United States v. Meyer

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 23, 2004
• Docket: 02-3582
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Meyer No. 02-3582 ELECTRONIC CITATION: 2004 FED App. 0055P (6th Cir.) File Name: 04a0055p.06 ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. UNITED STATES COURT OF APPEALS ROGERS, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. COLE, J. (pp. 12-17), FOR THE SIXTH CIRCUIT delivered a separate dissenting opinion. _________________ _________________ UNITED STATES OF AMERICA , X Plaintiff-Appellee, - OPINION - _________________ - No. 02-3582 v. - ROGERS, Circuit Judge. A jury convicted the defendant, > Robert Meyer, of postal robbery in violation of 18 U.S.C. , ROBERT A. MEYER, - § 2114 and of using a firearm during a crime of violence in Defendant-Appellant. - violation of 18 U.S.C. § 924(c)(1). On appeal, Meyer argues N that the district court erred in denying his motion to suppress any in-court identification by the victim, and he challenges Appeal from the United States District Court the sufficiency of the evidence. We conclude (1) that the in- for the Northern District of Ohio at Cleveland. court identification procedure devised by the district court No. 01-00085—Ann Aldrich, District Judge. was not impermissibly suggestive, (2) that, even if the process were impermissibly suggestive, the identification was Argued: September 19, 2003 independently reliable, and (3) that a rational trier of fact could have found the essential elements of the crimes beyond Decided and Filed: February 23, 2004 a reasonable doubt. Accordingly, we affirm the judgment of the district court. Before: SUHRHEINRICH, COLE, and ROGERS, Circuit Judges. BACKGROUND _________________ On February 24, 1997, Jarmel M. Shaw, a postal employee, was robbed at gunpoint. Shaw had completed his mail COUNSEL collection route and had returned to the loading dock of the Mansfield (Ohio) Main Post Office. As he moved his last ARGUED: Charles E. Fleming, FEDERAL PUBLIC pickup, a basket of first class mail, to the back of the truck, DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. the perpetrator opened the driver’s side door. He pointed a Nancy L. Kelley, ASSISTANT UNITED STATES gun in Shaw’s face and demanded, “Give me the cash box, ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: give me the cash box.” Shaw told the offender that he had Charles E. Fleming, FEDERAL PUBLIC DEFENDER’S already taken the cashbox inside. The offender then directed OFFICE, Cleveland, Ohio, for Appellant. Nancy L. Kelley, Shaw to move to the back of the truck and entered the vehicle

1 No. 02-3582 United States v. Meyer 3 4 United States v. Meyer No. 02-3582

and surveyed its contents. As the offender searched the truck employee in violation of 18 U.S.C. § 2114 and using a for the keys, Shaw opened the rear door and ran across the firearm during a crime of violence in violation of 18 U.S.C. loading dock into the post office. As he ran, Shaw heard a § 924(c)(1). Prior to trial, Meyer moved to suppress any single gun shot, but he was unharmed. pretrial or in-court identifications of Meyer by Shaw, arguing that the identification procedure used by Barrett was On May 30, 1997, Terry Barrett, the postal inspector impermissibly suggestive and that this procedure would taint investigating the robbery, presented Shaw with a photo any subsequent in-court identification. The district court lineup. Specifically, Shaw was shown six photographs, five granted Meyer’s motion to suppress all pretrial of individuals interviewed in connection with the identifications, but it denied Meyer’s motion to suppress any investigation and one of a postal employee. Meyer was not in-court identification. It stated that it would devise a yet a suspect, and his photograph was not included in the procedure to minimize the effect of the tainted pretrial lineup. Shaw did not identify anyone as the perpetrator. identifications.

