders its decision will Gregory-Bey's delay be ended.
The district court's judgment is REVERSED and the case is REMANDED to address the merits of Gregory-Bey's habeas petition.
The Seventh Circuit referred to the Indiana Court of Appeals, but because Gregory-Bey's sentence exceeded fifty years, Indiana law provided that his appeal went directly from the trial court to the Supreme Court of Indiana. See Indiana Const. Art. 7, § 4. (At the time of the crime in this case, Article 7, Section 4 provided for direct appeals to the Supreme Court for any criminal sentence over ten years, but the limit was amended to fifty years in 1988. A further amendment to eliminate mandatory, exclusive jurisdiction over direct appeals except where death is the sentence was approved by Indiana voters in November 2000.)
The Supreme Court of Indiana issued Gregory-Bey II, its decision in the direct appeal, just eight days later, on July 19, 1996. The state court vacated Gregory-Bey's convictions for felony murder and conspiracy to commit murder, and ordered re-sentencing after consideration of an additional issue, whether the conviction for Class A robbery was also barred on double jeopardy grounds. In all other respects, however, the state court affirmed his convictions and 181 years of the sentence. On September 23, 1996, Gregory-Bey was re-sentenced in the state trial court on the robbery charge and was sentenced to twenty years to run consecutive to all other sentences. The result is a total sentence of 201 years, which Gregory-Bey is currently serving. The record does not indicate that Gregory-Bey appealed the re-sentencing or filed a petition for post-conviction relief in the state court.
The Supreme Court of Indiana has since called into question its holdings in favor of Gregory-Bey on the federal double jeopardy issues, see Grinstead v. State, 684 N.E.2d 482, 486 (Ind. 1997), but these matters appear to be closed with respect to Gregory-Bey's case.
After remand by the Seventh Circuit, this court appointed counsel to represent Gregory-Bey. Counsel has done a thorough job of investigating the case and developing and clarifying Gregory-Bey's claims. After counsel had investigated the case, Gregory-Bey filed an amended petition that added some new claims relating to his re-sentencing. Respondent then argued that those claims were not exhausted in the state courts and rendered Gregory-Bey's amended petition a mixed petition. On April 4, 1998, this court addressed that problem, including Gregory-Bey's fear that if he proceeded on his exhausted claims in this petition and tried to file a later petition raising the new claims arising from the re-sentencing, the state would follow through on its threat to treat such a petition as an unjustified successive petition. This court concluded that the holding of Walker v. Roth, 133 F.3d 454 (7th Cir. 1997), should protect Gregory-Bey's ability to file a later petition raising claims arising from the re-sentencing. In response to this court's ruling, Gregory-Bey filed his second amended petition, which dropped the claims based on the re-sentencing.
Standard of Review
Gregory-Bey seeks relief in this action pursuant to 28 U.S.C. § 2254(a). In the exercise of its habeas jurisdiction, a federal court may grant relief only if the petitioner shows that he is in custody "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2254(a). This action was filed prior to the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 110 Stat. 1214, which amended § 2254 and related provisions. The AEDPA's relatively deferential standards for reviewing state court decisions do not apply to respondent's habeas petition. Lindh v. Murphy, 521 U.S. 320 (1997). Accordingly, the standard here is simply whether the state court proceedings violated Gregory-Bey's federal constitutional rights.Petitioner's Claims
Gregory-Bey challenges the constitutionality of his convictions on a number of grounds. First, he contends his due process rights were violated by the eyewitness testimony identifying him as one of the robbers because the witnesses were subjected to suggestive procedures and their identifications were otherwise unreliable. Related to that claim, he contends that the prosecution destroyed exculpatory evidence relating to identification.
Second, Gregory-Bey contends that he was denied a fair trial by jury because a member of the trial court's staff had an improper communication with the jury prodding them to reach a verdict, and because one juror was not present for all the deliberations.
Gregory-Bey further contends that he is actually innocent and that the state courts denied him due process of law in the prolonged delays in his direct appeal.
Finally, Gregory-Bey contends that his trial and appellate counsel provided ineffective assistance of counsel, essentially by failing to investigate, raise, and pursue the foregoing issues in the state trial court and supreme court.
Discussion
I. Exhaustion and Procedural Default
Before considering the merits of a petition for a writ of habeas corpus, a federal court must ensure that the petitioner has overcome two procedural hurdles: exhaustion and procedural default. Failure to exhaust all state remedies bars consideration of the petition. Failure to raise all claims during the course of the state court proceedings bars consideration of those claims not raised. Jones v. Washington, 15 F.3d 671, 674 (7th Cir. 1994), overruled on other grounds, Hogan v. McBride, 74 F.3d 144, 147 (7th Cir. 1996); see also Cawley v. DeTella, 71 F.3d 691, 694 (7th Cir. 1995). Respondent argues that the requirements of exhaustion and/or procedural default bar this court from considering many of Gregory-Bey's claims. Gregory-Bey did not raise either the identification issues or the jury issues in his direct appeal in the state courts. Because the Supreme Court of Indiana eventually ruled on Gregory-Bey's direct appeal (just eight days after the Seventh Circuit ruled), respondent argues that development should bar Gregory-Bey from raising in this court any claims for which he has not exhausted state remedies, including state post-conviction remedies.
This case is now before this court in a highly unusual procedural posture. The Seventh Circuit's decision in Gregory-Bey I essentially declared Gregory-Bey's state court remedies exhausted with respect to claims arising from his trial and original sentencing:
Rather, we look only to the length of the delay and its justifiability. Further, although we agree that a petitioner will not likely fare better in federal court than in state court, until we have examined the state court record, it is impossible to predict the likelihood of success for Gregory-Bey's federal claims. But that is the purpose of recognizing undue delay — to give Gregory-Bey a chance to present his claims. Otherwise, the exhaustion requirement could prevent a prisoner from being able to file an application for a writ of habeas corpus timely, or, perhaps, ever.
Gregory-Bey I, 1996 WL 394011 at *2. The Seventh Circuit's mandate ordered this court "to address the merits of Gregory-Bey's habeas petition."
Under the "mandate rule," this court has no choice but to obey. "In its earliest days, this Court consistently held that an inferior court has no authority to deviate from the mandate issued by an appellate court." Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306 (1948); accord, Moore v. Anderson, 222 F.3d 280, 283 (7th Cir. 2000); United States v. Polland, 56 F.3d 776, 777 (7th Cir. 1995) ("The mandate rule requires a lower court to adhere to the commands of a higher court on remand."). The mandate rule makes a higher court's mandate controlling only "as to matters within its compass," though, which requires "a careful reading of the reviewing court's opinion." Moore, 222 F.3d at 283 (holding that district court erred by following mandate too literally beyond the scope of matters actually considered), quoting Creek v. Village of Westhaven, 144 F.3d 441, 445 (7th Cir. 1998). All of Gregory-Bey's claims are deemed exhausted for purposes of this case.
The Seventh Circuit did not expressly address the issue of procedural default in this case, which is analytically distinct from the issue of exhaustion. Nevertheless, the Seventh Circuit's mandate was unmistakably clear. Despite respondent's argument that the state court's decision on Gregory-Bey's direct appeal has altered the situation, the Seventh Circuit's opinion shows that it plainly anticipated the possibility that the state courts might rule after it declared Gregory-Bey's state remedies exhausted and mandated this court to consider his claims on their merits, including those the respondent contends were procedurally defaulted. This court has considered the respondent's arguments on exhaustion and procedural default, but in light of the Seventh Circuit's mandate, those arguments should be addressed to the Seventh Circuit. This district court's obligations are clear. The court therefore complies with the mandate and considers on the merits all of Gregory-Bey's claims that arise from his trial, original sentencing, and the handling and delays in his direct appeal.
II. Identification Issues
Five witnesses survived the murder/robbery at the McDonald's: Angela Grinter, Urhonda Graham, Sonia Meads, Kathryn Blakely and Patrice Hampton. All were crew members working that morning with the murdered manager, Dewayne Bible. At Gregory-Bey's trial, all but Meads testified before the jury that Gregory-Bey was one of the robbers. The witnesses gave that testimony before the jury after the court conducted an extensive hearing outside the presence of the jury as to whether their identifications were too tainted by suggestive procedures and too unreliable to be admitted.
A. The Legal Standard
The admission of evidence is usually an issue of state law. It is not the "province of a federal habeas court to reexamine state court determinations on state law questions." Cramer v. Fahner, 683 F.2d 1376, 1385 (7th Cir. 1982). However, eyewitness identification testimony can violate a defendant's federal constitutional right to due process of law, which can support habeas relief. See Neil v. Biggers, 409 U.S. 188, 198 (1972); Stovall v. Denno, 388 U.S. 293, 301-02 (1967), overruled on other grounds, Griffith v. Kentucky, 479 U.S. 314 (1987); Cossel v. Miller, 229 F.3d 649, 655 (7th Cir. 2000); Armstrong v. Young, 34 F.3d 421, 427 (7th Cir. 1994).
The constitutionality of a challenged pretrial identification procedure is analyzed in two steps. A petitioner must first show that the initial identification procedures — including in this case the multiple photo arrays presented to the witnesses and the line-up procedure — were unduly suggestive. Armstrong, 34 F.3d at 427; accord, United States v. Newman, 144 F.3d 531, 535-36 (7th Cir. 1998); United States v. Funches, 84 F.3d 249, 253 (7th Cir. 1996); United States v. Larkin, 978 F.2d 964, 970 (7th Cir. 1992) (petitioner must bear the burden of first establishing that the identification procedure employed was unreasonably suggestive); United States v. Donaldson, 978 F.2d 381, 385 (7th Cir. 1992); Kubat v. Thieret, 867 F.2d 351, 357 (7th Cir. 1989).
