840 F.

2d 893

Peter Brian CIKORA, Petitioner-Appellant,

v.
Richard L. DUGGER, Respondent-Appellee.
No. 87-5360.

United States Court of Appeals,

Eleventh Circuit.
March 25, 1988.

Ira N. Loewy, Bierman, Sonnett, Shohat & Sale, P.A., Pamela Perry,
Miami, Fla., for petitioner-appellant.
Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, Fla., for
respondent-appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before KRAVITCH and CLARK, Circuit Judges, and ESCHBACH* ,
Senior Circuit Judge.
KRAVITCH, Circuit Judge:

Peter Brian Cikora challenges his state conviction for grand theft and burglary
with a weapon. In his federal habeas petition, Cikora claims that the state trial
court violated his constitutional rights (1) when it admitted evidence of an outof-court identification allegedly based on an impermissibly suggestive photo
array, and (2) when it refused to allow Cikora to present one Charles
Donorvitch to the jury to show that Donorvitch closely fit the description of the
burglar given by witnesses immediately after the crime.

I.
2

On the night of August 12, 1982, Karen Hudson and her daughter Bobbie Lynn
Hudson were staying at the Hollywood, Florida home of Janie Hernandez. At
about 10:00 p.m., Hernandez heard a knock at the door. She did not open the

door; instead she looked through a blue stained-glass "jailhouse door." A man
outside, bending over as if in pain, asked to use the telephone, but Hernandez
refused.
3

At about 1:00 a.m., Karen Hudson was awakened by barking dogs. The three
women got up and looked around, but they could not see anything. An hour
later, Karen Hudson looked out the living room window and saw a man on the
ground on his hands and knees. Although the man had a stocking over his face,
Hudson was able to observe that he had light brown hair and dark eyes. The
police were called, but they found nothing.

At 6:30 a.m., the three women heard a loud noise at the front door. Karen
Hudson looked out her bedroom window and saw a man hitting the door, about
four to five feet away. In the five seconds in which Hudson was able to observe
the man, she noticed that he had light brown hair and dark eyes. His face was
not covered.

Karen Hudson ran to phone the police and to get Hernandez, who tried to hold
the door. The man soon shred the door, however, and entered the house.
Hernandez hid; Karen Hudson dropped the telephone and ran down the
hallway. The man chased her, and she turned around to face him. He yelled at
her before hitting her over the head and across the face. When Bobbie Lynn
Hudson called at him to stop, he ran out of the house.

Karen Hudson then phoned the police. As she picked up the telephone, she saw
the man get into Hernandez' car; she screamed at him, and he turned towards
her before stepping into the car. Hernandez ran across the street to her
neighbor's house. From the neighbor's doorway, Hernandez saw the man try to
unlock her car. She was able to observe him for four minutes, although she was
seventy-five feet away and admitted that it was difficult for her to see at the
time.

Following the incident, Deputy Cloud of the Broward County Sheriff's Office
arrived at the Hernandez house. After speaking with Hernandez and Karen
Hudson, Cloud put together a composite description of the intruder: a white
male in his mid-twenties, approximately 5'7" tall, 165 pounds, with short to
medium light brown hair. Hernandez and Hudson had not observed any facial
hair, scars, marks, or tattoos. Cloud then learned from a neighborhood resident
that Cikora fit the composite description and lived in the neighborhood. Cloud
telephoned Cikora, who came over. According to Cloud's testimony, Cikora at
the time had a full blond or sun-bleached moustache that could have blended

into his face.

8

Deputy Sheriff Edward Baker then took over the case. Baker secured a
photograph of Cikora from the Sheriff's Office and put this photograph together
with five others to produce a photographic lineup. All of the photos showed
white males; four showed men with full moustaches, one showed a man with a
goatee and sparse moustache, and the photo of Cikora showed only a sparse
moustache. Only Cikora's photo had height markings.

