Brisco v. Phillips, 04-cv-00829 (ADS).
| Decision Date | 16 July 2005 |
| Docket Number | No. 04-cv-00829 (ADS).,04-cv-00829 (ADS). |
| Citation | 376 F.Supp.2d 306 |
| Parties | Frank BRISCO, Petitioner, v. William PHILLIPS, Acting Superintendent of Green Haven Correctional Facility, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Frank Brisco, Stormville, NY, Pro Se Petitioner.
Thomas J. Spota, District Attorney of Suffolk County, by Guy Arcidiacono, Assistant District Attorney, Riverhead, NY.
Frank Brisco ("Brisco" or the "Petitioner") petitions pro se pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. The Petitioner seeks habeas corpus relief from his August 1, 2000 conviction in Supreme Court, Suffolk County, New York, for attempted burglary in the second degree. Following a plea of guilty, the Petitioner was sentenced to an indeterminate term of 12 years to life. The New York Appellate Division, Second Department, and the New York Court of Appeals both affirmed the conviction with one judge dissenting in each decision. See People v. Brisco, 99 N.Y.2d 596, 788 N.E.2d 611, 758 N.Y.S.2d 262 (2003); People v. Brisco, 292 A.D.2d 626, 741 N.Y.S.2d 50 (2d Dep't 2002).
The sole challenge to the conviction that the Petitioner raises is whether the pre-trial admission of an out-of-court "showup" identification violated his due process rights. For the reasons that follow, the Court finds that the state court unreasonably applied Federal law in admitting the pre-trial identification of the Petitioner, and therefore, the Court grants the writ of habeas corpus.
On July 6, 1999, at 11:30 a.m., Suffolk County Police Detective Brian McNeil responded to a report of a burglary at a private house at 51 Mills Pond Road in St. James, New York. Detective McNeil spoke with a fellow police officer and the complainant Augusta Kemper, who was described as an "older women." Ms. Kemper provided a description of the suspect as being a white male in his twenties, approximately 5'10" tall, well-built, brown hair, wearing maroon shorts and no shirt. At approximately 11:50 a.m., Police Officers Brian Holtje and Thomas Bafundo responded to the radio report of the burglary that included a similar description of the perpetrator. Officer Holtje recalled the description as being that of a white male in his twenties with brown hair, red or maroonish shorts, no shirt, and a stocky, muscular build. His partner recalled that the description of the suspect was of a white male, no shirt, stocky build, 18 to 20 years old, brown hair, wearing a pair of shorts, who was running up the street to the north.
Five minutes later, at approximately 11:55 a.m., Officers Holtje and Bafundo arrived at the scene of the burglary and confirmed the description of the perpetrator with Detective McNeil. Officers Holtje and Bafundo then "proceeded to drive around the neighborhood." Between 1,000 and 1,500 feet to the north of the scene, they noticed a house at 66 Mills Pond Road with the front door open. The house appeared to be under renovation due to the presence of a dumpster and construction debris in the driveway. The two officers approached the house, one going to the front and the other going to the back. Officer Holtje approached the front and noticed that there was a closed door next to the open front door and he knocked on the door. Officer Bafundo went to the back of the house where he noticed a swimming pool and a man inside the house wrapping himself in a towel.
Officer Holtje knocked on the door a second time and a man wearing a towel answered the door. The man identified himself as Frank Brisco and told the officers that the house belonged to his sister and that he and his friend were renovating the bathroom. Officer Holtje estimated Brisco to be approximately 30 years of age and stated that he did not appear nervous. Brisco's date of birth is March 11, 1961, and in fact, he was 38 years old at the time of the incident. After this brief conversation, both officers returned to their patrol car and left the house.
Officer Holtje testified at the hearing that after leaving the house he found it suspicious that the Petitioner answered the door wearing only a towel while the bathroom was under renovation. At approximately 12:10 p.m., after contacting Detective McNeil, the two officers and the detective returned to the house where Brisco was previously seen.