If the petitioner successfully demonstrates that the challenged procedure was unduly suggestive, the court must then determine whether the procedures were "so unduly suggestive as to give rise to irreparable mistaken identification — or stated in the affirmative, whether the identification, viewed under the totality of the circumstances, is reliable despite the suggestive procedure[s]." United States v. Duprey, 895 F.2d 303, 307 (7th Cir. 1989); accord, Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers, 409 U.S. at 198-99.
In analyzing the totality of the circumstances, courts consider "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.; accord, Abrams v. Barnett, 121 F.3d 1036, 1041 (7th Cir. 1997). "Whether a pretrial identification procedure is unduly suggestive and whether a witness's subsequent identification is nonetheless reliable under the totality of the circumstances are two separate inquiries that should be approached sequentially. . . ." United States v. Johnson, 859 F.2d 1289, 1294 (7th Cir. 1988); cf. Armstrong, 34 F.3d at 427-28 (finding identification was reliable under totality of circumstances without deciding whether procedures were unduly suggestive).
B. The Witnesses' Identifications
The robbery/murder occurred on November 17, 1985; the line-up in which Gregory-Bey participated occurred on March 3, 1986. All of the identification procedures occurred within that three and a half month period, although it is not always possible to pinpoint from the record the date on which each event occurred.
In summary, the expanded record relating to the identification evidence reflects the following. All witnesses were interviewed separately by police the morning of the murder/robbery and provided descriptions of the robbers. Later on the day of the murder/robbery, three of the witnesses, Angela Grinter, Urhonda Graham and Patrice Hampton, met with a police composite artist and gave him information used to draw composites of the two perpetrators. McDonald's hired another composite artist who came to Indianapolis and met with the five witnesses collectively, producing more elaborate composite drawings of the robbers. The composites were displayed in the newspaper and in various neighborhoods.
In the following days and weeks, the police showed photos of suspects to the witnesses. Some of the photo arrays contained Gregory-Bey's picture. (The police had received a tip that Gregory-Bey had been involved in the robbery.) No identification was made. The police did not record the photos shown. The displays could not be recreated or reconstructed later.
In late February 1986, Detective Elmer Combs took another photo array to Blakely's home. She identified a picture of Gregory-Bey as one of the robbers. She also acknowledged that she recalled seeing a photo of him in a photo array she had viewed in January. However, in January she had not made a positive identification. After Blakely's February identification, Combs placed the photos he had shown Blakely into a formal folder-array and took the array to each of the witnesses the same day or the next. Three of the other four selected the photograph of Gregory-Bey as one of the robbers.
After the witnesses identified Gregory-Bey in the February photo array, a lineup was arranged with Gregory-Bey in it. Gregory-Bey was the only person from the photo array in the line-up. The attorney who later represented Gregory-Bey at trial had already been assigned to represent him and was present at the line-up. The five witnesses viewed the line-up in two groups. Only Kathryn Blakely gave the police and prosecutor a positive identification of Gregory-Bey at the time. The others told the police they had not made a positive identification. After the lineup, but before they were allowed to leave the building, each witness was taken into a room to speak to Marion County Prosecutor Steve Goldsmith, as well as detectives and investigators. Goldsmith asked the witnesses why they did not identify the perpetrator.
Within 24 hours after the first lineup, three of the four other witnesses told authorities that they had recognized a robber in the line-up but were too afraid to pick him out. The prosecution scheduled depositions of each witness. During the depositions, the witnesses watched a videotape of the lineup. Ultimately, four of the five witnesses (all but Meads) selected Gregory-Bey as one of the robbers.
At trial, defense counsel moved to suppress the identifications. Counsel proceeded without an expert on eyewitness testimony and without having requested funds to hire one. After an extensive hearing outside the presence of the jury, the motion was denied. Graham, Hampton, Blakely, and Grinter all testified before the jury that Gregory-Bey was one of the robbers. Their testimony was the critical evidence against Gregory-Bey, for there was no physical evidence or other testimony linking him to the robbery and murder. The closing arguments show that the reliability of the identification testimony was virtually the only contested issue in the trial. See R. 1599-1646.
Citations in the form "R. —" refer to the pages of the state court record. Citations in the form "H.R. —" refer to numbered exhibits filed in this court to supplement the record.
Because all four witnesses testified at trial that Gregory-Bey was one of the robbers, and because the relevant facts are different for each of the witnesses, the court must review the facts relevant to each witness's identification in some detail.
Kathryn Blakely's name appears often in the record as "Blakley." The documents she signed use the spelling "Blakely," which the court has adopted.
After the police arrived at the McDonald's in response to emergency calls for help, they separated and then interviewed the surviving witnesses. Kathryn Blakely was interviewed by Sergeant Jackson in a police car. R. 634. Blakely then went home. She did not help with the composite artist's sketch. R. 635. Blakely's initial description of Suspect No. 1 (later determined to be Gregory-Bey), was only that he had dark skin. She was not asked for a detailed description of him, though she gave a relatively detailed description of Subject No. 2. See H.R. 6c.
Blakely was shown pictures about five times without identifying anyone. The first time was within a few days after the murder, when she and Patrice Hampton viewed photographs in trays at the police station. R. 635-36. A photo of Gregory-Bey was included in the array, but neither Blakely nor Hampton identified it. R. 409. That photo of Gregory-Bey was of poor quality, so that features could not be distinguished. R. 472-73. Blakely was unable to identify any of the pictures partly, she said, because Hampton flipped through the picture too quickly. H.R. 6d, p. 57. Two or three weeks later, Jackson brought a stack of pictures to Blakely's mother's house. R. 636; H.R. 6d, p. 59. A week after that, Combs showed Blakely loose photographs at her home. R. 637. After another week, Combs again showed photographs to Blakely at her house. R. 638. Then, Jackson showed pictures to Blakely at her mother's house once or twice after that. R. 639.
Detective Combs stated that he showed pictures to Blakely for the first time on November 20, 1985, when Blakely came in to police headquarters to look at pictures. R. 680.
In December 1985, Blakely thought she saw a person who looked like one of the robbers in a food stamp store and reported it to police. R. 421. She spoke to Detective Combs at that time. The man was detained. After a line-up during which the man was not identified by any of the witnesses, he was released. R. 422. He somewhat resembled Gregory-Bey. R. 422.
Combs remembered seeing Blakely again two weeks after the line-up for the man from the food stamp store. R. 679. He went to Blakely's house and showed her a suspect's photo in a group of photos some time later. Gregory-Bey's photograph was not a part of this group. R. 679; see also H.R. 6d, p. 59.
In January 1986, Jackson showed photos to Blakely again. He showed her an album of photos, plus two stacks of photos, which included a photo of Gregory-Bey and a photo of another person whom Jackson suspected of being Suspect No. 2 (which would not have been Gregory-Bey, whose complexion is relatively dark). Blakely did not pick out Gregory-Bey's picture. R. 416. Jackson testified:
I told them [Blakely and Hampton, separately] that I had a suspect and I was investigating the suspect, a subject by the name of Tyrone Bailey at that particular time. And I had put Gregory's picture in these because I'd gotten other calls on him and I put someone else's picture. And I told [the witnesses] that the strong suspect that I felt was in the stack was the light complected subject.
R. 487. Jackson's suggestive comment about the "light complected subject" did not apply to Gregory-Bey.
On February 26, 1986, Combs again showed pictures to Blakely. R. 418. Combs had established a friendly relationship with Blakely in December 1985. Blakely picked Gregory-Bey's picture from the stack Combs brought to her. R. 425. Jackson learned of this identification from Combs. Jackson described his reaction in the hearing on the motion in limine:
Blakely had been unable to work because of her fear after the robbery and murder, and her family was "starving." R. 419. Combs arranged with a victim assistance program to obtain food and toys for her children at Christmas.
And I said, bullshit. And he says uh, what do you mean. And I says, hey, I've shown . . ., I said, who identified him. He said, Kathryn Blakely. I said, I've shown photographs of Lawrence Gregory to Kathryn Blakely twice, once a quickie and once in a dark color photograph. And he says, well, she picked him out. And I said, well let me see your photograph. And I looked at it and I said, hey, no wonder. I said, this photograph is completely different from mine. I said, it's the same photograph but the texture is different. And the photograph that he had was a lighter photograph and the one that I had was more distorted. You could not tell the features. It was so dark that you could not see the holes in his face or the acne and the strangulation of the, I mean, the straggle beard. You could see it more clearly in the other photograph that Elmer Combs had. So at that point, we realized there was a difference in the photographs.
R. 425-26. Those two photographs are in the original trial record at pages 1030 and 1141. The court has examined them. Jackson's description is accurate.
The more formal array with the better photo of Gregory-Bey is R. 1030, which is bound out of sequence behind page 1254 at the back of volume 5 of the state court record.
Blakely's testimony about seeing those two photos is different. She testified that she thought she recognized Gregory-Bey from the darker picture she saw in January but did not tell Jackson at the time:
The picture wasn't clear. And at the time when he showed them to me I was, I had got tired of them coming over. And when he showed the pictures to me I was just looking through them and I glanced at it, and I just took the picture and put it back and I gave it to him, just gave the pictures back to him. And I had told my husband, I said that picture kind of looked like that guy but I wasn't for sure. I said, cause that picture's not that clear. And so, that's when I forgot about it. And then Combs brought those pictures over to me and sit there to my table and I looked at them and Combs didn't say nothing to me, he just sit there. And then I, when I came to that picture I stared at it. And then I started shaking and I told Combs, I said, this is the guy. And he said are you sure. And I said yes, I'm sure. And he took the pictures and left.
