NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0788n.06
Filed: September 9, 2005
No. 04-1335
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FREDERICK GRAYER, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
KENNETH MCKEE, Warden, ) EASTERN DISTRICT OF MICHIGAN
)
Respondent-Appellee. )
)
Before: MOORE and COOK, Circuit Judges; GWIN, District Judge.*
COOK, Circuit Judge. Frederick Grayer appeals the district court’s dismissal with prejudice
of his petition for a writ of habeas corpus. Because the state court did not unreasonably apply
clearly established federal law in deciding Grayer’s first three claims and because Grayer’s fourth
claim, though unexhausted, lacks merit, the court affirms.
I
*
The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
1
A Michigan jury convicted Grayer of the carjacking and armed robbery of an elderly woman
in a Detroit parking lot. According to the victim, Grayer entered her car at knifepoint, causing her
to flee, screaming for help. As the victim escaped, Jane Mencer—the key witness in the case against
Grayer—entered the parking lot. Mencer pulled in front of Grayer, attempting to block his car with
hers. Grayer, undeterred, went around her and sped off. Mencer gave chase for what she recalled
to be “several miles,” for “five to seven minutes,” before pulling up next to Grayer at a red light.
According to Mencer, she then observed Grayer’s face and profile for one to two minutes and even,
at one point, yelled to him through their open windows, “I know what you did and you’re going to
be caught, get out.” Mencer, realizing that she might be called to identify Grayer, carefully noted
his facial features, body build, clothing, and overall appearance. Grayer then drove away and
Mencer lost him when he drove onto a highway.
After Grayer’s arrest and sometime before trial, Mencer identified Grayer as the carjacker
from two photos of Grayer a parole officer showed her. Mencer later observed a live lineup and in
“a second” picked Grayer out from among four others as the carjacker. And at trial, she again
pointed Grayer out as the carjacker, leading the jury to find Grayer guilty of carjacking and armed
robbery.
Grayer appealed his convictions, raising three issues—the photo lineup Mencer viewed was
unduly suggestive; the jury instruction concerning the photo lineup was erroneous; and his
convictions for both carjacking and armed robbery constituted double jeopardy—all of which the
Michigan Court of Appeals rejected. People v. Grayer, No. 217954, 2001 WL 740581 (Mich. Ct.
2
App. Feb. 16, 2001) (per curiam). Grayer then applied for leave to appeal in the Michigan Supreme
Court, which that court denied. People v. Grayer, 635 N.W.2d 319 (Mich. 2001).
With his direct, state-court avenues closed, Grayer petitioned for federal habeas relief,
raising the same three issues he raised before the Michigan state courts, plus an additional Brady
claim. The district court dismissed the “mixed” petition, because Grayer had not exhausted his
Brady claim in the state courts. Grayer again petitioned for federal habeas relief, referencing the
earlier district court decision and raising “only the issues exhausted by the state.” In his amended
petition, he also arguably raised a new unexhausted malicious-prosecution claim, alleging that he
“should have only been charged with Receiving and Concealing stolen property.” The district court
considered his three exhausted arguments and rejected them. The district court, however, failed to
address Grayer’s malicious-prosecution claim. The Sixth Circuit granted a certificate of
appealability for all four claims.
II
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), courts review a
district court’s legal conclusions de novo and its factual findings for clear error. Vincent v. Seabold,
226 F.3d 681, 684 (6th Cir. 2000). We will not grant a writ of habeas corpus unless we conclude
that the state court’s decision: “(1) was contrary to, or involved an unreasonable application of,
clearly established Federal law . . . or (2) was based on an unreasonable determination of the facts.
. . .” Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir. 2004) (internal quotations and citation
omitted).
3
A. Photo Display
Grayer claims the photos shown to Mencer for purposes of identifying the carjacking
suspect2 were unduly suggestive, such that they violated his federal due-process rights. See Carter
v. Bell, 218 F.3d 581, 605 (6th Cir. 2000). The Michigan Court of Appeals rejected this argument,
holding that even though the photos were suggestive, the totality of the circumstances showed the
identification to be reliable. Grayer, 2001 WL 740581, at *2-3. There appears nothing
unreasonable concerning the state court’s analysis of the facts of this case and its application of
Supreme Court precedent.
