Case No. 01-3459-DES.
May 28, 2002
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Hutchinson Correctional Facility, proceeds pro se.
On August 21, 1997, petitioner was convicted by a jury in Johnson County, Kansas of aggravated robbery. On March 17, 2000, petitioner's conviction was affirmed on direct appeal. State v. Maybin, 2 P.3d 179 (Kan.Ct.App. 2000). On June 13, 2000, the Kansas Supreme Court denied the petition for review. State v. Maybin, No. 97-80134-AS, 2000 Kan. LEXIS 538 (Kan. 2000).
Petitioner commenced this action on November 23, 2001, alleging the following grounds for relief: (1) failure to suppress an eyewitness identification, (2) error in allowing petitioner to be placed in leg restraints, (3) error in admission of testimony regarding petitioner's prior incarceration, (4) prosecutorial misconduct, and (5) cumulative trial error. On February 14, 2002, respondents filed an answer and return. (Doc. 13). On April 2, 2002, petitioner filed a traverse thereto. (Doc. 18). Petitioner has also filed three summary judgment motions based upon the respondents' failure to timely respond to the order to show cause. (Doc. 9, 11, and 15).
MOTIONS FOR SUMMARY JUDGMENT
Petitioner has filed three summary judgment motions, contending that the writ should be granted because respondents failed to timely respond to the order to show cause. Id. On December 12, 2001, respondents were ordered to respond to the petition by January 2, 2002. (Doc. 3). On January 28, 2002, respondents filed a motion to file their answer out of time. (Doc. 8). On February 8, 2002, this court entered an order granting this motion, finding that respondents' failure to act was due to excusable neglect. (Doc. 12). Respondents then filed their answer and return on February 14, 2002. (Doc. 13).
Because respondents were given leave to file their answer out of time, there is no factual basis for petitioner's summary judgment motions and therefore, these motions (Doc. 9, 11, and 15) should be denied.
STANDARD OF REVIEW
Because Mr. Maybin's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of petitioner's claims is governed by the provisions of AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under AEDPA, a writ of habeas corpus cannot be granted unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented at trial," 28 U.S.C. § 2254(d)(2). State court factual findings are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that a state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 364-365. A state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 365.
The Kansas Court of Appeals summarized the facts surrounding the robbery as follows:
William B. Maybin appeals his conviction for one count of aggravated robbery.
Maybin was identified as a passenger in an automobile and the perpetrator of a robbery in which he placed his hand over the victim's face, placed a gun to the victim's head, and demanded money. The victim, Marvin Grayson, positively identified the driver, Lamont Anderson, Maybin, and the automobile. Maybin was charged, tried, and convicted of aggravated robbery.
At trial, Grayson and Anderson testified against Maybin. A clerk from a convenience store near the location of the robbery also testified that an individual in a car like Anderson's purchased food items and a beer using a $20 bill at 10:27 p.m. on the night of the robbery. This testimony corroborated the presence of the items seized when Anderson's car was searched.
In his defense, Maybin asserted that Grayson was mistaken because he was high on drugs and alcohol at the time of the incident. Maybin also argued that Anderson was induced to testify against him because of a favorable plea bargain. A jury convicted Maybin as charged, and he appeals his conviction.
State v. Maybin, 2 P.3d 179, 183-184 (Kan.Ct.App. 2000).
GROUND ONE — EYEWITNESS IDENTIFICATION
Twenty minutes after Grayson reported the robbery to the police, petitioner and his cohort were stopped by the police based upon Grayson's description of the car and its occupants. Grayson was brought to the scene and he subsequently identified petitioner and Anderson as the perpetrators. Id. at 204-205. Petitioner contends this identification was unnecessarily suggestive and without the indicia of reliability required for due process. Mr. Maybin was in handcuffs at the time of the identification and other than police officers, Mr. Maybin and Mr. Anderson were the only persons present for Grayson to identify.
