United States v. Casscles

• Citation: 489 F.2d 20
• Decision Date: 05 December 1973
• Docket Number: Docket 73-1892.,No. 167,167
• Parties: UNITED STATES of America ex rel. Armstrong JOHN, Appellee, v. J. Leland CASSCLES, Superintendent, Great Meadow Correctional Facility, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

489 F.2d 20 (1973)

UNITED STATES of America ex rel. Armstrong JOHN, Appellee, v. J. Leland CASSCLES, Superintendent, Great Meadow Correctional Facility, Appellant.

No. 167, Docket 73-1892.

United States Court of Appeals, Second Circuit.

Argued September 17, 1973.

Decided December 5, 1973.

Hillel Hoffman, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellant.

Mark L. Levine, New York City (Robert Kasanof, The Legal Aid Society, Barry S. Greene, Schuyler K. Henderson, New York City, on the brief), for appellee.

Before SMITH, MULLIGAN and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal is by the State of New York from the granting of a writ of habeas corpus to appellee on the basis of erroneous admission at trial of identification evidence.

On May 10, 1967, Louis Connor was slain during the robbery of his cleaning store. In June, 1968, appellee was tried for this crime and convicted of manslaughter in the first degree by the Supreme Court of Kings County. His conviction was affirmed without opinion, 35 A.D.2d 1081, 318 N.Y.S.2d 266 (1970), and the New York Court of Appeals denied leave to appeal on February 4, 1971. Thereafter appellee moved for a new trial on the basis of newly discovered evidence; the motion was denied on April 13, 1972. He then filed a habeas corpus petition in federal court, but the petition was withdrawn so as to enable him to exhaust his state remedies. His motion in the Appellate Division for leave to appeal from the denial of a new trial was itself denied on February 14, 1973, thereby exhausting his state remedies. See New York C.P.L. § 450.90(1); People v. Fein, 18 N.Y.2d 162, 169, 272 N.Y.S.2d 753, 757, 219 N.E.2d 274 (1966), cert. denied, 385 U.S. 649, 87 S.Ct. 766, 17 L.Ed.2d 668 (1967). Appellee then renewed his habeas petition before the United States District Court for the Eastern District of New York. There, without holding an evidentiary hearing, Judge Zavatt granted the petition, 358 F.Supp. 517. The State has taken this appeal.

Although there was other evidence linking appellee to the crime, one of the most important parts of the State's case was the testimony of Marvis Johnson. Mrs. Johnson testified that on the evening of the crime she had been walking home toward the cleaning store after visiting a bar. Standing in front of the cleaner's was a young man. As she reached the store, she heard a noise like a firecracker and then another young man with a gun in one hand and money in the other ran out of the store, bumping into her. After glancing at his face, Mrs. Johnson started running, as did the two young men. In court over a year later, Mrs. Johnson testified that appellee was the young man who ran out of the store with the gun and the money.

Mrs. Johnson, however, had not told anyone about the encounter on May 10, 1967, after it occurred, and until almost the trial of appellee. Rather, she apparently did not want to become involved, especially because she was herself on probation. Apparently no one, certainly not the police, knew that she was a witness, except, possibly the perpetrators. On June 2, 1967, three weeks after the Connor robbery and slaying, Mrs. Johnson was herself shot by Gregory Brown. At the hospital she told the police that as Brown was shooting her, he told her that he was shooting her because she knew who had shot Connor—someone had told Brown that she had seen them—and that he was shooting her with the same gun that killed Connor.¹ Sometime thereafter two detectives came to Mrs. Johnson's apartment to question her concerning the Connor killing. Again attempting to keep from being involved, now with the added knowledge, if her story as to the Brown shooting is to be believed, that her ability to identify the murderers had almost resulted in her own death, Mrs. Johnson told the detectives that she was Marvis Johnson's sister and did not know about the Connor killing and that Marvis Johnson had moved to Detroit.

On July 6, 1967, and this is the remarkable fact in this case, Mrs. Johnson was in court with reference to the case involving her own shooting by Gregory Brown. Apparently by pure coincidence appellee and his codefendant² were also in court that day; their case was then adjourned. Mrs. Johnson subsequently testified that she then recognized them as the young man who had been standing in front of the store and the young man who had come running out. Still she told no one.