In reviewing a due-process claim involving an identification procedure, the Supreme Court
has adopted a two-part test: (1) the defendant must show the identification procedure was
impermissibly suggestive; and (2) if the procedure was suggestive, the court examines the totality
of the circumstances to determine whether the identification was nonetheless reliable. United States
v. Hill, 967 F.2d 226, 230 (6th Cir. 1992) (synthesizing Supreme Court precedent). In examining
the totality of the circumstances, this court considers several factors, including: “(1) the witness’s
opportunity to view the criminal at the time of the crime; (2) the witness’s degree of attention at the
time of the crime; (3) the accuracy of the witness’s prior description of the defendant; (4) the
witness’s level of certainty when identifying the suspect at the confrontation; and (5) the length of
2
A parole officer testified that she showed Mencer two photos of Grayer. Mencer, however,
testified that the officer showed her three or four photos, including two of Grayer. See Grayer, 2001
WL 740581, at *1. The state court and district court accepted the parole officer’s description of the
array—the more suggestive of the two.
4
time that has elapsed between the crime and the confrontation.” Id. (citing Neil v. Biggers, 409 U.S.
188, 199-200 (1972)).
Here, the Michigan Court of Appeals found the familiar Biggers factors demonstrated
reliability. That is, Mencer examined Grayer’s face for one to two minutes as their cars sat side by
side, making a “deliberate effort to observe and remember the description of the driver and his
clothing.” Grayer, 2001 WL 740581, at *2. Mencer consistently described Grayer throughout the
proceedings, even articulating “differences that she noticed between defendant’s appearance in the
photographs, the live lineup, and in court.” Id. at *3. And a police officer testified that Mencer
“was quite adamant” that she could identify Grayer at the live lineup and then did so without
hesitation. Id.
The state court’s application of the Biggers factors is not unreasonable, as at least the first,
second, fourth, and fifth factors clearly demonstrate a reliable and independent identification.3 See
United States v. Meyer, 359 F.3d 820, 825-26 (6th Cir. 2004) (finding weight of first, second, and
fourth factors demonstrated reliable identification). Concerning factor one, Mencer had the
opportunity to view Grayer’s profile and face for one to two minutes at the red light. See Hill, 967
F.2d at 232-33 (finding “a couple of minutes” a sufficient opportunity to view the suspect); Meyer,
359 F.3d at 825 (finding two to four minutes a sufficient opportunity). Given that during those two
3
This is not to say that factor three necessarily weighs against the reliability of the
identification. Under factor three, courts consider the accuracy of the witness’s observation. Here,
Mencer’s description of Grayer suffered from only minor discrepancies—for instance, she testified
that he was 5’9”-5’10” tall, when, in fact, Grayer stands at 5’6.” Such a difference, however, does
not necessarily render an identification unreliable. See, e.g., Walton v. Lane, 852 F.2d 268, 274 (7th
Cir. 1988) (discounting minor differences concerning suspect’s weight and height in assessing
accuracy of identification).
5
minutes, Mencer and Grayer’s cars sat next to each other in daylight hours—with the windows open,
with Mencer’s larger Grand Prix allowing her to look down into Grayer’s smaller Dodge Neon
(allowing a vantage to view both his face and body), and with Grayer turning his face to Mencer
when she spoke to him—Grayer fails to overcome the presumption of factual correctness AEDPA
supplies to the court’s reliability determination.
The concurrence thinks otherwise, finding the “time of day, the ability to see only the
carjacker’s profile except for a short frontal view, the distance between the cars, the need to view
through another car,” all weigh against Mencer’s opportunity to observe Grayer. Though the
concurrence rightly defers to the state court, under AEDPA, on the ultimate question of whether
Mencer’s identification was reliable, it largely abandons AEDPA’s presumption of factual
correctness when assessing Mencer’s testimony. That is, under AEDPA, courts presume that factual
findings made by the state court are correct, unless the petitioner produces clear and convincing
evidence to rebut that presumption. 28 U.S.C. § 2254(e)(1). And when assessing witness
credibility, our review becomes even more deferential, as appellate courts are in no position to
second guess credibility findings made by the trier-of-fact. See Seymour v. Walker, 224 F.3d 542,
551-52 (6th Cir. 2000).
The concurrence, however, resists the § 2254(e)(1) presumption by positing alternatives.
For instance, Mencer testified that, though it was 7:45 PM, it was still daylight when she observed
Grayer. Yet the concurring opinion, by expressly finding the time of day as hindering Mencer’s
ability to view Grayer, seems to challenge that testimony without any support from the record.
Likewise, though Mencer testified that her car sat higher than Grayer’s Neon, allowing her to see
6
Grayer’s body and clothing, the concurring opinion devalues that testimony as “implausible” by
assuming the two sedans sat at the same height.
