Frank W. SMITH, Petitioner-Appellant, v. E.P. PERINI, Respondent-Appellee, 723 F.2d 478

WELLFORD, Circuit Judge. Appellant in this cause was convicted of rape and felonious assault in state court. He appeals the district court’s denial of his petition for a writ of habeas corpus, asserting that the identification process used was so suggestive as to deny him due process under the Fourteenth Amendment. Appellant Smith was indicted on one count of rape and one count of felonious assault. He was tried before a jury in an Ohio court.

Prior to trial, appellant filed a motion to suppress evidence relating to the victim’s identification of appellant on the grounds that the procedures used were so suggestive as to deny him due process. After a hearing, the trial court overruled the motion, and the evidence was admitted at trial. The record does not reveal specific factual findings by the trial court on this issue. The jury found appellant guilty of rape and felonious assault, and he was given concurrent sentences on both counts. The conviction was appealed to state appellate court.

The conviction and sentence for felonious assault was reversed and the conviction for rape was affirmed. The challenge of the identification procedures was rejected after specific factual findings were made by the Ohio appellate court. Leave to appeal to the Ohio Supreme Court was denied. Appellant then petitioned the district court under 28 U.S.C. § 2254 for a writ of habeas corpus, again challenging the identification procedures. The matter was referred to the magistrate, who extensively reviewed the transcript in light of applicable law and recommended that the petition be denied.

The district court adopted the magistrate’s report and denied the petition, and appellant now appeals the district court’s denial of his petition. The rape victim in this case was a fifteen-year old girl; there were no other witnesses to the incident. She testified that on the afternoon of the incident she walked through a park to a shopping mall. On her way there, she noticed a man sitting on a log near the path. On her way back a short time later, she noticed the same man in the park. As she passed him, he told her to stop or he would kill her.

As she started to scream, the man took her by the throat, choked her and dragged her into the woods and raped her. After the assailant began choking her, the victim testified that she lost consciousness during much of the traumatic episode. She regained consciousness briefly and could identify her assailant. The next time she regained consciousness, her assailant was gone. As she left the park, however, she saw her attacker again at a distance talking with another man. She ran home immediately, reported the rape, and was taken to a hospital.

The afternoon of the attack, the victim gave a description of the attack to an investigating officer. She described her assailant as white, 30-35 years old, with dark hair and a mustache. The next day, while the victim was still at the hospital, an officer conducted a photograph identification process. The victim was presented with more than 150 photographs of white sex offenders. At one point she selected one of the photographs. She told the officer that one man in a photograph was not her assailant because he was “too skinny,” but that he had the same type of mustache.

The officer then told her that this particular man was in jail. The victim subsequently selected one other photograph from among the large group, that of appellant depicting him without a mustache and with longer hair, as the one most likely to be her attacker. The officer testified that she told him that she thought that this was “the man” but that she needed to see him with a mustache. Appellant was then taken into custody and brought to the hospital.

The victim was very apprehensive, so arrangements were made for her to stay in her darkened room and to observe appellant in the hallway through a glass panel in the door without being seen herself. Appellant was brought down the hall to stand in front of the glass panel to the victim’s room, and then was led away. When the officer returned to the victim’s room, she said, “That’s not him.” The officer testified that at this moment she was very frightened, and he told her to take a longer look to be certain.

When appellant was brought into the hallway again, the victim asked the officers to have him shrug his shoulders. When the officer returned to her room and asked her what she thought, she asked to see appellant with his hands around the officer’s throat. After appellant did so, the victim stated that she was sure that appellant was her attacker.

Appellant argues that evidence of the identification should have been suppressed because (1) the victim picked out two. photographs and only settled on appellant’s when she was told that the other suspect was in jail; (2) the show-up procedure was unnecessarily suggestive; (3) the victim initially stated that appellant was not her attacker; and (4) the victim did not identify appellant as her attacker until after the choking simulation.

Appellee argues that the identification had sufficient indicia of reliability, and that the factual findings of the Ohio appellate court were entitled to a presumption of correctness under 22 U.S.C. § 2254(d). We hold that the state appellate court findings of fact are entitled to a presumption of correctness under Marshall v. Lonberger, _U.S. _, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983), Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (Sumner II), and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) (Sumner I).

The ultimate finding of whether the identification was sufficiently reliable so as not to offend appellant’s rights under the due process clause is, of course, a question of law, subject to full review by this court. Sumner v. Mata (Sumner II), supra. Appellant does not challenge the photographic array procedures utilized, although he contends that the victim chose two photographs as possibly depicting her attacker. He does argue, however, that the show-up at the hospital was suggestive and unnecessary. Appellant acknowledges that while show-ups are frowned upon, they are not per se unconstitutional.

See Stovall v. Denno, 388 U.8. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Summit v. Bordenkircher, 608 F.2d 247, 252 (6th Cir.1979). The primary Supreme Court decisions to be considered are Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Biggers, the respondent had been convicted of rape after a jury trial and the evidence consisted in part of a stationhouse identification of respondent by the victim. The Court first noted that in Stovall v.

