Raheem v. Kelly

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-2304
• Citation: 257 F.3d 122
• Parties: (2nd Cir. 2001) JEHAN ABDUR RAHEEM, f/k/a John Whitaker, Petitioner-Appellant, v. WALTER R. KELLY, Superintendent of Attica Correctional Facility, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 122

257 F.3d 122 (2nd Cir. 2001)

JEHAN ABDUR RAHEEM, f/k/a John Whitaker, Petitioner-Appellant, v. WALTER R. KELLY, Superintendent of Attica Correctional Facility, Respondent-Appellee.

Docket No. 00-2304

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: January 8, 2001

Decided: July 13, 2001

Appeal from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Chief Judge, denying petition for habeas corpus, ruling that witness identifications resulting from an unconstitutionally suggestive procedure were admissible because petitioner's guilt was corroborated by other evidence that was inadmissible or not introduced at trial.

Reversed.

[Copyrighted Material Omitted] NORMAN R. WILLIAMS II, New York, New York (Mayer, Brown & Platt, New York, New York, on the brief), for Petitioner-Appellant.

LEONARD JOBLOVE, Assistant District Attorney, Brooklyn, New York (Charles J. Hynes, District Attorney Kings County, Florence M. Sullivan, Assistant District Attorney, Brooklyn, New York, on the brief), for Respondent-Appellee.

Before: KEARSE, JACOBS, and CABRANES, Circuit Judges.

KEARSE, Circuit Judge:

Petitioner Jehan Abdur Raheem, formerly known as John Whitaker ("Raheem", "Whitaker", or "Whitaker/Raheem"), a New York State ("State") prisoner convicted principally of robbery and murder, appeals from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Chief Judge, denying his petition pursuant to 28 U.S.C. §2254 (1994 & Supp. III 1997) for a writ of habeas corpus vacating his convictions on the ground that he was denied due process at trial by the admission of unreliable identification evidence. The district court denied the petition, ruling that, although the identifications were the product of an impermissibly suggestive procedure, their admission was not erroneous because other evidence, although inadmissible or not introduced at trial, corroborated Raheem's guilt and therefore made the identifications reliable. For the reasons that follow, we reverse.

I. BACKGROUND

For purposes of this appeal, many of the facts are undisputed. In January 1976, three men robbed a bar; one of them, described principally as wearing a black leather coat, shot one of the owners. After two trials, Raheem was convicted as the shooter. The following description of the events and the police investigation is taken largely from the record of Raheem's second trial and pretrial hearings on motions to suppress.

A. The Robbery and Murder

In the early evening of January 4, 1976, at the Moulin Rouge, a neighborhood bar in Brooklyn, New York, several persons watched a football game on television: the bar's part-owner Charles Hill, the bartender Cecile Dukes, and four patrons, Arthur Shiloh, Vincent Cooke, Winfred Moore, and Sam Hayward. Three strangers entered the bar; one stood near the window at the front; the other two went briefly to the men's room. Upon their return, one approached Hill and engaged him in conversation; the other stood behind Shiloh, Cooke, and Moore, who were chatting while they drank and watched the game.

After about 15 minutes, a shot was heard; Hill fell onto the man who shot him, then onto the floor, dead. The patrons and the bartender had not seen the shooting but turned in time to see Hill fall; Cooke, Moore, Hayward, and Dukes observed a gun in the hand of the stranger standing near Hill. The man standing behind Shiloh, Cooke, and Moore then also brandished a gun and announced a hold up. He proceeded to take money, jewelry, and other items from Shiloh and Cooke; the shooter took such items from Hayward and Moore, including Moore's car keys. The robber who had been standing near the front window vaulted the bar and took money from the cash register. The patrons and the bartender were then herded into the men's room and warned not to come out. The robbers fled in Moore's car.

After a few minutes, the survivors left the bathroom and summoned the police.

B. The Investigation and the Identifications

The police interviewed the witnesses and obtained descriptions of the robbers. The only testimony by a police officer as to the contents of their descriptions of the shooter, given by Detective Anthony Martin at a Wade hearing on a motion to suppress identifications of Raheem by Shiloh and Cooke, see United States v. Wade, 388 U.S. 218 (1967), was that a police report "state[d] a three quarter length black coat." (Wade Hearing Transcript ("Wade Tr."), January 10, 1977, at 233.) However, Shiloh and Cooke, at the Wade hearing or at trial, testified to the somewhat fuller descriptions they recalled having given.

