Wray v. Johnson
| Decision Date | 01 August 1998 |
| Docket Number | Docket No. 98-2680 |
| Parties | (2nd Cir. 2000) RAYMOND WRAY, Petitioner-Appellant, v. SALLY B. JOHNSON, Superintendent, Orleans Correctional Facility, Respondent-Appellee |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, dismissing habeas corpus petition on the ground that the trial court's improper admission of out-of-court showup evidence was harmless error.
Reversed and remanded.
[Copyrighted Material Omitted] DAWN M. CARDI, New York, New York, (Robert Rosenthal, New York, New York, on the brief), for Petitioner-Appellant.
ROBIN A. FORSHAW, Assistant District Attorney, Kew Gardens, New York (Richard A. Brown, District Attorney for Queens County, John M. Castellano, Assistant District Attorney, Kew Gardens, New York, on the brief), for Respondent-Appellee.
Before: KEARSE, McLAUGHLIN, and CALABRESI, Circuit Judges.
Petitioner Raymond Wray, a New York State ("State") prisoner convicted of robbery and weapons offenses, appeals from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, dismissing his petition pursuant to 28 U.S.C. 2254 (1994 & Supp. III 1997) for a writ of habeas corpus alleging that Wray was denied due process when the state trial court improperly admitted evidence of a witness's out-of-court showup identification of him. The district court denied the petition, ruling that, although the admission of the showup evidence constituted a due process violation, the error was harmless. Wray challenges this ruling on appeal. For the reasons that follow, we conclude that the error was not harmless, and we therefore reverse and remand for the conditional granting of the writ.
Shortly after midnight on November 25, 1990, on Merrick Boulevard in Queens County, New York, near a West Indian restaurant ("Bea's Kitchen" or "Bea's"), Melvin Mitchell, accompanied by his friend Craig Williams, was robbed of his leather jacket. The robbery was witnessed by New York City Police Officers Daniel Martorano and William Weller; two persons, including Wray, were quickly arrested. Wray was eventually indicted on two counts of first degree robbery and two counts of criminal possession of a weapon.
Mitchell, Williams, Martorano, and Weller testified at trial about the robbery. Their versions of the event were consistent to the extent they testified that one of the robbers, dressed in a long black coat and a black hat, confronted Mitchell with a gun, and that there was at least one accomplice who stood behind Mitchell while the gunman demanded and received Mitchell's jacket. That accomplice was later identified as one Dennis Bailey. The principal question at trial was the identity of the gunman. The officers testified that the gunman was Wray; Mitchell and Williams testified that the gunman was not Wray.
When the robbery occurred, Martorano, Weller, and Sergeant James McCavera, plainclothes police officers who were assigned to an anticrime unit, were positioned on the roof of a supermarket building on the north side of Merrick Boulevard, directly across the street from Bea's Kitchen, conducting a surveillance of that establishment and persons approaching it. Only Martorano and Weller observed the robbery. The area was fairly well-illuminated by two overhead streetlights and lights from a gas station on the south side of Merrick Boulevard, two stores to the east. The supermarket building was one-story high, its roof approximately 15 feet above street level, and was approximately 100 feet from Bea's. The officers had no "binoculars or any other magnifying or seeing devices" (Trial Transcript ("Tr.") 355).
Martorano testified that he was watching the front door of Bea's Kitchen and saw a number of persons standing outside, including one wearing a long black coat and a black hat (to whom we shall refer as "LongBlackCoat" or the "gunman") and one eventually identified as Bailey, wearing a green jacket. Most of those persons entered the restaurant; LongBlackCoat and Bailey remained outside. Martorano then noticed two other persons (Mitchell and Williams) walking away from Bea's Kitchen, proceeding west on Merrick Boulevard. Martorano testified that LongBlackCoat followed Mitchell and Williams and overtook them:
At this time I saw one individual with the long black coat step in front, blocking these two people's path. I then noted that this person had a gun. He was holding it to his--close to his waist.
Q. Who had the gun?
A. The person with the long black coat.
Q. And where was that--where was he holding the gun?
A. He was holding it close to his waist, kind of close to his body. The other individual with the green corduroy jacket was standing behind the two people I noted walking away from the front door.
