IN THE
SUPREME COURT OF FLORIDA
CASE NO.
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FRANK LEE SMITH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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ON APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTEENTH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, STATE OF
FLORIDA
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INITIAL BRIEF OF APPELLANT
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BRET
B. STRAND
ASSISTANT
CCRC
Office
of the CCRC - South
1444
Biscayne Boulevard, Suite 202
Miami,
Florida 33132
(305)
377-7580
COUNSEL
FOR APPELLANT
PRELIMINARY STATEMENT
This
proceeding involves the appeal of the circuit court's denial of Mr. Smith's
motion for post-conviction relief. The
motion was brought pursuant to Florida Rule of Criminal Procedure 3.850. The following symbols will be used to
designate references to the record in this appeal:
"R"
-- record on appeal to this Court;
"PC-R"
-- record on appeal to this Court following the 1998 evidentiary hearing;
"Def.
Exh." -- defense exhibits;
"State
Exh." -- State exhibits.
REQUEST FOR ORAL ARGUMENT
Mr.
Smith has been sentenced to death. The
resolution of hte issues involved in this action will therefore determine
whether he lives or dies. This Court
has not hesitated to allow oral argument in other capital cases in a similar
procedural posture. A full opportunity
to air the issue through oral argument would be more than appropriate in this
case, given the seriousness of the claims involved and the stakes at
issue. Mr. Smith, through counsel,
accordingly urges that this Court permit oral argument.
STATEMENT OF FONT
Mr.
Smith's Initial Brief is written in Courier font size 12.
TABLE
OF CONTENTS
Page
TABLE
OF AUTHORITIES
Page
STATEMENT OF THE CASE
On
May 9, 1985, Frank Lee Smith was indicted for first-degree murder, sexual
battery, and burglary in the Seventeenth Judicial Circuit, Broward County,
Florida. Mr. Smith was tried in January
1986 and convicted on all three counts (R. 1252). After a one-day penalty phase, the jury recommended a death
sentence (R. 1364). On May 2, 1986,
Circuit Judge Tyson sentenced Mr. Smith to death (R. 1440). This Court affirmed on direct appeal. Smith v. State, 515 So. 2d 182 (Fla.
1987). The United States Supreme Court
denied certiorari. Smith v. State,
485 U.S. 971 (1988).
On
October 18, 1989, a death warrant was signed in Mr. Smith's case. On November 17, 1989, Mr. Smith filed a Rule
3.850 motion in circuit court which was summarily denied. This Court remanded for an evidentiary
hearing on Mr. Smith's newly discovered evidence of innocence claim based on
Chiquita Lowe's recantation of her trial testimony identifying Mr. Smith as the
man she saw near the victim's house on the night of the crime. In ordering a hearing on this claim, this
Court noted the importance of Ms. Lowe's testimony at Mr. Smith's trial:
Of
the witness identifications presented at trial, that of Lowe clearly was the
most credible. After the jury had
deliberated for five hours, it requested that it be permitted to rehear Lowe's
testimony. The court declined. One hour later, the jury repeated its
request. The court acceded. Two and one-half hours later, the jury
rendered its verdict.
Smith v. Dugger, 565
So. 2d 1293, 1296 (Fla. 1990). This
Court also noted that the man whom Ms. Lowe identified as the man she saw near
the victim's house on the night of the crime, Eddie Lee Mosley, was "a
former suspect who has since been implicated in numerous rape/murders and
sexual batteries occurring during the same time period and in the same
geographical area as the instant crime."
Id.
On
March 7, 1991, the circuit court held an evidentiary hearing at which Ms. Lowe
testified that she identified the wrong man at trial and that Mr. Mosley is the
man she saw near the victim's house on the night of the murder. The circuit court denied relief. One of Mr. Smith's arguments on appeal was
that Judge Tyson had engaged in improper ex parte communication with the State
when he contacted Assistant State Attorney Paul Zacks and requested that Mr.
Zacks prepare the order denying relief.
This Court relinquished jurisdiction to Circuit Judge Mark A. Speiser to
conduct a hearing regarding the ex parte communication. Following the hearing, this Court found that
improper ex parte communication had occurred and remanded the case again to
Judge Speiser to conduct a second evidentiary hearing on Ms. Lowe's
identification of Eddie Lee Mosley as the man she saw on the night of the
murder. Smith v. State, 708 So.