One month after the burglary, Officer Baker asked the three women to examine
the photographic lineup. Baker asked Hernandez and Bobbie Lynn Hudson to
turn away while he showed the array to Karen Hudson. Baker stated, "These
are pictures of six white males. One of them is believed to be the suspect. I
would like you to view them and pick out who you feel is the white male that
was at your residence on this particular night." Karen Hudson pointed to the
picture of Cikora. Baker then followed the same procedure with Hernandez,
who also pointed to the photograph of Cikora, although she indicated that she
was not one hundred percent certain of her identification. Bobbie Lynn Hudson
was unable to identify Cikora. None of the women communicated during the
selection process, and Officer Baker did not indicate any woman's selection to
the others. Prior to trial, defense counsel moved to suppress the out-of-court
identification on the ground that the photo array was impermissibly suggestive.
The court denied this motion.

10

At trial, Karen Hudson and Hernandez positively identified Cikora as the man
who broke into the Hernandez home. Officer Baker testified as to each woman's
out-of-court identification. Five witnesses testified for the defense. John Gaetz
testified that he was friendly with both Hernandez and Cikora, and that he had
seen Hernandez and Cikora together before the night of the crime. Four defense
witnesses testified that the photograph of Cikora used in the photographic
lineup had been taken a considerable time before the burglary. Cikora testified
that he had been shooting pool until 2:30 a.m. on the night of the burglary and
then went home. He also exhibited tattoos on his back, chest, and arm.

11

As part of the defense strategy, counsel subpoenaed Charles Donorvitch, a

prisoner that Cikora had met in the Pompano, Florida jail. Counsel argued that,
as Donorvitch lived in Hernandez' neighborhood and fit the description of the
burglar given by the witnesses to Detective Cloud, he should be brought into
court for the jury to observe.1 The trial judge expressed concern about parading
Donorvitch before the jury, although he suggested that calling Donorvitch as a
witness might be a different matter. The state moved to exclude Donorvitch,
and the trial court granted the motion.

12

Cikora was convicted and sentenced to concurrent prison terms of fifteen years
and five years. The Florida District Court of Appeal affirmed the conviction,
450 So.2d 351. Cikora then filed his petition for habeas corpus in federal
district court. The Magistrate recommended that the writ issue on the ground
that the photographic lineup was impermissibly suggestive. The district judge
concluded, however, that Cikora's rights were not violated by either the
admission of the identification based on the photo lineup or the exclusion of
Donorvitch, and denied relief, 661 F.Supp. 813.

II.
13

This court consistently has followed a two-step analysis in assessing the

constitutionality of a trial court's decision to admit out-of-court identifications.
First, we must determine whether the original identification procedure was
unduly suggestive. Dobbs v. Kemp, 790 F.2d 1499, 1506 (11th Cir.1986),
modified in part on other grounds, 809 F.2d 750 (11th Cir.), cert. denied, --U.S. ----, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). If we conclude that the
identification procedure was suggestive, we must then consider whether, under
the totality of the circumstances, the identification was nonetheless reliable.
See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401
(1972); Dobbs, 790 F.2d at 1506. This second stage involves consideration of
five factors identified by the Supreme Court in Neil v. Biggers: opportunity to
view, degree of attention, accuracy of the description, level of certainty, and
length of time between the crime and the identification. 409 U.S. at 199, 93
S.Ct. at 382.

14

Initially we must address our standard of review of the district court's

conclusion that the identification procedure was not impermissibly suggestive.
The district court's ultimate conclusion, taking into consideration the five
factors of the Neil v. Biggers test, that Cikora was not deprived of due process
by the admission of the out-of-court identification, is subject to plenary review
as a mixed question of fact and law. Cf. Sumner v. Mata, 455 U.S. 591, 597,
102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam) (ultimate conclusion
of whether admission of identification testimony deprived defendant of due
process is mixed question of fact and law to which presumption of correctness
on habeas proceedings does not apply). But as previously explained, this
ultimate conclusion must be preceded by several intermediate determinations. If
we conclude that the photo array was not impermissibly suggestive, we need
not proceed to the five factors of the Neil v. Biggers test.