R. 641.
In her deposition, Blakely also spoke about seeing the picture of Gregory-Bey prior to February 26, 1986, and also explained then why she did not identify him when Jackson brought the photo array to Blakely's mother's house:
And I looked at them, and then I recognized that one picture. And then I just — I was looking at it and then I stared at it and I said it looked like him but I wasn't really for sure. And so then I just gave the picture back to Jackson and he said that you — he said, did you look at them thoroughly. And I said, yeah. And, I just gave them back to him. And he left. And then maybe a week later Combs came over and brought some pictures. And, then I [sat] at the kitchen table and I turned on my light and sit there. And I kept starin' at the picture. And then when I came to that one picture I just started shakin' and just shakin' and Combs asked me what was wrong. And I said that looked like the guy. And I just hurried and pushed it back under there. And then my husband said, if that's the guy put the picture back up there and stare at it. And then when I stared at it again, and I started just shakin' real bad, and you know, started tearin' up. And then Combs just took the picture and he left. And then he came back the next day with the pictures in a — inside of a folder. And he asked me to look at them again, and I did. And I picked out the guy, and I said that was him. And then he asked me to sign a statement saying that that was him. And I did.
H.R. 6d, p. 65-66. Blakely also stated that the pictures Combs brought to her house on February 26, 1986, and the next day in the formal array were in color, and other pictures she was previously shown were black and white. However, she said the color quality of the pictures she saw did not make a big difference to her. H.R. 6d, p. 69.
After February 27th, but before the line-up, Grinter telephoned Blakely. Blakely told Grinter that she had picked out a picture. Grinter told Blakely that all of the witnesses had picked someone out. Blakely was aware that all of the witnesses had chosen the same picture. H.R. 6d, p. 75.
At the line-up, Blakely, Grinter, and Graham went in to view the line-up together. Blakely was sure of her choice. She immediately picked Gregory-Bey out and marked the form the police had given her. H.R. 6d, p. 80. Right after Blakely made her choice, she heard Grinter and Graham talking or whispering that they were scared to pick the perpetrator. H.R. 6d, p. 83. Grinter and Graham did not want make an identification because "they thought that he could see them." H.R. 6d, p. 84. After the line-up, Blakely was interviewed by prosecutor Goldsmith. He asked her if she had identified the robber. She said yes. H.R. 6d, pp. 86-87.
2. Witness Patrice Hampton
Patrice Hampton also gave a statement to Jackson in a police car following the robbery-murder. R. 574. She described Suspect No. 1 as a "skinny black guy," 29 to 31 years old, about 5' 10" or 5' 11" tall with bell-bottom faded blue jeans, without glasses, with a little growth of facial hair, dark lips, a big nose, uncombed hair, no hat, and black eyes. H.R. 6i, passim. Later that day, Hampton contributed to the artist's information to prepare the sketch. R. 575. "We all three put our heads together at that sketch." R. 576.
On November 18 or 19, 1985, Hampton was shown a photo array that included a poor quality photo of Gregory-Bey. See R. 409, 472-73, 577-80. She did not identify anyone. R. 579.
On January 15 or 16, 1986, Jackson showed additional photo arrays to Hampton. R. 413. Jackson testified about that meeting:
I showed the photographs to Patrice Hampton. I had two stacks of photographs. I also had a black album of suspects that we had accumulated. And she had never looked at some of these photographs that we had gotten as potential suspects. So I gave that album to her. She looked through it. At that time I had another suspect that I was working on, I had two of them. And I showed two stacks of photographs. And in those two stacks of photographs was a photograph of Lawrence Gregory and the light complected individual was the other individual I had been working on. And she didn't identify anyone.
R. 414-15. Hampton also testified about that meeting in the hearing on the motion in limine:
The stacks of photographs and the "black book" are State's Exhibits 1, 2, and 3. R. 481. Many of the photographs in these exhibits are so dark that the features of the individuals cannot be made out.
A: No, I don't remember what day it was or anything? But I had looked through the pictures and I picked one of them out but I wasn't sure because the picture was not clear enough for me to uh, to really say, you know, yes or no.
* * *
A: I told him that this looked like him but I couldn't be sure because of the detail of the picture.
Q: What'd they say to you?
A: That they could probably get me a better picture.
Combs testified that after Hampton identified Gregory-Bey from the photo array, she told him that "she felt 90% sure that was the man but she'd like to see him in person to see if that was him. She felt like once she seen [sic] him in person she'd know him." R. 685.
Two or three weeks later, the police brought Hampton another stack of photos, including a better picture of Gregory-Bey. See R. 581-82. Hampton identified Gregory-Bey. R. 583. Within another week, police officers brought a manila folder with pictures, and Hampton picked out Gregory-Bey once again. R. 585.
Jackson did not tell Hampton that any of the other witnesses had picked out Gregory-Bey. R. 585; H.R. 6j, p. 41. Once she picked out Gregory-Bey, no one told her that other witnesses had picked the same photo. R. 585; H.R. 6j, p. 41. The police gave no indication that they were happy about her choice or that her choice was a prime suspect in the robbery. H.R. 6j, p. 42.
Hampton was at the March 3, 1986 line-up, R. 586; however, she did not identify Gregory-Bey or anyone else at the line-up. She explained:
Q: Why didn't you pick anybody out of the line-up?
A: Because for the simple reason is the way that the line-up was set up. It was on a platform with lights and everything up there and it looked like they could see down on us.
R. 588. She testified in her deposition:
The reason is because when I went in and sat down at the uh, table I was looking at the guy that had robbed us but I couldn't really . . . I knew it was him but it seemed like the guy that was up there could see us. It looked like when I was looking at him all at the same time it looked like he was looking at me too. And, he kind of scared me. And, that's the reason why I didn't put a number beside him.
H.R. 6j, p. 10.
After the line-up, Prosecutor Goldsmith spoke to Hampton, asking her whether the person involved in the robbery was in the line-up. Hampton answered "no." R. 589. Hampton stated that she never felt pressured to change her mind or pick anyone out of the line-up. R. 598. Hampton never talked to any of the other witnesses about the line-up, but she heard, possibly from television, that one of the witnesses had identified the perpetrator. R. 599; H.R. 6j, p. 48. The next day, Hampton telephoned prosecutor Dave Cook and/or detective Jackson and told them she had recognized one of the robbers but was afraid to say so. R. 470, 590.
3. Witness Angela Grinter
On November 17, 1985, Grinter also gave a statement to Jackson. She described Suspect No. 1 as a tall, skinny guy, about 6' 1," 25 to 30 years old and about 135 pounds. She said he carried a small silver handgun, wore a blue jacket, and his hair was an uncombed Afro. H.R. 6g. She also went to the police station to "to do a sketch." R. 529. Grinter was too nervous to contribute to the sketch as the artist drew, but she looked at it after it was done. R. 530.
Grinter stated that she did contribute to a sketch when a more detailed one was done by an artist hired by McDonald's. R. 532.
Grinter was shown photographs for identification purposes three times, each time by Jackson. R. 542, 544. Grinter's testimony about the sequence of these meetings is confusing, see R. 541-47, but at one of the first two sessions, she identified a photo of Gregory-Bey as a person who "resembled" the dark-skinned robber. R. 545. She made her choice from the stack of loose pictures, which were black and white. R. 546. At the other of the first two sessions, she did not identify any photo.
The third time Grinter was presented with photos was the formal array in a manila folder, probably on February 27, 1986. She felt more sure of the identification. R. 545. One reason she was able to identify Gregory-Bey that time was that the photo was in color. R. 546. She did recognize his photo as one she had seen before without making an identification. R. 547, 1058. When asked specifically why she did not pick the photo of Gregory-Bey she had seen earlier, she replied: "Because it was in black and white and the details were not clear." R. 555.
There is conflicting testimony about whether Jackson encouraged Grinter's identification of Gregory-Bey's photo. Grinter testified that Jackson told her before she looked at the photographs that one of the other witnesses had identified one of the robbers from among the photographs. See R. 1162-63. Jackson did not tell her which photo had been identified. R. 549; H.R. 6h, p. 53. When Grinter identified Gregory-Bey from the formal array, she identified him very quickly. R. 437. However, after she made her selection from the formal array, she testified, Jackson appeared to be excited. R. 549; H.R. 6h, p. 42. Jackson testified he did not recall telling Grinter that anyone else had made an identification, but he did say she was told a current suspect's photo was included. R. 437. For purposes of this case, the court assumes as true Grinter's testimony that Jackson told her before she looked at the photos that another witness had made an identification from the array, and that he appeared to be excited after she selected Gregory-Bey's photo.
Grinter testified at trial that she was not sure whether police told her that before or after she made the identification. During cross-examination, however, she admitted that she had testified In her deposition before trial that Jackson told her before she looked at the photographs that another witness had made an identification from them. See R. 1162-63.
This conclusion is further supported by Blakely's testimony that Grinter called Blakely and told her that all the witnesses had picked the same photo. H.R. 6d, p. 75. Grinter's most likely source of that information was the police.
At the March 3rd line-up, Grinter arrived with Hampton. H.R. at 6h, p. 8. The police told the witnesses that "this person may or may not be in the line-up," and also told the witnesses not to confer with each other. H.R. 6h, p. 9, 47. Grinter testified on direct examination in her deposition that she did not speak with any of the other witnesses about the identification and jointly decide who the robber was. H.R. 6h, p. 14. However, Grinter also testified on cross-examination in her deposition that she and unspecified other witnesses had talked about the fact that they had identified the same photo from the photo array. H.R. 6h, p. 43.
Grinter did not identify anyone at the line-up itself, but she spoke to Goldsmith and the others afterwards. She testified about that meeting: "I told them right then, well, right at that moment I told them I had doubts then because something on the man's face had changed but I knew that it was him. . . . I'm saying positively it was him." H.R. 6h, p. 49, 50. When asked why she did not pick Gregory-Bey out of the line-up, she replied: "Because when I looked, when I was looking at him I was scared, nervous because I felt he could see me." R. 557.
On the way home Grinter talked to Graham, telling her that "he was up there." R. 552. She told Graham the number of her suspect. R. 552. Grinter also talked with Urhonda Graham's mother, and Grinter told her that she had seen one of the robbers in the line-up. Graham's mother told her she should have marked the paper. H.R. 6h at 13.