On June 19, 2000, Barrett conducted a second photo lineup. On March 25, 2002, Meyer’s jury trial began. Prior to Since the May 1997 lineup, investigators had identified Shaw’s testimony, the district court staged a lineup in an Meyer as a suspect, and, to create a new lineup, Barrett effort to minimize the taint of the pretrial identifications. The simply replaced the photograph of the postal employee with jurors were removed from the courtroom, and Meyer was a photograph of Meyer taken in June 2000. The other five placed in the jury box with seven men of similar age and photographs remained the same. Shaw failed to make an appearance. Shaw identified Meyer, and, during his identification. testimony, he identified Meyer as the robber. Meyer objected to the identification during both the lineup and Shaw’s Believing that he had built a strong case against Meyer, testimony. Barrett was “perplexed” when Shaw failed to identify Meyer. As Shaw prepared to leave, Barrett, “on a hunch,” displayed The jury convicted Meyer of both counts. On April 14, a second photograph of Meyer, which had been taken in 1997, 2002, Meyer filed a motion for judgment of acquittal, arguing for Shaw. (Barrett did not show Shaw any other photographs that the Government had not presented sufficient evidence to at this time.) Barrett asked Shaw whether he recognized the support a guilty verdict on either count, and a motion for a man in the photograph, and Shaw immediately identified new trial, arguing that the impermissibly suggestive pretrial Meyer as the robber. identifications tainted Meyer’s in-court identification. On May 3, 2002, the district court denied both motions. It found On August 10, 2000, Barrett conducted a third photo that the Government had presented sufficient evidence to lineup. The first five photographs in the lineup were the five support the verdict, that the in-court identification procedure pictures used in the prior lineups. However, the sixth was not impermissibly suggestive, and that the in-court photograph was the 1997 picture of Meyer, which Barrett had identification was independently reliable. On May 20, 2002, shown individually to Shaw after the June 2000 lineup. Shaw Meyer filed a timely notice of appeal. again identified Meyer as the robber.

On February 21, 2001, the Government filed a two-count indictment against Meyer, alleging robbery of a postal No. 02-3582 United States v. Meyer 5 6 United States v. Meyer No. 02-3582

ANALYSIS attention at the time of the crime; (3) the accuracy of the witness’s prior description of the defendant; (4) the 1. Motion to Suppress In-Court Identification witnesses’s level of certainty when identifying the defendant at the confrontation; and (5) the length of time between the In reviewing a district court’s ruling on a motion to crime and the confrontation. Neil v. Biggers, 409 U.S. 188, suppress, we apply the clearly erroneous standard to the 199-200 (1972); Ledbetter, 35 F.3d at 1071 (applying the district court’s factual findings and the de novo standard to its Biggers factors); Hill, 967 F.2d at 230 (same). If the legal conclusions. United States v. Dotson, 49 F.3d 227, 229 defendant fails to show that the procedure was impermissibly (6th Cir. 1995). Whether identification evidence was suggestive, or if the totality of the circumstances indicates “sufficiently reliable so as not to offend appellant’s rights that the identification was otherwise reliable, admission of the under the due process clause” is a question of law. Smith v. identification testimony does not violate the defendant’s right Perini, 723 F.2d 478, 481 (6th Cir. 1983). to due process.

A conviction based on identification testimony violates the Meyer contends that the district court erred in permitting defendant’s constitutional right to due process whenever the Shaw’s in-court identification. He argues that the pretrial identification procedure is “so impermissibly suggestive as to identifications in June 2000 and August 2000, which the give rise to a very substantial likelihood of irreparable district court deemed impermissibly suggestive, tainted misidentification.” Thigpen v. Cory, 804 F.2d 893, 895 (6th Shaw’s in-court identification. In fact, he charges that Postal Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377, Inspector Barrett’s suggestive behavior—the display of the 384 (1968)). A defendant is denied due process “only when single photograph—was so flagrant that it rendered Shaw the identification evidence is so unreliable that its incapable of making an independent identification. No introduction renders a trial unfair.” Smith, 723 F.2d at 482 procedure devised by the district court, he maintains, could (quoting Summit v. Bordenkircher, 608 F.2d 247, 253 (6th have eliminated the taint of Inspector Barrett’s misconduct. Cir. 1979)). “As long as there is not a substantial likelihood of misidentification, it is the function of the jury to determine Meyer also contends that, under the Biggers analysis, the ultimate weight to be given to the identification.” Id.; see Shaw’s identification was not independently reliable. First, also United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992). he insists that Shaw had limited opportunity to view the perpetrator, as, although the encounter lasted two to four This court has prescribed a two-step analysis for minutes, Shaw was able to view the perpetrator’s face for determining the admissibility of identification evidence. only “some fraction” of this time. Second, he questions Ledbetter v. Edwards, 35 F.3d 1062, 1071-72 (6th Cir. 1994); Shaw’s degree of attention, asserting that Shaw was distracted Hill, 967 F.2d at 230. First, the defendant bears the burden of by his concern for his safety. Third, he brands Shaw’s prior proving that the identification procedure was impermissibly description inaccurate, noting that, in his initial statement to suggestive. Id. Second, if the defendant meets this burden, investigators, Shaw described the perpetrator as a man in his the court evaluates the totality of the circumstances to twenties or thirties and did not mention gray hair or facial determine whether the identification was nevertheless hair. (At the time of the incident, Meyer was in his early reliable. Id. The following factors guide the court’s forties and, apparently, had gray hair and a mustache.) reliability analysis: (1) the witness’s opportunity to view the Fourth, he discounts the high degree of certainty evinced by criminal at the time of the crime; (2) the witness’s degree of Shaw at confrontation, dismissing it as a product of the earlier No. 02-3582 United States v. Meyer 7 8 United States v. Meyer No. 02-3582

