Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 C 7251 -- George N. Leighton, Judge.
Before COFFEY and RIPPLE, Circuit Judges and CAMPBELL, Senior District Judge.*fn*
COFFEY, Circuit Judge. Melvin Haywood, petitioner-appellant, appeals the district court's denial of his petition for a writ of habeas corpus. We affirm.
The facts of this case have been detailed in previously reported opinions, People v. Haywood, 60 Ill. App. 3d 236, 376 N.E.2d 328, 17 Ill. Dec. 329 (Ill. App. Ct. 1978); U.S. ex rel. Haywood v. Wolff, 490 F. Supp. 1154 (N.D. Ill. 1980); U.S. ex rel. Haywood v. Wolff, 658 F.2d 455 (7th Cir. 1981), thus we will delineate only those facts necessary to this appeal. We are mindful that 28 U.S.C. § 2254(d)*fn1 requires us to presume the accuracy of the findings of fact of state courts. Sumner v. Mata, 455 U.S. 591, 597-98, 71 L. Ed. 2d 480, 102 S. Ct. 1303 (1982); United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1153 (7th Cir. 1987).
In the early morning hours of July 2, 1972, three men*fn2 entered an apartment at 1448 East 68th street in Chicago, Illinois. Shortly after entry, shooting erupted resulting in the deaths of two men, Lee Jackson and william Throop, and one Woman, Melba Grate, Two other men, Charles Stanton and Harry Daniels, were wounded. At the hospital. Stanton told Officers Thomas McKenna and Thomas Ferry that the man who shot him was short and stocky and that while in the apartment he had seen a picture of at least one of the assailants. Upon investigation after the shooting, the officers discovered a number of pictures in the apartment (approximately 120). Officer McKenna and his partner returned to the hospital and displayed the pictures (approximately 120) to Stanton and asked him to indicate with a mark on the back of any of the pictures any person he could identify as being part of the group of people present during the shooting. Stanton marked four separate pictures of Haywood identifying him as one of the three men who had entered the apartment on July 2, 1972 and participated in the shooting spree. Stanton also identified Harry Daniels and Willie Bedgood as the other two men involved from a second group of pictures.
Based upon Stanton's positive photographic identification of Haywood and the information he gave to the police, a murder warrant was issued for Haywood's arrest shortly thereafter but was not executed until almost two years later on June 12, 1974. On July 11, 1974, a preliminary hearing was held to determine if there was probable cause to believe that Haywood had committed a crime. Ill. Rev. Stat. ch. 38 § 109-3(a); see also Williams v. Kobel, 789 F.2d 463, 468 (7th Cir. 1986).*fn3 Stanton when called as a witness entered the courtroom from the back of the room and took the witness stand. When a asked to identify the person who killed Melba Grate and wounded him, Stanton, a black man, in reply to a question on cross-examination as to how long he looked at Haywood before identifying him replied "four or five" seconds before pointing to Haywood and described what he was wearing. Haywood was identified while sitting at a counsel table.*fn4 Stanton testified that Haywood shot him while in the living room and that he*fn5 an another woman, Shirley Scott, ran back to a rear bedroom where Scott hid in a closet and he hid under a bed. He further testified that he was able to observe Haywood murder his girlfriend with a shot to the head. Haywood then entered the bedroom and directed Stanton to get up, and fired at him again, this time hitting him (Stanton) in the stomach causing him to fall to the floor. Stanton was hospitalized and succumbed thereafter of causes unrelated to the shooting before Haywood's trial.*fn6 A short time later a Cook County grand jury returned a five count indictment charging Haywood with three murders, attempted murder, and aggravated battery.
Although Stanton died of causes unrelated to the shooting before being able to testify at Haywood's trial, he did live long enough to have an opportunity to testify for the prosecution and identified Willie Bedgood as one of the other gunmen at Bedgood's trial. Bedgood was subsequently acquitted.