Grinter later watched a videotape of the line-up during her deposition and identified Gregory-Bey during her testimony. H.R. 6h at 16-17.
4. Witness Urhonda Graham
Following the robbery, Graham also spoke to Jackson in a police car. She described Suspect No. 1 as having a narrow face with a little beard with razor bumps underneath, with a little mustache, wearing denim jeans and a gray jacket, with black hair in an Afro that was matted to the side of his head, and with acne-like scars around the jaws, but not the eyes or nose. H.R. 6e. She also said Suspect No. 1 had a silver handgun with a brown handle, and that it looked like a .38. H.R. 6e, p. 4. Later that day, Graham also assisted with the artist's sketch. R. 606. She was at the police station to do that with Grinter, Hampton and Sonia Meads. H.R. 16f, p. 25.
Some time later, Graham and Sonia Meads went to the police station to look at trays of photographs. Graham looked at African-American men between 5'7"and 5'11," and could not identify anyone from those trays. R. 609-11.
About three or four weeks later, Graham looked at photographs in a book that Jackson brought to the McDonald's. R. 612. Again, she was unable to identify anyone. Graham may have also been shown loose black and white pictures another time at her home, but could not pick out a picture. R. 615.
On February 26 or 27, 1986, the police brought a manila folder with pictures to Graham's home. R. 614. No one told her that other witnesses had already viewed the folder, nor was she told that the suspect was one of the people in the folder. R. 614. "They just said pick him out and see if you see him. If you don't think it's him than don't pick it." H.R. 16f, p. 58. "They didn't influence me to pick him out or nothing." H.R. 16f, p. 59. "I didn't have no trouble in picking him out. . . . Yeah, I was shaking. I couldn't even [write] my name." H.R. 16f, p. 60. She picked out Gregory-Bey and was not told that anyone else had chosen the same picture. R. 614. However, Graham said that the police officers were "kind of happy" after she picked Gregory-Bey's picture. H.R. 6f, p. 67. Graham may have seen the same picture before, but the copy that she had been previously shown was not as clear, R. 617, and the photo she identified was not as dark as the one from which she could not identify Gregory-Bey, R. 625.
At the March 3 line-up, Graham did not pick anyone out of the line-up. R. 620. When asked why, she said: "I was scared. . . . I thought he could look through the screen at [us]." R. 627.
Well, through the screen it seemed like somebody, you know, how you walk upstairs seems like somebody is watching [us]. You know, if I picked out this person their family might be around and . . . if they see might be around, and think something bad, or do something to [us] or something. and, I was scared that they could see through the screen and, all those people in there I was nervous. They might get me or something.
H.R. 6f, p. 21.
After the line-up, Prosecutor Goldsmith asked Graham if the person involved in the robbery was in the line-up. Graham told him `yes,' R. 621, and may have agreed to do another line-up at that time. R. 624.
I told him that he asked me why the reason why I didn't pick him out and I told him his hair threw me off because it was combed back. Back then his hair was standing up through the robbery. And, in the picture he had french braids. And, I told him I was nervous and scared.
H.R. 6f, p. 15. After Graham told Goldsmith that the robber was in the line-up, someone from the prosecutor's office who was in the conference room with Goldsmith asked Graham why she did not pick someone out of the line-up, and said if she did not pick the perpetrator out, the police would have to let him go. However, she said she did not feel that anyone forced her or suggested that she change her mind. H.R. 6f, p. 17. Graham's deposition was taken a few weeks later and she watched the videotape of the line-up. She identified Gregory-Bey as one of the robbers. H.R. 6f, p. 20.
An explanation for the fear the witnesses showed at the line-up might have been revealed by Hampton during her trial testimony. Hampton testified that when the robbers took the McDonald's crew to the basement, the robbers demanded identification cards. When asked the reason for this during cross-examination, Hampton replied: "He said that he wanted the I.D.'s, the light skinned guy said that he wanted the I.D.'s just in case if anybody told on them then they would know where to find them." R. 1304. Gregory-Bey has not shown that the fear and anxiety reported by the witnesses was unreasonable or feigned.
Graham admitted to whispering with Angie Grinter in the conference room after the line-up. This may have been after speaking to Goldsmith. Graham told Grinter that she believed the suspect was No. 5 (which was Gregory-Bey). R. 622. Graham testified that she thought Angie Grinter told her that she thought the suspect was No. 3, R. 623, though that is not consistent with Grinter's testimony. Graham did not hear Blakely say if she identified anyone in the line-up or which person he identified. H.R. 6f, p. 23. Graham and Grinter spoke to Graham's mother on the way home. R. 623.
At trial, all four of the witnesses who identified Gregory-Bey as one of the robbers were subjected to extensive cross-examination about their identifications, including all of the earlier failures to identify Gregory-Bey from photos or in the line-up.
C. Applying the Legal Standard
Gregory-Bey contends the admission of the identification testimony violated his federal constitutional right to a fair trial. He argues that each initial interview with eyewitnesses was suggestive; that the witnesses were shown multiple photographs of him before identifying him; that it is not known whether the other photographs displayed were of persons with features comparable to Gregory-Bey; that a widely-publicized composite drawing was displayed in local media and around neighborhoods; that the witnesses identified Gregory-Bey only after being told he was in the line-up; and that there was no expert to advise the court or the attorneys regarding the identification issues. In addition, the evidence shows that Blakely made one tentative but false identification of the man she encountered in the store, though she later withdrew the accusation when she saw that man in a line-up. Also, after the March 3rd line-up, there is evidence that witnesses Graham and Grinter had some conversation about recognizing someone in the line-up.
1. Undue Suggestiveness
Gregory-Bey has not shown that any of the initial interviews with the eyewitnesses were suggestive. Jackson testified in his deposition that he spoke to the five witnesses to the robbery/murder on the day of the incident. R. 354. The witnesses were separated, and Jackson spoke to each one individually at the crime scene in a police car and taped each interview. R. 355. These interviews were typed, and each witness signed her interview transcript a few days later. The witnesses' testimony, either in deposition or during the hearing on the motion in limine confirms Jackson's description of the procedure during the initial phase of the investigation. See R. 529, 574, 605, 634. Nothing about the initial interviews taints the later identifications.
Gregory-Bey asserts that it is unknown whether the other photographs displayed to the witnesses had features comparable to his. Although the respondent admits to problems with the lack of record-keeping regarding all of the photographs shown to witnesses during the investigation of the murder/robbery, State's Exhibits 1 and 3 contain copies of the "loose stack" of photographs shown to the witnesses at various times during the investigation and also the "black book" which was shown to the witnesses. These exhibits contain photographs of very poor quality, generally of young African-American men of different complexions with different hair styles. Some had slender faces, some had facial hair, some were clean shaven. The pictures reasonably correspond to the descriptions given by the witnesses and also are reasonably similar to Gregory-Bey. There is no evidence that Gregory-Bey's photo stood out or was emphasized in any way.
State Exhibit 3 contains a copy of the picture of Gregory-Bey, but the quality of the photographs makes it difficult to distinguish facial features. R. 554. Whether such quality existed in the photographs shown to the witnesses or is just the result of poor copies contained in the record is not clear.
In addition, the formal photo array with six color photographs shown to the witnesses on February 26 or 27, 1986, is contained in the trial transcript at State's Exhibit 4. R. 1030 (bound at the back of volume 5 of the record). The six photos show African-American men of approximately the same age. The men pictured are not markedly different in their skin color, facial shape or features, and hair styles. Given the record, Gregory-Bey cannot demonstrate that the other photos shown to witnesses were markedly unlike him. The appearances of the men depicted were not "so different from [petitioner] that his picture is emphasized over any of the others." McGowan v. Miller, 109 F.3d 1168, 1174 (7th Cir. 1997); see also United States ex rel. Crist v. Lane, 745 F.2d 476, 479 n. 1 (7th Cir. 1984) (in arranging photo array of suspects, "police are not required . . . to conduct a search for identical twins in age, height, weight or facial features").
Gregory-Bey's most important challenges to the identifications are based on the handling of the line-up and the photos that the witnesses saw. Gregory-Bey objects to the fact that the witnesses saw his photo several times without identifying him before they eventually identified him from a photo. He also challenges the signals or other information the detectives gave some of the witnesses concerning the photo arrays. The discussions that three of the witnesses had with the prosecutor after they failed to identify Gregory-Bey at the line-up also are in question, as are discussions the witnesses had when talking with artists, plus Grinter's and Graham's conversation after the line-up.
If the police show a photograph of the same suspect to a witness more than once, the repetition creates a danger of calling undue attention to that particular photo, or of causing the witness unconsciously to confuse having seen the photo before with the memory of seeing the perpetrator. However, showing a photo more than once does not necessarily render the procedure unduly suggestive. In Stewart v. Duckworth, 93 F.3d 262, 265-66 (7th Cir. 1996), for example, the Seventh Circuit affirmed Judge Tinder's finding that showing a witness photos of the same suspect three separate times did not render the identification unduly suggestive. The suspect's photos did not stand out from any others, eleven days had elapsed between the two arrays, and the photos were "very different." One was taken four years before the crime, while the photo the witness identified was taken the same year as the crime. Id. at 265-66. The Seventh Circuit pointed out, however, that it "would be a different matter had [the witness] been shown the recent photos twice before making an identification." Id. at 266.
Similarly, in United States v. Bolton, 977 F.2d 1196, 1201 (7th Cir. 1992), the police had shown witnesses a number of sets of photographs with recurring images of the defendant. The appellate court chose to bypass the issue of undue suggestion posed by that repetition and instead found that the identification was sufficiently reliable to be admissible under the second prong of the Biggers test. See also Simmons v. United States, 390 U.S. 377, 383-85 (1968) (showing witnesses photo of the same person several times increases risk of mis-identification, but conviction upheld because identification was independently reliable); Kubat v. Thieret, 867 F.2d 351, 357-58 (7th Cir. 1989) (disapproving photo identification procedures where, among other problems, defendant's photo was only one in all three arrays shown to the witnesses, but holding procedures were not unconstitutionally suggestive); Thigpen v. Cory, 804 F.2d 893, 896 (6th Cir. 1986) (witness's repeated encounters with same suspect in line-ups were unduly suggestive; habeas relief granted).
