Opinion
No. C97-2087.
March 22, 1999.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order dated March 11, 1999, this matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the petition be dismissed.
PROCEDURAL HISTORY
Petitioner is in the custody of the Iowa Department of Corrections pursuant to his conviction for the crime of sexual assault in the third degree imposed in the Iowa District Court in and for Black Hawk County on January 27, 1994. The judgment and sentence followed trial by jury. The defendant appealed his conviction claiming that the victim had been permitted to sit in the courtroom prior to the giving of her testimony and that this situation was impermissibly suggestive. On August 17, 1995, the Court of Appeals rejected the appeal in an unpublished decision. Application for further review by the Iowa Supreme Court was denied.
Petitioner filed an application for post-conviction relief on November 30, 1995. He claimed ineffective assistance of counsel and made a number of other claims. Following an evidentiary hearing, the application for post-conviction relief was denied on October 1, 1996. The appeal from the post-conviction relief action was dismissed as frivolous on August 20, 1997.
Petitioner initiated this federal collateral attack on his conviction on October 29, 1997. He argues that he was denied Due Process of law when the district court allowed the victim to remain in the courtroom and view the defendant enter the courtroom prior to giving her testimony. There is no dispute that the petitioner exhausted his state court remedies on this issue and fairly presented the issue to the Iowa Supreme Court in his direct appeal from his conviction.
FACTS NECESSARY TO THE RESOLUTION OF THIS ACTION
On August 30, 1993, the defendant was charged with sexual abuse in the third degree in that he performed a sex act on or with a victim by force, or against her will in violation of §§ 709.1 and 709.4(1) of the Iowa Criminal Code. Facts at trial showed that on or about August 19, 1993, the victim in this case, a runaway 17-year-old, passed by the defendant's residence. The defendant came across the street to confront her. She was crying and asked to use the telephone. The petitioner told her that she could use the telephone in his apartment. He then locked her in his apartment and forced her to perform oral sex on him and to have intercourse with him.
Trial to a jury commenced December 28, 1993. The state's first witness was the victim's father. His testimony was completed at the end of the first day. Counsel for the defendant made an oral motion to exclude witnesses and the motion was granted (Tr. 32).
On the second day of trial, the victim was scheduled to be the state's first witness. She was seated in the courtroom waiting for trial to begin when the following record transpired:
THE COURT: The record should reflect all parties are present with the exception of the jury which is on the way. The Defendant is not presently in the courtroom. The defense counsel has requested —
MS. PIETERS: Judge, I just ask on the Motion to Exclude to have the witness who is currently in the courtroom go outside and be called in when it is her time to testify because I believe there is an issue of identification in the case.
THE COURT: Mr. Wehde?
MR. WEHDE: Your Honor, I don't believe — I do agree that there may be an issue of identification, a minor issue; but I do not believe that having the victim present at this time would prejudice the defense in any respect. There is always the issue of the Defendant sitting at the defense table for the purposes of identification. Whether he walks in the courtroom or sits at defense table, I don't think it makes much difference.
I think as a matter of fundamental fairness here, the victim is in the courtroom ready to take the witness stand. I can have her on the witness stand; but I don't believe there is any need to have her taken out and brought back in.
MS. PIETERS: Judge, if I may add for arguments sake, there is a case — a case about whether or not a person is entitled to counsel at an arraignment. But anyway one of the footnotes in Moore states that had the Defendant been represented by counsel at the time, they would have been able to prevent suggestive identification. Since what happened in Moore is the Defendant was right there and the victim merely just pointed to him.
The facts in this case indicated the Defendant was never able to identify the Defendant from the photographic lineup and my contention is that it's very suggestive and violating his rights and also effects the State's burden of proof identification beyond a reasonable doubt.
THE COURT: The Court notes the objection and overrules the objection. I don't find it to be unduly suggestive and goes to the nature of any testimony given by the case. The objection is overruled.
Bring the jury.
(The defendant was brought into the courtroom.)
(The jury was brought into the courtroom.)
The victim was not able to pick the defendant out of a photographic lineup the day she was raped (Tr. 122). She was, however, able to identify the defendant at trial (Tr. 91). She was vigorously cross-examined concerning her description of the defendant to the police and her inability to previously identify him (Tr. 101, 118-120, 121-122).
There was substantial evidence admitted at trial that independently identified the defendant as the man who took the victim to his apartment and sexually abused her. As shown in respondent's brief filed June 26, 1998, at page 10:
A.C. was menstruating at the time of the offense, and blood consistent with her blood type (but inconsistent with Bolden's) was found on a t-shirt recovered from Bolden. Trial tr. 183, 187. Likewise, Bolden had the victim write her name and phone number on a piece of paper that Bolden later produced for the police. Trial tr. p. 239. The interior of Bolden's home was found by the police to match the victim's description thereof, down to the presence of forty-ounce beer bottles. Trial tr. 247. A.C. reported that Bolden had her remove a tampon before having intercourse, and a used tampon was found in Bolden's toilet. Trial tr. 246. The clothing Bolden wore when he spoke to police matched the victim's description. Trial tr. p. 252. When Bolden was taken to the hospital, he saw his sister and told her he was a rapist. Trial tr. 255.
Due to the general practice of not reporting opening statements or closing arguments in state court, the court is somewhat hampered in its ability to determine the precise nature of the theory of defense. However, in a post-conviction relief hearing, the defendant's trial attorney testified that it was the defendant's defense at trial that there had been no sex act.