The Kansas Court of Appeals resolved this claim as follows:
Kansas applies a two-step test for determining whether eyewitness identifications should be excluded. First, the trial court must determine whether the procedure used in making the identification was unnecessarily suggestive. If the procedure was unnecessarily suggestive, the court must evaluate whether the procedure would lead to a substantial likelihood of misidentification. When analyzing the second prong of the test, the court must look at the totality of the circumstances. State v. Holloman, 17 Kan. App. 2d 279, 282, 837 P.2d 826, rev. denied 251 Kan. 940 (1992). Kansas uses the five factors set out in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), to determine whether there is a substantial likelihood of misidentification. 17 Kan. App. 2d at 282, 837 P.2d 826. The Biggers factors include:
"the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Biggers, 409 U.S. at 199-200, 93 S.Ct. 375.
Maybin argues that the one-person show-up identification was unnecessarily suggestive. He relies on Holloman for the proposition that one-person show-up identifications have been condemned in Kansas. 17 Kan. App. 2d at 284, 837 P.2d 826. In Holloman, a store clerk notified security that she had been robbed and provided a description of the robber including his clothing, smell, and voice. She also informed them of the direction the robber headed when he left. The security officers followed a set of footprints in the snow to the defendant's mother's house. Upon searching the house, the officers found wet clothing that matched the description given by the store clerk and a bank bag containing cash. An hour after the robbery, the police showed the clerk the items seized from the house and allowed her to smell the clothing. The police also showed the suspect to the clerk on a television monitor and allowed her to hear him speak. Based on these observations, the clerk identified the suspect as the robber. The Holloman court determined that the one-person identification was unnecessarily suggestive but upheld its admission, finding that the clerk's identification was reliable based on the Biggers factors. 17 Kan. App. 2d at 284-87, 837 P.2d 826.
Maybin's reliance on Holloman, however, fails to consider State v. Alires, 246 Kan. 635, 792 P.2d 1019 (1990). In Alires, the police drove the victim of a robbery by two individuals, who were handcuffed and in police custody. The victim positively identified them as the individuals who had robbed the convenience store where she worked. The Kansas Supreme Court held that the one-person show-up identification was not unnecessarily suggestive or substantially likely to lead to misidentification. 246 Kan. at 640-41, 792 P.2d 1019. The court's decision focused on the victim's "ample opportunity to view the male robber in the well-lighted convenience store," her attention to detail in describing the defendant's mustache, the female robber's tattoo, the color of the car, the short amount of time between the robbery and the identification, and her unwavering certainty of the identification. 246 Kan. at 640, 792 P.2d 1019. The Alires court also noted that Kansas has "approved one-on-one confrontations shortly after the commission of an offense, recognizing that time is crucial when there is an eyewitness who can identify a suspect and that any delay in identification could impede the police investigation." 246 Kan. at 640, 792 P.2d 1019.
In State v. Lawson, 25 Kan. App. 2d at 140, 959 P.2d 923, a robbery victim called 911 immediately after the robbery and provided a description of the robber as a black male in his thirties, about 5' 11" tall, weighing 180 pounds, and wearing a green and blue plaid shirt. Shortly thereafter, police spotted a suspect matching the victim's description near the area of the robbery. After arresting the suspect, the police returned him to the scene of the robbery for identification by the victim. This court determined that the one-person show-up identification was unnecessarily suggestive but upheld the admission of the identification based on the Biggers factors. 25 Kan. App. 2d at 142-44, 959 P.2d 923. The Lawson court relied on Holloman but did not consider Alires.
While we might conclude that the identification procedure used here was unduly suggestive, it survives, in our view, the tests required in Biggers.
The opportunity of the witness to view the criminal at the time of the crime.
Grayson testified that he could see the robber "through the peek of [his] hand." Moreover, the robber's hand was not over Grayson's face during the entire robbery. Grayson testified that the robber frisked him looking for his money.
Grayson also had an opportunity to observe the occupants of the car before the robbery. He testified that the driver had called him over to the car and conversed with him briefly before the robbery occurred. This testimony is contradicted by the testimony of a police officer and Anderson, who stated that Grayson spoke with the passenger rather than the driver. In either case, Grayson had an opportunity to observe the robber before the stress of the robbery occurred.
Maybin argues that Grayson's perception was adversely affected by the danger and stress of the crime itself but points to no evidence in the record that would establish that Grayson was unable to see the robber.
Although Grayson did not describe the clothing worn by the robber, he accurately described his skin color, hair, and age.