The concurrence also posits that Mencer, for most of the chase, “at best,” could see the back
of Grayer’s head. Mencer, however, testified that she was able to view Grayer’s face, not only at
the red light, but while in pursuit, as their cars drove side by side for a part of the chase.4 Again, the
concurring opinion takes issue with Mencer’s testimony, though the trial court labeled her as “very
credible”. Without any clear and convincing evidence presented by Grayer or found in the record,
ADEPA review disregards such credibility second-guessing at the appellate level.
Though limited in duration, the opportunity to identify Grayer was, according to the record
before us, excellent given Mencer’s steadiness under the circumstances together with her heightened
degree of attention—considerations relevant under the second Biggers factor. According to Mencer,
she carefully noted Grayer’s face, body build, and overall appearance for the very purpose of
identifying him for police. See Ledbetter v. Edwards, 35 F.3d 1062, 1072-73 (6th Cir. 1994)
(finding reliable identification where witness “devoted her full attention to [suspect’s] face as she
stared at it from very close range”); Howard v. Bouchard, 405 F.3d 459, 473 (6th Cir. 2005) (noting
that an interested witness’s observation tends to be more reliable than that of a disinterested
bystander). Mencer even testified at one point during the proceedings that her father had taught her,
as a safety measure, to identify people by observing their noses and eyes—a faculty she relied upon
4
At the Wade hearing, the prosecutor asked Mencer: “And so you got a full face view of Mr.
Grayer for approximately how long?” She replied: “For at the light it was two or three minutes but
prior to that I when I come up to him when he was trying to go out the thing I looked at him also.”
And Mencer testified, “I was side by side from almost from the time we were going up on
Schoolcraft to my right to Evergreen.”
7
in observing Grayer. See Miles v. Jabe, No. 90-1659, 1991 WL 43915, at *4 (6th Cir. Apr. 1, 1991)
(per curiam) (considering dentist’s training in observing facial features).
And Mencer seemingly did not suffer from fear or stress during this incident, as crime
victims and witnesses often do. See United States v. Russell, 532 F.2d 1063, 1066 (6th Cir. 1976)
(noting the potential for a misidentification where observation was made “at a time of stress or
excitement”). Rather, Mencer seemed unfazed by Grayer, so much so that she chased Grayer and
then, as their cars sat side by side, even spoke to Grayer, informing him that she had witnessed the
carjacking and urging him to pull over.5 Mencer’s focused attention during the incident buttresses
the judgment to credit her identification of Grayer as reliable.
Under Biggers factor four, Mencer never wavered in identifying Grayer throughout the
proceedings. She testified that her identification of him at the live lineup was made independently
of the photo array, as Grayer’s facial appearance had significantly changed by the time of the live
lineup—he had more hair and facial hair—and thus the photos did not aid her at the live lineup. Yet
even with Grayer’s different facial appearance from that of the photos, Mencer, without hesitating,
picked him out of the live lineup. See Ledbetter, 35 F.3d at 1072-73 (witness noted differences in
facial hair between two arrays and quickly and accurately identified suspect at second array).
5
The concurrence, on the other hand, describes Mencer as “somewhat agitated” during the
chase, because “she was yelling at others during the pursuit and hollering at the carjacker while they
were stopped at the red light.” Mencer screamed not in fear or in a way that might distract her—she
yelled to get Grayer’s attention and to urge him to pull over. The trial court properly assessed
Mencer’s demeanor—“She was an eye witness and she took it upon herself freely and voluntarily
to go chasing after this person. And that I think does away with the emotions that might cause for
misperception. She obviously didn’t feel threatened because if she did she wouldn’t have been
doing what she was doing.”
8
And under factor five, the length of time between Mencer’s initial observation and her later
identifications of Grayer was not so long as to create a risk of an erroneous identification. Mencer
viewed the photos about a month after the incident; she viewed the live lineup another month later;
and she identified Grayer in court about a year after the carjacking. Courts have found similar time
lines as not creating a risk of misidentification under Biggers factor five. See, e.g., Howard, 405
F.3d at 473 (three months between initial observation and first identification). See also Hill, 967
F.2d at 233 (five-year delay did not render identification unreliable in light of totality of the
circumstances); United States v. Hmeidan, No. 97-3291, 1998 WL 553154, at *3 (6th Cir. Aug. 20,
1998) (per curiam) (three-year delay between observation and in-court identification permissible
where witness expressed certainty throughout proceedings).