In this case, Blakely had seen photos of Gregory-Bey at least twice before she told the police she had identified his photo as one of the robbers. Hampton also had seen photos of Gregory-Bey at least twice before she identified him, although the second time she said a picture of Gregory-Bey looked like one of the robbers. It is not clear whether Grinter ever saw a picture of Gregory-Bey without identifying him, though it is probable. Gregory-Bey was an early suspect based on a tip, and his photo was shown to Blakely and Hampton. In light of these facts, it is probable that the police also included his photo in arrays shown to the other witnesses. Grinter also said a photo of Gregory-Bey resembled one of the robbers before she made a definite identification from the color photos in the manila folder. Graham looked at photos several times without identifying anyone. As with Grinter, is probable that she saw a photo of Gregory-Bey but failed to identify him, but there is no clear direct evidence to that effect.
The evidence indicates that two witnesses received suggestive information from the police when they viewed Gregory-Bey's photo. Grinter testified that Jackson told her that someone else had picked a picture out of the same folder and that he appeared to be excited about her selection of Gregory-Bey's photo. Similarly, Graham testified that the police officers were "kind of happy" after she picked out Gregory-Bey's photo. However, there is no evidence that Blakely or Hampton received any such signals or suggestions.
Such reinforcement of the "right" choice by a witness simply is not appropriate. See Ledbetter v. Edwards, 35 F.3d 1062, 1070-73 (6th Cir. 1994) (unduly suggestive for police to tell witness that person she inclined toward was their suspect); Swicegood v. Alabama, 577 F.2d 1322, 1326-29 (5th Cir. 1978) (ordering habeas relief where, among other factors, police told witnesses after lineup that they had identified "the suspect that we had"); United States v. Jarvis, 560 F.2d 494, 500 (2d Cir. 1977) (disapproving practice of telling witnesses whether identifications are "correct" or not, and warning the practice could so taint an identification as to require exclusion of evidence); see also United States v. Wiseman, 172 F.3d 1196, 1208-10 (10th Cir. 1999) (telling witness that suspect is in photo array is highly suggestive); United States v. Smith, 156 F.3d 1046, 1050 (10th Cir. 1998) (police were unduly suggestive in telling witnesses to assume their suspect was in the photo array, and then implying they had picked "correct" photo); Grubbs v. Hannigan, 982 F.2d 1483, 1490 (10th Cir. 1993) (leading witness to assume that suspect was in photo array was impermissibly suggestive); see generally Cossel v. Miller, 229 F.3d 649, 655-56 (7th Cir. 2000) (granting habeas relief where state conceded single photo "show-up" and later line-up were unduly suggestive; victim knew the man whose photo had been emphasized by name, knew her husband and detective suspected him of rape, and knew he would be in line-up; identification was not independently reliable).
The other potentially troubling features of the identification procedures in this case are the conferences among witnesses relating to investigation, including the sessions with the artists doing the drawings of the suspects, the discussion that Grinter described among witnesses before the line-up (see H.R. 6h, p. 43), the discussion between Graham and Grinter after the line-up, as well as the conferences
With respect to the discussions among witnesses, the risks that witnesses will influence one another's recollection of details or their final identifications are obvious. See Swicegood v. Alabama, 577 F.2d at 1327 (discussions among witnesses about their conclusions at line-up affected fairness of procedures). Gregory-Bey has not shown that the discussions with the artists had any effect on any of the witnesses' descriptions of the robbers or on their ultimate identifications of Gregory-Bey.
The conferences the prosecution team had with the three witnesses who failed to identify Gregory-Bey at the line-up after they had identified his photo certainly raise an eyebrow. Those witnesses denied that they felt pressured to change their answers, although they later admitted they had lied to Prosecutor Goldsmith and the others when they denied seeing one of the robbers.
Turning to the individual witnesses' identifications, it should not be surprising that the witnesses recognized Gregory-Bey at a line-up (whether they told the prosecutors or not) a week or so after all four had identified him with the clearer color photo in the "manila folder" array. The initial photo identifications by each witness therefore are the most important events. See, e.g., H.R. 6h, p. 43 (Grinter deposition testimony that when she went to the line-up, she was thinking about the photograph and had a mental picture of what the suspect was going to look like).
Kathryn Blakely's photo identification was not the result of unduly suggestive procedures. She did not firmly identify Gregory-Bey until she saw a clear color photo of him. The photos in the record, see R. 1030 and R. 1041, show that her explanation for failing to identify him definitively from the darker photo is legitimate. Because of the significant difference in quality, the repeat showing of photos of Gregory-Bey to her was consistent with Stewart v. Duckworth, 93 F.3d at 265-66; see also Kubat v. Thieret, 867 F.2d at 358 (where first photo was blurred and produced only tentative identifications, not unduly suggestive to provide clearer photo later). There is no evidence that police signaled or encouraged Blakely on her photo identification. Blakely's identification of Gregory-Bey at the line-up also was not the product of unduly suggestive procedures. Her identification was immediate, without the false denials like those the other witnesses later admitted.
For essentially the same reasons, Patrice Hampton's photo identification of Gregory-Bey was not the result of unduly suggestive procedures. Hampton's identification at the line-up suffered from the initial denial and later explanation. In light of Hampton's earlier photo identification of Gregory-Bey and her later explanation of her failure to identify Gregory-Bey at the line-up, however, the court is not persuaded that the questioning by the prosecutor made the process unduly suggestive with respect to Hampton.
With Grinter and Graham, the court finds the pretrial identification procedures unduly suggestive. In addition to the probable repeated showings of Gregory-Bey's photo after conversations about the composite sketches, the evidence indicates that the police provided significant signals and information that both Grinter and Graham remembered. They identified Gregory-Bey after the line-up occurred, after the two had discussed the line-up and exchanged at least some information about their beliefs, after their conversations with the prosecutor, and after another conversation with Graham's mother. Although repeatedly showing a witness a photo of the same suspect does not necessarily render the procedure unduly suggestive, see, e.g., Stewart v. Duckworth, 93 F.3d at 265-66, the additional improper encouragement from police and the conversations involving Grinter and Graham push the procedures over the constitutional edge for undue suggestiveness.
2. Reliability of the Identifications
The court thus turns to the second prong of the due process constitutional standard for challenged identifications, which is whether the totality of the circumstances show that the in-court identifications were nonetheless reliable. See Cossel v. Miller, 229 F.3d at 655. The Seventh Circuit has called reliability "the lynchpin of the due process calculus in identification cases." United States v. Newman, 144 F.3d at 535. The reliability inquiry must be addressed separately from the issue of undue suggestion. McGowan v. Miller, 109 F.3d at 1173.
The "Biggers factors" in the reliability analysis are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the degree of attention the witness gave at the time of the crime; (3) the accuracy of the witness's earlier description of the criminal; (4) the level of certainty the witness demonstrated at the time of the identification; and (5) the length of time between the crime and the identification. See Neil v. Biggers, 409 U.S. at 199-200; Cossel v. Miller, 229 F.3d at 655; United States v. Newman, 144 F.3d at 536. The court undertakes that analysis with respect to all four of the witnesses. Although the court finds that Blakely's and Hampton's identifications were not the result of unduly suggestive procedures, that finding is at least arguable. See Swicegood v. Alabama, 577 F.2d at 1328 (where line-up procedures were close to the constitutional line on suggestiveness, court undertook reliability analysis). Also, the jury heard all four of the identifications. One can reasonably assume that the cumulative effect of the four identifications added to their weight.
(1) Opportunity to View: All four of the witnesses had a good opportunity to view Suspect No. 1 (Gregory-Bey) during the crime. The witnesses testified that Gregory-Bey approached them and announced the robbery, and that they had viewed his face over the course of minutes and on multiple occasions during the robbery. See R. 534-39, 564-71, 607-09. The robbery took place indoors in a well-lit restaurant. The robbers did not wear masks and were close to the young women whom they herded into the freezer at gunpoint. See, e.g., United States v. Clark, 989 F.2d 1490, 1495-96 (7th Cir. 1993) (bank robbery lasted less than two minutes, but during daylight hours; witnesses had opportunity to obtain definite impression of robber's appearance), and cases cited therein. Cf. United States v. Rogers, 126 F.3d 655, 658 (5th Cir. 1997) (identification should have been excluded; witness saw only lower part of robber's face because of hat and wraparound sunglasses); United States v. Eltayib, 88 F.3d 157, 167 (2d Cir. 1996) (identification from suggestive photo array inadmissible where witness saw man on a nearby ship at night and did not look at him directly for more than a few moments, did not give a good description, and said he did not get a good look at him).
(2) Degree of Attention: All four of the witnesses were paying attention. They were victims of the crime, not passers-by who were not paying close attention. This factor weighs in favor of reliability. See Manson v. Brathwaite, 432 U.S. at 115 (witness identification was reliable where he was more than casual observer); United States v. Newman, 144 F.3d at 536 (victims of bank robbery during daylight hours paid close attention and their identifications were reliable); see also United States v. Hickman, 151 F.3d 446, 459 (5th Cir. 1998) (victim's identification reliable where his attention had been drawn to face of robber during robbery lasting less than two minutes).
The Fifth Circuit panel opinion was vacated on other grounds. When the court heard the case en banc, all convictions were affirmed by an equally divided court, 179 F.3d 230 (5th Cir. 1999), and certiorari was then denied, 120 S. Ct. 2194, 2195 (2000). These proceedings did not call into question the panel's persuasive treatment of the identification issues.