15

Although we have found no Supreme Court or Eleventh Circuit decisions

directly on point, the former Fifth Circuit consistently applied the "clearly

erroneous" standard, on habeas proceedings as well as on direct appeals, to

conclusions of the district courts that a pretrial identification procedure was not
impermissibly suggestive. See, e.g., Doescher v. Estelle, 616 F.2d 205, 206 (5th
Cir.1980); United States v. Diecidue, 603 F.2d 535, 565 (5th Cir.1979), cert.
denied, 446 U.S. 912, 100 S.Ct. 1842, 64 L.Ed.2d 266 (1980); United States v.
Francoeur, 547 F.2d 891, 894 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct.
2640, 53 L.Ed.2d 249 (1977); cf. United States v. Merkt, 794 F.2d 950, 958
(5th Cir.1986) (citing Diecidue ), cert. denied, --- U.S. ----, 107 S.Ct. 1603, 94
L.Ed.2d 789 (1987).2 Nor do we view the Supreme Court's decision in Sumner
v. Mata as implicitly overruling our use of the "clearly erroneous" standard. In
Mata, the Court confirmed that "the ultimate question as to the constitutionality
of the pretrial identification procedures is a mixed question of law and fact."
455 U.S. at 597, 102 S.Ct. at 1306. The Court also explained, however, that
"the questions of fact that underlie this ultimate conclusion are governed by the
statutory presumption [of correctness applied to state court findings of fact by
28 U.S.C. Sec. 2254(d) ]." Id. It is clear from a previous opinion of the
Supreme Court, as well as our own two-step analysis of identification
procedures, that the "ultimate question" of constitutionality refers not to the
suggestiveness of the procedures per se but rather to the final conclusion about
the reliability of the identifications, as measured by the totality of the
circumstances, including any impermissible suggestions. "Unlike a warrantless
search, a suggestive preindictment identification procedure does not in itself
intrude upon a constitutionally protected interest. Thus, considerations urging
the exclusion of evidence deriving from a constitutional violation do not bear
on the instant problem." Manson v. Brathwaite, 432 U.S. 98, 113 n. 13, 97
S.Ct. 2243, 2252 n. 13, 53 L.Ed.2d 140 (1977) (emphasis added); accord
United States ex rel. Kirby v. Sturges, 510 F.2d 397, 406 (7th Cir.) (Stevens,
J.), cert. denied, 421 U.S. 1016, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975).
16

We cannot conclude that the district court was clearly erroneous when it held
that the pretrial identification procedure was not impermissibly suggestive.
First, we do not agree that the height markings in Cikora's photograph waved a
red flag in front of Hernandez and Hudson. Based upon our examination of the
photo array, we doubt that anyone viewing the array would not realize that at
least three, and possibly all, of the other five photographs were also "mug
shots." Second, Officer Baker did not direct the women's attention to Cikora's
photograph when he told them that one of the men pictured was the suspect. In
fact, Baker was careful enough to ask the two other women to turn their backs
during each identification procedure.

17

Third, we reject Cikora's suggestion that the photo array was suggestive
because three other photos show males of Hispanic background. Although the

man pictured in one photo appears to be Hispanic, the others do not necessarily
show Hispanic men. Moreover, "simply being of a different race or ethnic
group from others placed in a lineup does not necessarily make that lineup
impermissibly suggestive, especially where, as here, the other individuals in the
lineup had roughly the same characteristics and features of the accused."
Williams v. Weldon, 826 F.2d 1018, 1021 (11th Cir.1987).
18