2d 253 (Fla. 1998).
An
evidentiary hearing was held on September 16, 17, 18, and October 2 and 21,
1998. In addition to Chiquita Lowe (now
Olige), Mr. Smith presented the testimony of Andrew Washor, his trial attorney;
Jeffrey Walsh, an investigator for Mr. Smith's post-conviction counsel; and
William Dimitrouleas, the trial prosecutor and now a federal judge. The court excluded the testimony of Dr.
Walter Hathaway, an optometrist whose testimony was proffered at the 1991
evidentiary hearing. The State
presented Dorothy McGriff, the victim's mother, and Detective Richard Scheff,
the lead investigator on this case.
Prior
to the hearing, counsel for Mr. Smith requested DNA testing of the evidence
taken from the victim, Shandra Whitehead.
The State opposed counsel's motion for a confidential expert, and the
court denied the request. Assistant
State Attorney Carolyn McCann then independently moved the court to allow DNA
testing by the Florida Department of Law Enforcement. As an alternative, the court suggested sending the evidence to
the FBI. When the hearing resumed in
October, counsel for Mr. Smith agreed to Ms. McCann's conditions and accepted
the court's suggestion to allow the FBI to conduct the DNA testing. Ms. McCann then withdrew her motion and
argued that counsel's request for DNA testing was procedurally barred. The circuit court agreed and the motion was
denied.
On
February 24, 1999, the circuit court denied all relief. Mr. Smith filed a Motion for Rehearing,
requesting that Judge Speiser reconsider his denial of Mr. Smith's motion for
DNA testing, which was denied on ***.
This appeal followed.
STATEMENT OF THE FACTS
A. INTRODUCTION
Mr.
Smith is innocent of the crime for which he was convicted and sentenced to
death. He was convicted based on the
testimony of three "eyewitnesses" -- none of whom actually saw the
crime occur. The victim's mother,
Dorothy McGriff, saw a man outside her house just before she found her
daughter. Chiquita Lowe testified that
a man flagged down her car near the victim's house on the night of the crime
and asked her for money. Gerald Davis
was walking on the victim's street on the night of the crime when a man
approached him and offered him drugs.
There was absolutely no physical evidence linking Mr. Smith to the crime
or the crime scene -- no hair, no fingerprints, no blood, no fibers matching
Mr. Smith were found. This Court noted in 1990 when it ordered a
hearing on Mr. Smith's newly discovered evidence claim that of the three
eyewitnesses, Chiquita Lowe "clearly was the most credible." Smith, 565 So. 2d at 1296. This Court also noted that Dorothy McGriff
"could not identify [the man's] face.
She later identified Smith based only on his shoulders." Id.
at 1295. Of Gerald Davis, this Court
observed that "[he] could not remember `how the guy looked.' He testified that Smith looked like the man
but he could not identify him positively." Id. Ms. Lowe, the
only positive witness who identified Mr. Smith, has since testified that Eddie
Lee Mosley, not Frank Smith, is the man she saw on the street the night of
Shandra Whitehead's murder. As this
Court noted in 1990, Mr. Mosley was the suspect in numerous rapes, murders, and
rape/murders in the same neighborhood in which this crime occurred.
Detectives
Richard Scheff and Philip Amabile testified at trial that they showed the three
witnesses photo line-ups of two suspects:
James Freeman and Frank Lee Smith.
Detective Scheff provided the names of other suspects, including Eddie
Lee Mosley, who had been eliminated; he testified that none of these other
suspects, with the exception of James Freeman, was ever put in a photo line-up. Suddenly in 1998 his testimony changed. Detective Scheff testified that he showed
the witnesses photo line-ups of three suspects: James Freeman; Frank Lee Smith; and Eddie Lee Mosley. Detective Scheff produced the line-up
containing Eddie Lee Mosley's picture at the hearing. Detective Scheff's testimony that there were three photo line-ups
is contradicted by all the other evidence in this case: Scheff's trial testimony; Scheff's
deposition testimony; Detective Amabile's deposition and trial testimony;
Scheff's handwritten notes and final police report; the testimony of the
witnesses; the hearing testimony of Andrew Washor and Judge Dimitrouleas; the
public records received by Mr. Smith's trial counsel; and the public records
received by Mr. Smith's post-conviction counsel. The Mosley line-up had not been seen by anyone involved in this
case before Detective Scheff brought it to the 1998 hearing. Detective Scheff testified in 1998 that he
made a mistake at Mr. Smith's trial when he testified that there were two photo
line-ups shown to the witnesses. He
could not explain why all the other evidence in the case contradicted his
hearing testimony.