Nothing else happened until May 14, 1968, a year and four days after the original crime. An Assistant District Attorney and four detectives came to Mrs. Johnson's apartment and showed her two "mug shots"—one of appellee and one of his codefendant. She told them that she could not identify them, but she came down to the Assistant District Attorney's office and signed a statement saying that she had seen the two perpetrators in court one day when she had been there in reference to her own case. Two days later, because, she says, her conscience bothered her, and perhaps because she feared that if she were caught in a lie she might get into further trouble, she called the Assistant District Attorney to tell him that she could identify the persons in the two pictures. She said that the two persons were the ones she had seen in court and also the ones she had seen at the scene of the killing.

At the suppression hearing prior to trial, the state court judge held that Mrs. Johnson's identification of appellee was not tainted in any way by the showing of only the two photographs and that Marvis Johnson was an honest witness whose previous untrue statements were occasioned by her not wanting to get involved. Her testimony, therefore, was admitted.

The question before this court on appeal is whether the showing of only two photographs to Mrs. Johnson was so suggestive as fatally to taint her in-court identification, violating appellee's fourteenth amendment rights.³ The State argues strongly that LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed. 637 (1973), calls for a reversal of the grant of habeas because it requires the district court to find by "convincing evidence" that the state court determination was erroneous, which the district court did not do here. Appellee argues equally strongly that Delle Rose is inapposite to this case, because the dispute here is over the historical facts, not over the law to be applied to them. Cf. United States ex rel. Williams v. LaVallee, 487 F.2d 1006 (2d Cir., 1973), slip op. 381, 390. It is clear to us that here there are mixed questions of law and fact, but because we feel that the district court incorrectly applied the law to the facts, we need not reach the question to what extent Delle Rose applies in this case.

The Supreme Court has held that due process is violated by an identification procedure only when it is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The district court properly stated that the required inquiry is two-pronged: first, whether the identification procedure was impermissibly suggestive; and, second, if so, whether under the totality of the circumstances it has such a tendency to give rise to a substantial likelihood of irreparable misidentification that to allow the witness to make an in-court identification would violate due process. United States ex rel. Bisordi v. La-Vallee, 461 F.2d 1020, 1023 (2d Cir. 1972); United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970).

The showing of only two pictures, one of each suspect, to a possible witness and asking her if these are the two men she saw, or if she can identify these two men, is clearly impermissibly suggestive. See, e. g., United States ex rel. Gonzalez v. Zelker, 477 F.2d 797 (2d Cir. 1973). Nor were there any extenuating circumstances which might justify such prosecutorial conduct; here appellee and his codefendant had been incarcerated for approximately a year and had been indicted seven months earlier. Thus, the showing was not only suggestive, but was unnecessarily so. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

The next question then is whether showing these two pictures to Mrs. Johnson was likely to have led to a misidentification of appellee in court, for it is the likelihood of misidentification which violates the defendant's right to due process. Neil v. Biggers, 409 U.S. at 198, 93 S.Ct. 375. The court must seek to determine whether there was already such a definite image of the defendant in the witness's mind—before the suggestion arising from the unlawful identification procedure could take effect—that the in-court identification is reliable in spite of the suggestiveness of the unlawful identification procedure. In short, what is needed is evidence that such a definite image existed. Normally the only evidence is circumstantial, and several cases give guidelines as to the factors which should be considered in weighing that circumstantial evidence. See, e. g., Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. 375. These factors, however, are hardly exclusive, for as has been said, one must look to the totality of circumstances, United States ex rel. Cannon v. Montayne, 486 F.2d 263 (2d Cir., 1973), and each case must be considered on its own facts. Simmons v. United States, 390 U.S. at 384, 88 S.Ct. 967.

In all the testimony concerning Mrs. Johnson's identification of appellee, one fact stands out as clearly established—that on July 6, 1967, she saw appellee standing in court and that nearly a year later she remembered him well enough to identify a picture of him, albeit one suggestively proffered, as one of the men she saw in court. This must have...