September 9, 1996, post-conviction relief transcript at page 23.
The defendant made a motion for a new trial based on the allegedly suggestive in-court identification of the defendant. The motion was basically a repeat of the motion made at trial. The trial court ruled as follows:
THE COURT: And the Court will adhere to its ruling previously made at the time of trial to distinguish the Moore case from the circumstances in this particular case and also would indicate and perhaps not as full a record was made at the last — at the time it was initially raised but the Minutes of Testimony reflected which the Court had reviewed prior to its ruling at that time and also the testimony of the witness at trial was consistent with those Minutes of Testimony reflected that this is a case in which the victim in this case had more than sufficient time to observe the Defendant at the time the events occurred. It happened in day light hours. There was a substantial exposure of the victim to the Defendant. There was no disguise on the Defendant. The victim had front side and back views of the Defendant, outside, inside in well lit areas and had more than sufficient time to register in and view the Defendant and there was no improper identification of the Defendant in court since she had ample views of him prior to trial and it was brought out in trial through cross examination that she failed to identify him in a photographic lineup.
The Court will adhere to its rulings made at trial and overrule the Defendant's Motion for New Trial in its entirety.
(Transcript of Sentencing January 27, 1994, at pp. 4-5.)
In addition to what happened at trial, it is also important to note what did not happen. First, counsel for the petitioner made no motion to exclude the victim's in-court identification. No hearing was requested, and no record was made in an attempt to demonstrate the impact of permitting the victim to see the defendant as he entered the courtroom. Further, there was no request for any special procedure such as to have the defendant seated in the gallery. Counsel for the defendant did not request to have her motion heard at the side bar. There was no claim of impropriety in having the victim in the courtroom that morning. She was the first witness scheduled and was simply there ready to testify. There is no evidence that she was brought in to identify the defendant before trial, that she was told to do so, or that she did so.
The court assumes that the defendant was in custody because the transcript states that he was brought in. He was wearing a suit and tie and there was no evidence that he was in handcuffs. There is no record concerning the manner in which the defendant was brought to the courtroom or even whether male or female, uniformed or plain clothed personnel escorted him.
The victim knew the prosecutor. The defense attorney is a female and the defendant was presumably the only male seated with defense counsel. Thus, had the victim been excused from the courtroom and then brought back in as the defense attorney requested, she would have observed an additional male sitting next to the woman she knew to be the defense attorney. There is no evidence that the defendant's name was called as he was brought into the courtroom. Finally, the sequestration order was not violated as the victim did not hear the testimony of other witness prior to giving her testimony.
CONCLUSIONS OF LAW
The Court of Appeals held that there is no constitutional entitlement to any particular method of lessening the suggestiveness of in-court identification. Further, it found that the question of the suggestiveness or credibility of in-court identification is ultimately to be resolved by the jury after the defendant has had an opportunity to test the accuracy of the identification through cross-examination. The Court of Appeals noted that the defendant's Due Process rights may be implicated where in the in-court identification procedure is so impermissibly suggestive, that it creates a substantial likelihood of irreparable misidentification. The Court accurately set forth the relevant factors for determining the reliability of identification testimony.
The Court of Appeals correctly noted that the defendant's requested procedure would not diminish appreciably the suggestiveness inherent in having this male defendant seated with his female attorney. The Court analyzed the other factors showing that this victim had an adequate opportunity to accurately identify her assailant. This court cannot improve upon the succinct and accurate analysis of this issue conducted by the Court of Appeals.
The petitioner argues that this matter is factually similar to Moore v. Illinois, 434 U.S. 220 (1977). In Moore, the police took a rape victim to a preliminary hearing and told her that she was going to view a suspect and should identify him if she could. At the hearing, the petitioner's name was called and he was led before the bench. The judge told the petitioner that he was charged with rape and deviate sexual behavior. The judge then called the victim, who had been in the courtroom waiting for the case to be called, to come before the bench. The state's attorney stated that the police had found evidence linking petitioner with the offenses charged. He asked the victim whether she saw her assailant in the courtroom and she pointed to the petitioner. Id. at 222-3.
As noted in the findings of fact above, the facts of this matter are significantly different and distinguishable from Moore. In fact, the only thing the victim in the matter now before the court observed which petitioner claims is objectionable, is the defendant's entrance into the courtroom. She also heard the oral argument but this could have been avoided had counsel for the petitioner requested a side bar conference.
This matter is much closer to United States v. Davis, 103 F.3d 660 (8th Cir. 1996), where the defendant argued that the fact that he was the only African American male seated at defense table was impermissibly suggestive. The Eighth Circuit Court of Appeals stated that it had previously rejected claims similar to that made by Davis.
We agree with the Ninth Circuit's assessment that "[t]here is no constitutional entitlement to an in-court line-up or other particular methods of lessening the suggestiveness of in-court identification, such as seating the defendant elsewhere in the room. These are matters within the discretion of the court."
United States v. Davis, supra, at 670. Seating a lone male defendant at defense table is no more suggestive than seating a lone African American male at defense counsel's table despite the fact that both of these situations present a significant degree of suggestiveness. Given this degree of suggestiveness that was inherent in petitioner's trial, it was no more suggestive for the victim to have observed the defendant as he entered the courtroom.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the petition for writ of habeas corpus be dismissed.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).