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COOPER v. McGRATH

April 13, 2004.

AARON LYNDALE COOPER, Petitioner;
v.
JOSEPH McGRATH, Respondent



The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

The petition the petition for writ of habeas corpus is granted.

IT IS SO ORDERED AND ADJUDGED.

 
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
  This matter is now before the court for consideration of the merits of Aaron Lyndale Cooper's pro se petition for writ of habeas corpus concerning his 1996 conviction for murder, kidnapping and carjacking. For the reasons discussed below, the petition will be granted.

  BACKGROUND

  Cooper was convicted of kidnapping, carjacking and murder. To summarize, the evidence showed that on August 3, 1995, three men (identified by some witnesses as Cooper, Cross and Kingdom) were in a parked blue car near an intersection in Oakland looking for Coco. A Corvette pulled up with Coco. in the passenger seat. Coco. got out of the car, talked to the three men briefly and was then put in to the trunk of the blue car at gunpoint. The blue car drove away with Coco. in the trunk and the Corvette was driven away by a man (identified by a witness as Cooper). Coco's dead body was found two weeks later in the Oakland hills. He had been gagged and shot in the head. Cooper was arrested in Oakland seven hours after the abduction, Cross was arrested in Mississippi about a week after the abduction and Kingdom was arrested in Mississippi about three months after the abduction. Cross and Cooper were tried jointly, in a jury trial which started November 29, 1995 and which ended with a guilty verdict on January 5, 1006. Kingdom, who was arrested just about a month before the trial of Cross and Cooper, was tried separately. The police had taped statements from Cross and Kingdom admitting their presence at the crime but downplaying their roles in the crime. Cooper presented an alibi defense. All three were convicted.