(3) Accuracy of the Initial Descriptions: The police apparently did not ask Blakely for a description of Suspect No. 1, so this factor does not weigh in favor of the reliability of her identification. The absence of a description also does not weigh against reliability of Blakely's identification. See Kubat v. Thieret, 867 F.2d at 358-59 n. 5 (absence of initial description does not support inference either way as to reliability of later identification); accord, United States v. Bolton, 977 F.3d at 1201.
The other three gave descriptions that differed in some details but were reasonably consistent and accurate with one another and with Gregory-Bey's appearance. That factor tends to weigh in favor of the reliability of their identifications. See, e.g., United States v. Clark, 989 F.2d at 1496 (minor differences among witnesses' initial descriptions did not render identifications unreliable); see also United States v. Hickman, 151 F.3d at 459 (victim's identification was admissible where it was accurate in part and inaccurate, but reasonably close, in part). Cf. Cossel v. Miller, 229 F.3d at 655-56 (witness initially described attacker as no taller than six feet and 140 to 150 pounds but later identified defendant who was 6'3" tall and 215 to 220 pounds at time of attack; difference weighed heavily in favor of habeas relief where procedures were also highly suggestive).
(4) Level of Certainty: All four of the witnesses were quite certain in their eventual identifications of Gregory-Bey. Their photo identifications, once they saw a clear color photo of Gregory-Bey, were prompt and certain. Blakely and Graham had such strong reactions to Gregory-Bey's photo that they were shaking. The witnesses' line-up identifications were also prompt and certain (despite the initial denials by Hampton, Grinter, and Graham), although they are less relevant because they came only after the photo identifications. Three of the witnesses made no earlier mistaken identifications, despite many opportunities in looking at photo arrays. Blakely had earlier thought the man she saw in the food stamp store was one of the robbers, but she promptly corrected her apparent mistake when she saw that suspect in a formal line-up.
These facts tend to favor the reliability of the identifications. See, e.g., United States v. Newman, 144 F.3d at 536 (high degree of certainty from three witness/victims in bank robbery weighed in favor of reliability); Levasseur v. Pepe, 70 F.3d 187, 195 (1st Cir. 1995) (identification from line-up was reliable where victim had not identified anyone else as attacker and had refused to identify from photo alone); United States v. Clark, 989 F.2d at 1497 (certainty of identifications supported reliability, although certainty must be viewed with caution where certainty may have resulted from suggestive procedure).
(5) Time from Crime to Identifications: The key first identifications from the photo array occurred on February 26 and 27, 1986, a little more than three months after the crime. Because the other factors indicate that the witnesses all had good opportunities to observe the robbers, were paying attention, were quite certain of their identifications, and because three gave reasonably accurate initial descriptions, that delay does not render the identifications inadmissible as a matter of federal constitutional law. See United States v. Wiseman, 172 F.3d at 1209 (in light of other factors, three month delay did not render identification unreliable); United States v. Plunk, 153 F.3d 1011, 1022 (9th Cir. 1998) (in light of other factors, delay that was shorter than the seven months found tolerable in Neil v. Biggers did not render identification unreliable), amended on other grounds, 161 F.3d 1195 (9th Cir. 1998); United States v. Hickman, 151 F.3d at 459 (in light of other factors, three month delay did not render identification by robbery victim unreliable); Levasseur v. Pepe, 70 F.3d at 195 (where other factors strongly indicated reliability, six month delay did not render identification unreliable); cf. Cossel v. Miller, 229 F.3d at 656 (granting habeas relief; three year delay, variance between defendant and initial description, and tentative identification rendered identification testimony unreliable and unconstitutional); United States v. Rogers, 126 F.3d at 659 (in light of other factors undermining reliability, identification after ten month delay was not properly admitted); United States v. Bolton, 977 F.2d at 1201 (delay of more than a year weighed against reliability, but factors overall supported admission of identification); United States v. Jacobowitz, 877 F.2d 162, 168 (2d Cir. 1989) (ten month delay acceptable where witness had good opportunity to view criminal and other factors weighed in favor of reliability).
Taken together, the court finds that the five Biggers factors weigh in favor of the reliability of all four witnesses' in-court identifications of Gregory-Bey as one of the robbers. The problems with the identification procedures and the witnesses' difficulties in making (or at least expressing) their identifications were explored in detail before the jury. The problems and difficulties were the focus of extensive direct and cross-examination testimony of the identifying witnesses and the police officers. Those problems and difficulties were virtually the only subjects addressed in closing arguments to the jury. The jury was entitled to weigh those matters, and it had every opportunity to do so as it evaluated the credibility of the identification testimony. See, e.g., Manson v. Brathwaite, 432 U.S. at 116 ("[E]vidence with element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature."); United States v. Maguire, 918 F.2d 254, 264 (1st Cir. 1990) (cross-examination before a jury can sufficiently test reliability of identification); United States v. Duprey, 895 F.2d at 308 (following Manson on this point); United States v. Myers, 892 F.2d at 647 (jury knew circumstances of identification and could appraise its probative value). The problems in this case were not so grave as to require exclusion of the identification testimony as a matter of federal constitutional law.
D. Expert Testimony on Identification Issues
Gregory-Bey points out that no expert witness testified or advised the court or the jury regarding the identification issues. Citing Wright v. Gramley, 125 F.3d 1038, 1043 n. 4 (7th Cir. 1997) ("Eyewitnesses may give unreliable testimony, because of the shortcomings of memory, the difficulty of categorizing facial features of other ethnic groups, and the tricks the mind plays on people desperate to pin the blame on someone."), Gregory-Bey argues that the Seventh Circuit recognizes the dangers of eyewitness testimony. He asserts that due process in this case, where identification was the key issue and where there were problems with the witnesses' identifications, required expert testimony for the defense on the reliability of eyewitness identifications. He also contends that his trial counsel was ineffective for failing to seek expert advice and that appellate counsel was ineffective for failing to spot the issue of ineffective assistance of trial counsel on this point.
In United States v. Hall, 165 F.3d 1095 (7th Cir. 1999), the Seventh Circuit addressed the use of expert testimony on the reliability of eyewitness identification:
This Court has a long line of cases which reflect our disfavor of expert testimony on the reliability of eyewitness identification. See, e.g., United States v. Daniels, 64 F.3d 311 (7th Cir. 1995)[, cert. denied 516 U.S. 1063 (1996)]; United States v. Larkin, 978 F.2d 964 (7th Cir. 1992)[, cert. denied 507 U.S. 935 (1993)]; United States v. Curry, 977 F.2d 1042 (7th Cir. 1992)[, cert. denied 507 U.S. 947 (1993)]; United States v. Hudson, 884 F.2d 1016 (7th Cir. 1989)[, cert. denied 496 U.S. 947 (1990)]. We previously considered the issue in United States v. Hudson. In Hudson, the defendant offered expert testimony to show: (1) the effect of stress on eyewitness identification; (2) the problems associated with cross-racial identifications; (3) an overview of the memory process; and (4) the impact of a short viewing period upon the accuracy of an identification. 884 F.2d at 1023. In affirming the district court's decision to exclude the proffered expert testimony, we concluded that the district court need not determine whether expert testimony on eyewitness identification is sufficiently reliable to go to the jury because it is "properly excludable in any event under Rule 702 because it will not assist the trier of fact." Id. at 1024. In other words, "[s]uch expert testimony will not aid the jury because it addresses an issue of which the jury is already generally is aware, and it will not contribute to their understanding of the particular dispute." Id.
Hall, 165 F.3d at 1104.
Given the extensive hearing on the motion in limine as well as the full cross-examination of each of the eyewitnesses by Gregory-Bey's trial counsel, Gregory-Bey has not shown that the trial court or the jury was not "alerted to the problems associated with eyewitness identification, including many of the factors that could affect perception, retention, and recall, despite the absence of expert testimony on the subject." See Hall, 165 F.3d at 1105; see also Daniels, 64 F.3d at 315 (affirming district court's denial of a defendant's request for the appointment of an expert to testify regarding the reliability of eyewitness identifications, and relying on the principle that expert testimony regarding the potential hazards of eyewitness identifications will not assist the jury under Rule 702). On the contrary, as discussed above, the jury was presented with a full array of evidence and argument focused sharply on the reliability of the identifications of Gregory-Bey as one of the two robbers. Gregory-Bey has not cited any decision from the Seventh Circuit or the Supreme Court holding that expert testimony on identification issues was required as a matter of federal constitutional law. The absence of such expert testimony did not violate Gregory-Bey's constitutional rights.
Gregory-Bey's original petition, filed pro se, also asserted that the trial court erred by failing to give an instruction on mistaken identity sua sponte. That claim has not been developed in detail, but it clearly would not support habeas relief in this case. The trial court adequately instructed the jury on credibility issues, and counsel had a full opportunity to develop the identification issues before the jury. Even if it might have been a better practice for the trial court to give an instruction on identification issues, the absence of such an instruction did not amount to denial of due process.
E. Exculpatory Evidence
Gregory-Bey contends he was denied a fair trial because the state destroyed exculpatory evidence. He argues that various police officers randomly showed photographic displays to the witnesses from the time of the incident to the time of Gregory-Bey's arrest. "Almost none of these displays can be recreated . . . because the officers failed to keep numeric or other records which would substantiate which photographs which witnesses had been shown." According to Gregory-Bey, the police officers' failure to keep a record of the photographs shown to the witnesses amounts to destruction of exculpatory evidence. In effect, each time a witness looked at a photograph and did not identify the subject as one of the robbers, that fact was exculpatory evidence with respect to the subject of that photograph. Since the poor quality photograph of Gregory-Bey was included in at least some of the displays shown to witnesses in the early stages of the investigation, their failures to identify him from that photograph were exculpatory evidence.
This assertion is substantiated by portions of David Cook's deposition, filed with the court on November 30, 1999. Cook, who was the chief trial deputy of the Marion County Prosecutor's Office at the time of Gregory-Bey's trial, stated:
There were a series of incidences that involved photographs of the defendant — photo arrays and visits by several police officers to prospective witnesses in the case that were not properly documented. "Not properly documented" being that several of the officers were unable to tell me with any certainty exactly when they went to see a witness, exactly who the witness was, what photographs had been shown, who was involved in the photographs that were shown.
