Opinion
No. C 00-3991 SI (pr)
July 29, 2002
JUDGMENT
The petition for writ of habeas corpus is denied on the merits.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS INTRODUCTION
This matter is now before the court for consideration of the merits of Anthony Steadham's pro petition for writ of habeas corpus concerning his 1997 conviction in San Mateo Superior Court for first degree murder with special circumstances, kidnaping, sexual battery, robbery and use of a weapon allegations. For the reasons discussed below, the petition will be denied.
BACKGROUND
The factual background is taken from the opinion of the California Court of Appeal in this case, People v. Anthony Steadham, No. A080559, filed 9/23/99; respondent's Exhibit C.
1. The Murder of Thomas Simones
The body of taxi driver Thomas Simones was discovered in the back seat of his cab shortly after 9 p.m. on November 22, 1993 on Holland Street in San Mateo. The cause of Simones' death was a gunshot wound to the back of his head. Simones had been sent by his dispatcher to pick up a fare, an African-American man who gave the name "Roger," at the 24 Hour Nautilus gym in San Mateo at about 2:30 that afternoon.
Two days later, Tim Johnson came forward and told police that he saw a green and white taxi pick up a passenger at 24 Hour Nautilus in San Mateo. Johnson later photo identified Steadham at a lineup as the passenger who got into the cab.
A nearby resident, Phyllis Swan, saw the cab parked and saw a man who fit the victim's description sitting in the middle of the back seat and a dark-skinned man sitting in the front. Swan picked someone other than Steadham at a lineup as the man who sat in the front of the cab.
Toni Beck was at her home on the day of the killing when she looked out and saw a cab parked near the corner of Ninth and Holland. She saw a young African-American man in his early 20's walk toward the corner of the street, stop and look around, and walk away. She failed to make an identification at the photo array, but she picked Steadham out in court.
Toni Beck's friend, Kathy Rangwirtz, saw a cab turn onto Ninth Street. The driver, who she saw for about ten seconds, was a young African-American man in his 20's. Rangwirtz later attended a lineup, where she recognized Steadham as the man driving the cab, but because she did not want to get involved in a murder case, she marked the wrong number on the lineup form.
Steadham used the name "Roger Jackson" in 1993 when he was arrested by a South San Francisco police officer on another matter. Steadham called his employer on the day of the killing to say that he would not be in for his 4:00 p.m. shift.
2. The Robbery of Tad Foster
On the morning of December 16, 1993, Tad Foster drove a taxicab for Yellow Cab of South San Francisco. Foster was dispatched to pick up "Anthony" at San Francisco Airport. At that location he was flagged down by an African-American man in his twenties, clean-cut, wearing a brown and black v-neck sweater, later identified as petitioner Anthony Steadham. While Foster was driving, Steadham reached up and turned the rear view mirror to the right and put his hand on Foster's shoulder, telling him to drive where he was told. Foster turned and looked Steadham "right in the eyes" at a distance of about 18 inches. Foster tried to get out of the cab, but Steadham pointed a revolver at Foster's head, gripped him hard by the shoulder, preventing Foster from leaving the cab, and said "drive, motherfucker."
At Steadham's direction, Foster drove into an alley. Steadham held a gun to Foster's ribs while he was driving. Steadham told Foster to give him the keys to the cab, and Foster complied. Foster gave Steadham about $150, along with his wallet. Steadham looked at the wallet and told him that now he knew where Foster lived, and that if Foster called the police his family would be killed. Steadham took Foster's inscribed ring, told Foster to lie on the seat of the cab, and left. Steadham confessed to committing this crime.
3. Robbery of Donald Wells
On the evening of December 2, 1993, Donald Wells was dispatched to Redwood City. The caller gave the name "Roger." Wells picked up his fare, an African-American man in his early twenties. The man got into the cab and immediately put an automatic pistol to Wells's ribs, saying "Give me your money or I'll kill you." In the end, the man told Wells that he would let him live. Before the robbery, Wells had seen a flyer with a picture of a suspect in the Simones taxicab killing, and Wells thought the drawing looked similar to the man who robbed him.
Wells testified that during the robbery, the robber reached up and turned the rearview mirror at an angle so that he would not be visible. Wells was still able to see the robber's face for about ten seconds. Wells was unable to identify the robber from photographs shown to him. At a live lineup he identified Steadham as "similar" to the man who robbed him, but he was not one hundred percent certain.
