Jarrett v. Headley
| Decision Date | 26 November 1985 |
| Docket Number | No. 84 Civ. 512 (DNE).,84 Civ. 512 (DNE). |
| Citation | 633 F. Supp. 1403 |
| Parties | Patsy Kelly JARRETT, Petitioner, v. Frank R. HEADLEY, Superintendent, Bedford Hills Correctional Center, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Washington Square Legal Services, New York City, Claudia, Angelos & Randy A. Hertz, of counsel, for petitioner.
Robert Abrams, Atty. Gen., Gerald J. Ryan & Monica R. Jacobson, Asst. Attys. Gen., of counsel, for respondent.
Patsy Kelly Jarrett ("Jarrett") petitioned this court for a writ of habeus corpus. This matter was referred to Magistrate Michael H. Dolinger who issued a Report and Recommendation dated November 26, 1985. Magistrate Dolinger recommended that the petition be granted and that respondent be directed to release petitioner unless she is retried on the charges against her within sixty days. Objections were filed by respondent and petitioner filed a response. Respondent, by letter, submitted a reply. The Report and Recommendation of the Magistrate is hereby adopted by this court and the petition is granted.
Respondent objects to the Magistrate's Report and Recommendation on four grounds. First, that the Magistrate did not afford the proper deference to the factual findings of the state court; second, that the Magistrate's finding that the identification procedure was unfair was incorrect; third, that the reliability of the identification was strengthened by other corroborating evidence; and finally, that the claim that pretrial publicity affected the identification was not raised in state court and therefore the petition must be denied. The court hereby adopts the Magistrate's Report and Recommendation. Respondent's objections are addressed herein.
Respondent asserts that pursuant to Title 28, Section 2254(d) of the United States Code, the findings of the state court are entitled to a presumption of correctness. The facts underlying the state court's decision on the constitutionality of the identification are governed by the statutory presumption. Sumner v. Mata, 455 U.S. 591, 597. 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam). The ultimate question regarding the constitutionality of the identification, however, is a mixed question of law and fact that is not governed by Section 2254(d). Id. The court finds that the Magistrate gave the proper deference to the state court's findings. The Magistrate did not make any factual findings that would be precluded by Section 2254. Rather the Magistrate relied on the facts established during the state court proceedings.
Respondent claims that the Magistrate incorrectly determined that the identification procedure was unfair. Respondent's arguments are unpersuasive.
The events leading up to the in-court identification2 must be examined to determine if the identification was unconstitutionally tainted. In objecting to the Report, respondent assumes that the only events that affected the in-court identification were the events leading up to the photographic identification made by William Hyland ("Hyland"). This is incorrect. All of the events occurring after the photographic identification and prior to the testimony by Hyland at trial are also relevant. For example, discussions Hyland had with the police following the photographic identification and his discussion with the District Attorney before taking the witness stand at trial are clearly factors that the court must consider. Further, the respondent examines each event affecting the photographic identification in isolation. This is also incorrect. Thus, the Magistrate correctly considered the effect of the combination of the pre-trial factors in making his determination that the in-court identification was the result of unduly suggestive procedures. See Dickerson v. Fogg, 692 F.2d 238, 245 (2d Cir.1982).
For the reasons set forth in the Report and Recommendation, the court finds that the pre-trial occurences were unduly suggestive. Further, the court agrees with the Magistrate that there was no independent and reliable basis for the in-court identification by Hyland applying the factors set forth in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).
Respondent asserts that the reliability of Hyland's identification is strengthened by corroborating evidence and was therefore reliable. There are two possible interpretations of respondent's assertion. The respondent may be asserting that even if the court finds that the in-court identification was flawed, there was sufficient additional evidence to support a conviction so that any error was harmless error, see People v. MacKay 98 A.D.2d 732, 469 N.Y.S.2d 146, 147 (2d Dep't 1983) (per curiam). This is not the case here. The crucial evidence against the petitioner was the identification testimony of Hyland. See People v. Sapp, 98 A.D.2d 784, 469 N.Y.S.2d 803, 804 (2d Dep't 1983) (per curiam).
