United States ex rel. Bisordi v. LaVallee

• Decision Date: 01 May 1972
• Docket Number: No. 547,Docket 71-2112.,547
• Citation: 461 F.2d 1020
• Parties: UNITED STATES of America ex rel. Ronald O. BISORDI, Petitioner-Appellant, v. J. Edwin LaVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

461 F.2d 1020 (1972)

UNITED STATES of America ex rel. Ronald O. BISORDI, Petitioner-Appellant, v. J. Edwin LaVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent-Appellee.

No. 547, Docket 71-2112.

United States Court of Appeals, Second Circuit.

Argued March 7, 1972.

Decided May 1, 1972.

Zachary Shimer, New York City, for petitioner-appellant.

Ilene J. Slater, Asst. Atty. Gen., of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for respondent-appellee.

Before FRIENDLY, Chief Judge, TIMBERS, Circuit Judge, and JAMESON, District Judge.^*

TIMBERS, Circuit Judge:

The sole issue raised on this appeal from the denial of a state prisoner's petition for a writ of habeas corpus is whether a pre-trial lineup "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."¹

Ronald Bisordi and his co-defendant, James Clark, were convicted on June 21, 1961 in the New York Supreme Court, Bronx County, after a four week jury trial before Justice Abraham D. Levy of first degree robbery, first degree grand larceny, first degree assault, and possession of a weapon as a felony in connection with the robbery of a liquor store and the shooting of the store's manager on January 6, 1960.² After exhausting his state court remedies,³ Bisordi filed a petition for a writ of habeas corpus on April 5, 1971 in the District Court for the Southern District of New York. Bisordi alleged that the manager's in-court identification of him as one of the robbers violated his right to due process, as the identification was tainted by an impermissibly suggestive pre-trial lineup. In an opinion dated July 26, 1971, Judge Tyler denied the petition without a hearing.⁴ For the reasons stated below, we affirm.

I.

The evidence adduced at the state court trial⁵ established that on the evening of January 6, 1960 two men robbed a liquor store and shot the store's manager, Donald Ogilvie. The two men pretended to be customers. They made several requests of Ogilvie before the actual robbery and the assault. Ogilvie had approximately three minutes to observe them from the time they entered the well lighted store until the time he was shot. Ogilvie testified at trial that he was suspicious of the two men and watched them closely from the moment they entered the store, as one of the men was white and the store was located in a black neighborhood. Moreover, both men talked briefly during the course of the robbery, and Ogilvie noticed their manner of speaking, particularly that of his assailant, whom Ogilvie subsequently identified as Bisordi.

Before being removed to the hospital and while lying in the store with a bullet in his abdomen, Ogilvie described the two robbers to Officer Paris of the police department. The man who shot him was described by Ogilvie as a brown-skinned male Negro, 23 to 24 years of age, 6 feet tall, 170 pounds, wearing a gray suit and felt hat. Ogilvie testified at trial that he did not recall giving any description to the police on the night of the crime.

Two days after the shooting, Ogilvie gave to the police another description of the robber who had shot him. This time Ogilvie described his assailant as a man about 6 feet tall, 170 pounds, wearing a charcoal gray overcoat and who "looked white" but "sounded like a colored person".

Nine days after the robbery, on January 15, 1960, Detective Carroll called Ogilvie, told him he had picked up two or three suspects and asked Ogilvie to come to the police station to determine whether he could identify "the man that had shot" him.⁶ At the station Ogilvie looked through a peephole at a lineup consisting of three men: Bisordi, white, 6 feet tall; a Negro, 5 feet, 6 inches tall; and a second Negro, 5 feet, 7 inches tall.⁷ Ogilvie immediately identified Bisordi as the man who had shot him.

At the state court trial, Ogilvie identified Bisordi as his assailant. Despite exhaustive cross-examination, Ogilvie remained positively convinced that Bisordi was the gunman. Ogilvie also identified James Clark, Bisordi's co-defendant, as the second participant in the robbery.

Ogilvie's in-court identification of Bisordi, while corroborated in part, for all practical purposes was the only evidence offered by the prosecution to connect Bisordi to the robbery and the assault. Thus, if that in-court identification was tainted by an unlawful lineup, the error could not be considered harmless.

II.