 A. The Crimes

  The description of the evidence presented about the crimes is lengthy, owing partly to conflicting versions of the events and partly to different people seeing only certain parts. Rather than add yet another new lengthy description of the crimes, the court adopts the California Court of Appeal's description of the evidence, with which neither party has taken issue. The California Court of Appeal described the facts:
At approximately 4 p.m. on August 3, 1995, the victim, William Highsmith known by the nickname "Coco," rode as the passenger in a red Corvette driven by Kevin or "K.K." Parker to a location in front of a liquor store on the corner of 12th and Market Streets in Oakland, California. Minutes later he was abducted. Parker testified that he borrowed the red Corvette from his girlfriend, Tisha Williams, and picked up the victim earlier that afternoon to look at car auctions. Afterwards, they returned to West Oakland and he parked the Corvette in front of the liquor store. The victim got out of the car and began talking to someone in a group of people. Parker was then "grabbed from behind" and told to leave the area. He could not identify the defendants or other people at the scene. Immediately after the incident, an Oakland Police Officer, Michael McArthur, took a statement from Parker containing certain further details. Parker then said he parked behind a blue Oldsmobile with three men inside and entered the liquor store, leaving the victim in the Corvette. As he was leaving the store, he heard gunshots from where he parked the car and saw the Corvette being driven away by a single occupant. The night before, the victim had told him that "some men with guns" were looking for him because they thought he had stolen a Chevrolet IROC.
Parker's girlfriend, Tisha Williams, confirmed that, earlier that day, she had allowed Parker to drive her red Corvette, license number 2YQK292. The victim's sister, Raynetta Thomas, testified that she saw him between 3:30 and 4 p.m. at her mother's home a few blocks away from the crime scene. He arrived as the passenger of a red Corvette driven by Parker and stayed 10 to 15 minutes. He was dressed in an Adidas sweatsuit with matching tennis shoes. The parties stipulated that the red Corvette contained fingerprints of the victim and Parker.
A bystander, Rodney Love, provided a detailed account of the kidnapping, though he could not identify the perpetrators. While he was eating a snack outside the liquor store at 12th and Market Streets, a man approached him from an area where a blue 1989 Oldsmobile Cutlass was parked and asked if he was "Coco." He inferred that the man was carrying a revolver in his belt because his coat was "puffed out." He told him that he was not Coco, and the man walked back to the blue Oldsmobile, in which two other men were sitting. Two of the three occupants of the Oldsmobile wore black jackets and gloves.
According to Love, Parker soon drove up in a red Corvette, with the victim in the passenger seat, and parked behind the Oldsmobile. Parker and the victim got out of the car and began talking to the men in the blue Oldsmobile. One of the three men briefly grabbed Parker by the neck but then let him go, allowing him to run into the store. The three men then "pushed" the victim into the trunk of the blue Oldsmobile and closed the trunk. One of me three people got into the Corvette. Love heard gunshots from the vicinity of the car and then both the Oldsmobile and the Corvette drove off in the same direction.
Other witnesses observed fragments of the same events. A liquor store employee, Musa Hussein, took a quick look at the street when he heard sounds resembling gunshots. He saw Parker outside the store and four men standing between a red Corvette and a blue or gray car. One of the men was a little taller than the others, maybe six feet four or five inches tall. (Defendant Cross is six feet five inches tall.) He also observed one of the men with what appeared to be a gun.
Lauren Tallerico. heard four or five gunshots at about 4:15 p.m. as she drove along Market Street toward 12th Street. The shots came back from the vicinity of a blue car, an older model Cadillac or Oldsmobile, containing two Black males, which she observed turn onto Market Street ahead of her and then speed off down 13th Street toward downtown Oakland.
Douglas Wright, an inspector for the district attorney, was driving home on 12th Street at about 4:10 p.m., when he heard two gunshots and saw a man standing behind a red Corvette parked about 50 feet from the intersection with Market Street. The man came quickly around the car, jumped in, and drove off down Market Street at a high speed. Wright thought the license number of the Corvette was 2 YOK93 3. The man appeared to be in his middle twenties, about 5 feet, 11 inches tall, and weighed about 170 to 180 pounds. After observing Cooper at trial, Wright testified that there was nothing inconsistent with his height and weight and appearance from the person he saw enter the Corvette. (Cooper is 6 feet tall, and 190 pounds, and was 26 years of age at the time of trial.)
At approximately 7 p.m. on the evening of the same day, a motorist, George Archambeau, driving west on the San Mateo Bridge saw a red Corvette stopped in the right hand lane. A Black man of average height, who appeared to come from the passenger seat of the car, was engaged in throwing a package the size of a grocery bag over the side of the bridge into the water. A second African-American male remained in the driver's seat. Archambeau drove around the Corvette but the car soon passed him driving at a high speed. He noted that the license number was 2YQK292.
At 9 p.m. that evening, Moamer Mohamed, an employee of the liquor store at 12th and Market Streets, saw a red Corvette left with the engine running in the entrance to the store's parking lot. When he went to investigate, he saw a tall, skinny Black man, wearing a checked shirt and gloves, running from the parking lot. He associated the Corvette with Kevin Parker, upon being notified by police, Parker's girlfriend, Tisha Williams, reclaimed the car later in the evening.
