Jackson v. Fogg

• Citation: 465 F. Supp. 177
• Decision Date: 25 August 1978
• Docket Number: No. 77 Civ. 3284 (VLB).,77 Civ. 3284 (VLB).
• Parties: Edmond JACKSON, Petitioner, v. Walter FOGG, Superintendent, Green Haven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

465 F. Supp. 177

Edmond JACKSON, Petitioner, v. Walter FOGG, Superintendent, Green Haven Correctional Facility, Respondent.

No. 77 Civ. 3284 (VLB).

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

August 25, 1978.

Helen Bodian, Prisoners' Legal Services of New York, New York City, for petitioner.

Robert Abrams, Atty. Gen. by Thomas S. O'Connor, New York City, for respondent.

VINCENT L. BRODERICK, District Judge.

I.

This is a petition for writ of habeas corpus under 28 U.S.C. § 2254. The petitioner, Edmond Jackson, is currently imprisoned at the Green Haven Correctional Facility in the State of New York. He was convicted, after a jury trial, of murder, felony murder, attempted robbery in the first degree, and possession of a weapon, and sentenced to two terms of twenty years to life, a term of three to fifteen years and a term of three to seven years, all terms to be served concurrently. The Appellate Division, Second Department, and the New York Court of Appeals both affirmed the conviction without opinion, People v. Jackson, 40 A.D.2d 1081, 337 N.Y.S.2d 1005 (1972), aff'd, 35 N.Y.2d 856, 363 N.Y.S.2d 580, 322 N.E.2d 272 (1974).

Petitioner here advances three claims: (1) that the trial testimony of three of the four eyewitnesses to the crime was tainted by an overly suggestive pre-lineup procedure; (2) that petitioner should have been allowed to conduct a new lineup so that the eyewitnesses could have had the opportunity to identify another suspect; and (3) that petitioner was unfairly and prejudicially surprised at trial as a result of a New York statute which required defendants to give notice of their intended alibi witnesses, but did not require the prosecution to give notice of alibi rebuttal testimony.

Since I find that the trial testimony of three witnesses was tainted to a constitutionally impermissible degree by pre-trial "show-ups," I grant the petition. I also grant the petition on the basis of the application to petitioner's trial of New York's alibi statute, N.Y.C.C.P. § 295-l.

II.

1. The Killing at Harvey's Lounge.

The crimes in question occurred on June 14, 1970 in the middle of the night in a crowded but well-lit bar—Harvey's Lounge—on Sutphin Boulevard in Jamaica, Queens. Four witnesses who would later identify petitioner as the perpetrator were inside the bar, together with 40 to 60 other people. Joseph Webb tended the bar. Mary Phifer, Edward Byrd, and Willie Johnson were customers sitting at the bar within 10 feet of the door. About 1:30 in the morning a man holding a gun and standing near the door announced, "This is a stick up." The gunman's words threw the Lounge into an uproar as the screaming customers rushed to the back of the bar. In the midst of the commotion, the gunman strode to the bar, levelled his pistol and fired once, wounding Harold Dixon, who, along with Webb, had been tending the bar. Dixon died ten days later.

2. The Investigation.

Detectives William Cash and Harold Cannon of the New York City Police Department arrived at the scene shortly after the shooting took place and began an investigation. Since the gun was never recovered and no relevant fingerprints could be found, the detectives focused their attention on persons they identified as eyewitnesses— Phifer, Johnson, Byrd and Webb. The record does not indicate whether, apart from those four who testified, any of the 40 to 60 persons in the Lounge at the time of the incident had an opportunity to observe the gunman.

The four eyewitnesses gave varying estimates as to the amount of time each of them had had to observe. None of them had ever seen the gunman before that night.

Webb testified at the Wade hearing that he had observed the gunman for "about maybe two, three seconds or a minute— might have been a minute." (Wade Hearing ("H") at 7). At the trial he stated that after the shot, he dived behind the bar and crawled to the rear. (Trial Transcript ("T") at 181-82).

Mary Phifer was sitting at the bar next to Willie Johnson with her back to the door. She heard the gunman announce the holdup, turned, saw the man holding the gun, and nudged Johnson. Johnson then pushed her to the floor of the bar and told her to "make it to the bathroom." (T. 66-69). She went straight to the bathroom and arrived there before any of the other patrons (Id.). She claimed to have observed the gunman for between eight and fifteen seconds (T. 71, H. 63).

Willie Johnson testified that he heard the gunman's words, turned and saw the man holding the gun, immediately knocked Phifer off her stool and then hurried out of harm's way. At various times he claimed to have observed the man for periods of from two (T. 142) to 60 (H. 79) seconds, but he stated at one point that he "couldn't say how long it was" (T. 163).