Prior to Haywood's trial, he made a motion to suppress Stanton's identification of him at the hearing as the individual who had shot Stanton and killed Melba Grate on the grounds that it was the result of an unnecessarily suggestive courtroom confrontation and the admission of the identification testimony would deny Haywood his due process rights. The state trial judge after hearing testimony and argument ruled that there was "nothing suggestive" about the confrontation at the preliminary hearing and, in any event, that Stanton's identification of Haywood had a prior independent origin (He had an excellent opportunity to view Haywood at the time the crime was committed) and was therefore reliable. The state trial judge also noted that Stanton had also made an independent identification of Haywood from the pictures displayed to him at the hospital.*fn7
At Haywood's trial the defense attempted to cross-examine one of the investigating officers, Thomas McKenna as to whether the two other men identified by Stanton, Daniels and Bedgood, as Haywood's fellow gunmen had been charged, and if so, whether they were convicted.*fn8 The state objected and the trial court sustained the objection as being irrelevant.
The petitioner was convicted of murder, attempted murder, and aggravated battery in the Circuit Court of Cook County, Chicago, Illinois. His conviction was affirmed by the Illinois Appellate court. People v. Haywood, 60 Ill. App. 3d 236, 376, 17 Ill. Dec. 329, 376 N.E.2d 328 (N.E.2d 328 (Ill. App. Ct. 1978). The Illinois Appellate Court rejected both of the arguments Haywood advances on this appeal holding (1) that "the record reflects that Stanton . . . [had] an excellent opportunity to view the defendant during the commission of the instant crimes and the trial court did not err in allowing into evidence Stanton's identification of the defendant at the preliminary hearing," 376 N.E.2d at 334, and (2) that the trial court did not abuse its discretion in not allowing cross examination regarding whether Bedgood and Daniels had been charged and convicted since "the jury . . . could have been invited into an area of conjecture and speculation" as to why Bedgood was charged and tried but not convicted and Daniels was charged but never brought to trial. Id. at 335. Haywood was denied leave to appeal by the Illinois Supreme Court and the United States Supreme Court refused to grant certiorari.*fn9
Thereafter Haywood petitioned the federal district court for a writ of habeas cross alleging that his Sixth and Fourteenth Amendment rights were violated when the transcript of Stanton's testimony from his (Haywood's) preliminary hearing was admitted in evidence despite his objection that he did not have an adequate opportunity to cross-examine Stanton (who succumbed before trial).*fn10 The district court granted the habeas writ finding that the use of the preliminary hearing transcript of Stanton's testimony resulted in the denial of Haywood's right of confrontation since the was not given an adequate opportunity to cross-examine Stanton at the preliminary hearing. U.S. ex rel. Haywood v. Wolff, 490 F. Supp. 1154 (N.D. Ill. 1980). This court reversed the granting of the writ of habeas corpus, U.S. ex rel. Haywood v. Wolff, 658 F.2d 455 (7th Cir. 1981), and remanded, holding that no constitutional violation occurred since the "circumstances under which [the witness] Stanton testified in the cross-examination that was allowed at the preliminary hearing provided sufficient indicia of the reliability of his testimony to justify consideration of it by the jury." Id. at 464. The district court did not address the other grounds for relief Haywood asserted in his original habeas petition.