If respondent is asking the court to consider this additional evidence in making a determination regarding the reliability of the identification itself this would be improper. Such "corroborating" evidence is clearly inconsistent with the factors traditionally examined to determine reliability. See Manson v. Brathwaite, 432 U.S. 98, 114-16, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).
Finally, respondent contends that the Magistrate's consideration of pretrial publicity in determining whether the in-court identification was tainted was incorrect because petitioner failed to raise this issue in the state court.3 It does not appear, however, that the Magistrate considered the pretrial publicity in making his determination. Rather the Magistrate simply indicated that Hyland was aware of the publicity. The Magistrate also indicated that the publicity was not the fault of the police indicating that this would not be considered in his determination although it may have affected the strength of the in-court identification. The court agrees with the Magistrate.
As the Magistrate noted "the prosecutor's case plainly was far from overwhelming." Report at 58. However, additional evidence was presented. The court agrees with the Magistrate that this remaining evidence is "sufficient to pass constitutional muster." Id. Therefore, the respondent is ordered to release the petitioner unless she is retried on the charges against her within ninety days in conformity with this Memorandum and the Magistrate's Report and Recommendation adopted herein.
The petition is hereby granted. Respondent is directed to release the petitioner unless petitioner is retried on the charges against her within ninety days of the filing of this Memorandum in conformity with this Memorandum and the Magistrate's Report and Recommendation which is adopted herein.
SO ORDERED.
APPENDIX
REPORT AND RECOMMENDATION
MICHAEL H. DOLINGER, United States Magistrate.
On August 11, 1973 near Utica, New York, a seventeen year old gas station attendant was murdered at his place of work and the gas station robbed of approximately $279.00 in cash receipts. More than three and a half years later, on March 29, 1977, two individuals were convicted of these crimes following a jury trial. Based upon their convictions on two counts of murder and two counts of robbery, the defendants were each sentenced to prison terms of twenty-five years to life.1
One of those two defendants, Patsy Kelly Jarrett, has now petitioned for a writ of habeas corpus. She asserts principally that the key evidence against her — the testimony of the one witness who specifically identified her as being at the gas station at about the time of the killing — was the result of impermissibly suggestive police procedures and was otherwise so unreliable that its introduction denied her due process. For the reasons that follow, I recommend that the petition be granted.
By her original petition, filed January 23, 1984, petitioner raised three claims. First, she asserted that her conviction had been based upon the eyewitness identification testimony at trial of one William Hyland, and that this testimony was purely the product of a series of efforts by the local police to encourage Mr. Hyland, long after the incident, to conclude that he could positively identify her as being present at the gas station. According to the petition, absent these suggestive procedures, the witness would not have so testified, as evidenced by his repeated statements prior to trial, and his testimony was entirely unreliable. Second, petitioner argued that, even if admissible, Hyland's testimony was incredible as a matter of law and, as a result, the evidence in the record was constitutionally insufficient to sustain her conviction. Petitioner's third claim — now withdrawn — was that the denial of her pre-trial motion for a severance denied her due process.
In his response, respondent asserted that the petition must be dismissed because petitioner had failed to exhaust available state remedies with respect to her severance claim. He further argued that the pre-trial and trial record fully justified the introduction of the in-court identification of petitioner as reliable and not the product of police suggestion and that the denial of her motion to sever was proper.
Apparently as a result of respondent's exhaustion argument, in her reply papers petitioner limited her severance argument,2 and thereafter withdrew the claim.3 Accordingly the only issues to be addressed relate to the identification question and the sufficiency of the evidence.
The state court pre-trial and trial record reflects a lengthy sequence of events leading ultimately to the eyewitness identification of petitioner at trial. Because...
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