Our independent analysis of the Biggers factors here leads us to conclude that the Michigan
court did not unreasonably apply them in deeming Mencer’s identification reliable.
B. Jury Instruction
Grayer next contends the trial court erred in instructing the jury concerning Mencer’s photo
identification: “I’m instructing you that that procedure is permissible under Michigan law.”
According to Grayer, that instruction “so infected the entire trial that the resulting conviction
violate[d] due process.”
The state appellate court reviewed this claim for plain error, as Grayer failed to object to the
instruction at trial. The court found error—the photo array, though not offending due process,
violated Michigan law, which requires counsel’s presence at the photographic lineup when a
9
defendant is in custody, see People v. Kurylczyk, 505 N.W.2d 528, 534 (Mich. 1993)—but no
prejudice “because the jury retained its ability to assess the reliability and accuracy of the witness’
subsequent identifications.” Grayer, 2001 WL 740581, at *4.
Grayer’s claim is procedurally defaulted in light of the state court’s failure to notice the plain
error. A procedural default occurs when a state procedure bars a petitioner’s claim and the state
court “clearly and expressly” relied on that bar. Harris v. Reed, 489 U.S. 255, 263 (1989). Under
Michigan law, failure to make a contemporaneous objection serves as an independent and adequate
state-law bar. People v. Kennebrew, 560 N.W.2d 354, 357-58 (Mich. Ct. App. 1996). And a
court’s decision to not review such a claim, for lack of plain error, amounts to the enforcement of
that procedural bar. Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001) (“[W]e view a state
appellate court’s review for plain error as the enforcement of a procedural default.”) Thus, the state
court’s express finding of no plain error, due to Grayer’s failure to demonstrate prejudice, serves
here as a procedural bar to Grayer’s jury-instruction claim.
The district court, however, declined to find procedural default, reasoning that the Michigan
court “found the trial court’s instruction constituted plain error and went on to consider the effect
of the error upon the Petitioner’s trial.” In other words, according to the district court, the state
court’s prejudice analysis amounted to a consideration of Grayer’s claim on the merits.
That decision is premised on a misreading of the state court’s opinion. The Michigan court’s
analysis of the error’s impact on the trial was part of its plain-error review. Under Michigan law,
as under federal law, prejudice comprises part of the plain-error test. See People v. Carines, 597
N.W.2d 130, 138-39 (Mich. 1999) (adopting Olano standard, which requires a showing of
10
prejudice). Indeed, the state court began its analysis by noting that “the defendant must demonstrate
plain error that was prejudicial, i.e., that could have affected the outcome of the trial.” Grayer, 2001
WL 740581, at *3 (emphasis added). The state court then “clearly and expressly” rejected Grayer’s
claim under the plain-error standard, citing two Michigan plain-error cases and holding that his
“substantial rights” were not affected and the “error was not so prejudicial that it affected the
outcome of the trial.” Id. at *4. This resulted in procedural default, and Grayer has not
demonstrated any cause or prejudice to excuse the default. See United States v. Saro, 24 F.3d 283,
287 (D.C. Cir. 1994) (“The Supreme Court has declared that the showing of ‘prejudice’ necessary
under the ‘cause and prejudice’ standard of habeas law ‘is significantly greater’ than that necessary
under the plain-error doctrine.”) (citing Murray v. Carrier, 477 U.S. 478, 494 (1986)).
C. Double Jeopardy
Grayer contends that carjacking and armed robbery constitute the “same offense” and thus
his conviction for both crimes amounts to double jeopardy. He claims that the two crimes contain
identical elements and, in this case, concerned the same conduct—Grayer’s theft of the car. The
Michigan Court of Appeals rejected this argument, finding that under Blockburger v. United States,
284 U.S. 299 (1932), the two offenses each contain a different element, thereby eliminating any
double jeopardy problem. Further, the court found that because the Michigan legislature intended
cumulative punishment for the same offense under two different statutes, no double jeopardy
violation occurred.
Nothing unreasonable is evident in the Michigan court’s application of Supreme Court
precedent in assessing this claim. The Supreme Court holds “where the same act or transaction
11
constitutes a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one is whether each provision requires proof of an additional
fact which the other does not.” Blockburger, 284 U.S. at 304. Under the Blockburger test then, if
each offense contains a different element, no double jeopardy violation arises. Brown v. Ohio, 432
U.S. 161, 166 (1977).
