People v. Adams

• Decision Date: 18 November 1982
• Parties: The PEOPLE of the State of New York, Respondent, v. William ADAMS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 616

455 N.Y.S.2d 616

90 A.D.2d 1

The PEOPLE of the State of New York, Respondent, v. William ADAMS, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Nov. 18, 1982.

Irving Cohen, New York City, for defendant-appellant.

Anne Beane Rudman, New York City, of counsel (Amyjane Rettew, New York City, with her on brief; Robert M. Morgenthau, New York City), for respondent.

SANDLER, Justice.

The defendant was convicted after a jury trial of murder in the second degree and sentenced to an indeterminate term of 25 years to life.

The homicide occurred on the evening of March 3, 1980, at 142nd Street and Lenox Avenue in New York County. Two young women, Angela Dortch and Jill Smith, passengers in a vehicle driven by the deceased, testified that they observed a man standing by the car while it was parked near a streetlight. They observed the man say something to deceased, who lowered the driver's window. The man then fired a shot through the window, causing the death of the driver.

The two witnesses described the shooter, with minor variations in terminology, as a light-skinned black male with a red beard and reddish hair. Some four days later, on March 7, 1980, they identified the defendant as the shooter in a lineup conducted in the district attorney's office in the presence of defense counsel, and they again identified him at the trial.

The trial evidence was clearly sufficient to support the jury verdict, and the few trial errors urged on this appeal are without merit.

The principal issue on this appeal is presented by the defendant's challenge to the hearing court's determination that neither the lineup itself, nor the identification procedures preceding and attending it, were impermissibly suggestive. Of the several questions presented on this appeal, the single one that divides this court concerns the hearing judge's determination that the lineup itself was fairly composed and not impermissibly suggestive. On the basis of two one-word affirmative answers to leading questions by one of the identifying witnesses, our dissenting colleagues have concluded that the defendant was the only person in the lineup with red hair and that, accordingly, the lineup was fatally flawed.

Although differing in some respects among ourselves in the assessment of the pertinent events, the majority of this court have concluded that the appeal should be held in abeyance and the matter remanded for a reopened suppression hearing to permit additional testimony as to whether the lineup itself was a fair one. In an extended hearing, marked by detailed and exhaustive questioning by defense counsel addressed primarily to other issues, we find the relevant evidence on the issue that divides the court too sparse, unclear and ambiguous to permit a satisfactory resolution of the question.

That evidence may be briefly summarized. It includes first a black and white photograph of the lineup introduced by the People during the testimony of their single hearing witness, the detective assigned to the case. Although the photograph satisfactorily established what would be a fair lineup except for the idiosyncratic nature of the defendant's hair, and further shows at least one person in the lineup other than the defendant with light skin and light hair, the photograph obviously does not permit a determination as to whether the defendant was the only person in the lineup with red or reddish hair.

The only other relevant evidence at this extended hearing is found in the two one-word answers by one of the identifying witnesses, Jill Smith, to leading questions put to her by defense counsel who had called her as a witness, and which were elicited in the course of an attempted impeachment of her hearing testimony on the basis of an essentially false statement that she had given to a defense investigator. When these answers are examined in context and considered together with the rest of her testimony, a substantial question is raised as to whether she had correctly understood the meaning of the questions and whether the literal meaning of the answers was the intended meaning.

What is peculiarly troublesome about the obviously unsatisfactory nature of the relevant evidence on the issue that concerns us is the fact that the lineup was conducted under circumstances that make it certain that there was readily available to both parties far more authoritative, precise and indeed dispositive evidence on the issue than any adduced at the hearing. Indeed, it is difficult to see how a genuine factual issue could have developed with regard to the composition of the lineup.

The lineup was conducted in the district attorney's office in the presence of defense counsel, the assistant district attorney assigned to the case, the arresting detective, a paralegal assistant in the district attorney's office, and the defendant. All of these had a more extended opportunity to observe the lineup than any identifying witness, and had far more reason to observe it from the standpoint of its possible suggestiveness and to remember what was observed. None of these testified at the hearing except the detective, who was not asked a question about the lineup composition by either lawyer.

Moreover, it seems highly probable, although the record does not explicitly so state, that the participants in the lineup were known persons who could have been called for the direct observation of the hearing judge at the request of either party if any relevant doubt as to their appearance was perceived.

The reason or reasons for the difference between the skimpy, unsatisfactory evidence on this issue adduced at the hearing, and that available to both parties, cannot be fixed with certainty. What seems clear, however, is that the assistant district attorney had no reason to believe at the beginning of the hearing that the fairness of the lineup's composition would be put in issue by a defense lawyer who was present at the lineup and offered no objection at that time.

Nor did anything occur during the presentation of the People's case to alert the assistant district attorney that the fairness of the lineup was in issue. The single witness called on the People's case was the arresting detective who had participated in the formation of the lineup and was present throughout the several identifications. In a detailed cross-examination addressed entirely to other matters, defense counsel did not ask one question relevant to that issue although the witness was far more likely to have had an accurate recollection of the relevant facts than any single identifying witness and was not likely to give intentionally false testimony about the composition of a lineup attended by both defense counsel and the assistant district attorney.

Of equal significance is what defense counsel said, and did not say, in the course of several lengthy colloquies with the hearing court during the cross-examination of the detective. In these colloquies counsel presented at length his views of the issues presented at the hearing. He gave no intimation that the suggestiveness of the lineup was an issue.

The first possible inkling that the district attorney might have had that such an issue was presented occurred when Jill Smith, during the defendant's case, gave the two one-word answers on which the dissenters rely. The thesis of the dissenters is that the district attorney was obligated to rebut those answers, and that in default of such rebuttal the answers of the witness must be accepted according to their literal tenor and given decisive significance. Although not implausible, this overlooks several substantial possible explanations for the failure to rebut which are suggested by the record.

The assistant district attorney may well have understood the witness to have said, or to have intended to say, that she had told the defendant's investigator that the defendant was the only person with red hair in the lineup, not that this was the fact, which was indeed the interpretation apparently given by the seasoned and experienced trial judge (H.M., p. 320). Alternatively she may have concluded that in any event these answers were of insufficient probative force to raise a genuine issue in light of the totality of the circumstances, including: defense counsel's failure to object at the time of the lineup; his failure to put any question on the subject to the arresting detective, or indeed to the other identifying witnesses he thereafter called, Angela Dorch, the second eyewitness, and Chris Brooks, owner of the vehicle, who identified the defendant as someone he had encountered previously; and the fundamental improbability that the hearing would have been conducted as it was by a lawyer present at the lineup if he knew as a matter of personal observation that the lineup was suggestive. Finally, the district attorney may have concluded most reasonably from the hearing court's response to defense counsel's arguments at the end of the defendant's case, in support of an application to call additional witnesses, during which he made a passing reference to the defendant being the only person with red hair in the lineup, that the hearing court had already determined that there was no merit to any of the defendant's contentions.

Whatever may be the reason, the controlling fact remains that the evidence adduced on the issue that divides us is inadequate to permit a satisfactory resolution.

As already noted, the hearing began with the calling by the district attorney of the single witness presented by the People, Detective Naughton, the detective assigned to the investigation. On direct examination he briefly outlined the progress of the investigation from the time he was assigned through the identifications of the defendant at the lineup. He testified that he interviewed the witnesses on the night of the homicide; that they described the shooter as a male black with reddish complexion, reddish...