All the men depicted had some facial hair. Although Cikora's moustache in the
picture is sparse, it is definitely noticeable. Indeed Cikora's moustache is not
significantly less noticeable than that of one of the other men. Cf. United States
v. Shoels, 685 F.2d 379, 385 (10th Cir.1982) (photo array of seven black men,
all with noticeable but sparse facial hair, not impermissibly suggestive although
witness described criminal as clean-shaven), cert. denied, 462 U.S. 1134, 103
S.Ct. 3117, 77 L.Ed.2d 1370 (1983).3 The photo array here is much less
suggestive than the array in either United States v. Gidley, 527 F.2d 1345 (5th
Cir.) (defendant was only person depicted with Asian appearance and long
black hair), cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976), or
United States v. Bice-Bey, 701 F.2d 1086 (4th Cir.) (defendant was only
woman pictured with dred locks), cert. denied, 464 U.S. 837, 104 S.Ct. 126, 78
L.Ed.2d 123 (1983). Because we conclude that the district court was not clearly
erroneous in finding that the photo array was not impermissibly suggestive, we
need not reach the five-factor Neil v. Biggers test.

III.
19

Cikora also argues that the trial court's refusal to permit him to show
Donorvitch to the jury deprived him of due process.4 Cikora seeks support
primarily from United States v. Robinson, 544 F.2d 110 (2d Cir.1976), cert.
denied, 434 U.S. 1050, 98 S.Ct. 901, 54 L.Ed.2d 803 (1978). In Robinson, the
Second Circuit held that a trial court erred in refusing to allow a defendant
charged with bank robbery to introduce testimony by a corrections officer that a
person in a bank surveillance picture taken during the robbery resembled Eli
Turner, another man whom the police suspected of committing two other
armed robberies in the area. The Second Circuit reversed even though there was
no evidence linking Turner to the robbery for which Robinson was on trial.
Robinson, however, is not a habeas case, and the decision in Robinson rests on
a construction of the rules of evidence, not the due process clause of the
Constitution.

20

Federal courts have granted relief from state convictions when the trial court
arbitrarily excluded evidence tending to show that another person might have
committed the crime. They have done so, however, only when there was some

demonstration connecting another person to the particular crime for which the
defendant was on trial. In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18
L.Ed.2d 1019 (1967), the seminal case in this field, the Supreme Court reversed
a conviction after a trial in which the state trial court had refused to allow the
testimony of the defendant's accomplice. That testimony would have shown
that the accessory, not the defendant, had fired the fatal shot. Id. at 16, 87 S.Ct.
at 1921. Similarly, the Supreme Court held in Chambers v. Mississippi, 410
U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), that a state trial court denied
Chambers due process when it refused to allow Chambers to show to the jury
that another person had repeatedly confessed to the crime. The state trial judge
excluded this testimony because Chambers had called that person as his
witness, and Mississippi rules of evidence did not permit defendants to crossexamine their own witnesses. Id. at 293-94, 93 S.Ct. at 1044-45.
21

In Pettijohn v. Hall, 599 F.2d 476 (1st Cir.), cert. denied, 444 U.S. 946, 100
S.Ct. 308, 62 L.Ed.2d 315 (1979), the First Circuit granted habeas relief
because the state trial court had refused to allow the defendant to introduce the
testimony of an eyewitness that he had actually identified a person other than
the defendant as the criminal from a photo array. By contrast, in Perry v.
Rushen, 713 F.2d 1447 (9th Cir.1983), cert. denied, 469 U.S. 838, 105 S.Ct.
137, 83 L.Ed.2d 77 (1984), the Ninth Circuit held that due process had not been
violated in Perry's rape trial when Perry was prevented from introducing the
testimony of two witnesses that they had been raped in the same area and timeframe by another man who might have been confused with Perry. A California
evidentiary rule precluded evidence tending to show that a third person might
have committed the crime unless the defendant also introduced evidence
tending to " 'connect that person with the actual commission of the offense.' "
Id. at 1449 (quoting People v. Green, 27 Cal.3d 1, 22, 164 Cal.Rptr. 1, 609 P.2d
468 (1980)). Perry was unable to make any showing that linked the other man
to the crime for which he was being tried.