Mr.
Smith has also sought to have the physical evidence, two or three intact
spermatozoa that were taken from the victim in this case, tested for DNA. At the time of trial, DNA testing was not in
use in Florida, and the evidence was tested only for blood typing, which did
not match Mr. Smith.[1] Mr. Smith's request for DNA testing, which
could definitively prove his innocence of this crime, has been denied by the
circuit court based on the State's argument that the request is procedurally
barred. The circuit court accepted the
State's argument despite the fact that the State independently moved the court
to allow DNA testing by the Florida Department of Law Enforcement. When Mr. Smith's counsel accepted the
court's alternative suggestion that the evidence be sent to the FBI, the State
withdrew its motion and claimed that Mr. Smith's request for DNA testing was
procedurally barred. Mr. Smith has been
denied the opportunity to definitively prove his innocence through
uncontroverted scientific evidence. In
light of Chiquita Lowe's identification of Eddie Lee Mosley and the
unreliability of the other evidence used to convict Mr. Smith, the State's
opposition to DNA testing and the court's denial of Mr. Smith's request has
resulted in a miscarriage of justice.
B. THE TRIAL RECORD
Mr.
Smith was convicted and sentenced to death for the April 14, 1985, rape and
murder of eight-year-old Shandra Whitehead in Ft. Lauderdale, Florida. The crime occurred between 10:30 or 10:40
p.m., when Shandra's aunt checked on her and her brother Reginald (R. 608), and
11:30 p.m., when Shandra's mother arrived home from work and found her daughter
(R. 635). Ms. McGriff testified that as
she pulled her car into the driveway that night, she saw a man at the side of
the house reaching in through a window (R. 635-37). Ms. McGriff yelled at the man and then jumped out of the car,
grabbed a slingblade, and chased the man away from the house (R. 638). The man ran from Ms. McGriff and jumped over
a chain-link fence into the backyard (R. 639).
Ms McGriff then went into the house where she found her daughter (R.
641).
In
addition to Ms. McGriff, the police found two witnesses whom they believed saw
the man who raped and killed Shandra Whitehead -- Gerald Davis and Chiquita
Lowe, two teenagers who lived in the victim's neighborhood. Mr. Davis testified that on the night of the
murder he was out walking at about 9:30 or 10:00 p.m. when a man called to him
from the empty field across the street from Shandra's house (R. 745-46). As Mr. Davis continued walking, Chiquita
Lowe drove up to him and stopped to talk (R. 747). After Ms. Lowe drove away, the man ran to Mr. Davis; he told him
that he had just moved from New York, offered him drugs, and made a sexual
proposition (R. 748). Mr. Davis
testified that he "paid him no mind because [he] didn't want to be
bothered." (R. 749). Chiquita Lowe
testified that at about 10:30 p.m. she was driving down Shandra's street when a
man came out of Shandra's yard and flagged her down; the man approached the
car, leaned into the driver's side window, and asked for money (R. 668-69). The man left when Ms. Lowe told him that she
had no money (R. 669). Ms. Lowe
continued driving and stopped about a minute later to talk to Mr. Davis (R.
673).
On
April 17th, Mr. Davis and Ms. Lowe assisted the police in the creation of a
composite sketch of the suspect (R. 675, 752).
Detective Amabile testified that Ms. McGriff did not participate in
drawing the composite sketch because Ms. Lowe and Mr. Davis "had more of
an eye for detail" and because Ms. McGriff was "emotionally
distraught" and was "a simple woman and could not articulate what she
was trying to tell us" (R. 886-87).
Detective Scheff testified that Ms. McGriff did not participate in
creating the composite because he was "fairly certain" that she had
seen the same man as Lowe and Davis; he also agreed that Lowe and Davis
"were much more articulate than she was." He explained that "[t]he ability to do a composite depends
upon the witness' ability to visualize the person." (R. 969). Before the composite sketch was distributed
in the neighborhood, it was shown to Ms. McGriff who, according to Detective
Scheff, "gave . . . a very positive reaction." (R. 971).
