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August 31, 1983


The opinion of the court was delivered by: Bua, District Judge.


This case is before the Court on a petition for a Writ of Habeas Corpus. 28 U.S.C. § 2254. Now pending is the respondents' Motion for Summary Judgment. For the reasons stated herein, summary judgment is granted for the respondents.

On April 11, 1980, Petitioner Walter Canity was tried by a jury in the Circuit Court of Lake County, Illinois and found guilty of the offenses of deviate sexual assault, Ill. Rev.Stat. 1979, ch. 38, par. 11-3(a), and burglary, Ill.Rev.Stat. 1979, ch. 38, par. 19-1(a). After the Circuit Court vacated the burglary conviction, petitioner was sentenced to a term of six years in the Department of Corrections on the sexual assault charge. The conviction was affirmed in the Illinois Appellate Court. People v. Canity, 100 Ill. App.3d 135, 55 Ill.Dec. 445, 426 N.E.2d 591 (2nd Dist. 1981). After a petition for leave to appeal to the Illinois Supreme Court was denied, petitioner filed this lawsuit.

Petitioner's conviction arose out of an incident which occurred in the early morning hours of July 24, 1979. On that date, Mary Duke Harlan was awakened from her sleep by voices outside of her window, one of which she recognized as that of Robert Wolff, a witness at petitioner's trial. As she began to doze off, she was again awakened, this time by a man standing at the side of her bed. In the light from the outside pool and that reflecting from her kitchen, she was able to observe this man for roughly a minute and a half. He then ordered her to bury her head into her pillow and submit to an act of deviate sexual conduct.

She later described her attacker as a black male, approximately six feet tall, roughly 30 years old, and weighing 200 pounds. She testified that he had a gap between his front teeth; however, it does not appear that this characteristic was given to the investigating officers. Defendant does, indeed, have a gap between his teeth. He testified that he is five feet, eight inches tall and weighs 180 pounds.

On August 6, 1979, a black male was observed at the apartment complex by David Harris and by Lake County Sheriff's Deputy Dan Dunn. Harris spoke with the man for about two minutes from a distance of about 75 feet. He described the individual as being five feet, ten inches tall and weighing roughly 180 pounds. He estimated that the individual was in his twenties and noted that he was wearing a peach-colored shirt with grey trousers.

Dunn first saw the man standing next to the mailboxes in the entranceway to the apartment complex. When first asked what he was doing, the man replied that he lived in the building. However, Dunn later determined that no blacks lived in the building.

During the evening of August 14, 1982, and into the following morning, the Lake County Sheriff's Department was involved in a stake-out of the apartment complex where Harlan, the victim of the assault, resided. The stake-out was undertaken in response to reports of a black prowler. Sometime around midnight, petitioner, who was employed as a U.S. Army recruiter, drove an army vehicle into the parking lot at the apartment building. After parking the vehicle, he began walking around the building. He testified that he was looking for the building in which a friend of his lived. Once he realized that he was unable to determine which building the friend lived in, he began to return to his car. He then realized that the friend might have been living in a building in the complex which he had not previously seen and went by that building. Again unable to find his friend, he started back toward his car. Once he reached the car, he was approached by two individuals who identified themselves as deputy sheriffs and asked him for identification. He gave the officers his military identification card. One officer then said to the other, "Hold him here while I go get the witnesses." Two men were then brought to look at the petitioner while he was illuminated by flashlights and told to stand in various positions. Two women also viewed the defendant. One of them, the victim Mary Harlan, returned two more times to view the petitioner, once when he was seated inside the police car.


Petitioner now makes two claims. First, he asserts that his conviction is based on improperly admitted identification testimony which was secured as a result of an impermissibly suggestive show-up procedure.

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court rejected a per se test which would have excluded all identification testimony regardless of reliability whenever it had been obtained through confrontation procedures which were deemed to be unnecessarily suggestive in favor of a "totality of the circumstances" test. Under the totality of circumstances test, confrontation evidence is admitted if, despite being suggestive, "the out-of-court identification possesses certain features of reliability." 432 U.S. 98, 110, 97 S.Ct. 2243, 2251, 53 L.Ed.2d 140. The factors upon which the reliability determination shall be made are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Against these factors, this Court must weigh the corrupting effect of the suggestive identification itself. 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140.

In the instant case, two of the identification witnesses placed the petitioner at the scene of the assault on the night of the incident, while the other two merely identified him as an individual they had seen prowling around the building some 13 days later. Utilizing the Manson standards, the identification testimony of the witnesses who claim to have observed petitioner nearly two weeks after the attack was clearly properly admitted.

The testimony of Mr. Harris clearly reveals that his identification of the petitioner was reliable. As the Illinois Appellate Court noted, Harris had sufficient opportunity to view the criminal as petitioner was standing near a light and was only 75 feet from the witness during their two-minute conversation. Because the witness and petitioner were engaged in conversation, the witness' attention was undoubtedly focused on petitioner. Furthermore, Harris' description of petitioner was quite accurate and the identification was made with a high degree of certainty. Finally, only nine days elapsed between the time Harris first saw petitioner and the identification. In view of these factors, even if Harris' identification of petitioner was unnecessarily suggestive, it was clearly reliable and therefore properly admitted into evidence.

The identification testimony of Dan Dunn also was clearly reliable. He saw petitioner from a distance of two or three feet in a lighted hallway wherein Dunn spoke with petitioner. Clearly, his opportunity to view defendant was good and his degree of attention was high. In addition, while he did not describe the individual he had seen on August 6, 1979 at the time of the identification, when, at the pre-trial hearing, he did describe the prowler, his description quite accurately described petitioner. He was quite certain of the identification and, like Harris, made the identification but nine days after first ...

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