Grayson also provided a fairly detailed description of the car. He told the police officer that the car was a dark-colored, eighties-model, four-door sedan that was clean and well-kept. The car was actually a brown, eighties-model Buick. Although Grayson mistakenly described the car as being a maroon, eighties-model, Cadillac Seville, the color and body style of Anderson's car were not significantly different than the car Grayson described. In addition, he accurately described the car as being clean and well-kept.
The level of certainty demonstrated by the witness at the confrontation.
When Grayson initially identified Maybin as the robber during the one-person show-up identification, Grayson merely stated that he looked like the person that had held a gun to his head in the car. Grayson also identified the car as the one that he had been robbed in and separately identified Anderson as the driver. Grayson identified Maybin and Anderson after looking at them for only a minute or two each. Grayson did not state that he was 100 percent certain, and the officer did not specifically ask Grayson about his level of confidence. There is no testimony, however, indicating that Grayson was unsure of his identification.
The length of time between the crime and the confrontation.
Grayson contacted the Olathe police officer to report the robbery at approximately 10:10 p.m. Officers stopped Anderson's car at approximately 10:30 p.m. Although there is no testimony regarding the time of Grayson's identification, the time of the arrest would indicate that it occurred approximately 1 hour after the robbery occurred.
Reliability is the key for determining whether identification testimony is admissible. Holloman, 17 Kan. App. 2d at 286, 837 P.2d 826. Reviewing all of the factors from Biggers leads to the conclusion that the identification was reliable. As a result, the trial court did not err by admitting Grayson's identification of Maybin into evidence
As an alternative argument, Maybin urges this court to find that all one-person show-up identifications are excluded per se. A per se exclusionary rule, however, does not follow existing Kansas Supreme Court precedent. See Alires, 246 Kan. at 640-41, 792 P.2d 1019. This court is duty bound to follow Kansas Supreme Court precedent, unless there is some indication that the court is departing from its previous position. State v. Allen, 21 Kan. App. 2d 811, 816, 908 P.2d 1324 (1995), rev. denied 259 Kan. 928 (1996). There is no indication that the Supreme Court has reconsidered its position in Alires.
State v. Maybin, 2 P.3d 179, 189-191 (Kan.Ct.App. 2000).
In determining whether the pre-trial identification of petitioner was constitutional, the court must determine: (1) whether the procedure used was unnecessarily suggestive and, if so, (2) whether the reliability of the identification outweighs the corruptive influence of the suggestive procedure. Archuleta v. Kerby, 864 F.2d 709, 711 (10th Cir. 1989); Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The reliability of the identification is based upon the examination of five factors: "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." Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
Although the court agrees with petitioner that the procedure used to identify him was somewhat suggestive, there are other factors present which support the reliability of Grayson's identification. See Archuleta, 864 at 711-12. Grayson had ample opportunity to view petitioner. Just prior to the robbery, Grayson was standing close enough to the car that he was able to carry on a conversation with one of the occupants. (Trial Transcript, p. 203). In addition, although Grayson's face was later covered by the hands of the robber, he was able to identify petitioner through "the peek of [his] hand." Id. at 209. The officer testified that Grayson did not appear to be under the influence or alcohol or drugs at the time of the identification, nor did he have any problems with coordination or coherence. Id. at 141-143.
Prior to his initial identification, Grayson had described petitioner as a black male in his early twenties. Id. at 136. Although this description is accurate, standing alone it is too vague to indicate reliability. However, along with this general description, Grayson also provided several details about the car and petitioner's cohort which booster the reliability of the identification. As for the certainty of petitioner's identification, the officer testified that Grayson said petitioner "looks like the passenger of the vehicle." (Trial Transcript, p. 184). Although this identification may not have been unequivocal, it was also coupled with the other details regarding Anderson and the car that proved true. In addition, the identification took place only one hour after the robbery, when petitioner's appearance would have been fresh in Grayson's mind.
Therefore, it cannot be said that the Kansas Court of Appeal's decision on this matter "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
GROUND TWO — LEG RESTRAINTS
Petitioner contends the presumption of innocence was undermined when the trial court allowed him to be tried in leg restraints. The Kansas Court of Appeals addressed this claim as follows:
Maybin first argues that his right to a fair trial was compromised because he was forced to appear before the jury with a leg restraint.