Later, at 11 p.m., a late-1970's blue Oldsmobile Cutlass, which Oakland police associated with the Kidnapping, was found in East Oakland near 100th Street and Voltaire Street parked in front of the residence of Juanita Walton, a critical prosecution witness. An evidence technician found vehicle registration and miscellaneous papers, which identified Miltonous Q. Kingdom, a cousin of defendant Cross nicknamed "Q," as the owner of the car.
Three employees of the E-Z 8 Motel near the Oakland Coliseum testified that defendant Cross and another man registered in room 331 on July 23, 1995, and checked out around 9 or 10 a.m. on August 4, 1995. The on-site manager, Robert Britton, identified Kevin Parker as a motel guest to whom he once advanced some money to receive a U.P.S. package and testified that he had also seen defendant Cooper on occasions at the motel. The motel's registration form, introduced as a business record, identified Cross*fn1 car as a blue IROC. Another motel employee, Henry Reel, saw defendants Cross and Cooper staying in room 331. The occupants of that room used a blue IROC, and he observed them put their belongings into this car when they vacated the room on the morning of August 4, 1995. He also saw a red Corvette parked in the motel lot 10 or 15 times during the period that Cross resided there. When shown a photograph of Kevin Parker, he identified him as a person who had stayed in room 310 of the motel at that time.
On August 16, 1995, a partially decomposed body was found in a wooded area in the Oakland hills accessible by a service road. The body was identified by the Adidas sportswear and personal belongings in a pocket as that of the victim, William Highsmith. A portion of the shirt had been torn away and a cloth gag tied over the mouth. A scissors lay a few feet away on the ground. An autopsy revealed that the victim had died of a bullet wound to the head. A criminalist examined the slug extracted from the victim's brain and three shell casings found at the kidnapping scene. He determined that the casings were from a 9 millimeter firearm but that me slug was fired from a separate. 40 caliber gun.1
A separate line of evidence served to establish a plausible connection between the defendant Cooper and a jacket and gloves with gunshot residue. At 11:30 p.m. on the evening of the Kidnapping, an Oakland Police Officer, Darrin Downum, stopped a car driven by one Carl Anderson on 99th Avenue in East Oakland for having expired registration tags. The defendant Cooper sat in the front passenger seat, wearing a plaid shirt. When Cooper got out of the car, Officer Downum observed a pair of gloves on his seat and a jacket in the back seat. Both Anderson and Cooper were arrested, and the car taken to a storage facility.
Anderson's mother picked up the car the next day and drove it to her back yard where she locked it. A couple days later a police detective asked her about the jacket in the car and she said it did not belong to her son, but at trial she would say only that it was not familiar. She never saw her son wear gloves, though he had once been given a pair. Anderson's father similarly testified that the jacket was unfamiliar and that his son did not wear gloves. In contrast, when called as a witness for the defense, Anderson testified that the jacket was in fact his and that the gloves were in the car when he bought it. A criminalist testified that he found gunshot residue on both gloves and on the left cuff of the jacket.
The prosecution's case on the issue of identification of the defendants Cooper and Cross rested chiefly on the testimony of two women, Zanetta Hodges and Juanita walton known by the nickname "Goodie," and on an out-of-court statement of Miltonous Q Kingdom. At approximately 4 p.m., on the afternoon of the crime, Hodges drove down 12th Street with Walton in the passenger seat. Upon stopping at the intersection of 12th and Market Streets, Hodges heard someone call her name and backed up a car length to come even with a blue Oldsmobile parked near the corner. There were three people in the car. Sitting in the back seat was defendant Cooper, whom she had met before at Walton's home and on another occasion. He wore a dark jacket and black gloves. Defendant Cross sat in the driver's seat. She had seen him once before near Walton's home driving a blue IROC automobile. She knew the third man by the name "Q."
Pointing to a group of youths standing outside the liquor store, Cooper asked Walton if one of "those guys was Coco." Walton replied in the negative. Defendant Cross then said, "That nigger took my car, Goodie." Walton expressed disbelief, saying that Highsmith was "not trying to get his shoes dirty." At that point a red Corvette pulled up behind the blue Oldsmobile. Defendant Cooper said "bye" to the two girls, and they drove off to a Grand Street store about six blocks away where Walton obtained food stamps.
As they left the intersection, Hodges saw Parker and Highsmith, both of whom she knew, leave the red Corvette and meet the three men in the Oldsmobile, who also got out of their car. After obtaining the food stamps, the girls returned to the intersection of 12th and Market Streets and found police officers and a crowd of people. It was stipulated that the records of the Grand Street store revealed that Walton bought food stamps at 4:09 p.m. and that police records disclosed that the first telephone call reporting the Kidnapping occurred at 4:08 p.m.