Steadham was linked to the general area of the Wells robbery by Sonia Urich, who testified that Steadham visited her apartment in Redwood City one evening in late 1993.
4. The Robbery of Sadaki Hayashi
Shortly after midnight on November 16, 1993, taxi driver Sadaki Hayashi was dispatched to pick up a fare at Delaware and Third Streets in San Mateo. The caller said his name was "Anthony." Hayashi observed the man for about 20 or 30 seconds as he climbed into the back seat of the cab. While they were driving, the man put a knife to Hayashi's throat. Hayashi complied with the robber's demand for his cash and cab.
Hayashi did not pick Steadham out of a photo lineup shown to him. Hayashi testified that Steadham resembled the man who robbed him. Hayashi said that, on a scale from 1 to 10, his certainty that Steadham was the man who robbed him was a 5.
5. The Kidnaping and Robbery of Roya Roknifard
On February 13, 1994, Roya Roknifard was delivering pizzas in San Mateo. She was accosted by a group of four teenagers, who grabbed her and covered her eyes and mouth. Roknifard identified Steadham as the "leader" of the group. The attackers took pizza and money from Roknifard. Roknifard gave her attackers the keys to the truck, and they drove off with three of them, including Steadham, in back with her. While they were driving, Steadham searched Roknifard for more money, putting his hands inside her brassiere.
When the truck stopped, she begged them to let her go. They told her to count to 200 before opening her eyes, then they left. In January, 1996, Roknifard was shown a photo array, and identified Steadham as the leader of the men who accosted her, though she was not completely sure in her identification of Steadham. Steadham's fingerprints were found in the rear bed and tailgate of Roknifard's truck.
B. Procedural History
Steadham was convicted in the San Mateo County Superior Court of first degree murder with special circumstances. kidnaping, sexual battery. five counts of robbery, and use allegations. He was sentenced to three consecutive life terms, plus 23 years, 8 months. Steadham appealed his conviction. The California Court of Appeal affirmed his conviction and the California Supreme Court denied his petition for review.
Steadham filed his federal petition for writ of habeas corpus after his unsuccessful state court appeal. His habeas petition raises three claims, each of which will be addressed in this order. First, Steadham contends that the trial judge improperly took the question of culpability from the jury. in violation of Steadham's right to a fair trial by jury and due process of law, when the judge excluded evidence linking third parties to the charged crimes. Second, he claims that there was insufficient evidence to sustain the jury's verdict with respect to the robbery of Sadaki Hayashi. Finally, he contends that his due process rights were violated because of the use of a suggestive identification procedure.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in San Mateo County, California, which is located within this judicial district. 28 U.S.C. § 2241 (d).
STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of. clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c). The parties do not dispute that state court remedies were exhausted for the claims in the petition.
DISCUSSION
A. Admissibility of Evidence of Third Party Culpability
Steadham claims that his constitutional rights were violated when the trial court excluded evidence linking third parties to two of the crimes. Steadham sought to link the Simones murder and Wells robbery to two men: William Young and Derrick Guiton. In regard to Young, Steadham requested that the judge admit evidence that: 1) Young may have left work at 2:15 p.m. on the day of the Simones killing, 15 minutes before his scheduled departure time of 2:30 p.m.; 2) Young was known to go to 24 Hour Nautilus; and 3) Young was seen in the area within a week of the Simones killing. RT 2275-6. The jury actually heard some evidence about Young. The jury was aware that Young was African-American, employed at Mills Hospital (across the street from 24 Hour Nautilus), attended 24 Hour Nautilus in December 1993, and lived several blocks from Holland Street. The jury also heard that one of the witnesses described Young's photo as similar to that of the man he saw enter the taxi, that Young was seen wearing similar clothes to Steadham, that Young's house was searched (but nothing incriminating was found), and that Young refused to talk to the police. RT 2882-3.
In regard to Guiton, Steadham requested that the following evidence be admitted: Guiton associated with Steadham; Guiton frequented Bramble Court, near the scene of one of the crimes; Guiton lived with Sonia Urich (who lived on Kentfield Street, the location of the Wells robbery) beginning in January, 1994; his house was searched; and he was unemployed. RT 2280-2. The jury already knew the following information: Guiton was African-American; he dated Sonia Urich; Guiton lived near Holland Street (i.e. the street where Simones' body was found); Donald Wells said Guiton's photo resembled his robber; and Kathy Rangwirtz identified Guiton as looking like Steadham. RT 2903-4.