Edward Byrd testified that he had "glanced at" the gunman in the bar 15 minutes before the shooting took place (T. 162). When the holdup was announced, Byrd turned, observed the gunman for four or five seconds, and ran to the back of the bar. He was lying on the floor when the shot rang out (T. 120-22).

Over the next several days, after the incident, the four eyewitnesses were shown a large number of mugshots. Finally on June 14, 1970, Mary Phifer selected two pictures of men who, she said, "strongly resembled" the gunman. Johnson, Byrd and Webb later confirmed Phifer's reaction.

The pictures were of a "Veryl Walker" and a "John Walker". Although John Walker was in prison at the time of the shooting, the identification of Veryl Walker provided an apparently promising lead. On June 16, an informer told Detective Cash that a man named "Snake" had committed the murder. He also said that "Snake" and Veryl Walker were the same person. Cannon made one visit to an address given by the informant in an unsuccessful effort to find Walker, but he ended his efforts on the day that Edmond Jackson was apprehended.

3. The Lineups.

Petitioner was identified in two successive lineups by the four eyewitnesses on July 13, 1970 at a stationhouse in Queens. How the petitioner got there and how the eyewitnesses happened to be at the stationhouse is not entirely clear, due in major part, to contradictory testimony from the detectives, Cash and Cannon, who were together throughout the day (H. 134-35, 161, 167, 185, 190).

At the Wade hearing, which was held (on the day before petitioner's trial) to establish whether there were any improprieties regarding the identification process, Detective Cannon testified that he and Cash "happened to be cruising around in the neighborhood" where petitioner lived (H. 134). They were not "working on any information that lead . . . to Edmond Jackson" (H. 158). The two bumped into Jackson, and Cannon struck up a conversation. Petitioner said he was looking for a tenant for his house in hopes of easing the mortgage payments. Cannon suggested that they go down to the stationhouse and call an acquaintance of Cannon's who might be interested in leasing. (H. 159). Arriving at the station, the two detectives and petitioner walked up the stairs and into the detective room. According to Cannon, just inside the door of that room sat Webb, the bartender who had been at the lounge on the night of the shooting and who had been cooperating with the police in the investigation. The detectives and petitioner walked directly past Webb and into a back room (H. 135). Webb then called Detective Cash back into the outer room and informed him that petitioner was the gunman. (H. 164). Cannon testified that Webb said that he "came up to see if anything had developed in the case" (H. 167). Petitioner, again according to Cannon, was placed under arrest and was given the Miranda warnings (H. 136-38).

At trial, Cannon told a different story. He then said that he and Cash were actively seeking Jackson in relation to the investigation (T. 222-23). But moments later, confronted with his Wade testimony, Cannon acknowledged that they had no information about Jackson "with reference to a crime." (T. 224).

An explanation for the discrepancies in Cannon's testimony may lie in the fact that Cannon had the benefit of hearing Detective Cash's Wade hearing testimony before giving his trial testimony. Cash, who did not appear at the trial, testified that he and Cannon had driven to Jackson's house "to further conduct this homicide investigation and talk with Jackson" (H. 189). Cash had previously contacted Webb and "other people" and had asked them "to stand by" in case they had to be called in to view a lineup (H. 182).

Cash's description of the initial conversation with petitioner (regarding Jackson's desire to find a tenant) was similar to that of Cannon (H. 134). Once in the car, according to Cash, petitioner was advised that he was under suspicion of criminal activities and was informed of his Miranda rights (H. 180-81). Upon arrival at the stationhouse petitioner was told that he was suspected of committing the Harvey's Lounge murder. Petitioner denied having ever been at Harvey's Lounge (H. 182-83).

Cash made no mention of the encounter with Webb, so carefully described by Cannon. He said that he did not see Webb until sometime after the three had arrived at the stationhouse (H. 185), and that Webb did not say anything to him (H. 186). After the petitioner had been questioned briefly, "the witnesses in question were phoned and told to appear at the stationhouse" (H. 183). Cash also said that he did not bring any witnesses to the station that day to identify Jackson (H. 201). This brings us to Edward Byrd's Wade hearing testimony.

On July 13th, the day of the lineup, Byrd had stopped by Harvey's Lounge on his way home from work. He testified that Detectives Cash and Cannon picked him up at the bar and drove down to the stationhouse (H. 132). On the way, Cash told Byrd that "he found the fellow who shot Harold Dixon" (H. 133). Arriving at the stationhouse, the detectives escorted Byrd into their office. Once in the office, Byrd noticed...