Abdur-Raheem v. Kelly

• Decision Date: 28 April 2000
• Docket Number: No. 96-CV-3851 ERK.,96-CV-3851 ERK.
• Parties: Jehan ABDUR-RAHEEM, formerly known as John Whitaker, Petitioner, v. Walter KELLY, Superintendent, Attica Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

98 F.Supp.2d 295

Jehan ABDUR-RAHEEM, formerly known as John Whitaker, Petitioner, v. Walter KELLY, Superintendent, Attica Correctional Facility, Respondent.

No. 96-CV-3851 ERK.

United States District Court, E.D. New York.

April 28, 2000.

Memorandum Supplementing Decision June 5, 2000.

Norman R. Williams II, Julie E. Katzman, Mayer, Brown & Platt, New York City, in place of Peter C. Roth, Belle Harbor, NY, who withdrew, for petitioner.

Roseann B. MacKechnie, Florence M. Sullivan, Asst. Dist. Attys., Kings County, New York (Charles J. Hynes, Dist. Atty., Kings County, New York, of counsel), for respondent.

MEMORANDUM & ORDER

KORMAN, Chief Judge.

On the evening of January 4, 1976, four men were sitting at the bar of the Moulin Rouge in Brooklyn, drinking, talking, and watching Dallas trounce Miami in the Superbowl. W-94-95, T2-118, 206.¹ Before the game ended, one of them, Charles Hill, was shot in the head by John Whitaker, as petitioner was then known. He would later confess to the murder, one of four of which he stands convicted, all committed within a period of twenty days. The victims were each felled by a bullet to the head. Sentencing Hearing, April 6, 1981, p. 12. Of the four judgments of conviction, two were entered upon jury verdicts. Petitioner was sentenced to twenty-five years to life — the sentences to run consecutively — on the judgments entered in these two cases. The conviction challenged in this petition is the basis for the second of the two consecutive sentences.² Petitioner pled guilty to the other two murders with the understanding that he could withdraw the guilty pleas and have the convictions set aside if he successfully challenged both of the judgments entered after trial.

The petition here challenges the conviction for the murder of Charles Hill. The issue raised is the admissibility of the eyewitness identifications that were made twenty days after the murder of Charles Hill. The lineup was inadvertently suggestive. Petitioner was the only person in the lineup who wore a three-quarter-length black leather jacket, recognized by the eyewitnesses as the same one worn by the man who killed Charles Hill. The suggestion was clearly inadvertent, however, because the subject of the lineup was a person other than petitioner. Petitioner, who was under arrest for one of the other murders, was put into the lineup as a filler.

The case turns on the admissibility of the identification evidence, because the confession petitioner gave was suppressed. The ground for suppression was that, at the time he confessed, petitioner was represented by counsel on the other murder for which he had been jailed at the time of the lineup. People v. Whitaker, 75 A.D.2d 111, 428 N.Y.S.2d 691, 692-93 (1980). This ground — peculiar to New York jurisprudence — would not have provided a basis for suppression under the United States Constitution. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). The question presented, then, is whether a conviction should be set aside because of inadvertently suggestive eyewitness identifications where the record demonstrates that the eyewitnesses picked out the right man.

Background

The shooting occurred, as previously indicated, in a bar, while the attention of the patrons was focused on the Superbowl and on their conversation with each other. Arthur Shiloh, Vincent Cooke, and Samuel Hayward were regulars at the Moulin Rouge. T2-41-42, 163, 259. Shortly before the killing, Shiloh and Cooke were sitting there together, drinking scotch. W-84, 94, 155, 189; T2-208. Shiloh was having his third drink of the day, W-110, and Cooke was working on his second. W-189-190; T2-187. Hayward, who had had three or four drinks before arriving at the Moulin Rouge, T2-260, was sitting down the bar next to Charles Hill, part owner of the bar and an off-duty corrections officer. T2-261. Cecile Dukes was tending bar. T-337-338. Around six o'clock, another regular customer, Winfred Moore, came in and joined his friends Shiloh and Cooke at the bar, T2-206-207.

Three strangers entered the bar together and then split up. W-197. One took up a position near the window at the front of the bar. W-104, 157. The other two went to the bathroom, and upon returning began to talk with Hill, T2-61, one standing near the door and the other near the wall. After some time (witness estimates ranged from 10 to 30 minutes from the time the strangers entered the bar, W-104, 160, 199), the man near the wall (later identified as petitioner) shot and killed Hill, who fell to the floor. W-117, 161.