Steadham argued that either Young or Guiton could have been responsible for the Simones murder and the Wells robbery, stating specifically that Young had "motive and opportunity." RT 2278. The trial court denied both attempts to introduce third party culpability. The court noted that "there's always a motive for robbery," and "presumably hundreds of thousands of other people" in the geographic area were also not at work when Simones was murdered. RT 2279. It stated that under these circumstances there did not appear to be any substantial evidence tending to connect these persons with the actual commission of the offense — "I don't think . . . it's close." Id.
The California Court of Appeal affirmed the trial court's ruling, stating that the third party evidence suggested nothing more than opportunity, and that only a minimal amount of evidence had been excluded from jury consideration:
As noted, most of defendant's proffered evidence of third party culpability was heard by the jury and discussed by counsel in closing argument. Thus, as laid out in defense counsel's offer of proof, the only evidence excluded was that William Young may have left work at 2:15 p.m. on November 22, 1993 and that he was known to go to 24 Hour Nautilus. As to Derrick Guiton, the evidence excluded was that he had friends on Bramble Court, that he lived with Sonia Urich beginning January 1994, that he was stopped by the police because he looked similar to the police sketch and his house was searched, and that he was unemployed.
"To be admissible, the third-party evidence need . . . only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (People v. Hall (1986) 41 Cal.3d 826, 833.)
William Young's departure from work at 2:15 p.m. on the day of the Simones murder and his attendance at the 24 Hour Nautilus suggests nothing more than opportunity. Derrick Guiton's unemployment and his contacts on Bramble Court likewise provide only motive and opportunity. Given that the jury knew Guiton visited Sonia Urich on Kentfield Street, little more would be added by learning that he eventually lived with her there. Guiton's similarity to the police artist's sketch and the search of his house indicate only the police's interest in him as a suspect. In short, defendant proffered no direct or circumstantial evidence linking Young and Guiton to the Simones murder or the Wells robbery. Accordingly, the court properly excluded the third party culpability evidence not otherwise admitted.
Defendant also claims that. by excluding the proposed evidence, the court denied defendant his right to a fair trial and presentation of a defense. He asserts that the court encroached on the province of the jury by deciding the credibility and merit of his third party culpability defense. Similar arguments have been rejected with dispatch by our Supreme Court: "Defendant further contends the trial court's evidentiary ruling invaded the province of the jury, denying defendant his right to a jury trial, and impairing his ability to present a defense. We have rejected similar challenges in the past and see no reason to reconsider those decisions." (People v. Alcala (1992) 4 Cal.4th 742, 793.)
Cal. Ct. App. opinion, p. 13-14. The U.S. Supreme Court has made clear that the erroneous exclusion of critical. corroborative defense evidence may violate the Sixth Amendment right to present a defense, as well as the due process right to a fair trial. See DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v. Mississippi. 410 U.S. 284, 294 (1973); and Washington v. Texas, 338 U.S. 14, 18-19 (1967)). However, the Due Process Clause does not guarantee the right to introduce all relevant evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996). A defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. See id. The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 43 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)) (internal quotations omitted).
Steadham fails to establish that exclusion of the proffered evidence violated a fundamental principle of justice. California law regulates the admission of evidence of third party culpability. Under California law, a court may admit this type of evidence only if there is "direct or circumstantial evidence linking the third person to the actual perpetration of the crime." People v. Hall, 41 Cal.3d 826, 833 (1986). Evidence of motive or opportunity to commit the crime on the part of the third party, without more, is insufficient to raise a reasonable doubt about a defendant's guilt and therefore is inadmissible as a defense. Id.
California's rule does not offend any fundamental principle of justice or unfairly prevent a defendant from defending against the state's charges. See Perry v. Rushen, 713 F.2d 1447, 1455 (9th Cir. 1983). Perry is especially relevant to Steadham's situation. There, the Ninth Circuit rejected a claim that the California state trial court violated defendant's right to present a defense and due process rights by excluding evidence that another man of similar appearance raped a woman in the same location one hour before the assault with which the defendant was charged. Defendant wanted to prove that both men were of similar weight and height, had distinctively braided hair, and wore brown jackets and blue pants. Id. at 1449. The court held that, absent substantial evidence directly connecting the third party with the actual commission of the offense, the evidence was inadmissible because it simply afforded a around of suspicion against the third party. Id. The Ninth Circuit found that although the evidence was not irrelevant, it was "sufficiently collateral and lacking in probity" that it did not violate the Sixth and Fourteenth Amendments to exclude the evidence. Id. at 1455.