22

As the Ninth Circuit explained in Perry, determining what due process

mandates in these cases requires a balancing of interests. The defendant
certainly has a strong interest in presenting exculpatory evidence, but the state
has an interest in promoting reliable trials, particularly in preventing the
injection of collateral issues into the trial through unsupported speculation
about the guilt of another party. Due process may require a trial court to allow
the introduction of evidence of another party's possible guilt when there is some
showing of a nexus between the other party and the particular crime with which
a defendant is charged.5 Cikora has made no such showing.6

23

Accordingly, the order of the district court denying the writ of habeas corpus is

AFFIRMED.
24

CLARK, Circuit Judge, concurring in part and dissenting in part:

25

I concur in the affirmance of the district court's denial of Cikora's petition for a
writ of habeas corpus. I dissent from the majority's holding as to our "standard
of review of the district court's conclusion that the identification procedure was
not impermissively suggestive," see supra part II. The majority adopts the
"clearly erroneous" standard. I can only assume that the majority in using that
phrase has in mind the standard set forth in Fed.R.Civ.P. 52(a), which states in
part: "Findings of fact, whether based on oral or documentary evidence, shall
not be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the credibility of the witnesses."

26

In my view, Rule 52(a) has no application in this 28 U.S.C. Sec. 2254

proceeding. I disagree that the issue of an identification procedure's
suggestiveness is a question of fact. Thus, our review of this case is neither a
Rule 52(a) or a 28 U.S.C. Sec. 2254(d) review. In Miller v. Fenton, 474 U.S.
104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the Supreme Court set forth several
principles to guide the federal courts in distinguishing questions of fact from
those of law. An issue is more appropriately deemed legal "[w]here, for
example, as with proof of malice in First-Amendment libel cases, the relevant
legal principle can be given meaning only through its application to the
particular circumstances of a case," id. at 452, or where there are " 'perceived
shortcomings of the trier of fact by way of bias or some other factor.' " Id.
(quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485,
518, 104 S.Ct. 1949, 1969, 80 L.Ed.2d 502 (1984) (Rehnquist, J., dissenting)).
An issue is more appropriately deemed factual "[w]hen, for example, the issue
involves the credibility of witnesses and therefore turns largely on an
evaluation of demeanor." 1 Id.

27

Under these principles, the suggestiveness question would seem to be a legal

issue, or at the very least, a mixed question of law and fact, which, like a purely
legal issue, is freely reviewable. It can certainly be said that the suggestiveness
concept can be "given meaning only through its application to the particular
circumstances of a case"; one need only look at the fact-laden analyses of the
courts that have decided the suggestiveness question. See, e.g., Manson v.
Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v.
Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Foster v.
California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Additionally,
the suggestiveness question is not one that turns on evaluations of demeanor
and/or the credibility of witnesses. The facts underlying the decision are

virtually never in dispute, and it is not as though the relevant witnesses ever
speak to the ultimate issue, as is the case, for example, when a defendant's
competence or a juror's bias is at issue.2
28

Additionally, none of the Supreme Court cases dealing with due process
challenges based on identification procedures treats the suggestiveness question
as one of fact; to the extent they indicate anything, they imply that the issue is
one of law. First, from the earliest cases, the Court has referred to the following
"standard" or "test": whether an identification procedure is "so impermissibly
suggestive as to give rise to a substantial likelihood of misidentification." See,
e.g., Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19
L.Ed.2d 1247 (1968); Neil v. Biggers, 409 U.S. at 198, 93 S.Ct. at 381. Second,
in Neil v. Biggers, the district court had found that the lineup was
impermissibly suggestive without addressing its reliability, the Sixth Circuit
affirmed, and the Supreme Court reversed, ruling that an independent
determination of reliability was necessary. The majority and dissent clashed
over whether the reversal amounted to a failure to abide by the rule that when
the two courts below have concurred in their findings of fact, the Court should
not upset those findings. The majority wrote that the rule was "inapplicable
here where the dispute between the parties is not so much over the elemental
facts as over the constitutional significance to be attached to them." Id. at 193 n.
3, 93 S.Ct. at 379 n. 3.