Denno, supra, a claim that “the confrontation conducted ... of law,” had been carefully considered and rejected in light of the “totality of the circumstances.” 409 U.S. at 196, 93 S.Ct. at 380. The Biggers court then considered whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive.

The Court stated that the factors to be considered in evaluating the likelihood of misidentification included the extent of the opportunity to view, the focus of attention of the viewer, reliability of the description given, degree of certainty of identification and the lapse of time between the episode and the subsequent viewing. 409 U.S. at 199-200, 93 S.Ct. at 382-383. In Manson v. Brathwaite, supra, wherein a single photograph of the potential drug dealer was presented to the witness,- the Court resolved a split of authority in the Courts of Appeals that had developed since Biggers.

One approach, the per se approach, had required exclusion of out-of-court identification, without regard to reliability, whenever it had been obtained through unnecessarily suggestive confrontation procedures. The more lenient approach continued to rely on the totality of the circumstances, permitting the admission of evidence if, despite the suggestive procedures, the identification possessed certain features of reliability.

The Court in Manson adopted the second, more lenient approach, holding the identification evidence admissible, stating that: [Rjeliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers. 409 U.S. at 199-200, 93 S.Ct. at 382-383.

These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the ’ confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. 432 U.S. at 114, 97 S.Ct. at 2253. This Court has utilized the Biggers factors in several decisions. See U.S. v. Hamilton, 684 F.2d 380 (6th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 312, 74 L.Ed.2d 291 (1982); Summit v.

Bordenkircher, 608 F.2d 247 (6th Cir.1979); U.S. v. Russell, 532 F.2d 1063 (6th Cir.1976). In U.S. v. Russell, supra, the appellant was convicted of bank robbery. At trial, three witnesses identified appellant. The first witness selected a photograph from an array. No suggestive conduct occurred before her selection of appellant’s picture. Her identification was not entirely positive. The FBI agent told her after her selection that this was “the guy we think probably did it.” The second witness also made a photographic identification.

She appeared to be under the assumption that the robber’s photograph was in the array presented to her. She narrowed the possibilities down to two photographs, and finally chose one. At this point, the agent told her that she had chosen the wrong one, and that the other photograph was of the person they believed to be guilty. The third witness was also shown a photographic array, but was unable to make an identification. He made an identification of appellant, however, but only after he observed appellant in manacles just before the preliminary hearing.

This Court held that the identification by the first witness was admissible, primarily because she had already selected the photograph before the suggestive comment was made. 532 F.2d at 1068. The Court found, however, that the photographic identification procedure for the second witness was impermissibly suggestive, and that it created a substantial likelihood for misidentification of appellant. Therefore, the Court held it inadmissible. Id.

As to the third witness the Court held that it was suggestive to permit a witness to observe a defendant in manacles.- It consequently held that, in order for the identification to be admissible, the trial judge had to find that this witness’ identification of appellant had to be on a basis independent of his custodial situation in manacles. Id. at 1069. The victim in this case had a good opportunity to view her assailant since the attack occurred during daylight and she was confronted frontally when she was stopped on the path and when she regained consciousness during the attack.

Her attention was focused upon her attacker during a very personal and humiliating experience at close range. The victim’s description of the man, despite lapses into unconsciousness, and while generalized, was accurate. The one-day time span between the attack and the time of identification was quite short. The identification of appellant, furthermore, was reasonably sure under the circumstances. The most serious question raised by appellant is directed to the factor of the level of certainty demonstrated at the confrontation. The victim’s initial reaction was that appellant was not the man.

At trial, however, the victim and the officer testified that the reason for her initial reaction was that she was frightened that if she identified appellant that he would somehow “get” her. The district court found that this adequately explained her initial reaction. In view also of the certainty displayed after the second 'viewing, there appears to be ample evidence to support the state appellate court’s finding that the identification was sufficient to meet Biggers standards. “A defendant is denied due process only when the identification evidence is so unreliable that its introduction renders a trial unfair.

As long as there is not a substantial likelihood of misidentification, it is the function of the jury to determine the ultimate weight to be given the identification.” Summit v. Bordenkircher, 608 F.2d 247, 253 (6th Cir.1979) (citing Manson v. Brathwaite, supra). In this case we cannot find the identification evidence to have been unreliable so as to deny Smith a fair trial, nor did it involve in our view substantial likelihood of misidentification. Appellant argues that the choking simulation at the victim’s second viewing was impermissibly suggestive.

We conclude, however, that these circumstances were not so suggestive as to deny appellant’s right to due process, as was the identification of the defendant in manacles in Russell, supra. Even if the procedures were suggestive to some degree, in this case, there was an independent basis for the victim’s identification; the selection of appellant’s photograph from the array presented her, a situation unlike that in Russell, supra. We affirm, therefore, the district court’s decision to deny appellant’s petition for a writ of habeas corpus. Accordingly, the judgment of the district court is AFFIRMED. .

Each of the factors enumerated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), infra, were considered in these findings.