Mr.
Smith was arrested outside his home on April 18, 1985 (R. 855). Detective Scheff had received a call from
Ms. Lowe regarding a man who had come to her house with a shopping cart trying
to sell a television (R. 971).
Detective Scheff testified at trial and in his deposition that Ms. Lowe
spoke to the man with the television and immediately recognized him as the man
she saw near the crime scene (R. 1031-33).
Detective Scheff explained that Ms. Lowe believed that the man had used
the television as a ruse to get to her because he somehow knew she was a
witness in this case (R. 1033).
However, Ms. Lowe testified that when the man came to her house with the
television, she was asleep (R. 676).
Her family members spoke to the man with the television, saw the
composite sketch, and became convinced that he was the same man (R. 677-78). Ms. Lowe looked out a window and saw the man
walking away through an alley across the street from her house (R. 677).[2] Mr. Smith was arrested several hours
later. He was never seen by the police
with either a shopping cart or a television (R. 856).
The
defense strategy at trial was to challenge the three witnesses' identifications
of Mr. Smith and to suggest that the police had not properly eliminated other
suspects. As this Court has noted, the
testimony of Ms. McGriff and Mr. Davis identifying Mr. Smith was extremely
weak: Ms. McGriff, though positive
about her identification, admitted that she did not see the man's face, and Mr.
Davis, who reluctantly identified Mr. Smith, repeatedly told the police he did
not remember what the man looked like.
Assistant State Attorney William Dimitrouleas' closing statement
demonstrates that the State had only one strong witness who could identify Mr.
Smith. Mr. Dimitrouleas told the
jury:
I
don't care how much Gerald Davis' testimony was attacked, how much his
identification is attacked, there has never been any question as to the fact
that there was a weird strange guy that was talking to Gerald Davis that
evening and what he said was bizarre.
(R. 1156). Mr. Dimitrouleas then bolstered Mr. Davis' identification and
encouraged the jury to overlook his inconsistent statements and hesitation by
reassuring the jury that he and Ms. Lowe saw the same person (R. 1158). Mr. Dimitrouleas also reassured the jury
that Ms. McGriff's identification of Mr. Smith based only on his shoulders is
reliable because Mr. Smith has a "distinctive" upper body (R. 1160).
On
April 15, 1985, Ms. McGriff gave the following description of the man to the
police: "medium build, heavy in
the chest, lower haircut, black man, dark skin with jeans, pair of brown suede
shoes, orange T-Shirt with writing across the chest." (R. 650). Ms. McGriff testified that when she gave her
first statement to the police she did not know what the man looked like (R.
651) and that she told the police she would not be able to recognize the man's
face (R. 658, 663).[3] At her deposition, Ms. McGriff testified
that she could not describe the man's face (R. 655). Ms. McGriff testified that she only saw the man for a couple
seconds (R. 651-52). She explained:
Q Isn't it
true you weren't actually paying too much attention to the man itself? You were basically interested in getting him
away from your window?
A That is
true.
Q Isn't it
true when the person turned his face around it was flashing so quickly you
didn't get a good look to see whether he was wearing glasses or not?
A That's
right.
(R. 653-54).
Ms.
McGriff explained how she identified Mr. Smith from the photographic line-up:
Q (By Mr.
Washor) You didn't get a good look at
his face, isn't that correct?
A No.
Q Isn't it
fair to say there was nothing about this person's face that stuck out in your
mind at all because everything happened in a flash?
A Pardon
me?
Q Nothing
about this person stuck out in your mind because everything happened in a
flash?
A Yes.
Q Isn't it
also fair to say everything was dark from this person's head down to his
shoulders?
A Yes.
Q But from
his shoulders down, you can describe his clothing because the light was shining
on the clothing; isn't that correct?
A Yes.
Q Wouldn't
it be fair to say you picked that picture of Mr. Smith based upon his
shoulders?
A Yes.
Q You
couldn't identify his face, right?
A No.
Q If I
showed you a picture of his face, you couldn't tell me whether that was the man
or not; correct?
A Yes,
from his shoulders.