29

Finally, in Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480
(1987)--the only identification case addressing the standard of review directly-the Court seemed to deliberately sidestep the issue of the standard of review to
be accorded the second-tier questions, i.e., suggestiveness and reliability. In
reversing the Ninth Circuit for its failure to accord the state court's fact findings
the presumption of correctness mandated by section 2254(d), the Court did not
really specify which tier of findings the Court of Appeals had mistreated. The
Court did, however, offer clues:

30 agree with the Court of Appeals that the ultimate question as to the
We
constitutionality of the pretrial identification procedures used in this case is a mixed
question of law and fact that is not governed by Sec. 2254(d). In deciding this
question, the federal court may give different weight to the facts as found by the
state court and may reach a different conclusion in light of the legal standard. But
the questions of fact that underlie this ultimate conclusion are governed by the
statutory presumption as our earlier opinion made clear. Thus, whether the witness
in this case had an opportunity to observe the crime or were too distracted; whether
the witnesses gave a detailed, accurate description; and whether the witnesses were
under pressure from prison officials or others are all questions of fact to which the

statutory presumption applies.

31

Id. at 597, 102 S.Ct. at 1306-07 (emphasis added). Elsewhere in the opinion,
the Court states that on the case's first appearance before it, "We expressed no
view as to whether the procedures had been impermissibly suggestive. That was
a question for the Court of Appeals to decide in the first instance after
complying with Sec. 2254(d)." Id. at 596, 102 S.Ct. at 1306. These statements
taken together indicate that the suggestiveness determination is at least in part a
legal conclusion. The "facts" referred to in the long quoted passage are
historical, verifiable events. See Martin v. Kemp, 760 F.2d 1244, 1247 (11th
Cir.1985) (" '[f]actual issues include basic, primary, or historical facts,' such as
external events and credibility determinations") (quoting Townsend v. Sain,
372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963)).
Moreover, the Court's instruction to reach the suggestiveness determination
after according the facts their presumption of correctness implies that the
determination is not accorded such a presumption, i.e., is not a factual issue.

32

For these reasons, I respectfully dissent from the majority's holding that the
suggestiveness question is subject to clear error analysis. I concur, however, in
the majority's decision on the merits. The case is a troubling one because the
only evidence connecting the defendant to the burglary was the identification
by two witnesses under circumstances that raise grave doubts as to the
suggestiveness of the procedure. I see no error of law, however, in the district
court's conclusion that when the identifications are viewed in their totality,
there are sufficient indicia of reliability to negate a violation of due process.
Because these indicia of reliability represent limitations on a federal court's
review of a state conviction, I join the majority in affirming the district court's
judgment.

Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh
Circuit, sitting by designation

Cikora's attorney originally intended to have Donorvitch testify, but

Donorvitch's attorney asserted his client's privilege against self-incrimination.
Cikora's attorney then sought merely to have the jury view Donorvitch to
compare his appearance with Cikora's and with the description given to the
police by Hernandez and Karen Hudson

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the
Eleventh Circuit adopted as precedent the decisions of the former Fifth Circuit
issued before October 1, 1981. Under the strict rule of interpanel accord to

which this circuit adheres, "a prior decision of the circuit (panel or en banc)
[can] not be overturned by a panel but only by the court sitting en banc." Id. at
1209. We also must adhere to intervening Supreme Court cases that disapprove
the law as developed by prior panels, but unlike Judge Clark we do not read the
Supreme Court's opinion in Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88
L.Ed.2d 405 (1985), as requiring us to review de novo the district court's
conclusion about the suggestiveness of a pretrial identification procedure. In
Miller, the Supreme Court held that a state court's conclusion as to the
voluntariness of a defendant's confession is not a factual resolution to which a
presumption of correctness applies in federal habeas corpus proceedings. As the
Supreme Court noted, however, "the voluntariness of a confession has always
had a uniquely legal dimension." Id. at 453. Cf. Maggio v. Fulford, 462 U.S.
111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983) (per curiam) (state
court's conclusion about defendant's competency to stand trial is factual issue to
which presumption of correctness applies). Were we writing on a completely
clean slate, we might agree with Judge Clark that the question of undue
suggestiveness is analogous to that of voluntariness. But our slate is not
unmarked, and in our view Miller did not erase what was written there before
this case
We recognize that our circuit's adherence to the "clearly erroneous" standard on
this issue conflicts with the Ninth Circuit's practice of employing de novo
review. See United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir.1987).
3

