Appeal from the United States District Court for the Western District of Wisconsin, No. 80 C 55--James E. Doyle, Judge.
Before COFFEY, EASTERBROOK, and RIPPLE, Circuit Judges.*fn*
Johnny Lee Love was convicted before a jury in a Wisconsin trial court of first degree sexual assault. The Wisconsin Appellate Court, in an unpublished opinion, affirmed his conviction and the Supreme Court of Wisconsin denied certiorari. Love then sought review of his conviction in the United States District Court for the Western District of Wisconsin, but that court denied his petition for habeas corpus. We affirm.
In the early morning hours of January 2, 1977, two men raped a young woman in Madison, Wisconsin. The men initially called to the woman from an apartment building and, after she walked away, assaulted her with a knife. The two men restrained the woman, forcing her to walk across a well-lit parking lot and onto a small porch behind an apartment building where they raped her at knifepoint. The victim gave the police accurate descriptions of her two assailants within 30 minutes after the assault. That afternoon the victim identified Love's photograph from a book containing approximately 50 to 60 photographs. On the back of each photograph was the name, date of birth, height, weight, and "sex background" of the subject. On the back of Love's photograph was: "Suspicion of rape at 121 West Gilman Street, 11/28/76, on parole for rape." The victim was assaulted behind 121 West Gilman Street. At trial, the victim testified that she did not look at the writing on the back of the photographs before she identified Love's photograph. She did testify, though, that after identifying Love she looked at the back of the photograph and recalled seeing his name and nothing else. Detective Mary Ostrander, who conducted the identification session, testified that although the victim could have seen the writing before looking at the photograph, the victim "didn't pay any attention to the names. She just flipped through the pictures." When she identified the photo of Love the victim stated: "that looks like the man except he doesn't have any facial hair." When the victim later was shown a different picture of Love without any facial hair, she identified him without hesitation as her assailant.
Love was arrested on January 3, 1977, on an unrelated charge of battery, and arraigned on January 11, 1977, for the rape. An attorney was appointed to represent him. Two days later, while in jail, Love was interviewed by Detective Lombardo. Love denied any knowledge of the attack but made statements about his activities on the evening in question that are inconsistent with the testimony he gave at trial. Love told Lombardo that he always wore an earring "while out socializing" and that the only man he spoke to in a Greek restaurant on the night of the attack was black.
Prior to the preliminary hearing, Love moved for an out-of-court or an in-court line-up. This motion was denied. At the preliminary hearing, the victim saw Love for the first time since the rape and positively identified him as one of her attackers. Love was the only black man in the courtroom at the time.
At trial, in response to a question regarding the identification process, Detective Ostrander stated: "Yes. I took her to our Detective Bureau, where we have a permanent file of sex offenders, and she went through the entire file." Love's counsel immediately moved for a mistrial; this motion was denied. At trial, Love testified that he spoke briefly with a white male at a Greek restaurant on the night of the rape and that he was not wearing an earring on that night. On rebuttal, Detective Lombardo contradicted Love's testimony and testified that when he interviewed Love shortly after his arrest Love had told him that he (Love) always wore an earring "while out socializing" and that he (Love) had spoken only with a black man at the Greek restaurant.
At the end of trial, Love's attorney submitted a proposed jury instruction on eyewitness identification. The trial court declined to give this instruction and instead gave the standard Wisconsin pattern instruction on credibility of witnesses. Further facts concerning the evidence introduced at trial will be detailed later in this opinion.
Love now raises the following issues: (1) whether the out-of-court photograph array identification and the identification procedure at the preliminary hearing were impermissibly suggestive and denied Love his Fourteenth Amendment right to due process of law; (2) whether Detective Ostrander's statement at trial that she took the victim to the Detective Bureau, "where we have a permanent file of sex offenders," rendered the trial fundamentally unfair; (3) whether the admission at trial of Love's statements to Detective Lombardo, taken without the presence of Love's counsel, violated Love's Sixth Amendment right to counsel, and if so, whether this error was harmless; and (4) whether the trial court's refusal to give Love's requested instruction on the eyewitness identification made the trial fundamentally unfair.
A. Identification Procedures
The victim identified Love as her assailant from a picture in a book of suspects. The backs of the pictures indicated the name, height, weight, date of birth, and "sex background" of each suspect. "Suspicion of rape at 121 West Gilman Street, 11/28/76, on parole for rape," was written on the back of Love's photograph. The victim's initial confrontation of Love after the attack occurred during the preliminary hearing; at the time, Love was seated at the defense table and was the only black man in the courtroom. Love argues that both the photographic and in-court procedures used to identify him were unduly suggestive and thus violated his Fourteenth Amendment right to due process.
Relying on the victim's testimony that she did not see the written description on the back of Love's picture and Detective Ostrander's testimony that the victim paid no attention to the written inscriptions before identifying Love as the assailant, the Wisconsin Appellate Court found that the identification of Love in the photographic array was not impermissibly suggestive. The Wisconsin Appellate Court also held that the identification procedures employed at the preliminary hearing were extremely employed at the preliminary hearing were extremely suggestive, but that the victim's identification of Love as her assailant was sufficiently reliable to satisfy any due process challenge. The district court concurred in each of these conclusions.
The basis of Love's Fourteenth Amendment due process claim is that the pre-trial identification procedures used by the state were so inherently unreliable that there was a substantial chance of misidentification. The analysis of Love's Fourteenth Amendment due process claim involves two steps. Initially, it must be demonstrated that those procedures were unduly suggestive. See Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977); Griswold v. Greer, 712 F.2d 1200, 1204 (7th Cir. 1983). If the court finds that these procedures were unduly suggestive, it must then determine, considering the totality of the circumstances, whether the out-of-court identification was nevertheless reliable. Manson v. Brathwaite, 432 U.S. at 114; Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). The Wisconsin Appellate Court found that the photographic array was not unduly suggestive because the victim testified that she did not see the written inscriptions on the back of Love's photograph until after she had identified him. This finding of fact by a state court is entitled to a presumption of correctness. Sumner v. Mata, 455 U.S. 591, 597, 71 L. Ed. 2d 480, 102 S. Ct. 1303 (1982). Cf. Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445, 453, 88 L. Ed. 2d 405 (1985) (findings on subsidiary facts bind federal courts unless subject to challenge under statutory criteria). Love does not challenge this finding. If the victim did not see the written inscription, the photographic array was not unduly suggestive in practice, despite its potential for suggestiveness.*fn1
Love next contends that the victim's in-court identification of Love as the assailant at the pretrial hearing was unduly suggestive because he was the only black person in the courtroom. Both the Wisconsin Appellate Court and the district court found that the in-court identification was unnecessarily suggestive,*fn2 but that, considering the totality of the circumstances (see Stovall v. Denno, 388 U.S. 293, 301-02, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967)), the victim's identification of Love as her assailant was nevertheless reliable. Cf. United States v. Bush, 749 F.2d 1227, 1235 (7th Cir. 1984) (Coffey, J., concurring). The factors that a court must consider when ...