137 F.3d 117 (2nd Cir. 1998), 97-2570, Dunnigan v. Keane

Docket Nº:Docket No. 97-2570.
Citation:137 F.3d 117
Party Name:Richard W. DUNNIGAN, Petitioner-Appellee, v. John P. KEANE, Superintendent, Sing Sing Correctional Facility, Respondent-Appellant.
Case Date:February 19, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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137 F.3d 117 (2nd Cir. 1998)

Richard W. DUNNIGAN, Petitioner-Appellee,


John P. KEANE, Superintendent, Sing Sing Correctional

Facility, Respondent-Appellant.

Docket No. 97-2570.

United States Court of Appeals, Second Circuit

February 19, 1998

Argued Nov. 21, 1997.

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Julie M. Lewis, Rochester, NY (Gregory J. McDonald, Harris Beach & Wilcox, Rochester, NY, on the brief), for Petitioner-Appellee.

Alicia R. Ouellette, Assistant Attorney General, Albany, NY (Dennis C. Vacco, Attorney General, Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel, Assistant Attorney General, Albany, NY, on the brief), for Respondent-Appellant.

Before: OAKES, KEARSE, and FRIEDMAN, Circuit Judges [*].

KEARSE, Circuit Judge:

Respondent John P. Keane, superintendent of the New York State (collectively the "State") correctional facility at which petitioner Richard W. Dunnigan is imprisoned, appeals from a judgment of the United States District Court for the Western District of New York, David G. Larimer, Chief Judge, conditionally granting Dunnigan's petition for a writ of habeas corpus unless the State grants Dunnigan a new trial. The district court concluded that Dunnigan, convicted in state court of robbery and related offenses, was denied due process by the admission at his trial of (a) testimony that revealed part of his criminal history, and (b) an eyewitness's pretrial identification of him. On appeal, the State contends principally that any error in the trial court's rulings either was not an error of constitutional dimension or was harmless. We agree, and we reverse the judgment of the district court.


On Labor Day weekend in 1989, Robert Nuchereno and his girlfriend Jennifer Zielinski, accompanied by three other couples, were guests at a motel in Canandaigua, New York. An intruder entered the room shared by Nuchereno and Zielinski, knocked Zielinski unconscious, stole her wallet, and, after arguing and struggling with Nuchereno, escaped. Dunnigan was eventually identified as the intruder. Following a jury trial in state court, he was convicted of first-degree burglary, second-degree robbery, fourth-degree grand larceny, and second-degree assault, and was sentenced to 12-24 years' imprisonment.

The following description of the events is taken principally from the testimony at trial. The issues on this appeal center not on the sufficiency of the evidence identifying Dunnigan as the robber but on the admission of certain of the identification evidence, and related evidence, at his trial.

  1. The Events

    Early Sunday evening September 3, 1989, Nuchereno emerged from the bathroom of his and Zielinski's motel room to investigate a "loud thump." (Trial Transcript ("Tr.") 107.) He found Zielinski unconscious on the floor; squatting over her was a man whom he did not recognize and who, unbeknownst to Nuchereno at the time, had taken Zielinski's wallet from her purse. The robber, who was approximately five feet from Nuchereno, looked up, visibly startled, when Nuchereno entered the room. After a brief exchange of words, the robber ran from the motel room into the parking lot and to his car, with Nuchereno in pursuit.

    Nuchereno prevented the car door from closing, and again he came face to face with the robber. A brief struggle ensued inside the car, during which the robber struck Nuchereno several times in the head. Nuchereno then saw the robber reach for the glove compartment; fearing a gun or a knife, he backed off, and the robber fled. Nuchereno, with a member of his party who had been alerted to the altercation, attempted to follow the robber in Nuchereno's car but could not locate him.

    Later that evening, Nuchereno described the robber to the police as a well-built white male in his mid-20s, approximately 5'11" tall and weighing about 180 pounds, with receding

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    "blondish" hair and "bugged eyes." (Tr. 129-30, 338.) He described the robber's car as a two-door, cream-colored, older-model Chrysler-brand car, with a vinyl top and areas of rust along the bottom. Zielinski, who had been struck from behind and remained unconscious until after the robber fled, was unable to give any description. Susan Smith, another member of the Nuchereno-Zielinski party, had looked into the parking lot after hearing shouts during the struggle and had seen the robber as he was grappling with Nuchereno in the car and then escaping. Smith gave the police descriptions of driver and car that were less extensive than, but generally consistent with, Nuchereno's descriptions.

