Willin v. Ajello

• Decision Date: 04 September 1980
• Docket Number: Civ. A. No. H 79-241.
• Citation: 496 F. Supp. 804
• Parties: John M. WILLIN v. Carl R. AJELLO, Attorney General of the State of Connecticut, and Terry S. Capshaw, Director, Connecticut Department of Adult Probation.
• Court: U.S. District Court — District of Connecticut

496 F. Supp. 804

John M. WILLIN v. Carl R. AJELLO, Attorney General of the State of Connecticut, and Terry S. Capshaw, Director, Connecticut Department of Adult Probation.

Civ. A. No. H 79-241.

United States District Court, D. Connecticut.

September 4, 1980.

Thomas D. Clifford, Robert L. Wyld, Shipman & Goodwin, Hartford, Conn., for petitioner.

Bernard D. Gaffney, Asst. State's Atty., State of Conn., Hartford, Conn., for respondents.

MEMORANDUM OF DECISION ON PETITION FOR WRIT OF HABEAS CORPUS

JOSÉ A. CABRANES, District Judge:

Petitioner John M. Willin was convicted by a jury in the Superior Court of the State of Connecticut for Hartford County (Douglass B. Wright, J., presiding) of assaulting 13-year old Michael Jordan as Jordan bicycled home from football practice one evening. The jury heard evidence that 10 minutes after the assault, the police showed the petitioner to Jordan and Jordan identified Willin as his assailant. Jordan repeated his identification of Willin in the courtroom at trial.

After the Supreme Court of Connecticut affirmed Willin's conviction, Willin filed a petition for habeas corpus in this court. In his petition, Willin asserts that the admission of Jordan's identification testimony at trial violated his due process rights because the initial identification procedure was overly suggestive and unreliable. He also argues that even if the admission of the identification evidence was not unconstitutional, his conviction should be set aside because Judge Wright failed to give the jury adequate instructions regarding its use.

For the reasons set forth below, I conclude that: (1) the identification was sufficiently reliable to permit the admission at trial of the challenged evidence and (2) the trial court's jury instructions were constitutionally adequate. Accordingly, the petition for writ of habeas corpus is denied.

A. Factual Background

The background facts are not in dispute at this stage of the proceedings; the following description of relevant events is drawn from the opinion of the Supreme Court of Connecticut in State v. Willin, 177 Conn. 248, 413 A.2d 829 (1979).

Shortly after 8 p. m. on October 28, 1975, Michael Jordan, who had just finished "pony league" football practice at Mill Pond Park in Newington, Connecticut, was bicycling home. His route took him past the parking lot of the Newington Town Hall, which is adjacent to the park, and onto a deserted path across the parking lot from Mill Pond Park. Jordan testified that when he reached the path, he heard footsteps behind him, looked back and saw a man wearing a purple jacket and a white rag or towel around his neck, running toward him. The man overtook Jordan, pulled him from his bicycle, told him "Don't worry. I won't hurt you," and dragged Jordan toward a bushy, wooded area. Jordan, who put up a struggle, broke free and, after a quick backward glance at his assailant, ran back to the nearby park, where he located his football coach (an off-duty police officer) and a police officer who was on duty in the area. He recounted the incident to them and described his assailant's clothing, hair color and height. The police conveyed this information by radio to the police dispatcher. A few minutes later, police picked up Willin, who was jogging in the vicinity of the assault, and who matched the description given them by Jordan.

Jordan's initial identification of Willin took place a short time later in the Town Hall parking lot. Willin was placed in the rear seat of a police cruiser. When Jordan arrived at the parking lot, one of the officers told him that they had found a man who matched his description and that they wanted Jordan to take a look at the man and determine whether he was in fact the assailant. Jordan observed Willin from a distance of two or three feet and identified him as the man who had attacked him no more than 10 minutes earlier.

B. Procedural History

Willin was tried on March 4-11, 1977 before a jury in the Superior Court for Hartford County. After a pretrial hearing conducted on the morning of the first day of trial, Judge Wright denied Willin's motion to exclude identification evidence based on the allegedly suggestive identification procedure. The case then went to the jury, which heard testimony from Jordan and the attending officers about Jordan's identification of Willin in the Town Hall parking lot. Jordan also identified Willin as his assailant in the course of his testimony at trial.