Although the photocopy of the photo array on the record is blurred, it is

possible that a person looking at the photo array would believe that Cikora had
a slight beard

Cikora bases this claim on the due process clause itself and on the compulsory
process clause of the sixth amendment (as incorporated by the fourteenth
amendment), which provides that "[i]n all criminal proceedings, the accused
shall enjoy the right ... to have compulsory process for obtaining witnesses in
his favor." The Supreme Court apparently has never decided whether the
compulsory process clause applies to the introduction of real evidence, such as
Donorvitch himself, as well as to testimonial evidence. Assuming that the sixth
amendment is applicable, however, we believe that the standards for assessing
the sixth amendment violation and a violation of due process itself are identical
in this context--a challenge to a trial court ruling excluding evidence or
testimony. The Supreme Court recently confirmed the close relationship of the
compulsory process clause and the due process clause on the issue of exclusion
of testimony, see Rock v. Arkansas, --- U.S. ----, 107 S.Ct. 2704, 2710-11, 97
L.Ed.2d 37 (1987); Pennsylvania v. Ritchie, --- U.S. ----, 107 S.Ct. 989, 1001,
94 L.Ed.2d 40 (1987), and it previously noted that it had "borrowed much of

our reasoning with respect to the Compulsory Process Clause of the Sixth
Amendment from cases involving the Due Process Clause of the Fifth
Amendment." United States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S.Ct.
3440, 3449, 73 L.Ed.2d 1193 (1982). In cases where this court has considered
the effect of the exclusion of testimony on due process, we have held
consistently that the exclusion must rise to a denial of fundamental fairness
before habeas relief can be granted. See Johnson v. Dugger, 817 F.2d 726, 729
(11th Cir.1987); Martin v. Wainwright, 770 F.2d 918, 938 (11th Cir.1985),
modified in part on other grounds, 781 F.2d 185 (11th Cir.), cert. denied, --U.S. ----, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986); Shaw v. Boney, 695 F.2d 528,
530 (11th Cir.1983) (per curiam)
5

There may be other legitimate state interests or personal privileges warranting

the exclusion of such evidence, and we are not asked to address the existence or
scope of any such interests in this case

Cikora's counsel stated only that "[Donorvitch] lives in that neighborhood. He

fits the description given to the police to the T, much more so than Peter
Cikora."
The prosecution was not unalterably opposed to any defense use of
Donorvitch's appearance. The state objected to the introduction of Donorvitch's
testimony or body into evidence on the ground of surprise. The prosecutor
stated that "[i]t should have and could have been taken care of in a pre-trial
manner or we even could have had Mr. Cikora and Mr. Donorvitch in the
audience, and if [Hernandez and Hudson] couldn't pick him out, it would go to
the credibility of the defense's viewpoint of the case."

In addition to setting forth these principles, the Miller Court stated that "an
issue does not lose its factual character because its resolution is dispositive of
the ultimate constitutional question." 106 S.Ct. at 451. Because of this
language, I have trouble accepting the majority's use of the converse--namely,
that the suggestiveness issue is a factual question because it is not dispositive of
the ultimate constitutional question

The Supreme Court has determined that questions of a defendant's competence

or a juror's bias are fact questions subject to clear error review and the
presumption of correctness. See Maggio v. Fulford, 462 U.S. 111, 117, 103
S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983) (competence); Patton v. Yount, 467
U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984) (juror bias)