Since the lineup here occurred prior to the Supreme Court's decision in United States v. Wade, 388 U.S. 218 (1967), the controlling standard is that articulated in Stovall v. Denno, 388 U.S. 293 (1967), and in Simmons v. United States, 390 U.S. 377 (1968). As indicated in United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-15 (2 Cir.), cert. denied 400 U.S. 908 (1970), the required inquiry is two-pronged: first, whether the identification procedure was impermissibly suggestive; and second, if it is found to have been so, whether the procedure had such a tendency to give rise to a substantial likelihood of irreparable misidentification that the in-court identification must be excluded. See also United States ex rel. Rivera v. McKendrick, 448 F.2d 30, 32-33 (2 Cir. 1971), cert. denied, 404 U.S. 1025 (1972).

Turning to the first part of this two-pronged test, there are plausible grounds for arguing that the lineup here was impermissibly suggestive. Of the three men in the lineup only Bisordi matched Ogilvie's description in terms of height, and only Bisordi matched the revised description in terms of skin color.

On the other hand, Ogilvie was quite emphatic at the trial in denying that the differences in height had in any way influenced his identification of Bisordi. Moreover, in view of the conflicting descriptions of the assailant's skin color, it was not entirely unreasonable for the police to set up a racially mixed lineup. Furthermore, since we know so little about the other men in the lineup, it is possible that they were light-skinned Negroes and that their skin color did not differ greatly from that of Bisordi. Finally, there is nothing in the record to indicate that the police said anything to Ogilvie which would suggest that Bisordi was more likely to be the culprit. Detective Carroll's statement to Ogilvie that he wanted him to come to the station to see if he could identify the man who shot him seems no more suggestive than the mere fact of having Ogilvie view the lineup.

In light of the limited knowledge we have about the other men in the lineup, it is virtually impossible to determine whether the lineup in question was impermissibly suggestive. In such a situation, a remand to the district court for an evidentiary hearing might be said to be appropriate. Such a hearing here, however, undoubtedly would be a futile gesture. The lineup occurred more than 12 years ago. All indications are that Ogilvie's and Detective Carroll's memory about the other men would be even dimmer today than at the trial in 1961. We hold that a remand to the district court under the circumstances of this case would serve no useful purpose, see United States ex rel. Rivera v. McKendrick, supra, 448 F.2d at 35 (concurring opinion), and in any event is unnecessary in view of our holding below.

III.

Turning to the second part of the two-pronged test referred to above, even if the pre-trial lineup were impermissibly suggestive, we are satisfied that it did not give rise to such a danger of irreparable misidentification that Ogilvie's in-court identification should have been excluded.

True, once a witness has identified a person as the result of an unlawful identification procedure, the image from that illegal confrontation is apt to be retained. See United States v. Wade, supra, 388 U.S. at 229. However, in determining whether an in-court identification has been irreparably tainted by an impermissibly suggestive lineup, "the effort must be to determine whether, before the imprint arising from the unlawful identification procedure, there was already such a definite image in the witness' mind that he is able to rely on it at trial without much, if any, assistance from its successor." United States ex rel. Phipps v. Follette, supra, 428 F.2d at 915.

In the instant case there are several factors which indicate that Ogilvie had such a definite image of his assailant prior to the lineup. First, Ogilvie had three minutes to observe Bisordi at close range in a well lighted store. While Ogilvie also was observing the other robber, these three minutes provided Ogilvie with ample time to fix Bisordi's image in his memory. See United States ex rel. Phipps v. Follette, supra, 428 F.2d at 916 (30 seconds); United States ex rel. Anderson v. Mancusi, 413 F.2d 1012, 1013 (2 Cir. 1969) (30 seconds). Secondly, Ogilvie was motivated to make a careful observation of the two culprits. As Ogilvie testified at trial, he was suspicious of the two men and watched them closely from the moment they entered the store. See United States ex rel. Phipps v. Follette, supra, 428 F.2d at 915. A third factor indicating that Ogilvie retained a fixed image of his assailant from the night of the shooting is that Ogilvie immediately identified Bisordi at the lineup and entertained no doubt that Bisordi was the gunman. See United States ex rel. Phipps v. Follette, supra, 428 F.2d at 915. Fourthly, Ogilvie testified at trial in unmistakable terms that he was basing his in-court identification upon his recollection of the night of the robbery and not on the police station encounter.

It is true that the lineup here occurred nine days after the crime and that the longer the interval between the crime and the confrontation the greater the likelihood that the initial imprint will have dimmed and that the second image will play an important role...