After the shooting, the man near the door pulled out a pistol and announced, "This is a stickup." T2-70. He then took Shiloh's money and Cooke's money, ring, and watch. T2-70. The man who shot Hill took a gun off Hill's body. T2-262. He took Moore's money, driver's license, car registration, and keys. T2-209. One of the three strangers took Hayward's wallet. T2-263. The man who had been standing by the window jumped over the bar and emptied the cash register. W-160. The man who had announced the stick up herded all the witnesses into the bathroom at the back of the bar. T2-70. According to Cooke, the shooter (petitioner) came back to the bathroom and asked Moore which key started his car. T2-178. Moore, however, said no such thing ever happened. T2-215. When the witnesses emerged from the bathroom, the robbers were gone. All the witnesses noticed that the shooter was wearing a black leather coat, and gave that description to the police. W-130, 182, 233; T2-214. A police flyer circulated after the shooting, however, indicated only that the killer wore a "black 3/4 length coat." W-233, 254.

Some three weeks after the crime, on January 24, 1976, the police arrested a suspect, Lindsay Webb, in the murder of Charles Hill. W-215. Detective Anthony Martin decided to conduct a lineup. W-215. Since he was able to get only three black police officers to serve as "fillers," he filled out the line with two African-American men who happened to be in custody on unrelated crimes. W-216-217. One was petitioner, who was being questioned at the precinct that day about the murder of one Harriet Gathers. W-217. Unlike any of the other men in the lineup, petitioner happened to be wearing a black leather coat. T2-202.

Cecile Dukes, Arthur Shiloh, and Vincent Cooke viewed the lineup. The three witnesses waited together in a room at the precinct and were brought in to view the lineup one by one. W-220-221. Dukes, who went first, recognized no one. W-219. Shiloh was next, and after two or three minutes was also unable to identify anyone in the lineup as one of the robbers. W-90, 140-141. Cooke was the last to view the lineup. He identified petitioner as the man who shot Charles Hill. W-165, 220. Cooke described his identification:

Well, I looked them all over carefully because I didn't want to make any mistakes and then I picked number one, the guy.... 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. W-165

After Cooke returned to the room where the other witnesses were waiting, Shiloh asked to view the lineup again. W-220. This time he picked petitioner as the shooter. W-220. Shiloh explained,

When I looked through the window the second time, I looked at the lineup, I looked at number one. I said, that has to be the man. W-146.

....

... I said that was the man, really, because you see like at the time he was standing there he didn't have the cap on, and but [sic] face features of him the black leather coat, the same thing, the black leather coat really set it off for me. W-147.

A month later, on February 24, 1976, Detective Clarence Crabb interviewed petitioner about the Hill homicide. T-694-702. According to Crabb, after being advised of his rights, petitioner told Crabb that he and two other men, Robert Blackman and Johnny Johnson, had been on their way to stick up another establishment when they stopped in the Moulin Rouge to get warm. T-701. While they were in the bar watching TV, petitioner noticed that a man seated at the bar started to move as though he were reaching for his "piece." T-701-702. Petitioner warned the man not to "do something foolish," T-702, and the man paused, but then reached for his gun. T-702. Petitioner told Crabb, "that's when I shot him, and when I shot him, Johnny Johnson jumped over the bar and announced this is a stick up. He went into the cash register and took the money out." T-702. By Crabb's account, petitioner's admissions continued with the details of the shooting's aftermath:

He said Bobby Blackman, Johnny Johnson herded all the people in the bar to the rear. He said when they got ready to leave, he said I took some car keys from one of the people that was in the bar that had a car parked outside and he said I drove the car. We got in. I drove the car to a side street off of Herkimer Street, that was near his house. He said Bobby Blackman, he says I gave Bobby Blackman Hill's gun, he says, and he sold it someplace in the street. He wouldn't tell me what he did with his gun. He just said that he sold it. T-702.

Petitioner was subsequently indicted for the murder of Charles Hill and the robberies at the Moulin Rouge. His counsel moved to suppress any admissions or confessions and the identifications. At a Huntley hearing held on January 6, 1977, Detective Crabb testified about petitioner's confession. H-58-59. Crabb explained that he had arrested petitioner on January 24, 1976 for the murder of Harriet Gathers, H-26, and the meeting at which he took petitioner's statement took place at the Brooklyn House of Detention where petitioner was being held in connection with that charge. According to Crabb, while petitioner was in detention he phoned Crabb twice asking to see him. H-33-34. Crabb testified that he got permission from his commanding...