The prosecution introduced into evidence the preliminary hearing testimony of Walton after the trial court ruled that she was unavailable for testimony. Walton testified that she had known Parker and Highsmith for years and saw defendants Cross and Cooper as well as Cross's cousin, "O," on a "daily" basis before the incident. She recognized the blue Oldsmobile parked at the corner of 12th and Market Streets as "Q's" car. After she and Hodges returned to the scene, she represented to police that she had been an eyewitness of the kidnapping.*fn2 Later, she identified defendant Cooper in police custody as the man, who had sat in the back seat of the car. She recalled that Cooper was wearing gloves and a T-shirt at the time of the incident; she later saw him wearing a checkered Pendleton shirt at the police station. Walton gave police two somewhat inconsistent, tape-recorded statements, which were both played to the jury. At the preliminary hearing, she conceded that she was not an eyewitness and retracted many of her previous statements. Nevertheless, her varying accounts of the incident contained evidence corroborating every relevant point in Hodge's trial testimony, except her description of Cooper wearing a dark jacket.
An Oakland Police Officer, Larry Krupp, presented a redacted transcript of a statement that Miltonous Kingdom gave when contacted in a Mississippi jail. On November 8, 1995, after learning that Kingdom was under arrest, Krupp and another officer traveled to Greenville, Mississippi, to take custody of him on arrest warrants for Highsmith's kidnapping and murder. When he met Kingdom in the local jail and explained his purpose, Kingdom responded, "I'm not guilty" and initially denied any involvement in the kidnapping. Krupp played a brief excerpt from a tape-recorded statement of defendant Cross. Kingdom then gave a statement providing a complete account of the kidnapping and murder. At trial, Krupp read to the jury a transcript of selected portions of me statement.
Before the incident, Kingdom had been staying with his cousin, defendant Cross, in a motel in Oakland. That day, he drove in his blue Oldsmobile to 100th Avenue and Mac Arthur in East Oakland "to nook up with" defendants Cross and Cooper. Cross drove the car to a store at the intersection of 12th and Market Streets in West Oakland as he sat in the front passenger seat and Cooper in the back seat. There, they talked to a girl named Goodie until a red Corvette drove up and parked behind them. He and the two defendants got out of their car and talked on the sidewalk to two men in the Corvette. Defendant Cross spoke to the men about "the car." Defendant Cooper then drew a 9 millimeter handgun and ordered one of the men to get into the trunk of his Oldsmobile. The man complied.
Defendant Cooper entered the red Corvette while Kingdom and defendant Cross got back into the Oldsmobile. They went to the Oakland hills and stopped on a dirt road in the woods. All three men "went to the trunk." A portion of Highsmith's clothes was torn off and tied to his mouth. Defendant Cooper pulled down the man's pants. The man was then shot in the face and fell to the ground.
Testifying in his own behalf, defendant Cooper presented an alibi defense in which he denied being at the crime scene or seeing defendant Cross or Kingdom on the day of the crime. He claimed that he drove his wife to California State University at Hayward in the morning. He later took his Eagle Talon car to Mission carwash in Hayward and picked up his wife at approximately 3 p.m. They paid accounts at a Nordstrom store, returned to their apartment, and watched a video. Around 9 p.m., he left their apartment to go to a card game in East Oakland. He ran into Carl Anderson and rode around in his car until he was arrested later in the evening. Cooper's wife took the stand to support the defense. In addition, an employee of Mission carwash testified that he had record of washing an Eagle Talon on August 3, 1995, and remembered seeing Cooper on that date.
In contrast, defendant Cross presented a defense that conceded much of the prosecution's case, disclaiming only personal responsibility for the kidnapping and murder. He testified that he owned a blue Chevrolet IROC which he intended to take to Greenville, Mississippi. His plans were frustrated when the car was stolen on July 30, 1995, while loaded with thousands of dollars of drugs. Defendant Cooper had contributed over $2000 to the purchase of the drugs stolen with the car. He began searching for the car in West Oakland and was told that a person named Coco. was driving the blue IROC around the neighborhood and trying to sell it. He gave a person he met on the street his pager number and a message to have Coco. call him.
In the afternoon of August 3, 1995, Cross and his cousin, Kingdom, joined defendant Cooper at 100th and Mac Arthur. While they were together, Cross received a call from Coco. on his pager and made arrangements to meet him at the liquor store on 12th and Market Streets. Cross drove Kingdom and Cooper to this location in Kingdom's blue Oldsmobile. He got out of the car and asked people near the store if they were Coco. He did not see Juanita Walton and did not know Zanetta Hodges.
At this point, a red Corvette drove up. Stepping out of the car, a man introduced himself as Coco and denied taking the IROC. Cooper then grabbed him and threatened him with a gun. For his part, Cross walked back to the Oldsmobile and entered the car. As Cross sat in the passenger seat of the car, Kingdom got the car keys and opened the trunk. From his position inside the car, Cross did not see the man being put in the trunk but he heard the trunk close.
Running to the passenger side of the car, Kingdom told Cross to move to the driver's side and take off. Cooper got in the red Corvette. Cross drove to 100th and Voltaire where Cooper joined them in the red Corvette. Cooper and Kingdom then drove away in the two cars, but he did not go with them. About two minutes later, they returned in the Oldsmobile. Cross reentered the car and drove to his motel. Later, Cooper drove them to 100th and Mac Arthur but said nothing about the person they had abducted. Cross stayed at this location while Cooper and Kingdom drove off again in the Oldsmobile. The next day he took a plane to Mississippi. He did not ask and was not told what happened to the man in the trunk.
As impeachment, the prosecution played taped statements in which Cross said that he and Kingdom helped put the victim in the trunk. Cross insisted that he was not truthful in making the statement and never had any intention to kidnap or murder the victim.
Respondent's Exhibit B (Cal. Ct. App. Opinion filed Nov. 9, 1998), ¶. 2-10.