Steadham does not present a persuasive claim for habeas relief. First, much of the relevant information regarding Young and Guiton's culpability was, in fact, admitted. The jury knew that the police initially suspected Young, that Young lived and worked in the immediate vicinity of the crimes, and that Young dressed similarly to Steadham. The jury was aware that Wells picked Guiton's photo out of a lineup, and that Guiton also lived close to the scene of the crimes. The jury decided that the evidence was not strong enough to undermine the evidence against Steadham.
Steadham fails to establish that exclusion of the evidence violated a fundamental principle of justice. The evidence that Steadham wished the jury had considered did not go beyond the "motive or opportunity" threshold and into the realm of "direct or circumstantial." Evidence of motive or opportunity to commit the crime on the part of the third party is insufficient, on its own, to raise a reasonable doubt about a defendant's guilt and therefore is inadmissible as a defense. The excluded evidence did not establish anything beyond the fact that Guiton or Young could have been responsible for the crimes, just as any person with a similar physical description in the area could have perpetrated the crime. Beyond pointing out that Guiton and Young share similar physical characteristics to Steadham, and that they had potential motive for committing the crimes (i.e. one of them was unemployed), Steadham offers nothing more to link the two men to the crimes. There are no fingerprint tracings, no witness sightings and no prior or similar criminal behavior to link either of the two men to the crimes. It cannot be said that Steadham was denied the opportunity to present a defense or denied his right to due process. The California Court of Appeal's rejection of his claim was not contrary to or an unreasonable application of clearly established federal law. Therefore, the court will not grant a writ of habeas corpus for this claim.
B. Sufficiency of the Evidence on the Sadaki Hayashi Robbery
Steadham claims that Sadaki Hayashi's testimony was insufficient to support Steadham's conviction for robbing him. Steadham argues that not only did Hayashi feel that Steadham looked much heavier and older than the person who robbed him, but Hayashi's certainty that Steadham was the taxicab robber was only a "5" on a scale from 1-10. RT 2228. Aside from Hayashi's ambiguous identification, Steadham claims that the facts of the robbery do little or nothing to set it apart from the general run of taxicab robberies and certainly do not possess any outstanding or unique attributes that would make this a "signature" crime. Pet., p. 15.
The Court of Appeal rejected Steadham's argument. The court reasoned that it is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. Thus. unless it is shown that "on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict," the court will not reverse. Cal. Ct. App. at 15 (quoting People v. Hicks (1982) 128 Cal.App.3d 423, 429.) Although weak, Hayashi's identification of Steadham was not inherently improbable. The appellate court determined that strong circumstantial evidence was presented which, when added together with the identification, provided adequate evidentiary support for the conviction.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970); see Leavitt v. Vasquez, 875 F.2d 260, 261 (9th Cir. 1989) (state must prove every element of crime beyond a reasonable doubt), cert. denied, 493 U.S. 866 (1989); Jackson v. Virginia, 443 U.S. 307, 321, 325 (1979) (a state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim which if proven, entitles him to federal habeas relief).
A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 410 U.S. 843 (1993). The federal court "determines only whether, `after viewing 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.'" See id. (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. See Jackson, 443 U.S. at 324. Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).
Hayashi testified at trial using an interpreter. He was somewhat equivocal in his identification of Steadham as the robber:
Q. How certain are you that this gentleman, Mr. Steadham, is the person that attacked you in November of 1993? Almost four years ago?
A. I cannot answer positively to that question. Maybe can repeat that. Repeat that.
Q. With the number 10 being absolutely certain and the number 1 being not certain, what number between 1 and 10 would you pick to describe your certainty?
A. Do I have to answer this?
THE COURT: Yes. If you can.
THE WITNESS: I would say 5.
RT 2228. Hayashi's testimony included two additional aspects. First, Hayashi noted that Steadham appeared to be older and heavier than his attacker. Although Steadham asserts that the description substantially weakened Hayashi's identification, Hayashi's description that Steadham was older and heavier was consistent with the fact that the robbery occurred four years before the trial. Second, Hayashi stated that petitioner exuded a similar "atmosphere" to the man who robbed him:
Q. And you pointed to my client, Mr. Steadham here, and said that you picked him out because of feelings, atmosphere and looks. Is that correct?