Evaluating carjacking under Mich. Comp. Laws § 750.529a and armed robbery under §
750.529, Grayer’s conviction of both offenses does not result in double jeopardy because carjacking
requires a motor vehicle as the object, while armed robbery does not, and armed robbery requires
use of a dangerous weapon, while carjacking does not.6 Michigan courts have, in fact, rejected this
precise claim many times;7 the Michigan court here correctly followed suit.
D. Malicious Prosecution
Grayer arguably raised a malicious-prosecution claim in his habeas petition, alleging that he
“should have only been charged with Receiving and Concealing stolen property.” Liberally
construing this allegation, Grayer seems to argue that the prosecutor violated his constitutional rights
6
Armed robbery sometimes requires proof of a motor vehicle, when, of course, the object
stolen is the motor vehicle. In this case, however, the state charged Grayer with armed robbery for
stealing the victim’s purse and cell phone, not the car. See Grayer, 2001 WL 740581, at *5 n.4
(“The prosecution amended the information at the end of trial to identify the purse and cell phone
as the property forming the basis of the armed robbery conviction.”).
7
See, e.g., People v. Parker, 584 N.W.2d 336, 340 (Mich. Ct. App. 1998); People v.
Henderson, No. 250156, 2005 WL 321004, at *2 (Mich. Ct. App. Feb. 10, 2005) (per curiam);
People v. Lollio, No. 241431, 2003 WL 22399294, at *2 (Mich. Ct. App. Oct. 21, 2003) (per
curiam); People v. Sims, No. 234934, 2002 WL 31380801 (Mich. Ct. App. Oct. 22, 2002) (per
curiam).
12
by overcharging him for carjacking and armed robbery. Grayer, however, failed to exhaust this
claim in the Michigan state courts. Nonetheless, rather than remand this case and order dismissal
on the ground that Grayer filed a mixed petition, see Rose v. Lundy, 455 U.S. 509, 522 (1982), this
court considers and rejects this argument on the merits, see 28 U.S.C. § 2254(b)(2) (1996).
To establish a constitutional violation for malicious prosecution, Grayer must demonstrate,
at a minimum, a lack of probable cause for the state to prosecute him for carjacking and armed
robbery. See Darrah v. City of Oak Park, 255 F.3d 301, 312 (6th Cir. 2001). Because the jury
convicted Grayer of both offenses, probable cause clearly supported the charges. See Stanley v. City
of Norton, 124 Fed. Appx. 305, 310 (6th Cir. 2005) (finding probable cause, established by grand
jury indictment, defeated malicious-prosecution claim). Thus, his claim fails on the merits.
III
We affirm.
13
GWIN, District Judge, concurring in judgment. MOORE, Circuit Judge, joins this opinion,
making it the opinion of the court.
I concur in judgment in the opinion denying Grayer’s writ of habeas corpus. I write
separately to discuss my concerns with the identification issue presented in this case. The issue is
whether the Michigan Court of Appeals’ decision -- that Mencer’s identifications were
independently reliable -- constitutes an unreasonable application of established precedent under
AEDPA. In the end, I believe that this is a very close question. Mencer’s photographic
identification was unquestionably suggestive. As to reliability, I disagree with the lead opinion’s
analysis, which gives short shrift to the Biggers factors that undermine the reliability of Mencer’s
identification. In contrast to the lead opinion, I believe that the first and third factors undermine
reliability. However, because of the strict AEDPA standards, I conclude that it was not objectively
unreasonable for the Michigan Court of Appeals to find that the admission of Mencer’s
identification testimony was nonetheless independently reliable.
I. BACKGROUND
About one month after the carjacking, Parole Officer Junkin showed Jane Mencer two
photographs. Both photographs were of Grayer. Both were dated September 30, 1993 and had alias
names of Grayer on the photographs. Both photographs had captions saying, “Michigan Department
of Corrections.”
At trial, Grayer’s sole defense was that of misidentification, contending that Mencer
mistakenly identified Grayer as the carjacker and that Mencer’s viewing the two photographs of
14
Grayer tainted her subsequent identifications. During his opening statement, counsel for Grayer
argued that “the power of suggestion is great,” referring to Junkin showing Mencer two photographs
of Grayer. Counsel for Grayer continued, “Ms. Mencer, before identifying my client, had an
opportunity to discuss this . . . with one other person and look at one photograph, and that
photograph being of my client, Mr. Grayer.”
At trial, the victim did not identify Grayer as the carjacker. Nor could the victim identify
the knife as the one used during the attack.
Mencer testified at trial. She was the only witness who identified Grayer as the carjacker
because the victim could not make the identification.