The three officers knocked on the door and Brisco answered; this time wearing a pair of tan shorts and no shirt. Brisco invited the detective and the two officers into the kitchen. There was another person present in the house, named Brian McGraff, who was working in the bathroom. Apparently, the bathroom was under renovation and Brian's clothes were covered with dust and dirt. Detective McNeil described Brian as about 40 years old, with brown hair, 5'10" tall, and "pouchy." Officer Holtje described Brian as a white male in his twenties, with black hair and could not recall his build.
After being invited inside, Detective McNeil told Brisco that there had been a burglary in a house down the street. The Detective asked him where he had been that morning and Brisco replied that he had remained at his sister's house all morning. As the four men had a conversation in the kitchen, one of the officers noticed a wet pair of maroon shorts on the floor of an adjoining bedroom. He asked Brisco if the shorts were his and he responded that they were his shorts. Detective McNeil asked Brisco to go down the street with the officers "to see if someone could recognize him [in] reference to the burglary." According to Detective McNeil, Brisco agreed to go to the scene. Detective McNeil took the maroon shorts with him, without any objection from Brisco. He was placed in the back seat of the police car and driven to the scene of the burglary.
The detective, the two police officers, and Brisco returned to the crime scene at approximately 12:25 p.m., slightly less than one hour after the officers received the initial report. Brisco exited the police car and stood at the bottom of the driveway, a distance described at approximately 15 to 50 feet from the complainant's house. Brisco was still wearing tan shorts and was nude from the waist up and he was not handcuffed. Detective McNeil went inside the complainant's house and spoke with Ms. Kemper toward the back of the house for approximately ten to fifteen minutes. While the Petitioner waited in front of the house, he allegedly stated to one of the police officers "Where is she?" The officer responded, "How do you know it's a she?" There was no other conversation between the Petitioner and the other officers while they waited in front of the house.
After ten to fifteen minutes elapsed, Detective McNeil came back outside and retrieved the wet maroon shorts from the patrol car. He asked Brisco to hold the wet shorts and then went back into the house to speak with the complainant. Brisco complied with the request, holding the shorts in his hands at waist level, just next to his hip. At this point there were now three uniformed police officers standing in close proximity to Brisco as well as three police vehicles behind Brisco parked in front of the house. There were no other bystanders or persons in the street or in the vicinity.
After handing the shorts to Brisco, Detective McNeil went back into the house and brought Ms. Kemper to the front window of the house and asked her to look outside and state if she recognized anyone. According to the detective, the complainant identified Brisco as the perpetrator. He testified to the following:
Q After giving the shorts to the defendant in the driveway of 51 Mills Pond Road, did you go back into the house?
A Yes, I did.
Q And what did you do at that time?
A I had had [the complainant] look out the window of the house to see if she would recognize anyone.
Q When you went back into the house, after giving the defendant the shorts from your car, was [the complainant] in the back of the house or the front?
A Yes, she was. I went to the rear of the house and brought her to the front room.
Q And what did you say to her when you brought her to the front room?
A I asked her if she recognized anyone standing outside.
Q Do you remember if the [complainant] said anything when she viewed the defendant at this time?
A Yes, she looked at the subject standing outside, and she stated that this is the person that she saw leaving the house, and that he was the same height, color hair, build, and she also identified the shorts that he was holding.
Q And she identified those shorts that he was holding as what?
A As the shorts that she saw the individual wearing that was inside her house when the burglary occurred.
After the identification, Brisco was asked to go to the precinct, where he was questioned and subsequently released. Three days later, he was arrested.
A Wade hearing was held on March 28, 2000, in Suffolk County Supreme Court. After the hearing, Brisco's request to suppress the identification was denied on the grounds that: Brisco, 292 A.D.2d at 629, 741 N.Y.S.2d at 53.
After the denial of the motion to suppress the showup, Brisco pled guilty to one count of attempted burglary and preserved his right to appeal the suppression ruling. He was sentenced as a predicate violent offender to an indeterminate term of 12 years to life.
The Appellate Division affirmed the trial court's suppression ruling, holding that the identification was proper. The court found the show-up was conducted in close temporal and geographical proximity to the crime scene and rejected Brisco's argument that the act of holding the shorts during the...
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