....
Q. .... What did you see happen next?
A. I then saw one person who was--one of the people who were walking away from the door remove his jacket and hand it to the person with the long black coat who was holding the gun.
At this time I saw two individuals continue to walk towards 234th Street, and the person with the long black coat and the other individual with the green jacket walked back towards Bea's Kitchen.
(Tr. 321-22.)
Q. .... Now, when you're making these observations, are you using anything to aid you in these observations?
A. No, I'm not.
Q. And can you describe for us, as you remember, back on November 25th of 1990 the face of Raymond Wray?
A. What I can make out of his face, very dark skinned and he had like a goatee, mustache. That was--that's all I can describe of his face.
Q. And now can you describe the black hat that you saw him with?
A. Just as far as I remember, just a black hat. It was--I believe it had a brim on it.
Q. And can you describe the black coat that you saw him wear?
A. Yeah. It was a long black coat. It looked like--it was like a padded-type coat, very heavy winter coat. It was called what they call three-quarter length. It come [sic] down to your calves, almost to your ankles.
(Tr. 326.)
Martorano testified that the incident occurred approximately one storefront away from Bea's Kitchen and took about 20 seconds. He observed that as Mitchell and Williams walked away, the two robbers returned toward the restaurant. The gunman handed Mitchell's jacket through the doorway of the restaurant and gave the gun to Bailey, who remained outside; the gunman then entered the restaurant. During these events, Martorano had not noticed anyone other than Mitchell, Williams, and the two robbers on the street.
Weller too had watched a group in front of Bea's Kitchen disperse until only two were left. One of the men was Bailey; the other, LongBlackCoat, "was wearing a black hat, he was wearing a full length overcoat type raincoat winter jacket and he had some kind of dark shirt underneath." (Tr. 475.) Weller saw another person (later identified as Mitchell) leave Bea's and walk westward. Weller watched as LongBlackCoat and Bailey began to follow Mitchell.
Q. And tell us what you saw.
A. I observed them catch up to the individual. He became known to me as Melvin Mitchell. The one individual, Raymond Wray, stepped to the front of him as if facing him. The other individual, Dennis Bailey, stepped around to the back of Melvin Mitchell. At this point Melvin Mitchell's back was to me as was Dennis Bailey's, and Raymond Wray was actually facing me.
(Tr. 476-77.) Weller noticed that Wray had a gun pointed at Mitchell and saw Mitchell take off his leather jacket and hand it to Wray.
Weller did not see Williams during the robbery. Although Weller had at some point noticed one person cross to the north side of Merrick Boulevard, he was sure that only three persons--two robbers and one victim--were present at the robbery.
Weller described the gunman as "kind of dark skinned and he had some type of growth, hair around his chin area." (Tr. 475.) Asked whether he could recall anything more about the robbers' faces, Weller stated, (Id.)
According to Williams, he, Mitchell, and two friends had gone to Bea's Kitchen that night to get something to eat. When they arrived, a doorman and three other men were in front, and Mitchell and his friends learned that the restaurant was hosting a private party and they would have to pay an admission fee to enter. After a five-minute discussion with the doorman, the Mitchell group decided against paying the entry fee and began to walk west toward where they had parked. Some three minutes into their conversation with the doorman, the other three men initially in front of Bea's had left and gone westward on Merrick Boulevard. When Mitchell, Williams, and their two friends left and were approximately three storefronts west of Bea's Kitchen, those three men approached them from the west, one of them displaying a gun. Williams described the gunman as dark-skinned, heavy-set, weighing at least 200 pounds, having "a little mustache, a little beard" (Tr. 179), and wearing a long, black, insulated trench coat and a black hat with a brim and a feather.
Two members of Mitchell's group promptly fled, leaving Mitchell and Williams on the scene. The gunman, who had a West Indian accent, confronted Mitchell and demanded his jacket; the other two assailants positioned themselves behind Mitchell and Williams. Williams testified that although he and Mitchell were not facing Bea's Kitchen during the robbery (Mitchell's back and Williams's side were toward the restaurant), after the gunman took Mitchell's coat and walked past them toward Bea's,...
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