Shiloh testified that he told a police detective that the shooter "was dressed very neat, brown skin, had a black leather coat and a cap. That's the best description." (Wade Tr. 130.) When the detective asked about height, weight, and age, Shiloh responded that the shooter was about 5'8", 165 or 170 pounds, and perhaps 27-30 years of age. (See id.) Shiloh recalled that the shooter did not have a moustache or long sideburns; but he had not noticed anything about the shooter's eyes, other facial features, head shape, or hair length. (See Wade Tr. 125-26.)

Cooke testified that the description he had given the police immediately after the shooting was of a man "about five-seven or eight," wearing a "black hat and black leather coat." (Wade Tr. 181-82; see also Second Trial Transcript ("Second Trial Tr.") 183 (Giving the police "the best [description] that [he] could remember," Cooke had "figured [the shooter] was about five[ ]seven. I know he had on a black leather coat and he had on a black cap. That I can remember.").) The shooter was "medium size" and appeared to be in his 20s. (Second Trial Tr. 183-84.) The only facial feature that stood out in Cooke's mind was that the shooter "had weird eyes" (Second Trial Tr. 184), perhaps "a glare or... how he fixed his eyes" (Wade Tr. 186). As to whether he had described the shooter's eyes to the detective, Cooke stated: "How could you describe his eyes? They were different. That's how I put it, something about it that stood out." (Id.) Cooke testified that he did not recall anything physically distinctive about the shooter's mouth or nose; his only description of the shooter's face was that it was round and that his eyes were weird. (Wade Tr. 186-88.)

The subsequent investigation by the police took a number of uncommon turns. First, on January 10, six days after the shooting, Cooke and Shiloh were shown a photographic array. They, independently, selected the same photo as the face of the man who, at gunpoint, had taken their cash and jewelry. Further investigation, however, revealed that their identifications could not be correct. At the time of the robbery, the man Cooke and Shiloh chose was in prison.

Next, a police lineup resulted in the identification of a person participating purely by happenstance, rather than the person the police had suspected and placed in the lineup on the basis of confidential information. The police had received a tip from an informant that the person who killed Hill was one Lindsay Webb. Webb was arrested on January 24 and brought to the 77th Precinct, where Detective Martin arranged to hold a lineup. Martin attempted to include in the lineup five police officers who generally matched Webb's appearance. Only three such officers were available, however. In the meantime, Raheem, who was then known as John Whitaker, had been arrested by Detective Clarence Crabb in connection with an unrelated case, the murder of one Harriet Gathers. Whitaker/Raheem was not a suspect in the Hill slaying. He was in custody at the 77th Precinct on January 24 on the Gathers case, and when Martin could not get five police officers who resembled Webb, Martin included Whitaker/Raheem and another arrestee in the lineup. Whitaker/Raheem was wearing a black leather coat.

All five of the witnesses to the robbery/murder were asked to view the lineup. Two did not: Moore had an ailing back; Hayward arrived too late. The lineup was viewed by Shiloh, Cooke, and Dukes. Shiloh, upon first viewing the lineup, was unable to identify anyone. Dukes was never able to make an identification. Cooke made an identification; but, to the surprise of the police officers, he identified Whitaker/Raheem, not Webb, as the man who had shot Hill. At the Wade hearing, Cooke testified:

Well, I looked them all over carefully because[]I didn't want to make any mistakes and then I picked number one, the guy. Mr. Whitaker had a sign in his hand that said one and I picked him. I said he appeared to be the one that I remember in the bar. And I could tell from his, you know--his coat is another thing. He had on a leather coat that I remembered.

....

Q. When you identified Mr. Whitaker as one of the people who were in the bar, did you do that solely based upon the fact that he was[]wearing a black leather coat?

MR. FEDER: Objection, your Honor. Leading.

THE COURT: Objection sustained.

Q. What was the basis for your picking out Mr. Whitaker?

A. His face.

Q. What were you thinking back to when you made the identification?

A. How he looked like the man that I saw in the bar. And the clothes. You know, he had on the same clothes. I looked at the round face.

(Wade Tr. 165-66 (emphases added).) Whitaker/Raheem was the only person in the lineup wearing a black leather coat.

Shiloh, after viewing the lineup and failing to identify anyone, had remained in a waiting room near the lineup viewing room. He testified that when Cooke returned from the lineup viewing room, Martin took Dukes to view the lineup, and Shiloh and Cooke chatted in the waiting room. They did not talk about the lineup, but when Martin returned with Dukes, Shiloh asked to view the lineup again and was permitted to do so. This time he promptly identified Whitaker/Raheem. At the Wade hearing, he testif...