A. Yes.
Q. What feelings?
A. The feelings correspond to that atmosphere at that time.
Q. At the time of the attack?
A. Yes.
Q. And what feelings are those?
A. Rather than feelings, I must say more atmosphere rather than feelings.
Q. Can you describe the atmosphere at all?
A. I'd say just like him.
Q. What is it about him in particular?
A. What is it? . . . I cannot specify —
Q. Would you agree with me —
A. — definitely but some feelings, some atmosphere.
RT 2225-6. While this description of petitioner's "atmosphere" gives perspective to Hayashi's identification, it does not substantially strengthen the identification. If this were the only evidence against Steadham. it would be insufficient to support the conviction. However, Hayashi's testimony was buttressed by the circumstantial evidence, which was described by the California Court of Appeal:
[The Hayashi robbery] occurred in the same time frame and geographic area as the other taxi robberies. Defendant acknowledged that the location of the pick-up was "right by" his house. Indeed, defendant hid the gun he used in the Simones murder just one block away at Second and Delaware Streets. The Hayashi robbery occurred on Cypress Street, where defendant lived, and the cab was recovered very close to defendant's home. The fare used defendant's first name. In the Foster robbery, which defendant admitted, he used his first name. The method of the robbery was identical to that used by defendant in the theft involving Abdella Djirab.
Cal. Ct. App. opinion, p. 16. Although this Court disagrees with the California court's characterization of this circumstantial evidence as "strong," the evidence did have some probative force. In light of Hayashi's testimony and the circumstantial evidence described above, this Court cannot say that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 324. Accordingly. Steadham is not entitled to the writ on this claim.
C. Suggestive Identification Procedure
Steadham contends that his right to due process was violated when the trial court refused to exclude several witnesses' in-court identifications after they failed to unequivocally identify Steadham at pretrial line-ups. The appellate court held that the in-court identification procedure did not violate petitioner's due process rights.
At trial, defendant moved to prevent in-court identification by certain witnesses arguing that all but one witness qualified their identifications with terms such as "similar," "most like," and "best estimate." The court denied the motion to exclude the in-court identification of these witnesses, stating: "I recognize that, in any case in which a witness has been unable to make a positive identification when faced with either a live line-up or a photographic line-up, and then is asked in court whether they see the perpetrator in court, there is some danger that under the conditions present in the courtroom, the witness will make what sounds to be a positive identification, and it will in fact, simply be because among the persons present in the courtroom, the defendant is the one who looks the most like the perpetrator, but I think that is always present, that risk is there in every, [in-court] identification, and the probative value of the witness being allowed to express their current belief about whether the person involved is the defendant is much greater than the risk of prejudices under the circumstances."
Timothy Johnson was shown a photo lineup in August 1995 that included defendant, but selected someone else as similar to the man he saw getting in the cab. Johnson chose defendant at the physical lineup, describing him as an older, heavier version of the man he saw, but stating that he could not be certain and that defendant was his "best estimate." At trial, Johnson conceded that the passage of time and changes to defendant's appearance affected his ability to identify defendant, and stated "I'm reasonably certain, but I can't be 100%."
Toni Beck selected defendant at the physical lineup, but also said that another man looked close. At trial, she identified defendant as "probably" the man she saw.
Kathy Rangwirtz recognized defendant in the physical lineup, but initially did not identify him because she was afraid and did not want to be involved. At trial, she identified defendant, but said she was not "a hundred percent sure."
Donald Wells did not identify defendant from the photo lineup in August 1995. At the physical lineup he was uncertain and did not mark his card. Wells told Detective Daughtry that defendant looked "very, very similar," but he was not one hundred percent certain. At trial, he identified defendant, saying he was not completely confident "looking at the total face," but defendant's hairline was similar and his ears were distinctive.
Sadaaki Hayashi selected someone else in a photographic lineup as looking closest in appearance to the man who robbed him. At trial Hayashi identified defendant, testifying that he now looked grown-up and heavier. On a scale of one to ten, he rated the certainty of his in-court identification as "five."
Defendant does not challenge the pre-trial photographic or physical lineups as suggestive. Rather, he contends that because the witnesses expressed uncertainty during those procedures, they should not have been permitted to identify him in court. He asserts that it was obviously suggestive to ask the witnesses to make an identification in court when it was clear he was the defendant. The suggestiveness was even more acute, he claims, because he was the only African-American male in the courtroom.