Q Yes, I'm
correct. If I show you a picture of the
face of the man you couldn't tell me?
A No.
Q You
could not, correct?
A No.
Q Isn't it
true that you couldn't see the person's face at all, describe it, because it
was just a flash that you saw?
A Yes.
(R. 655-56). Although Ms. McGriff testified that she identified Mr. Smith from
his shoulders, his shoulders are not visible in the photo line-up which
includes only Mr. Smith's face and neck (State Exhibit *, R. ).
As Detective Scheff defensively told Mr. Smith's attorney during his
deposition when asked whether Ms. McGriff identified Mr. Smith from his
face: "there is nothing else in
the picture that would identify other than his face." (PC-R. depo at 74).
Mr.
Davis gave the following description to the police: "maybe six feet, a hundred and sixty, hundred seventy
pounds, like muscular, chubby stomach, really couldn't tell, it was dark and he
had a beard that was very tacky, like he did not keep it up and kinky
hair." (R. 766). Mr. Davis
testified that he was trying to avoid the man:
"I didn't really want to be bothered with him because I did not
know the guy. . . . I was like paid him
no mind because I didn't want to be bothered." (R. 748-49; see also 750, 768, 770). Mr. Davis explained that he did not get a
good look at the man because the streetlights were out (R. 773), he was
ignoring the man and hoping he would go away (R. 777), he only looked at him
for a few seconds (R. 778), and he "was never looking at him
directly." (R. 776). Mr. Davis tried
to explain his numerous inconsistent descriptions:
What
I'm saying, I said it was dark. I was
trying to avoid the guy. I don't
remember exactly.
(R. 777)(emphasis added). Mr. Davis told the police that nothing about
the man stuck out in his mind and that he was unsure whether he would be able
to recognize the man (R. 772, 778).
Mr.
Davis could not identify Mr. Smith from the photo line-up that was shown to all
three witnesses and insisted on seeing a live line-up before he would make an
identification (R. 1051). Mr. Davis was
uncomfortable with his identification of Mr. Smith from the live line-up
because, as he told Detective Scheff, Mr. Smith did not look as large as the
man he saw on the night of the crime; Mr. Davis explained that when he voiced
his concern about Mr. Smith's size, the police "said to me that the reason
it's like that because all the guys are between six one and six feet and that
is why they all seem the same size." (R. 757). After being reassured by the police, Mr. Davis identified Mr.
Smith.
Detective
Scheff lied to Mr. Davis: the men in
the live line-up were not all between six feet and six one. Detective Scheff tried to claim that the men
were "[a]bout six feet tall, as close as we could get. I think one was six feet tall, all appeared
to be the same." (R. 1048).
However, on cross-examination, he was forced to admit that one man was
five feet ten inches tall and another was only five feet nine inches tall (R.
1050). Mr. Smith stood between the two
shortest men in the line-up (R. 1050).
Detective Scheff refused to accept responsibility for the varied heights
of the men in the line-up:
I
want to say this to you, Mr. Washor, we did not measure these people. I'm basing the physical description on what
they are telling me. If they are
correct, if they know their height, then that is the correct height. If they are in error, then these figures are
going to be in error.
(R. 1049). Detective Scheff claimed that he "tried to get as many
people that physically resembled [Mr. Smith] as possible," but he was
forced to admit that two men were obviously shorter than the others (R.
1049). Detective Scheff also admitted
that none of the men in the line-up weighed more than one hundred and eighty
pounds although the descriptions of the suspect in this case all indicated a
weight heavier than that (R. 1050).
Detective Scheff also agreed that three of the men in the line-up were
substantially younger than Mr. Smith:
by fourteen, seventeen, and thirteen years (R. 1050). Detective Amabile confirmed that Mr. Smith
was the oldest and the tallest man in the line-up and that he was situated
between the two shortest men (R. 942).
Mr.
Davis also testified that the police pressured him to make an identification
and used suggestive tactics. During Mr.
Davis' first statement to the police, he said in response to their questions
that the man did not have any scars on his face (R. 769).[4] However, during his second statement, Mr.
Davis said that the man had a scar on his cheek (R. 788). Mr. Davis explained why his description
regarding this detail changed:
Q What, if
any, recollection do you have regarding whether the fellow had any scars?