The trial court is ultimately responsible for assuring a fair trial to the accused. State v. Ninci, 262 Kan. 21, 54, 936 P.2d 1364 (1997). In reviewing a trial court's decision to require the accused to be tried while wearing a leg restraint, an appellate court must determine whether the trial court abused its discretion. Ninci, 262 Kan. at 54, 936 P.2d 1364. Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. State v. Rucker, 267 Kan. 816, 823, 987 P.2d 1080 (1999).
Maybin bears the burden of establishing a record that affirmatively shows that a prejudicial error occurred in his trial. Without such a record, this court must assume the trial court's action was proper. Ninci, 262 Kan. at 53, 936 P.2d 1364.
In Ninci, the Kansas Supreme Court held that the trial court did not abuse its discretion by permitting the defendant to wear a leg restraint during the trial. The Ninci court noted that the trial court had independently determined that the leg restraint was unobtrusive. The holding focused on the defendant's failure to provide any evidence in the record that the jury knew he was wearing a leg brace or that the leg brace was a restraint. Ninci, 262 Kan. at 53-54, 936 P.2d 1364.
Here, Maybin presented no evidence that any of the jurors noticed the leg brace or knew it was a restraint. Maybin, however, relies on the holding in State v. Davidson, 264 Kan. 44, 954 P.2d 702 (1998). Davidson can be distinguished. In Davidson, the court held that the defendant was improperly prejudiced by the trial judge's commentary on the purpose of the defendant's leg brace. 264 Kan. at 52, 954 P.2d 702. The trial court had stated that the defendant was wearing a leg brace to prevent his escape. The Davidson court did not address the issue of whether the defendant had shown prejudice by the mere act of wearing the brace. Rather, that decision centered on the judge's improper comment about the brace.
State v. Maybin, 2 P.3d 179, 184 (Kan.Ct.App. 2000).
Prior to trial, the following colloquy occurred:
[Defense counsel]: Judge, the second thing I would mention is Mr. Maybin has — there appears to be a leg brace on his leg. He has a right to have this trial free of shackles and chains. . . . And I would request that whatever that object is on his right leg for the record it's obtrusive and interferes with the way he walks and something that anybody who has regular vision can see and certainly implies that Mr. Maybin is in custody. . . .
[Prosecutor]: As I look at the leg brace there's nothing on it that connotes it's associated with him being in custody. . . . [I]t appears to be a leg brace similar to those that have some type of impairment with their leg. . . .
The court: The leg brace that I see consists of a tan strap around the ankle and over the shoe that Mr. Maybin has on. The remainder of the brace is hidden by the clothing that Mr. Maybin has on. The straps around the ankle and foot are visible. But I don't think that they indicate that he's restrained. . . . And I'll leave that up to the officers to determine the degree. . . .
Deputy Bronson: Just for the record, that's an orthopedic device that has been adapted for law enforcement. . . . [It] has been used routinely in jury trials to offer some degree of security while being a low-key device. And it enables us to have some security without utilizing any handcuffs, which might be extremely prejudicial to a jury.
(Motions in limine transcript, pp. 8-10).
Because of their potential prejudicial effect, the Supreme Court has stated that physical restraints can be used to control criminal defendants, but only as a last resort. Illinois v. Allen, 397 U.S. 337, 344 (1970). This court is troubled by the trial court's failure to make any individualized determination regarding the need to restrain petitioner. See Young v. Callahan, 700 F.2d 32, 37 (1st Cir. 1983) (holding that without the presence of security concerns and a curative instruction, the use of a prisoner's dock violates due process). However, even if this court were to conclude that the use of the leg restraint violated due process, petitioner's claim would still fail. There was overwhelming evidence of petitioner's guilt presented at trial. It is more likely that this evidence is what lead to the jury's impression of petitioner, not the use of a fairly unobtrusive leg restraint. See Moore v. Ponte, 186 F.3d 26, 37 (1st Cir. 1999). Because the leg restraint did not have a substantial and injurious effect on the jury's verdict, any error in its use was harmless. See id.
It cannot be said that the Kansas Court of Appeal's decision on this matter "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
GROUND THREE — EVIDENCE RE: PRIOR INCARCERATION
Although the trial court granted petitioner's motion in limine to exclude any reference to his prior criminal history, witness Anderson made reference to petitioner's prior incarceration in the following context:
• What did you tell him that you told the police?