On March 11, 1977, the jury found Willin guilty of assault in the third degree, Conn. Gen. Stat. § 53a-61(a)(1), and not guilty of unlawful restraint in the first degree, Conn. Gen. Stat. § 53a-95. Judge Wright sentenced Willin to one year in prison, with execution of the sentence suspended, and a two-year term of probation. As a condition of probation, Willin was to submit to psychiatric examination and any treatment deemed necessary by the evaluating psychiatrist. His conviction was affirmed on appeal by the Supreme Court of Connecticut. State v. Willin, supra.¹

C. The Initial Identification

The identification procedure employed in this case, in which the victim of the crime is shown on a single suspect, is known as a "showup." Because of its highly suggestive nature, such a one-on-one confrontation is inherently less reliable and less fair than the alternative "lineup" method, in which the victim is asked to identify the perpetrator of the crime from a group of persons. Courts therefore treat as constitutionally suspect identifications established through the "showup" technique. See, e. g., Foster v. California, 394 U.S. 440, 442-43, 89 S.Ct. 1127, 1128, 22 L.Ed.2d 402 (1969); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); Jackson v. Fogg, 589 F.2d 108, 111 (2d Cir. 1978); State v. Middleton, 170 Conn. 601, 607-08, 368 A.2d 66, 69 (1976).

A "showup" identification is not, however, per se inadmissible. The admission of identification evidence based on an overly suggestive confrontation procedure is prohibited only if under "the totality of the circumstances," Stovall v. Denno, supra, 388 U.S. at 302, 87 S.Ct. at 1972, there is "a very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1973), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). As the Supreme Court put it in Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977) (emphasis added), "the admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability."

In Neil v. Biggers, supra, the Supreme Court listed five factors which courts should consider in evaluating the reliability of challenged identification evidence. Those factors are: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." 409 U.S. at 199, 93 S.Ct. at 382. See also Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253; Gonzalez v. Hammock, No. 79-2226, slip op. at 5126 (2d Cir. Aug. 20, 1980); Jackson v. Fogg, supra, 589 F.2d at 111.

In this case, Willin contends that evidence of the "showup" identification by Michael Jordan should have been excluded from trial under the Biggers guidelines. I turn now to those guidelines as they pertain to Jordan's "showup" identification of Willin.²

1. Witness' Opportunity to Observe

The record amply supports Judge Wright's findings that "the witness Michael Jordan had a good and sufficient opportunity to view his assailant at the time of the assault" and that Jordan "viewed his assailant at close range and in adequate lighting." State v. Willin, supra, 177 Conn. at 254 n.2, 413 A.2d at 832 n.2 (quoting findings of Judge Wright). Jordan and a police officer testified that the area in which the assault took place was illuminated by nearby overhead lamps. Trial Transcript ("Tr.") 21-22, 83-84. Jordan testified that he made two direct observations of his assailant: first, from about 25 feet away, as the man approached him from behind, id. at 22-23, 151-52, and, second, from a distance of between six and ten feet, face-to-face, after Jordan had broken away from his attacker and was about to flee. Id. at 28-30, 164-66.

As Willin emphasizes, the fleeting nature of Jordan's glimpses of his assailant militates against the reliability of his identification. However, Jordan testified that his observation of his assailant, although brief, was enough to give him a clear impression of the man: "I saw his face, I saw his jacket, and I saw a white rag, or a towel." Tr. 165. Moreover, Jordan viewed his attacker from very close range, a fact which enhances the reliability of his observation and offsets its brevity. See Gonzalez v. Hammock, supra, slip op. at 5127, United States v. Yanishefsky, 500 F.2d 1327, 1330-31 (2d Cir. 1974) (where witness had stood a few feet from the criminal, identification testimony of witness subject to cross-examination was admissible although witness had only "fleeting" glance of criminal's profile).

2. Witness' Degree of Attention

Willin argues that as the victim of the assault, Jordan was concerned primarily with escape, not with observation of his attacker's features. However, despite a victim's natural inclination to seek cover or to flee, the Court of Appeals for the Second Circuit has stated that the victim of crime is apt to be a more reliable source of identification than is a mere spectator to the incident. United States v. Mims, 481 F.2d 636, 637 (2d Cir. 1973) (per curiam); United States ex rel. Phipps v. Follette, 428 F.2d 912, 915 (2d Cir.) ...