suggestive procedures. Fifth, he claims that the length of time perpetrator demanded the keys to the truck. Shaw between the crime and the in-court identification—more than “continue[d] to look at [the perpetrator] to determine if there five years—weighs strongly against a finding of reliability. would be an opportunity . . . to get away” before escaping through the back of the truck. That Shaw could not see the We conclude that the district court did not err in permitting perpetrator’s face for some fraction of the incident hardly the in-court identification. First, we agree with its conclusion undermines the conclusion that, for Biggers purposes, Shaw that the in-court identification procedure was not had an excellent opportunity to view the perpetrator. impermissibly suggestive. Meyer does not argue that the procedure used at the in-court lineup on March 25, 2002, was The second and fourth Biggers factors also dictate a finding itself suggestive; instead, he contends that Inspector Barrett’s of reliability. Regarding the second factor, Shaw testified that display of the single photograph of Meyer at the June 19, he focused his attention on the perpetrator throughout the 2000 photo lineup was so suggestive that it rendered Shaw incident, first conducting a dialogue with the perpetrator and forever incapable of making an independent identification of then studying him as he looked for an opportunity to escape. the perpetrator. However, as the district court properly Contrary to Meyer’s assertion, Shaw’s concern for his safety concluded, the facts indicate that Shaw’s in-court did not distract his attention; if anything, it heightened his identification of Meyer stemmed from his recollection of the degree of attention as Shaw watched the perpetrator for an incident rather than any recollection of the photograph shown opportunity to escape. Finally, regarding the fourth factor, to him by Inspector Barrett. Approximately a year and a half Shaw identified Meyer quickly and confidently during the in- elapsed between the last photo lineup and Shaw’s in-court court lineup, and, as discussed supra, Shaw’s assurance did identification of Meyer. Meyer’s appearance at the time of not appear to stem from his recollection of the photographs the in-court lineup differed noticeably from his appearance in used in the impermissibly suggestive lineups. the photograph, and the in-court lineup was comprised of Meyer and seven men of similar age and appearance. In As the district court concluded, the third and fifth Biggers short, the identification process devised by the district court factors cut in Meyer’s favor. Regarding the third factor, the ensured that Shaw’s in-court identification of Meyer was not district court identified some minor discrepancies between tainted by Inspector Barrett’s earlier display of the Shaw’s initial description of the perpetrator and Meyer’s photograph. actual appearance. For example, Shaw placed the perpetrator’s age at twenties to thirties, whereas Meyer was in Second, we agree with the district court’s conclusion that, his early forties at the time of the incident. Regarding the even if the procedure were impermissibly suggestive, the in- fifth factor, Shaw made his in-court identification more than court identification was independently reliable. The first, five years after the crime. However, given the weight of the second, and fourth of the Biggers factors weigh heavily in other factors, the district court properly concluded that, under favor of reliability. Regarding the first factor, during the the totality of the circumstances, Shaw’s identification was incident, which lasted between two and four minutes, Shaw independently reliable. observed the perpetrator at close range. The perpetrator opened the driver’s side door of Shaw’s postal truck, placed a gun “in [his] face,” and demanded, “Give me the cash box.” A conversation ensued, as Shaw denied having a cash box, the perpetrator directed him to the back of the truck, and the No. 02-3582 United States v. Meyer 9 10 United States v. Meyer No. 02-3582