And it was sort of compounded by the fact that there were two or three police officers that were involved in the investigation at the same time and they were kind of doing stuff on their own and they weren't communicating with each other.
And as Joy and I were preparing the case for trial, I would call these people and sit down and was extremely frustrated when we would find out that they were showing photographs to witnesses, but they weren't able to accurately identify time, place, and who was involved. And that was underscored by the fact that I subsequently learned that the defendant's picture had been involved in or in some of these earlier presentations creating situations where witnesses had been shown this photograph and then subsequently picked him out at a later time.
* * *
I don't think anybody was actually able to recreate it. The fact that these problems were made — noted to the defense and nothing was withheld from them in that regard, but nothing was really able to recreate it because the police officers hadn't properly documented what they were doing or making guesses about things and that, of course, was things we couldn't use.
Cook Dep. 9-11.
Gregory-Bey contends the police's failure to record the details of the displays harmed his ability to expose the unreliability of the eyewitness identification. However, Gregory-Bey does not contend the police's lack of record keeping was intentional. In addition, the jurors learned that the witnesses had failed to identify Gregory-Bey when they first saw his photo. The jurors also had the opportunity to compare the poor quality photo the witnesses did not identify with the clearer picture they did identify, and the jurors could evaluate the witnesses' explanations for their difficulties in identifying him at first.
The Due Process Clause requires criminal prosecutions to comport with prevailing notions of fundamental fairness and, under this standard, criminal defendants are to be afforded a meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 479, 485 (1984). Under Trombetta, the State has a duty to preserve evidence which (1) "possesses an exculpatory value that was apparent before the evidence was destroyed," and (2) "is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. However, before a reviewing court considers the constitutional materiality of the evidence in question, the petitioner must satisfy a threshold requirement. Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992). "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58 (1988). The determination of whether bad faith on the part of the police is present turns on the "police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Youngblood, 488 U.S. at 56 n. *. Because Gregory-Bey correctly concedes there is no evidence of bad faith in this case, he cannot satisfy the threshold requirement.
Gregory-Bey argues that the Supreme Court of the United States left open the question of the bad faith component of destruction of evidence. He contends that Kyles v. Whitley strongly suggests that intentional or negligent destruction of relevant, material evidence can deprive an accused of due process and a fair trial. 514 U.S. 419, 437-38 (1995) (prosecution's responsibility for failing to disclose known, favorable, and material exculpatory evidence does not depend on prosecutor's good faith or bad faith). Gregory-Bey fails to note that in Kyles and Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court was discussing the withholding of material exculpatory evidence by the prosecution. In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. However, the issue in this case deals with the loss or destruction of evidence. There is some tension between the Supreme Court's standards involving destruction of evidence, which require a showing of bad faith, and those involving withholding of evidence that remains available, which do not require a showing of bad faith. Nevertheless, as Jones v. McCaughtry shows, the Seventh Circuit continues to require a showing by the petitioner of bad faith on the part of the government when a due process violation stems from the loss or destruction of evidence. Gregory-Bey's claim based on destruction of exculpatory evidence fails on the merits.
Gregory-Bey's argument that Indiana law does not require a finding of bad faith in destruction of relevant evidence, Lee v. State, 545 N.E.2d 1085 (Ind. 1989), has no relevance in a discussion of Gregory-Bey's federal rights.
Kyles v. Whitley did not alter the law under Brady in this respect. See United States v. Agurs, 427 U.S. 97, 110 (1976) (Brady violation depends on "the character of the evidence, not the character of the prosecutor").
In his Traverse to the State's Reply, filed July 23, 1998, Gregory-Bey raised what amounts to a new claim of a Brady violation. The expanded record includes an unsigned transcript of a tape-recorded interview with a witness identified only as witness No. 8815. H.R. 13. Witness No. 8815 knew Tyrone Bailey well, and Bailey was sharing his house with another suspect, Calvin James. The witness said that James resembled the artist's composite drawing of Suspect No. 1 from the robbery/murder, H.R. 13, p. 16, and that Bailey resembled the drawing of Suspect No. 2, H.R. 13, p. 19. Also, James shaved his mustache and goatee just after the McDonald's robbery/murder, and Bailey had a conversation the night of the crime and talked with the witness about the fact that someone had been killed. He asked the witness whether she would leave him or stay with him if she knew he had killed a person. H.R. 13, p. 22.
Gregory-Bey contends that the "information contained in that interview appears to be inculpatory concerning Mr. James (and, thus, exculpatory regarding Gregory-Bey). From examination of the trial record, it does not appear as if that fact was disclosed to counsel for Gregory-Bey." Besides the facts that James looks somewhat like the composite drawing and had shaved off his facial hair some time after the time of the robbery/murder, the witness was not able to offer any information connecting James to the incident besides the observation that James lost his job around the time of the robbery and spent a good deal of his time with Bailey.
The transcript of the interview does not establish the foundation of a Brady claim. First, there simply is no evidence that the prosecutor failed to disclose the James/Bailey lead to defense counsel. The information from witness No. 8815 is more suggestive than directly inculpatory with respect to James. The fact that James is not mentioned in the trial record does not demonstrate that the State did not disclose the interview to counsel for Gregory-Bey. The lead might have been worth investigating, and it might have been investigated and turned out to be useless. There is no evidence that defense counsel failed to investigate this information. At this point, and on this record, the court could not treat the interview transcript as material which, if disclosed, might reasonably have made a difference in Gregory-Bey's trial, without taking several leaps in a chain of speculation. See generally Wood v. Bartholomew, 516 U.S. 1, 6-8 (1995) (reversing habeas relief where only speculation could support finding that undisclosed material might have affected trial); cf. Watkins v. Miller, 92 F. Supp.2d 824, 845, 849, 851-52 (S.D. Ind. 2000) (discussing Wood and granting habeas relief where undisclosed material satisfied materiality standard and usefulness to the defense was obvious). Gregory-Bey is not entitled to relief on this basis.
III. Jury Issues
Gregory-Bey alleges that he was denied a fair trial when the staff of the trial court improperly communicated with the jury in such a manner as to influence the deliberations. He also contends he was denied a fair trial because a member of the jury was not present during all of the deliberations.
The jury was sequestered during the trial. The case was submitted to the jury on a Friday. Late Friday night, Gregory-Bey recalls that the bailiff chatted with him while he was being held in the holding-cell behind the courtroom. The bailiff told Gregory-Bey that he had just told the jury that they would be sequestered throughout the weekend if they did not reach a verdict that night. One juror recalls this remark. In addition, during deliberations, one of the jurors was crying and spent time in the restroom. Another juror comforted her. The verdict was returned a short time after the bailiff's comment.
Gregory-Bey contends that if there is a reasonable possibility that a jury's verdict has been affected by material not properly admitted as evidence he should be awarded a new trial. He argues that the remark by the bailiff is sufficient to raise that "reasonable possibility," finding support in Haugh v. Jones Laughlin Steel Corp., 949 F.2d 914, 916-17 (7th Cir. 1991) (improper for bailiff to tell jurors there is "no such thing as a hung jury").
"In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with the full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and a hearing of the defendant, that such contact with the juror was harmless to the defendant." Remmer v. United States, 347 U.S. 227, 229 (1954).
The judge sequestered the jury upon motion of Gregory-Bey. The parties agree that after the jurors retired to begin their deliberations, a bailiff told the jury that they would be sequestered for the weekend if they did not reach a verdict that afternoon. Gregory-Bey contends that one of the jurors, Jeffrey Wright, remembered that the bailiff warned that failure to reach a verdict would result in unknown further sequestration, and that a verdict was reached shortly after that communication. Gregory-Bey argues that these facts give rise to the presumption of undue influence upon the verdict of the jury and should result in a new trial. However, "due process does not require a new trial every time a juror has been placed in a potentially compromising situation. . . . [I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217 (1982).
"[A]ny contact between third parties and jurors regarding an ongoing trial, outside the trial forum, raises serious questions concerning the continued impartiality of the jurors." Owen v. Duckworth, 727 F.2d 643, 648 (7th Cir. 1984), citing Patterson v. Colorado, 205 U.S. 454, 462 (1907) (Holmes, J.), and United States v. Howard, 506 F.2d 865, 866 (5th Cir. 1975). However, even serious extra-judicial contacts will not always rise to the level of prejudicial error, and some contacts may be harmless. Id.
When, as in the present case, state post-conviction proceedings prove inadequate, the federal district court must conduct an evidentiary hearing. See 28 U.S.C. § 2254(d); Owen, 727 F.2d at 648. In such a hearing, the defendant has the burden of proving an outside contact and the State must establish that the contact was harmless to the defendant. Remmer, 347 U.S. at 229. The district court must make findings of fact at two separate levels. "First, the district court must find the basic, or subsidiary, facts — e.g., the nature, content, and extent of the extra-judicial contact. Based on its findings of subsidiary facts, the district court must then make the ultimate factual determination: whether the contact likely affected the juror's impartiality." Owen, 727 F.2d at 648 (footnotes and citations omitted).
At the evidentiary hearing before this court on October 1, 1999, two former jurors testified. Jeffrey Wright testified that some time after the jury was dismissed to begin its deliberations, the bailiff said in a matter-of-fact manner, "You do realize, not unanimous, you will stay for the weekend." A few hours later, the jury returned a verdict of guilty on all counts. When asked about the effect of the bailiff's statement upon the jury, Wright responded that there was no change in the jury and they were not hurried in their deliberations. When juror Jane Morrison testified, she did not recall any statement that the bailiff made and also did not recall any discussion about working during the weekend.