II. DISCUSSION
A. Suggestiveness
The pre-trial photographic procedure in showing Mencer only two photographs, when both
photographs were of Defendant Grayer, was impermissibly suggestive. The Supreme Court has long
cautioned against photographic identifications in which the police display only one photograph. See
Simmons v. United States, 390 U.S. 377, 383 (1968) (“This danger [that the witness may make an
incorrect identification] will be increased if the police display to the witness only the picture of a
single individual who generally resembles the person he saw.”).
The remaining issue is whether Mencer’s subsequent identifications were otherwise reliable,
meaning that her identifications were reliable independent of the impermissibly suggestive pre-trial
15
photographic procedure. If Mencer’s identifications are reliable, they will be admissible even
though the photographic procedure was suggestive. See Manson v. Braithwaite, 432 U.S. 98, 114
(1977); Carter v. Bell, 218 F.3d 581, 605 (6th Cir. 2000).
B. Reliability
In judging reliability, we consider the totality of the circumstances, including the factors
described in Manson and Biggers: (1) the opportunity of the witness to view the defendant at the
initial observation; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior
description of the defendant; (4) the level of certainty shown by the witness at the pretrial
identification; and (5) the length of time between the initial observation and the identification.
Manson, 432 U.S. at 114; Neil v. Biggers, 409 U.S. 188, 199-200 (1972). We weigh these factors
against any “corrupting effect of the suggestive identification,” which suggests that the factors
should weigh more in favor of reliability when the witness views an extremely suggestive a pre-trial
photographic procedure. Manson, 432 U.S. at 114. In conducting this analysis, I am mindful that
“[s]ocial-science research has demonstrated the unreliability of an identification made after the
display of a single photograph.” Connie Mayer, Due Process Challenges to Eyewitness
Identification Based on Pretrial Photographic Arrays, 13 Pace L. Rev. 815, 828-29 (1994).
In applying the Biggers factors, the lead opinion concludes that the first, second, fourth, and
fifth factors “clearly demonstrate a reliable and independent identification.” The lead opinion
admits that the third factor undermines reliability, but finds that this factor alone does not “render
an identification unreliable.”
16
I write separately because I disagree with the lead opinion’s analysis of the Biggers factors.
I believe that the first and third Biggers factors undermine the reliability of Mencer’s identification,
and I have concerns about the reliability of Mencer’s identification. However, after considering
AEDPA as it applies to this habeas petitions, I find the Michigan Court of Appeals’ conclusion was
not objectively unreasonable.
1. Opportunity to View
As to the first factor, the lead opinion concluded that this factor supports reliability because
“Mencer had the opportunity to view Grayer’s profile and face for one to two minutes at the red
light.” After reviewing the record, I find insufficient support for this finding. After considering the
time of day, the ability to see only the carjacker’s profile except for a short frontal view, the distance
between the cars, the need to view through the interior length of the carjacked car, I conclude that
Mercer did not have a good opportunity to view the carjacker under the circumstances of the car
chase.
Mencer, a fifty-one year old woman, was driving a 1996 Grand Prix. Mencer did not see the
carjacker until after he was seated in the Neon. During most of the pursuit, Mencer viewed the
carjacker from behind since her car was trailing his. While she pursued him, she was behind him,
and she could, at best, see the back of his head.
Mencer’s only opportunity to view the carjacker, either his face or his profile, occurred while
they were stopped at a red light, and Mencer was to the right of the carjacker. But even while they
were stopped at a red light, in looking at the carjacker, Mencer needed to look through the length
17
of the carjacked vehicle (hard-top, like hers) to observe the offender. Mencer viewed the carjacker
on an early September evening after 7:45, across the distance separating the cars and through the
interior of the Neon.
The lead opinion suggests that Mencer viewed the carjacker’s face and profile for several
minutes.1 However, the record instead shows that she observed his profile for several minutes, but
that she saw his face only once when the carjacker looked at her. Mencer testified that “[a]t one
point” he looked at her and she saw his face, but otherwise he looked straight ahead and she saw his
profile. While the record does not include how much time the carjacker looked at Mencer, her
testimony suggests that it was rather short, as he only looked at her once while they were stopped
at the red light. At most, Mencer viewed his face for only a short period.