Here, the court's decision to permit the in-court identifications did not demonstrate any unfairness rising to the level of a due process violation. The jury was made aware of the uncertainty expressed by witnesses at the earlier photographic and physical lineups. The witnesses expressed similar reservations at trial, viewing defendant nearly four years after the offenses. Thus, while defendant contends that the in-court identification procedure was suggestive, it did not change the witnesses's testimony or cause them to become more definite about defendant's identity. Defense counsel cross-examined the witnesses regarding their uncertainty as to both the pretrial and in-court identifications. In addition, the jury heard testimony from Dr. Loftus as to how memory is affected by the passage of time and "post-event information," and how cross-racial identifications are more susceptible to mistake.
The jury was properly instructed with CALJIC No. 2.92 identifying various factors bearing upon the accuracy of an eyewitness's identification of the defendant. Among the factors mentioned by the court were "[w]hether the witness was able to identify the alleged perpetrator in a photographic or physical line-up" and "the extent to which the witness is either certain or uncertain of the identification." During the argument, defendant's counsel vigorously challenged the reliability of the identifications made by Johnson, Beck, Rangwirtz and Wells.
We conclude that defendant's due process rights were not violated by the admission of the in-court identifications.
Cal.App. Ct. at 16-19. "A conviction which rests on a mistaken identification is a gross miscarriage of justice." Stovall v. Denno, 388 U.S. 293, 297 (1967). Procedures by which the defendant is identified as the perpetrator therefore must be examined to assess whether they are unduly suggestive. "It is the likelihood of misidentification which violates a defendant's right to due process." Neil v. Biggers, 409 U.S. 188, 198 (1972). Due process protects against the admission of evidence deriving from suggestive pretrial identification procedures. See Neill, 409 U.S. at 196. Unnecessarily suggestive pretrial identification procedures alone do not require exclusion of in-court identification testimony, however; reliability is the linchpin in determining the admissibility of identification testimony. See Manson v. Brathwaite, 432 U.S. 98, 100-14 (1977). In determining whether in-court identification testimony is sufficiently reliable, courts consider five factors: (1) the witness's opportunity to view the defendant at the time of the incident; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description; (4) the level of certainty demonstrated by the witness at the time of the identification procedure: and (5) the length of time between the incident and the identification. See id. at 114: Neil, 409 U.S. at 199-200. See e.g., United States v. Jones, 84 F.3d 1206, 1209-10 (9th Cir.) (Although drive-by identification by witnesses was suggestive, it was permissible because there was not a substantial likelihood of misidentification), cert. denied, 519 U.S. 973 (1996); United States v. Wanes 49 F.3d 502, 505 (9th Cir. 1995) (identification of defendant in photographs reliable where witness had ample opportunity to view defendant and actually spoke with him).
Steadham's claim is unusual in that he does not claim that the pretrial identifications were unduly suggestive and therefore tainted the later in-court identifications. Rather, he takes aim at the entire process of in-court identifications — arguing that in-court identifications as a class are inherently unreliable where, as here, the pretrial identifications have not been unequivocal. His argument falters at the outset, as courts have refused to completely ban in-court identifications.
To obtain habeas relief, Steadham must show that the in-court identifications were unnecessarily suggestive and not sufficiently reliable. An in-court identification of a defendant who looks different from everyone else around him and is clearly the person on trial may be suggestive. See United States v. Rogers, 126 F.3d 655 (5th Cir. 1997) ("it is obviously suggestive to ask a witness to identify a perpetrator in the courtroom when it is clear who is the defendant"). But suggestiveness alone is not enough. Steadham had to, but did not, show that the identification testimony was unreliable. There is no per se rule excluding an in-court identification where the witness failed to make an unqualified and emphatic identification during a pretrial line-up. The defense was able to cross-examine the witnesses about the certainty of their identification of Steadham, and was able to probe any change in certainty between the pretrial identification and the in-court identification. Considering the various factors together, this Court does not find that any of the in-court identifications were not sufficiently reliable. Steadham's right to due process was not violated by the admission of the witnesses' in-court identifications. He is not entitled to the writ on this claim.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. Petitioner's "petition to be advised of case status" is DISMISSED as moot, because this order rules on the petition. (Docket #7.) The clerk shall close the file.
IT IS SO ORDERED.