On remand, Haywood requested that the district court address the alternative grounds he had asserted in his original petition for habeas corpus relief: (1) that the trial court's reception of Stanton in-court identification testimony, of him as the murderer of Grate and his (Stanton's§ assailant during the preliminary hearing was inadmissible, as being unnecessarily suggestive, thus denying him his due process rights under the Fourteenth Amendment of the United States Constitution and (2) that the state trial judge's refusal to allow Haywood to cross-examine Officer McKenna about the final disposition of the criminal proceedings against Daniels and Bedgood denied him his Sixth Amendment rights. 658 F.2d 455 at 459 n.9. The district court denied the petition, stating that since there was an independent photographic identification "any claimed suggestiveness in the procedures utilized at the preliminary hearing is irrelevant." United States ex rel. Haywood v. O'Leary, No. 84 C 7251, Memo. Op. at 9 (N.D. Ill. Jan. 16, 1986). The court also found that the state court's refusal to allow cross-examination of Officer McKenna as to the disposition of criminal proceedings against Bedgood and Daniels did not deny Haywood a fair trial. Id. 10. The district court noted that no facts were presented that could even hope to "raise an inference of mistaken identification." Id. In reaching its decision the trial court further noted that "the fact that Daniels was never prosecuted was introduced into evidence when he testified for petitioner." Id. Haywood requested and the district court granted a certificate of probable cause and Haywood appealed to this court.
Haywood appeals the denial of his writ of habeas corpus making two arguments. Initially, he argues that Stanton's identification of him "was so suggestive as to amount to irreparable mistaken identification and should have been excluded." Secondly, he argues that the district court committed error when finding that he was not denied a fair trial when the state court refused to allow him to cross-examine the police officer (McKenna) as to the results of the criminal proceedings instituted against Daniels and Bedgood.
Haywood argues that since Stanton's in-court identification of him at the preliminary hearing was so unnecessarily suggestive and conducive to irreparable mistaken identification citing Stovall v. Denno, 388 U.S. 293, 301-2, 18 L. Ed. 2d 1199,, 87 S. Ct. 1967 (1967), that he was denied his due process rights under the Fourteenth Amendment of the United States Constitution. Haywood attacks the in-court identification on the grounds (1) that the identification was unduly suggestive because he was the only black seated at the defense counsel table and he was continually referred to as "the defendant," and (2) that the facts surrounding Stanton's alleged encounter with him on the ill-fated evening of July 2, 1972, were such that Stanton's identification was unreliable (i.e., the lighting was bad).
The purpose of a preliminary hearing under Illinois law is for the limited purpose of allowing a court to make a judicial determination as to whether probable cause exists to believe an offense has been committed. Ill. Rev. Stat. Ch. 38, § 109-3(a); Williams v. Kobel, 789 F.2d 463, 468 (7th Cir. 1986); People v. Puleo, 96 Ill. App. 3d 457, 421 N.E.2d 367, 51 Ill. Dec. 859 (Ill. App. Ct. 1981). We emphasize that a preliminary hearing is not intended to be a discovery proceeding. People v. Horton, 65 Ill. 2d 413, 358 N.E.2d 1121, 3 Ill. Dec. 436 (1976). See also People v. Blackman, 91 Ill. App. 3d 130, 414 N.E.2d 246, 46 Ill. Dec. 524 (Ill. App. Ct. 1980). Our analysis of Haywood's Fourteenth Amendment due process claim involves a two-prong analysis developed in the decisions Manson v. Brathwaite, 432 U.S. 98, 109-14, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), and Neil v Biggers, 409 U.S. 188, 198-99, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). To establish that Stanton's in-court identification of the petitioner as one of the perpetrator so the crimes referred to above was go suggestive as to deny him his protection under the due process clause, Haywood must initially demonstrate that the procedures involved in the in-court identification were unduly suggestive. Secondly, if the court determines that the in-court identification procedures were unduly suggestive, it must then decide, after considering the totality of the circumstances, whether the identification is reliable to a degree that it does not create a very substantial likelihood of irreparable misidentification. See United States ex rel, Kosik v. Napoli, 814 F.2d 1151, 1155 (7th Cir. 1987); United States v. Wisniewski, 741 F.2d 138, 143 (7th Cir. 1984); United States v. Briggs, 700 F.2d 408, 412-13 (7th Cir. 1983).
At the preliminary hearing, Stanton identified Haywood as his and his girlfriend's attacker after questioning by the prosecution:
"Q: Do you see the person who shot Melba Grate and who shot yourself at the time and date in ...