  2. The Investigation

    Zielinski's wallet contained, inter alia, an automatic teller machine ("ATM") card from Key Bank, along with her note of the personal identification number required for use of the card. Soon after the robbery, in a series of western New York cities, numerous attempts, most of them unsuccessful, were made to withdraw money using Zielinski's card. Certain of the ATMs at which Zielinski's card was used were equipped with security cameras that recorded these attempts on videotape.

    On Tuesday September 5, 1989, the first business day after the theft, Key Bank security investigator Joel Scime was notified of the theft. He made pictures from the ATM videotapes, and on September 6, he asked Nuchereno to view more than 30 such pictures. Each picture appeared to be of the same man, who was wearing a sweatshirt bearing the words "Number One Dad," using an ATM card. No other pictures were shown. Nuchereno immediately and unequivocally identified the man in the pictures as the robber.

    Scime then circulated copies of the pictures to private investigators and law enforcement agencies in the western New York area. On October 24, he received a call from Eugene Baes, a New York State parole officer who had just seen the flyer circulated by Scime and recognized the man. Baes met with Scime the next day, reviewed additional pictures, and identified the man as Dunnigan, one of Baes's parolees.

    In addition to her ATM card, Zielinski had had in her wallet business cards showing her unlisted home telephone number. Three days after the robbery, a message was left on her answering machine at that number by a man who did not identify himself and whose voice Zielinski did not recognize; the man threatened to visit Zielinski. Scime played the answering machine tape for Baes, who, in performing his parole supervision duties, had spoken to Dunnigan many times in person and several times by telephone. Baes identified the voice on the answering machine tape as that of Dunnigan.

    Based on information provided by Scime and Baes, Dunnigan was arrested. After obtaining a warrant, the police searched the hotel room where Dunnigan was then living. In the closet, they found a sweatshirt bearing the words "Number One Dad."

  3. The Trial and the Admissibility Rulings

    In an omnibus pretrial motion, Dunnigan requested a Wade-type hearing, see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), as to the reliability of Nuchereno's identification of the man in the ATM surveillance pictures, contending that Scime's showing of the pictures was suggestive and misleading. The state court denied this request, ruling that because the identification had been arranged by a private investigator, rather than by the police, no such hearing was required under New York law. Though state law gave the court discretion to conduct such a hearing, the court ruled that, in the circumstances of this case, no hearing was needed.

    In addition, immediately prior to trial, Dunnigan asked the court to exclude Baes's anticipated testimony that he was Dunnigan's parole officer, arguing that the jury would be unfairly prejudiced by the information that Dunnigan was on parole. The court acknowledged that the testimony could have some prejudicial effect and stated that it "would give an appropriate limiting instruction" (Tr. 19), but it declined to exclude the

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    evidence in light of its relevance to Baes's identification of Dunnigan.

    Accordingly, at Dunnigan's trial in September 1990, both Nuchereno and Baes were allowed to describe their respective identifications. The testimony of Baes began as follows:

    Q. Mr. Baes, could you tell us your occupation, please?

    A. Parole officer.


    Q..... And can you tell us what your duties consist of?

    A. Yes. We supervise, ah, convicted felons that are released from state prisons.


    Q. And did there come a time when you supervised Mr. Dunnigan as a parolee?

    A. Yes, I did.

    Q. When did you begin to supervise him, Mr. Baes?

    A. I believe he was released January 23rd from the Attica Correctional Facility.

    (Tr. 277-78.) Baes proceeded to testify, substantially as set out in Part I.B. above, that from his regular meetings and telephone conversations with Dunnigan, he was familiar with Dunnigan's appearance and voice. He described recognizing Dunnigan in Scime's flyer, meeting with Scime, and identifying Dunnigan. The answering machine tape was played, and Baes identified the voice as that of Dunnigan. The trial court did not give an instruction as to the limited purpose for which Baes's job as a parole officer could be considered and did not caution the jury to disregard Dunnigan's criminal history and parolee status. Dunnigan did not object to any of Baes's testimony and did not ask or remind the court to give the promised limiting instruction.

    Both Nuchereno and Scime described Scime's showing Nuchereno the ATM pictures and Nuchereno's immediate identification of the man in those pictures as the robber. Nuchereno made an in-court identification of Dunnigan as the robber. Smith too made an in-court identification of Dunnigan as the man she had seen struggling with Nuchereno.

    In addition, several witnesses testified that in November 1989, they had attended a parole hearing...

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