2. Sufficiency of the Evidence We are unpersuaded by Meyer’s dissection of the Government’s case. The Government was not obligated to The district court also properly denied Meyer’s motion for proffer physical evidence, and it presented substantial judgment of acquittal. We review de novo a district court’s evidence connecting Meyer to the crimes. For example, as denial of such a motion. United States v. Humphrey, 279 discussed supra, Shaw identified Meyer as the perpetrator. F.3d 372, 378 (6th Cir. 2002). We must determine “whether, Sherri Dawn Goodwin, Meyer’s former girlfriend, testified after reviewing the evidence in the light most favorable to the (1) that she lent Meyer her red Jeep Cherokee, which had prosecution, any rational trier of fact could have found the West Virginia plates, on the day of the crimes (Shaw testified essential elements of the crime beyond a reasonable doubt.” that he had observed a red Jeep Cherokee with out-of-state Id. (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) plates in the vicinity of the robbery), (2) that Meyer returned (emphasis in original)). We do not “weigh the evidence, with blood on his clothes and glass in his face (the window of consider the credibility of witnesses or substitute our Shaw’s postal truck had been shattered), and (3) that later in judgment for that of the jury.” United States v. Hilliard, 11 the evening Meyer told her that he had robbed a postal truck F.3d 618, 620 (6th Cir. 1993) (citing United States v. Evans, and that his gun accidently went off during the robbery. 883 F.2d 496, 501 (6th Cir. 1989)). “Circumstantial evidence Sandra Waddell, a roommate of Meyer at the time, testified alone is sufficient to sustain a conviction and such evidence that Meyer was bleeding and excited on the night of the need not ‘remove every reasonable hypothesis except that of robbery, and told others at the residence to “cool it” when guilt.’” United States v. Ellzey, 874 F.2d 324, 328 (6th Cir. they began discussing news reports of the crimes. Jack 1989) (quoting United States v. Stone, 748 F.2d 361, 363 (6th Osborne, an acquaintance of Meyer, testified that, on the Cir. 1984)). night of the robbery, Meyer told him that he had shot a black man.2 Meyer argues that the Government did not present sufficient evidence for the jury to find, beyond a reasonable In sum, viewing the evidence in the light most favorable to doubt, that he—rather than someone else—robbed Shaw. He the prosecution, Jackson, 443 U.S. at 319, we conclude that notes that the Government did not present any physical a rational trier of fact could have found the essential elements evidence—e.g., finger prints or bullet fragments—connecting of the crimes—including Meyer’s identity as the him to the crimes. He observes that, although press releases perpetrator—beyond a reasonable doubt. issued by the United States Postal Service at the time of the crimes reported that a padlock had been taken, Postal Inspector Barrett had no knowledge of the missing padlock, which was never found. Finally, he stresses that a witness informed Barrett that Patrick Hicks, an acquaintance of Meyer, had admitted to the crimes.1 to avenge his refusal to send her money. H owever, as M eyer acknow ledges, it is the jury’s province to assess the credibility of witnesses. United States v. Burns, 298 F.3d 523, 534 -35 (6th Cir. 2002). 1 Meyer also impugns the credib ility of two government witnesses, 2 Jarmal Shaw and Sheri Dawn Goodwin. He asserts that Shaw’s initial Significantly, both Good win and Osborne testified that Meyer stated description of the perpetrator differed significantly from his actual that he had shot at a black man. T he me dia had not repo rted the victim’s appearance. He insinuates that Goodw in, his former girlfriend, testified race. No. 02-3582 United States v. Meyer 11 12 United States v. Meyer No. 02-3582

CONCLUSION _________________

For the reasons stated above, we AFFIRM the judgment of DISSENT the district court. _________________

R. GUY COLE, JR., Circuit Judge, dissenting. Because I believe: (1) that the in-court identification procedure was impermissibly suggestive; and (2) that the totality of the circumstances, using the five-part analysis set forth in Biggers, clearly demonstrates that the identification was not independently reliable, I respectfully dissent.