Mencer testified regarding the clothes that the carjacker was wearing. The lead opinion
credits Mencer’s statement that she could “look right down and look at the clothing” because her
“car was bigger than that car” during the pursuit. Although the lead opinion accepted Mencer’s
assertion that she could see the carjacker’s face and body because her car was higher than the Neon,
both Mencer and the carjacker were driving sedans, and they would have been at approximately the
same level. Given that she only saw him while he was seated in the car, it is not clear how she
estimated that he was 5'9" - 5'10". From Mencer’s vantage point, it is implausible that Mencer could
have seen the pants that the carjacker was wearing. It is also unlikely that she could see the stripes
1
For example, the lead opinion states that “Mencer examined Grayer’s face for one to two
minutes as their cars sat side by side.” At best, this sentence is misleading -- it fails to distinguish
the several minutes when Mencer observed the carjacker’s profile from the brief moment in which
Mencer observed the carjacker’s face.
18
on the left sleeve of his jacket since she was following behind him during the chase and her car was
to the right of the Neon when they were stopped at the red light.
Based upon the circumstances, the record shows that, on the whole, Mencer did not have a
good opportunity to view the carjacker, which weighs against the reliability of the identification.
2. Whether the Witness was Attentive
As to the second factor, the lead opinion finds that Mencer had a “high degree of attention.”
Although some circumstances undermine Mencer’s reliability, I agree that Mencer had a high degree
of attentiveness for the brief time when she looked at the carjacker while she was stopped at the red
light.
In this case, Mencer’s testimony suggests that she had a high degree of attentiveness for the
brief time when she looked at the carjacker while she was stopped at the red light. Mencer testified
that “I looked at him very well when was inside of the Neon. I purposely looked to see what I could
remember about him. That’s exactly the way I did it in case that I see him again.” Mencer suggests
that she was very attentive, which tends to support reliability. Although attentive, Mencer had little
chance to observe the perpetrator during the pursuit.
Mencer did not witness the carjacking itself. Instead, her attention was focused on Trecha
running from the car. However, she suspected that Trecha was carjacked, and she pursued the
suspected carjacker with a reason to pay attention, even though she did not witness the crime itself.
Mencer’s pursuit of the carjacker was her only encounter with the carjacker.
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During the pursuit, Mencer pursued the carjacker in her car for five or six miles, sometimes
at speeds up to forty-five miles per hour. During the pursuit, Mencer largely drove behind the Neon
and only came close to the Neon when they were stopped at the red light, and she was still a car
length’s distance away. At the red light, Mencer closely focused on the carjacker although he
mostly looked straight ahead.
The lead opinion concludes that “Mencer did not suffer from fear or stress during this
incident, as crime victims and witnesses often do.” However, Mencer’s testimony suggests that she
was somewhat agitated while she was pursuing him. For example, she testified that she was yelling
at others during the pursuit and hollering at the carjacker while they were stopped at the red light.
Although some circumstances suggest that she was distracted, we conclude that Mencer
displayed a high level of attentiveness during her opportunity to view the carjacker, which generally
supports reliability of her identification.
3. Accuracy of the Witness’s Prior Description
As to the third factor, the lead opinion admits that Mencer’s prior description was inaccurate,
but concludes that the inaccuracies do not “necessarily render an identification unreliable.” I agree
that Mencer’s prior description is somewhat inconsistent with Grayer’s physical attributes.
Although these inconsistencies were not major, the inconsistencies further undermine the reliability
of Mencer’s identification, especially since Mencer did not have a good opportunity to view the
carjacker.
20
In her description to the police, Mencer described the carjacker’s height, age, complexion,
hair, facial hair, clothing, and build. Mencer’s description was somewhat inconsistent with Grayer’s
physical attributes. For example, Grayer is actually 5'6", even though Mencer described the suspect
as 5'9" to 5'10". Grayer was 28, although Mencer described him as 20-25. Although both Mencer
and the victim described the carjacker as having a “thin build,” Grayer’s basic information sheet
describes him as having a medium build. Additionally, Mencer’s described the carjacker as being
“dark skinned,” but Grayer’s basic information sheet describes him as having a medium complexion.
Finally, Mencer’s description of the carjacker’s facial hair was inconsistent with Grayer’s facial hair.
In her description to the police, Mencer stated that the carjacker had a beard. At the Wade hearing,
she testified that Grayer’s “facial hair was big, it was grown out more.” However, the police record
from the live lineup describes Grayer as only having a mustache and goatee. Mencer also described
the clothing that the carjacker was wearing, although it is not clear how she was able to view the
pants that he was wearing since she only saw him while he was seated in the automobile.
