Tuesday, November 15, 2005

Section 2254: Counsel Ineffective For Failing to Suppress In-Court Identification

Thomas v. Varner, No. 04-2856 (3d Cir. Nov. 4, 2005). In this § 2254 proceeding, the Third Circuit affirmed the district court decision that counsel was ineffective for failing to object to an in-court identification.

The defendant was convicted of second degree murder during the robbery of a speakeasy. His conviction was based on the testimony of two identification witnesses. One witness (was was named Young) knew the defendant and originally failed to identify him, made several inconsistent statements, testified he was coerced by the police, testified he feared arrest if he did not name someone, had charges pending against him when he testified, but did identify the defendant. The second witness, Fuller, was shown more than 750 pictures of black males and did not make an identification. Later, he was shown 10-12 pictures. The detective pulled two and told him to take a "real good" look at them. Fuller testified he would not have made the identification absent the detective’s suggestions. However, Fuller could not make an identification at a pre-trial hearing. At trial, though, he identified the defendant and defense counsel failed to object.

In post-conviction proceedings, the defendant alleged his counsel was ineffective for failing to suppress the identification Fuller made at trial. The defendant received no hearing on his state post-conviction papers. He filed a habeas petition in U.S. District Court. The District Court held an evidentiary hearing and granted the petition.

Affirming, the Third Circuit held that the defendant was entitled to a hearing. He had requested, but was not given, a hearing in state court to develop the record regarding counsel’s decision not to object to Fuller’s in-court identification. The Third Circuit held that the defendant was not at fault for failing to develop in state court the factual basis for his claim.

On the merits, the Court held that counsel performed deficiently when he failed to object to the identification. Counsel testified he believed he was not permitted to object or move to suppress the trial identification once it had been made. However, Pennsylvania court rules permit a motion to suppress after trial starts if "the opportunity did not previously exist, or the interests of justice otherwise require." The Third Circuit concluded that counsel’s representation was not objectively reasonable.

Addressing prejudice, the Third Circuit analyzed whether such a motion was likely to be granted. It agreed with the district court that the photo lineup procedure was unduly suggestive. The Court further held that the totality of the circumstances showed that the identification was unreliable. While Fuller had the opportunity to see the shooter, he was only facing the shooter for a short time. Fuller was playing chess when the shooter entered the speakeasy and then Fuller tried to flee. While his initial description of the shooter was accurate, he then disavowed his line up identification at the pre-trial hearing. Finally, a significant amount of time had passed between the shooting and the trial identification. The Court found a substantial likelihood of irreparable misidentification.

The Court found the Strickland prejudice standard was met. Absent Fuller’s identification, the prosecution was left with Young’s identification, whose testimony was very questionable. Counsel’s failure undermined the reliability of the verdict.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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