A I don't
remember.
Q Do you
recall having a conversation with the police or in a deposition later on about
scars?
A Yes.
Q Do you
recall what that conversation was?
A It was,
did he have a scar. I said, I think so.
Q Would
that have been based on something that you were remembering or something that
the police had told you or do you know?
A Something
that they were telling me.
Q You
don't have any recollection of the scar?
A No, I
don't remember a scar.
(R. 757-58). Between Mr. Davis' first and second statements, Mr. Smith was
arrested. The police, noticing that Mr.
Smith has a scar on one cheek, realized that they needed to alter Mr. Davis'
description. As Mr. Davis explained,
his revised description of the scar on the man's cheek was based "[o]n
something that [the police] were telling me." (R. 758). Mr. Davis was clearly confused at the trial
when he tried to explain his inconsistent statements regarding the scar: "I probably said scar at one time but I
probably said he didn't have any scars.
He didn't have any scars." (R. 769).
Detectives
Scheff and Amabile were also forced to explain Mr. Davis' inconsistent
statements regarding whether the man he saw on the night of the crime had a
scar. Detective Amabile initially
confirmed Mr. Davis' memory of his first statement to the police when he said
that the man had no facial scars (R. 925).[5] During redirect examination, Detective
Amabile changed his testimony:
Q Did you
all come out point blank and say, did the guy have any scars?
A No.
Q What
exactly was Gerald Davis asked?
A He was
asked if he had any scars, marks, tattoos, missing gold teeth. It was all one sentence that was asked.
Q What was
his response to the whole line of things?
A No.
Q Now when
he said no, did you catch that he was saying no to scars?
A No.
Q Had he
previously told you about a scar?
A Prior to
taking a taped statement is when he told us about the scar.
(R. 953).
On
cross-examination, Detective Scheff clearly became defensive when Mr. Smith's
attorney asked about Mr. Davis' description of the suspect regarding the scar:
Q I
believe on your direct examination when you said when speaking to Davis during
this first statement, that he stated that the man had a scar on his face?
A That's
correct.
Q Are you
positive about that?
A Absolutely.
Q Would
you like to refresh your memory at all?
A No, sir.
Q Do you
remember Mr. Davis saying anything contrary during your conversation with him,
your taped conversation with him?
A Well, I
know I believe I know what you are referring to.
Q What am
I referring to?
A You're
referring to the question in which he responds with a, no, to the question in
reference to scars and he responds with a negative and says, no, but I believe
that was my fault and not his.
Q Did he
or did he not say that?
A If you
want to refer to the question, I'll show you what I'm talking about. I know what you are talking about.
Q The
first statement, page five, was there anything about him you remember, anything
like missing teeth, anything that stands out in your mind, scars he might have
had. And his answer, no.
A That's
correct.
Q He did
say no?
A Yes, but
actually if you take a look at that question I have really asked him four
questions and unfortunately if you are asking me why this happened, I can only --
Q I'm
asking you what he said?
A He said
no on the tape.
Q But it's
your testimony that when he was off the tape he said, yes?
A That's
correct.
(R. 1013-14). Mr. Davis said on tape that the man had no facial scars. Because this description is inconsistent
with Mr. Smith's appearance, Detective Scheff claimed that off the tape Mr.
Davis said the man did have a facial scar.
Although Detective Scheff admitted that a facial scar would be "an
important factor" to use in identifying a suspect, he did not think that
Mr. Davis' untaped description of the scar was important enough to be included
in his handwritten notes (R. 1014-15).
Mr.
Davis testified at his deposition that the police were also giving him hints
and speaking in a suggestive manner when they showed him the photo line-up (R.
786).[6] When he viewed the live line-up, the police
instructed him to pick out the person who "looks like" the man he saw
near the crime scene; they did not tell him to pick only the man he actually
saw (R. 789). In addition, Mr. Davis
was shown a picture of Mr. Smith immediately before he viewed the live line-up
(R. 789, 797-98). At his deposition,
Mr. Davis testified that the police instructed him to pick out the man who
looked most like the man in the picture he had just been shown (R. 790).
Mr.
Davis admitted that he was unsure of his identification but that he felt
compelled by the police to make an identification:
Q Isn't it true you can't honestly swear to me right now that the man you picked out in the live line-up