The majority correctly sets out the two-step analysis that must be undertaken when determining the admissibility of an identification, and also correctly notes the five Biggers factors that we are to consider in the second step of the analysis. However, I believe that the majority’s application of the test to the facts of the present case is flawed.

I.

First, we must consider whether the in-court identification procedure was impermissibly suggestive. I believe that it was. The district court made clear that the pre-trial photographic identifications were undoubtedly impermissibly suggestive. If we accept that the pre-trial photo identifications were impermissibly suggestive, as I think it is clear we must, the question becomes whether there is a principled basis for concluding that the in-court identification is not.

I am unable to find any principled distinction between the two. In stating that the in-court identification was not impermissibly suggestive, the majority essentially notes two factors which indicate that the identification was based on Shaw’s recollection of the incident rather than on a recollection of the photographs. First, approximately a year and a half had elapsed between the last photo lineup and the in-court identification. Second, Meyer’s appearance at the No. 02-3582 United States v. Meyer 13 14 United States v. Meyer No. 02-3582

time of the in-court lineup differed from his appearance in the Thus, the majority offers no legitimate rationale for photograph, and the district court’s lineup included Meyer distinguishing the in-court lineup from the pre-trial lineups and seven men of similar age and general appearance. In with regard to the impermissibly suggestive nature of the actuality, neither of these reasons, independently or taken identification. Because the photo lineups were improper, the together, support the notion that the in-court identification in-court identification was therefore impermissibly suggestive was somehow unaffected by the prior taint. as well. Thus, our focus should turn to applying the Biggers factors to determine whether the identification nevertheless While a year and a half had in fact elapsed from the last was independently reliable. photo lineup to the in-court identification, over five years had elapsed since the commission of the crime. It seems logical II. to conclude that, while the taint of the suggestive photo lineups had dissipated with time, Shaw’s ability to recognize The first Biggers factor is the opportunity of the witness to the robber from the day of the crime itself had dissipated to an view the perpetrator at the time of the crime. While the even greater degree. Indeed, it might more likely be majority finds that this factor weighs heavily in favor of presumed that, because of the lengthy amount of time that had reliability, my view, like the district court, is that this factor elapsed between the offense itself and the in-court weighs only slightly in favor of reliability. While there is identification, Shaw was all the more likely to have lost his little question that the witness did have some opportunity to recollection of the event itself, and therefore replaced his view the assailant, the encounter was not especially long, and memory of the perpetrator’s appearance with images from the for a substantial portion of the time Shaw was not in a more recently viewed photographs. position to observe the robber’s face.

Additionally, the fact that Meyer’s appearance in court The district court additionally found that the second differed from his appearance in the prior photograph, and that Biggers factor, the witness’s degree of attention, “cuts only the in-court staged lineup included seven other men of slightly in favor of admissibility.” As the district court noted, approximately the same appearance hardly leads to the Shaw’s testimony indicated that he may have been focused as inference the majority suggests. Meyer argues that the in- much on the gun itself as on the gunman’s face, and he was court identification was tainted by the improper photo arrays. somewhat preoccupied in his search for a way to escape the The fact that Shaw was able to pick out the very gentleman truck. Thus, I agree that this factor weighs slightly, at best, in improperly shown to him from photographs does nothing to favor of reliability. demonstrate that the taint from these photographs was no longer present. Moreover, if Meyer’s appearance indeed The majority implies that the third factor, the accuracy of differed substantially from his appearance in the photograph, the witness’s prior description, cut slightly against reliability. it is safe to assume that his appearance also differed at least as However, as the district court found, this factor was not substantially from his appearance at the time of the crime. nearly as tentative as the majority indicates. In fact, the The majority fails to note how the nature of this lineup district court stated that the Biggers factor weighed strongly assuages concerns that Shaw was identifying the man he saw against reliability. At the time of the crime, Meyer was in his in the improperly suggestive photo arrays rather than the early forties. The February 24, 1997, interview report perpetrator of the crime. indicates that Shaw described the suspect as a white male in his early thirties, and Shaw testified at the suppression No. 02-3582 United States v. Meyer 15 16 United States v. Meyer No. 02-3582