 B. Procedural History

  The jury found Cooper and Cross guilty. Cooper was convicted of first degree murder, kidnapping, carjacking, and being a felon in possession of a firearm. See Cal. Penal Code §§ 187, 207, 215, and 12021. The jury found true the allegations that Cooper was armed with a firearm in the commission of the murder, carjacking and kidnapping. The trial court found in a separate proceeding that Cooper had served a prison term for prior conviction of a felony and had been convicted of a serious felony that qualified as a prior strike conviction under California's Three Strikes law. Cooper was sentenced to a total term of 71 years to life.

  An appeal ensued. The California Court of Appeal affirmed the conviction in an opinion filed November 9, 1998. See Resp. Exh. B. The California Supreme Court denied Cooper's petition for review. The U.S. Supreme Court granted his petition for writ of certiorari, vacated the judgment and remanded the case for reconsideration in light of Lilly v. Virginia, 527 U.S. 116 (1999). On remand, the California Court of Appeal reinstated the judgment and affirmed the conviction in an opinion filed July 6, 2000. See Resp. Exh. A. The California Supreme Court denied Cooper's second petition for review and the U.S. Supreme Court denied his second petition for writ of certiorari. Cooper also unsuccessfully sought collateral review in state court.

  Cooper then filed this action for a writ of habeas corpus in November 2002. His amended petition filed on June 5, 2003 contained eleven claims for relief, of which the court found eight cognizable. Respondent was ordered to file an answer to these claims: (1) a Confrontation Clause violation in the admission of Kingdom's statement, (2) a due process violation based on prosecutorial misconduct in eliciting improper testimony on three occasions (i.e., the cross-examination of Cooper about a trial in which Cooper introduced expert testimony about guns, the cross-examination of Cooper's wife about her 1993 marriage to Cooper in jail, and the cross-examination of co-defendant Cross about Cooper's alleged prior bad acts of shooting at people), (3) a Confrontation Clause violation in the admission of Goodie Walton's preliminary examination testimony, (4) a due process violation in the method used by inspector Wright to identify Cooper in the courtroom, (5) a due process violation in the failure to sever the trials of Cooper and Cross, (6) a due process violation because the record on appeal was incomplete, (7) a due process violation based on the insufficiency of the evidence, and (8) a cumulative error claim. Respondent filed an answer and Cooper filed a traverse. The matter is now ready for consideration on the merits.

  JURISDICTION AND VENUE

  This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Alameda County, California, which is located within this judicial district. 28 U.S.C. § 2241(d).

  STANDARD OF REVIEW

  This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see Williams (Terry) v. Taylor, 529 U.S. 362 (2000).

  EXHAUSTION

  Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties agree that state court remedies were exhausted for the claims in the present petition.