This court may well have erred in overruling the respondent's objection to Gregory-Bey's question to juror Wright: "After the bailiff had come and told you that you would be sequestered over the weekend, was there a change in the manner of deliberations?" Hearing Tr. at 11. See Haugh v. Jones Laughlin Steel Corp., 949 F.2d at 917-19 (Fed.R.Evid. 606(b) prohibits questioning jurors about the effect of outside influences on their deliberations). Wright responded: "Honestly, no. We had already kind of made our decision. It was just — we weren't even hurried. We made the decision — it was more matter of fact, rather than I don't want him — him saying I don't want to be here the rest of the weekend, make your decision now. It wasn't like that. It was more, You do realize, if you don't come to a decision, you will be here over the weekend again?" Id. at 11-12. If this was error, it was error induced by Gregory-Bey.
The bailiff's comment simply informed already sequestered jurors that they would remain sequestered during their deliberations, which was unlikely to have come as a surprise to them. The comment certainly fell short of telling the jurors there was "no such thing as a hung jury" or other, more coercive comments. The (admissible) fact that deliberations went on for a number of hours after the comment also weighs in favor of finding that the contact likely did not affect the jurors' impartiality. This conclusion is reinforced to some extent by Morrison's testimony that she did not even recall any statement of the bailiff. The bailiff's contact with the jury was not prejudicial and was therefore harmless.
Gregory-Bey alleged in his petition that one of the jurors was improperly separated during portions of the deliberations, citing an investigator's affidavit based on interviews (see H.R. 19), which suggests that Jane Morrison "kept running into the bathroom and crying during deliberations." However, Morrison's testimony during the October 1, 1999, hearing does not support such allegations. When asked if she recalled excusing herself from deliberations after Gregory-Bey's trial, she answered in the negative. Likewise, she also responded negatively when asked if she recalled leaving the jury room at any time during deliberations. Without evidence that any of the jurors were improperly separated during deliberations, Gregory-Bey cannot support his claim and thus is not entitled to relief on this claim.
IV. Sufficiency of the Evidence/Actual Innocence
Gregory-Bey also contends the evidence was insufficient, as a matter of federal constitutional law, to convict him on any of the crimes charged. That claim essentially depends on his challenges to the identification testimony. Gregory-Bey contends that there was no evidence introduced at trial which supported the finding of guilt, excluding the eyewitness identification. In considering such a claim of sufficiency of the evidence, the role of this court is limited. The task is to determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A federal habeas court must assume that the jury resolved all evidentiary conflicts and found all reasonable inferences in the state's favor. Id. at 326; Willard v. Pearson, 823 F.2d 1141, 1150 (7th Cir. 1987). Gregory-Bey offers no argument apart from the identification issues. Because admission of the identification testimony did not violate Gregory-Bey's constitutional rights, and because that testimony identified him as one of the two robbers who participated in the robbery/murder, a rational trier of fact could rely on that testimony and could have found the essential elements of the crime beyond a reasonable doubt.
Gregory-Bey also asserts that he is actually innocent of the crimes of which he was convicted. Actual innocence is ordinarily treated as a basis for overcoming procedural default. As discussed above in Part I, procedural default is not an obstacle for Gregory-Bey at this stage of these proceedings. In any event, the fundamental miscarriage of justice exception is available "only where the prisoner supplements an independent constitutional claim with a colorable showing of factual innocence." Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986). Gregory-Bey has not done so.
V. Delay in the State Court Appeal
Gregory-Bey next alleges that he was denied due process and equal protection under the United States Constitution due to the delay in the proceedings on direct appeal to the Supreme Court of Indiana. Gregory-Bey offers no further briefing of this issue, thus it is not clear what remedy he seeks. Gregory-Bey does not assert that appellate delay rendered the convictions infirm other than stating that the passing of time would be injurious to the memories of the witnesses. Gregory-Bey also does not allege that the decision of the state supreme court was infirm in any way because of the delay.
Ordinarily, delay in the direct appeal process can eliminate the petitioner's need to exhaust state remedies before seeking federal collateral relief. See Dozie v. Cady, 430 F.2d 637, 638 (7th Cir. 1970) ("If the district court finds the delay [in the direct appeal process] is not justifiable, it should proceed to a hearing on the merits of the petition for habeas corpus."). However, such relief has already been given to Gregory-Bey. No further relief is available to him on this theory.
The explanation offered by the Seventh Circuit in Allen v. Duckworth, 6 F.3d 458, 459 (7th Cir. 1993), can be properly extended to this case:
Habeas corpus is not a compensatory remedy. The object is not to make whole someone who has suffered a loss; it is to determine whether a person is being confined in violation of basic norms of legality. It is conceivable that delay in processing an imprisoned defendant's appeal might make his continued imprisonment unlawful, but once the delay ends with an appellate decision not claimed to be invalid by reason of delay, as in this case, any ground for ordering him released evaporates. The petitioner was duly convicted, and the conviction upheld, if belatedly, in an appellate decision not claimed to be infected by any error that would justify his release on habeas corpus. He should serve his time. Any harm is collateral, and is redressable, in principle at least, by a civil rights suit for damages. At bottom what the petitioner is complaining about are the conditions under which he was imprisoned while awaiting the decision of his appeal, and challenges to the conditions in which a convicted defendant is confined are litigated as civil rights suits charging cruel and unusual punishment, and not under the habeas corpus jurisdiction. Preiser v. Rodriguez, 411 U.S. 475 (1973); Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991).
No habeas relief, either the termination or alteration of the conditions of petitioners' confinement, would be an appropriate remedy for the delays in the state courts.
Further, the delay in state court proceedings did not result in any hardship to Gregory-Bey that he would not otherwise have endured. Allen, 6 F.3d at 460. As in Allen, "the sentence that the state supreme court eventually upheld was far longer than the period of delay," so the petitioner was not forced to spend more time in prison than if there had been no delay. Id.
VI. Ineffective Assistance of Trial and Appellate Counsel
Finally, Gregory-Bey alleges that he was denied the effective assistance of both trial and appellate counsel. To show ineffective assistance of counsel, the petitioner must establish that his attorney committed errors so serious that his performance fell below an objective standard of reasonableness, and that the attorney's deficient performance prejudiced him by causing an unreliable result at trial, or a fundamentally unfair proceeding. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant's failure to satisfy either prong is fatal to his claim. Ebbole v. United States, 8 F.3d 530, 534 (7th Cir. 1993).
"Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. Only those "who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ." Kimmelman v. Morrison, 477 U.S. 365, 382 (1986).
Prejudice in the Strickland sense refers to "unprofessional errors" so egregious "that the trial was rendered unfair and the verdict rendered suspect." Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996), quoting Kimmelman v. Morrison, 477 U.S. 365, 374 (1986); see also Lockhart, 506 U.S. at 369 ("an analysis focusing solely on mere outcome determination . . . is defective"; instead, a proper prejudice analysis must consider "whether the result of the proceeding was fundamentally unfair or unreliable.").
Gregory-Bey alleges that his trial counsel failed to investigate, raise and/or vigorously pursue the matters related to the identification issues. This claim cannot succeed on a number of levels.
First and foremost, a review of the record reveals that the petitioner's trial counsel vigorously pursued the identification matters. This advocacy commenced at the line-up on March 3, 1986, and continued through the hearing on the motion to suppress and the cross-examination of each of the police officers and eyewitnesses at trial. Trial counsel may not have raised or presented issues at the time and in the manner preferred by the petitioner. However, "the Constitution entitles a criminal defendant to a fair trial, not a perfect one." Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).
Second, the court has found that the eyewitness identifications were sufficiently reliable to be admissible. That conclusion is based in part on defense counsel's efforts to show the jury the questionable aspects of those identifications. Gregory-Bey cannot show that his counsel's representation was ineffective in this regard.
Gregory-Bey next alleges that trial counsel failed to investigate and raise the issue of the bailiff's communication with the jury and failed to investigate and raise an issue regarding jury separation. However, once again, because the bailiff's contact with the jury was not prejudicial itself, Gregory-Bey cannot demonstrate that his the attorney's deficient performance in not raising the issue in the trial court prejudiced him by causing an unreliable result at trial or a fundamentally unfair proceeding. It does not show ineffective assistance of trial counsel. See also Winsett v. Washington, 130 F.3d 269, 280-81 (7th Cir. 1997) ("It is often beneficial for courts to consider the prejudice prong of Strickland's test before delving into murkier questions of whether certain acts or decisions constituted reasonable legal advocacy.").
Gregory-Bey also claims he was denied the effective assistance of appellate counsel. In the context of an appeal:
When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.
Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986). "The ultimate question we ask is `whether, but for counsel's errors, there is a reasonable probability that the outcome of the proceeding would have been different.'" Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996), quoting Freeman v. Lane, 962 F.2d 1252, 1258 (7th Cir. 1992).
Gregory-Bey alleges that his appellate counsel was ineffective because she failed to investigate, raise and/or vigorously pursue the issues related to the identification and jury issues. However, because Gregory-Bey's trial counsel was not ineffective on these issues in the trial court, these issues would not have been clearly stronger than those presented to the Supreme Court of Indiana on direct appeal.
Similarly, because Gregory-Bey has not shown that his trial counsel was ineffective, it cannot be found that his appellate counsel was ineffective for failing to examine and raise claims of ineffective assistance of trial counsel.
Finally, although Gregory-Bey might be able to show that his appellate counsel's conduct was ineffective in delaying pursuit of the direct appeal, he has not demonstrated the equally necessary prejudice to entitle him to relief on that ground.
Conclusion
For the foregoing reasons, Gregory-Bey's petition for a writ of habeas corpus, as amended, is denied. Final judgment will be entered accordingly.
FINAL JUDGMENT
The court, having this day issued its Entry on the pending petition for a writ of habeas corpus, it is hereby ORDERED, ADJUDGED, AND DECREED that petitioner Lawrence Gregory-Bey take nothing by his petition for a writ of habeas corpus (as amended) and that this action is DISMISSED WITH PREJUDICE.