ELICEO RODRIGUEZ, # 076092, PETITIONER-APPELLANT,

v.

LOUIE L. WAINWRIGHT, SECRETARY, DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA, AND JIM SMITH, ATTORNEY GENERAL, STATE OF FLORIDA, RESPONDENTS-APPELLEES

11th Cir. | 1984-08-31

No. 83-5817

Before RONEY, TJOFLAT and ANDERSON, Circuit Judges.

740 F.2d 884 Court of Appeals for the Eleventh Circuit (1984) Positive Treatment

Cited by 7 cases

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Holding

The court held that the petitioner's claims regarding the exclusion of expert testimony, denial of a jury instruction, admission of photographic identification evidence, and insufficiency of evidence did not demonstrate a constitutional violation warranting habeas corpus relief.

Facts & Procedural History

Petitioner was convicted of murder and related offenses in Florida, with a conviction largely based on an 11-year-old eyewitness. Petitioner sought fe…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Manson V. Brathwaite Factors Constitutional Right To A Fair Trial Neil V. Biggers Factors Photographic Identification

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Opinion of the Court

PER CURIAM:

Convicted in Florida of first degree murder, armed robbery, burglary and illegal possession of a firearm, Eliceo Rodriguez appeals the denial of habeas corpus relief. Convicted largely on the identification testimony of the 11-year-old son of the two murder victims, petitioner seeks relief because the trial court (1) refused to admit testimony of an expert witness on the subject of memory and perception in regard to eyewitness testimony, (2) denied a requested jury instruction regarding identification testimony and (3) admitted evidence concerning a pretrial out-of-court photographic identification. Petitioner claims the evidence was insufficient for a constitutional conviction.

The crime was committed on June 21, 1979. Rodriguez was convicted on September 27, 1980. His conviction was affirmed on May 25, 1982. Rodriguez v. State, 413 So. 2d 1303 (Fla.Dist.Ct.App.1982). His state denial of post-conviction relief was affirmed on June 7, 1983. Rodriguez v. State, 432 So. 2d 729 (Fla.Dist.Ct.App.1983). On August 2, 1983 Rodriguez filed a federal petition for writ of habeas corpus. After an adverse magistrate’s recommendation, the district court denied the petition on November 21, 1983.

No constitutional violation is shown by any of the four claims asserted by petitioner. There is no indication that the exclusion of expert testimony concerning the subject of memory and perception in regard to eyewitness testimony denied petitioner the right to the fair trial guaranteed by the Fourteenth Amendment to the United States Constitution. Under state law, the admission of expert testimony is within the discretion of the trial judge. Johnson v. State, 393 So. 2d 1069, 1072 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); see also Nelson v. State, 362 So. 2d 1017, 1021 (Fla.Dist.Ct.App.1978). Even a state evidentiary violation does not support habeas corpus relief where there has been no denial of fundamental fairness. Shaw v. Boney, 695 F. 2d 528, 530 (11th Cir.1983).

Rodriguez requested a jury instruction concerning identification testimony based on the model instruction noted in United States v. Telfaire, 469 F. 2d 552, 558-59 (D.C.Cir.1972). The substance of the requested charge was given in another instruction. Where a requested jury instruction is already covered by the charges given, failure to give the requested charge is not error at all, much less constitutional error. See United States v. Johnson, 713 F. 2d 633, 653 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984); United States v. Ashley, 555 F. 2d 462, 465 (5th Cir.), cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977).

Petitioner failed to raise the claim concerning the out-of-court photographic identification on direct appeal, and thus may have waived his right to assert the point on state collateral attack and federal habeas corpus. See Ford v. Strickland, 696 F. 2d 804, 817 (llth Cir.) (en banc), cert. denied, — U.S. -, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983); Ford v. State, 407 So. 2d 907, 908 (Fla.1981). In any event, a reliable identification is admissible despite a suggestive photographic display. United States v. Williams, 616 F. 2d 759, 761 (5th Cir.), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72 (1980). Tested under the standards enumerated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the facts of this case reveal little likelihood of misidentification and certainly raise no problems of constitutional proportions.

The insufficiency of the evidence argument based on Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), focuses largely on the credibility of an 11-year-old identification witness. Problems of credibility in state trials are not constitutional problems in federal courts.

AFFIRMED.

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Citator

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E.K. Wilcox, Jr. v. Ford, 813 F.2d 1140 (11th Cir. 1987)

…me during the day for which Wilcox, Jr., and Sr. were unaccounted except by their own testimony. The credibility of Wrentz’s testimony, with all of its contradictions and confusion, was properly a question for the jury. See Rodriguez v. Wainwright, 740 F. 2d 884, 886 (11th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 797, 83 L.Ed.2d 790 (1985). The jury made a collective decision to believe his testimony after observing him on the stand and hearing the defense’s thorough cross-examination of his direct…
Johnson v. Louie L. Wainwright, 806 F.2d 1479 (11th Cir. 1986)

…15 (11th Cir.1984), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 698 (1985); United States v. Thevis, 665 F. 2d 616, 641 (5th Cir.Unit B), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982);10 see also Rodriguez v. Wainwright, 740 F. 2d 884 (11th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 797, 83 L.Ed.2d 790 (1985) (exclusion of expert testimony concerning eyewitness identification by child not due process violation). If the exclusion of this testimony in federal court is not fu…
Jones v. Smith, 772 F.2d 668 (11th Cir. 1985)

…ance” between the composite drawing and Jones. The record fairly supports this finding. . The issue of identification was specifically mentioned by the state trial court in a criminal case later brought before this Court in Rodriguez v. Wainwright, 740 F. 2d 884 (11th Cir.1984), as an appeal from a district court’s denial of federal habeas corpus relief. Appellee in the present action, the State of Alabama, has provided us with a copy of a portion of the State of Florida’s brief in Rodriguez, which sets for…

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Authorities Cited (20 total)

Jackson v. Virginia, 443 U.S. 307 (U.S. 1979)
Neil v. Biggers, 409 U.S. 188 (U.S. 1972)
Manson v. Brathwaite, 432 U.S. 98 (U.S. 1977)
Johnson v. Florida, 454 U.S. 882 (U.S. 1981)
Ford v. Strickland, 696 F.2d 804 (11th Cir. 1983)
Reckner v. Foremost Ins. Co., 393 So. 2d 1069 (Fla. 1980)
United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972)
United States v. Johnson, 713 F.2d 633 (11th Cir. 1983)
United States v. Ashley, 555 F.2d 462 (5th Cir. 1977)
Shaw v. Boney, 695 F.2d 528 (11th Cir. 1983)

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