  DISCUSSION

 A. In-Court Identification By Witness Wright

  Douglas Wright testified for the prosecution about what he saw and heard when he drove by the liquor store at 12th and Market at about 4:00 p.m. Wright was a retired policeman who worked as an inspector for the district attorney's office. Wright heard what sounded like two gunshots and saw, among other things, a man getting into a red Corvette and departing hurriedly. He saw the man directly and as a reflection in the mirror of his car when he drove by the scene. After the man drove away, Wright pulled his car up next to the red Corvette at a street light where Wright observed the man again. Wright described the man as Black, in his mid-20s, about 5'11" and 170-180 pounds. When the prosecutor attempted to have Cooper stand up in court so Wright could try to identify him, defense counsel objected. A conference was held outside the presence of the jury to discuss the identification problem. No line-up had been done before the trial for this witness and the prosecutor acknowledged that Wright had not seen the person well enough to be able to make a specific, personal identification. RT 750. Defense counsel thought the identification was too vague: "We're talking about a five-eleven Black man, in the city of Oakland, weighing approximately 170-180 pounds." RT 752. When the jury was not present, Cooper stood next to counsel table and Wright was asked, "Is there anything inconsistent about Mr. Aaron Cooper, the person who has just stood up, and the person that you saw get into the red Corvette that you already testified about?" Wright answered, "He matches, basically, the height and the weight and age." RT 751. The court overruled the defense objections and allowed the identification. RT 753. When the jury returned, Wright repeated his identification of Cooper:
Q. Now, after the jury left this morning, did you have an opportunity to observe the defendant in this case, Aaron Cooper?
A. Yes.
Q. And would you describe if there's anything inconsistent about his height and weight and appearance from the person that you saw get into the red Corvette?
A. There's none.
RT 756.

  On cross-examination, defense counsel elicited some helpful testimony from Wright. Wright admitted that he did not recall how the man was dressed, admitted that he did not know whether the man wore his hair in dreadlocks as Cooper did, admitted that in his years as a police officer he had stopped many people who were Cooper's size, admitted that he did not see the man holding anything although Wright had looked at the man's hands, admitted that he had fractions of a second to observe the man, and admitted that after he heard the gunshots he tried to determine where the gun was but did not see any signs of a gun and did not see a gun in Cooper's hand.

  The California Court of Appeal rejected Cooper's claim that Wrigh's in-court identification of Cooper was irrelevant and prejudicial. "We see relevance . . . in the fact that Wright could say that the man resembled Cooper. Though his testimony did not have the probative value of a personal identification, it still had some `tendency in reason' to prove Cooper's presence at the kidnapping scene." Resp. Exh. B, p. 33.

  "A conviction which rests on a mistaken identification is a gross miscarriage of justice." Stovall v. Denno, 388 U.S. 293, 297 (1967). Procedures by which the defendant is identified as the perpetrator therefore must be examined to assess whether they are unduly suggestive. "It is the likelihood of misidentification which violates a defendant's right to due process." Neil v. Biggers, 409 U.S. 188, 198 (1972). Due process protects against the admission of evidence deriving from suggestive identification procedures. See id. at 196; of Manson v. Brathwaite, 432 U.S. 98, 106 n.9 (1977) (standards are not different for pretrial and in-trial identifications). Unnecessarily suggestive identification procedures alone do not require exclusion of in-court identification testimony, however; reliability is the linchpin in determining the admissibility of identification testimony. See id. at 114. In determining whether in-court identification testimony is sufficiently reliable, courts consider five factors: (1) the witness1 opportunity to view the defendant at the time of the incident; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description; (4) the level of certainty demonstrated by the witness at the time of the identification procedure; and (5) the length of time between the incident and the identification. See id. at 114; Neil, 409 U.S. at 199-200.