• I told them that I seen a gun. He said I should have told them that. And he said if I take the rap for doing guns it will be a misdemeanor because in Kansas CCW is a misdemeanor.
• What did CCW mean to you?
• Carrying a concealed weapon.
• What else did he say to you?
• He said he had [sic] to the penitentiary before and that —
(Trial Transcript, p. 433). At this point, defense counsel moved for a mistrial. Id. Anderson then testified that the prosecutor did not instruct him to refrain from mentioning petitioner's prior incarceration before the jury. Id. at p. 468. The trial court denied the motion for mistrial. Maybin, 2 P.3d at 186.
The Kansas Court of Appeals found no error because the remark was unsolicited, a limiting instruction was offered, and because no further mention was made of petitioner's prior criminal record. Id. at 186-187.
In order to obtain relief on this ground, petitioner must show that the reference to his prior incarceration "was so prejudicial in the context of the proceedings as a whole that he was deprived of the fundamental fairness essential to the concept of due process." Nichols v. Sullivan, 867 F.2d 1250, 1253 (10th Cir., 1989). The judge offered to give a limiting instruction to the jury after this reference occurred, but petitioner declined it. This instruction could have alleviated the potential prejudice to petitioner. See U.S. v. Clair, 934 F.2d 943, 945 (8th Cir. 1991). Moreover, it is unlikely, given the weight of evidence against petitioner, that the remark had such an effect upon the jury's verdict that the trial was rendered fundamentally unfair. See id. at 946 (error must be examined in light of the weight of evidence produced at trial).
It cannot be said that the Kansas Court of Appeal's decision on this matter "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
GROUND FOUR — PROSECUTORIAL MISCONDUCT
Petitioner contends prosecutorial misconduct occurred when the state referred to him in closing argument as a "predator" and Mr. Grayson as "prey." The Kansas Court of Appeals concluded that the remark was improper because it was "designed to inflame the passion and prejudice of the factfinder" and because it conveys the message: "[g]et this predator off the streets, or your family might be next." Maybin, 2 P.3d at 188. However, the Kansas Court of Appeals concluded the remark was harmless in light of the "significant amount of evidence" against petitioner, such as: "the victim's testimony and certain identification, the codefendant's testimony, and the physical evidence found in the car that connected Maybin to the $20 bill." Id.
This court agrees that the reference to petitioner as a "predator" was improper. See Darden v. Wainwright, 477 U.S. 168, 180 n. 11-12 (1986) (condemning references to the defendant as an animal who "shouldn't be out of his cell unless he has a leash on him"). However, the question is not whether the remarks were improper or undesirable. Id. at 181. Instead, the question is "whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id., quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Given the overwhelming weight of evidence against petitioner, it cannot be said that the use of the terms "predator" and "prey" deprived Mr. Maybin of a fair trial under the due process clause. See Pollard v. Delo, 28 F.3d 887, 890 (8th Cir. 1994) (holding that the use of the word "predator" in reference to the defendant was not a denial of due process, nor did it render the verdict unreliable).
GROUND FIVE — CUMULATIVE ERROR
In his final ground, petitioner contends that the cumulative errors at his trial require habeas relief. Because this court has found error (although not of a constitutional magnitude) in the prosecutor's remarks, the reference to petitioner's prior incarceration, and the use of leg restraints without an individualized determination as to flight or safety risk, we must compare the cumulative impact of these errors with the strength of the evidence presented against petitioner. Gonzales v. McKune, 247 F.3d 1066, 1077 (10th Cir. 2001).
The reference to petitioner's prior incarceration was fleeting and petitioner refused any curative instruction. The prosecutor's remarks, although improper, did not "manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent." Darden, 477 U.S. at 181-182. The leg restraints used on petitioner were so unobtrusive that it was not even clear to the trial judge that they were indicative of restraint. When viewed against the weight of evidence against petitioner, these errors were of an isolated and trivial nature. Therefore, relief should be denied as to ground five. RECOMMENDATION IT IS THEREFORE RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus (Doc. 1) be denied.
FURTHER, IT IS RESPECTFULLY RECOMMENDED that petitioner's summary judgment motions (Doc. 9, 11, and 15) be denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner and counsel of record.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.