Elsewhere, the lead opinion emphasizes that Mencer’s description of the carjacker was
similar to the victim’s description. However, the record shows that the victim was unable to
identify the carjacker.2
2
At trial, the victim stated, “once I saw the knife, I never looked at him again.” In describing
her attacker, the victim indicated that “I had just impressions because I had not deliberately looked
at the man.” She described the man as a black male about twenty years old, 5'8" tall with a thin
build, medium complexion, with short curly hair, and he had a beard as if he had not shaved for a
day or two. However, the victim never had a front view of the suspect, and she did not look at him
again after he brandished the knife.
21
The inconsistencies between Mencer’s description and Grayer’s physical attributes suggests
that Mencer’s prior description was at least partially inaccurate. This further undermines the
reliability of Mencer’s identification.
4. Level of Certainty
As to the fourth factor, the lead opinion concluded that Mencer’s identification was made
with certainty. I agree with this conclusion as to this factor. However, I disagree with the lead
opinion’s statement that Mencer’s identification at the live lineup was made independently of the
photo array. This statement assumes the question at issue in the Biggers analysis, namely whether
Mencer’s identifications were independently reliable from the impermissibly suggestive pre-trial
photographic procedure.
Although level of certainty is a factor in determining reliability of an identification, courts
proceed with caution once a witness has seen a single photograph of a suspect. The Supreme Court
has observed that, after viewing a single photograph, “the witness thereafter is apt to retain in his
memory the image of the photograph rather than of the person actually seen, reducing the
trustworthiness of subsequent line-up or courtroom identification.” Simmons v. United States, 390
U.S. 377, 383-84 (1973). Other courts have recognized that “[d]eterminations of the reliability
suggested by a witness’s certainty after the use of suggestive procedures are complicated by the
possibility that the certainty may reflect the corrupting effect of the suggestive procedures.” United
States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1159 (7th Cir. 1987). A defendant’s right to due
process includes the “right to avoid having suggestive methods transform [an identification] that was
only tentative into one that is positively certain.” Solomon v. Smith, 645 F.2d 1179, 1185 (2d Cir.
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1981). Although the level of certainty is a Biggers factor,“[m]any [social science] studies
demonstrate that there is no correlation between the confidence of the witness and the accuracy of
the identification.” Connie Mayer, Due Process Challenges to Eyewitness Identification Based on
Pretrial Photographic Arrays, 13 Pace L. Rev. 815, 845 (1994).
Keeping these considerations in mind, Mencer exhibited a high level of certainty, which,
under established precedent, supports the reliability of her identifications.
5. Length of Time
Under the fifth factor, the lead opinion concluded that the length of time between the initial
observation and Mencer’s identifications “was not so long to create a risk of erroneous
identification.” I agree with the lead opinion that this factor supports reliability of Mencer’s
identification because the time elapsed in this case was no more than several months.
C. AEDPA
Before the state courts, Grayer made the argument that the identification methods were
constitutionally impermissible. The Michigan Court of Appeals denied the assignment of error and
affirmed Grayer’s convictions.
Where a state court adjudicates a petitioner’s constitutional claim on the merits, AEDPA
governs subsequent federal habeas actions. E.g., Smith v. Stegall, 385 F.3d 993, 997-98 (6th Cir.
2004), cert. denied, 161 L. Ed. 2d 1094 (2005). Here, Grayer does not contend that the Michigan
Court of Appeals used a standard of law contrary to established Federal law, as determined by the
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Supreme Court. Instead, Petitioner Grayer maintains that the Michigan court unreasonably applied
controlling federal law. An “unreasonable application” occurs when “the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
A state adjudication is not “unreasonable” “simply because [a federal habeas court]
concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411. Instead, the
petitioner must show that the state court’s application of established Supreme Court precedent was
objectively unreasonable. E.g., Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam).
In this case, the pre-trial photographic procedure, in showing Mencer two photographs of
Grayer, was suggestive. Some of the Biggers factors undercut the reliability of the identification
while others support it. The Michigan court faced a close question. Taken as a whole and mindful
that in undertaking habeas review, AEDPA requires us to afford wide latitude for the state court’s
determinations on the merits, I find the state court’s determination was not unreasonable.
Accordingly, I conclude that the Michigan Court of Appeals’ decision finding that Mencer’s
subsequent identifications were independently reliable was neither contrary to nor involved an
unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d). For the foregoing
reasons, I concur in judgment.
Judge Moore joins this opinion, making it the opinion of the court.
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Grayer v. McKee
Court: Court of Appeals for the Sixth Circuit
Date filed: 2005-09-09
Citations: 149 F. App'x 435
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