  To obtain habeas relief, Cooper must show that the in-court identification was unnecessarily suggestive and not sufficiently reliable. An in-court identification of a defendant who looks different from everyone else around him and is clearly the person on trial may be suggestive. See United States v. Rogers, 126 F.3d 655 (5th Cir. 1997) ("it is obviously suggestive to ask a witness to identify a perpetrator in the courtroom when it is clear who is the defendant"). Asking Wright to identify a particular man at the defense table was suggestive if Cooper looked different from those around him — a fact that this court cannot determine from the appellate record — although for the reasons mentioned later, Wright's "identification" was so generalized that it was of little value. In any event, suggestiveness alone is not enough. Cooper has not shown that the identification testimony was unreliable. Consideration of the factors identified in Manson regarding the reliability of the identification leads to the conclusion that the evidence was not unreliable. First, Wright had just a fleeting opportunity to observe the man as Wright drove by, but Wright also saw the man up close when he pulled his car up next to the man's car at a stop light. Second, Wright was likely more attentive than an average citizen because he was a retired police officer alerted by gunshots. Cf. Manson, 432 U.S. at 108 (trained police officer who realized he would have to find and arrest the person with whom he was dealing was paying attention to the identity of the person). Wright's attention had been drawn to the scene because he heard what sounded like two gunshots; he scanned the scene to try to figure out what was going on. This was not a situation where a person observed what appeared to be neutral facts but later turned out to be relevant to a criminal act. When Wright heard the gunshots in the urban locale, he doubtless was thinking it was a crime scene. And this was not a situation where the witness was the distressed and distracted victim of a crime. Third, Wright's prior description at the scene of the abduction had been general but so was his trial testimony. Fourth, the level of certainty demonstrated by Wright was adequate at trial. As to both the third and fourth points, the facts cut against Cooper because Wright's description was rather general, but so was his trial testimony. He did not actually identify Cooper as the man who drove the Corvette, but rather was only asked whether Cooper had characteristics not inconsistent with those of that man. The testimony was far less damaging to the defense than if Wright had said Cooper actually was the man. Fifth, only about four months had lapsed between the observation of the witness and the identification. Four months is not a long time in light of the generality of the description and the identification testimony given. It is far easier to believe that a witness could keep in his mind for four months an image of the general type of person he saw rather than the exact person he saw. Considering the various factors together, this court finds that the in-court identification was sufficiently reliable.

  Wright did not say that Cooper was the man, but only that Cooper's height, weight and appearance were consistent with those of the man he had seen at the crime scene. Bearing in mind that the body of law about identification testimony is aimed at avoiding mistaken identification, one can say with confidence that there was no likelihood of mistaken identification by Wright The vice of the admission of Wright's testimony was its weakness, rather than that it may have been mistaken: one can reasonably guess that hundreds or thousands of men in the Bay Area would have an appearance consistent with the description of a Black male in his mid-20s, about 5'11" tall and about 170-180 pounds.*fn3

  The identification was weak and quite limited in that the witness only said Cooper's appearance was consistent with that of the man observed earlier. The defense obtained testimony that established the witness' limited opportunity to observe, the commonness of defendant's size, and the absence of a gun in the man's hands. Cooper's right to due process was not violated by the admission of Wright's testimony that Cooper's appearance was not inconsistent with that of the man he saw driving the red Corvette. Cooper is not entitled to the writ on this claim.

 B. The Appellate Record

  Cooper claims that his right to due process was denied because his appellate record was incomplete. At trial, the court reporter had problems with her stenography machine. Cooper's appellate counsel raised questions about the accuracy of the appellate record and sought to settle the appellate record. Cooper's counsel thought Douglas Wright's testimony was not transcribed fully. Cooper's counsel thought that the transcript had omitted a couple of questions and answers to the effect that Wright's description of Cooper "fit the description of half the young Black male population in Oakland" and that Wright could not identify the person he saw in the Corvette. See Exh. C to Resp. Exh. I. A post-conviction hearing was held by the trial court to settle the record, after which the trial court denied Cooper's application to settle the record. Resp. Exh. H.

  If a state creates a system for appellate review as an integral part of the system for finally adjudicating the guilt of a defendant, the procedures used must comport with demands of due process and equal protection. See Evitts v. Lucey, 469 U.S. 387, 393 (1985) (citation omitted). The failure to provide a criminal defendant with a transcript of the trial court proceedings which effectively denies him his right to a timely appeal may deprive him of his constitutional right to due process of law. See Madera v. Risley, 885 F.2d 646, 648 (9th Cir. 1989) (state's failure to provide full record of trial may violate defendant's due process rights and form basis for federal habeas corpus relief). Two criteria are relevant to the determination of whether an adequate record has been supplied: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought; and (2) the availability of alternative devices that would fulfill the same ...


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