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Decided: June 2, 2014

The Fourth Circuit held that the pre-trial identification process used to identify the appellant was not impermissibly suggestive, and even if it were unduly suggestive, that the witness’s identification of appellant was reliable.  Affirmed.

Appellant sought federal habeas relief after his state convictions for assault with a deadly weapon with intent to kill, first-degree murder, and two counts of robbery with a dangerous weapon were affirmed on direct appeal.  The district court denied the petition, and declined to issue a certificate of appealability; the Fourth Circuit then granted a certificate of appealability, and affirmed the ruling of the district court.  The Court relied upon Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012), which established a two-part test to determine whether an in-court eyewitness’s identification must be suppressed.  The test requires a court to first consider whether the identification procedure employed by the police was both suggestive and unnecessary, and, second, assess whether improper police conduct creates a substantial likelihood of misidentification.

The witness observed that the appellant was not wearing a mask for five seconds from a distance of twenty-five feet.  Prior to trial the witness was presented with two photographic displays, each containing the appellant’s photograph.  Witness did not positively identify appellant from these arrays.  At a hearing before trial, witness confidently identified appellant as the person he witnessed at the scene of the crime.  Appellant argued that the pretrial identification procedures relating to the photographic arrays were impermissibly suggestive and violated due process.

The Court reasoned that “the North Carolina state court’s rejection of [appellant’s] claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court,” and affirmed the lower court’s denial of appellant’s petition for habeas relief.  The Court found that the photographs of appellant were substantially different in each photographic array.  Further, the record reflected no evidence that police “rigged” the appellant’s identification.

Full Opinion

Chris Hampton