hearing that he originally believed that the suspect may have Finally, the length of time between the crime and the been in his twenties. As the district court also noted, Shaw confrontation, the fifth Biggers factor, weighs heavily against described the suspect as having brown hair, but the 1998 reliability. Despite the fact that the majority finds that this photo of Meyer depicted a man whose hair did not match that factor cuts only slightly in Meyer’s favor, I believe that this description. Furthermore, Shaw’s description of the gunman factor weighs immensely against reliability–to an almost did not mention facial hair, but Meyer has a mustache in each dispositive degree. In fact, in Biggers itself, the Supreme of the subsequent photos. While Meyer’s facial hair certainly Court noted that a lapse of seven months between the date of could have grown in the interim, there was no indication that the crime and the time of the confrontation would be “a this was the case. I therefore agree with the district court that seriously negative factor in most cases.” 409 U.S. at 201. If this factor should weigh heavily against reliability. a seven-month lapse is generally a “seriously negative factor,” a five-year lapse must be considered exponentially more The fourth Biggers factor is the level of certainty negative. demonstrated by the witness. The district court found that the fourth Biggers is the only one in which the analysis differs In considering the totality of the circumstances, the district from the pre-trial identification to the in-court identification. court further supported the decision to suppress the pre-trial According to the district court, this shift in the fourth factor identifications as follows: was sufficient to tip the scale in favor of reliability. With regard to the out-of-court identification, the district court [The district court] also finds relevant the fact that Shaw noted that Shaw testified that he was very certain of the failed to identify Meyer in the second photo lineup. It is identification, but took this certainty “with a grain of salt,” true that Meyer’s appearance in that photograph, which mindful that he was shown the photo under extremely was taken in 2000, is quite different from his appearance suggestive circumstances. However, because I believe that in the photograph Shaw eventually positively identified, the in-court identification was also impermissibly suggestive, which was taken in 1998. Even so, Shaw’s initial failure I think the certainty with which Shaw identified Meyer in to identify Meyer suggests that his opportunity to view court should be viewed with a similar degree of skepticism. the gunman at the time of the crime and his degree of attention to the gunman’s appearance. . .were perhaps not In addressing the fourth Biggers factor, the majority notes as great as his testimony would otherwise suggest. If the that “Shaw’s assurance did not appear to stem from his gunman’s face were truly as emblazoned in Shaw’s recollection of the photographs used in the impermissibly memory as he believes it to be, it is unlikely that he suggestive lineups.” But the majority provides no basis for would not recognize Meyer after studying the second this assertion. Indeed, I question what Shaw could have photo lineup. done–short of saying, “That’s the guy I saw in the picture!”– to make his assurance “appear to stem from his recollection I agree fully with this analysis by the district court, and note of the photographs.” I am unable to see any logical basis to that this assessment is equally applicable to the in-court support the notion that Shaw’s assurance was based on his identification. recollection of the incident rather than his recollection of the tainted photo lineups. Thus, the first, second, and fourth Biggers factors cut only slightly, if at all, in favor of reliability. The third and fifth factors, in contrast, weigh strongly against reliability. No. 02-3582 United States v. Meyer 17

Accordingly, it is my view that the in-court identification was impermissibly suggestive, not independently reliable, and should have been suppressed.

III.

A conviction based on an identification that is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification violates the defendant’s constitutional right to due process. See Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986). I, therefore, would find that Meyer’s right to due process has been violated, and would remand the case to the district court for a new trial untainted by an impermissibly suggestive and unreliable identification. Accordingly, we need not reach the second issue in this case, the denial of Shaw’s motion for judgment of acquittal. In this regard, I simply wish to note my agreement with the majority that, with Shaw’s identification admitted as evidence, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

IV.

In sum, I would reverse the district court’s denial of Meyer’s motion to suppress and remand the case to the district court for a new trial.