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July 29, 1970

UNITED STATES ex rel. Edward Stanley MILLER and Joseph T. Quinones, Petitioners,
J. E. LaVALLEE, Warden of Clinton Prison, Respondent

Judd, District Judge.

The opinion of the court was delivered by: JUDD


JUDD, District Judge.

 In this habeas corpus proceeding by a state prisoner, the principal question is whether pretrial identification was improperly suggestive.

 Both petitioners were convicted of robbery in the first degree after a jury trial in the Supreme Court, Queens County. They were charged with holding up a bar and grill at gunpoint in March, 1962. The question of identification was crucial, since there was no other clear evidence that either was present at the scene of the robbery.

 The conviction was reversed by the Appellate Division for admission in evidence of a gun that was not properly identified. People v. Miller, 22 A.D. 2d 958, 256 N.Y.S. 2d 110 (1964). The Court of Appeals reversed this decision, and remitted the matter to the Appellate Division, which then affirmed the conviction. 17 N.Y. 2d 559, 268 N.Y.S. 2d 324, 215 N.E. 2d 507 (1966), 25 A.D. 2d 819, 269 N.Y.S. 2d 1009 (1966), aff'd, 19 N.Y. 2d 878, 280 N.Y.S. 2d 677, 227 N.E. 2d 598 (1967), cert. den. 392 U.S. 942, 88 S. Ct. 2324, 20 L. Ed. 2d 1404 (1968). Coram nobis petitions were denied by the Queens County Supreme Court, whose orders were also affirmed. People v. Miller, 31 A.D. 2d 787, 298 N.Y.S. 2d 666 (2d Dept. 1969), cert. den. Miller v. New York, 395 U.S. 926, 89 S. Ct. 1782, 23 L. Ed. 2d 243 (1969). This petition for federal habeas corpus followed. After receiving the Attorney General's response to an order to show cause, the court set the matter down for hearing and took testimony on four separate days.

 The witnesses who identified petitioners at the trial were Thomas Walker, proprietor of the tavern, his son, and a customer named Walter Funk. They had a substantial opportunity to observe the robbers, who were present on the premises for nearly an hour before committing the robbery, although wearing hats, overcoats and dark glasses most of the time. The accuracy of the identification was cast in doubt by the fact that Walker and Funk told the police on the night of the robbery that both robbers were Puerto Rican* and that they differed in height much more than was the case with the two petitioners. Miller was actually of German descent and not Puerto Rican or Spanish, but a photograph of him at a time when he wore a mustache might have been described as Spanish. Miller is an intelligent person, who had studied Spanish and might have used the language that night to conceal his identity. On the other hand, one of the men who was in the tavern at the time of the holdup said at the habeas corpus hearing that the taller robber (Miller was taller than Quinones) did not have a mustache, and did not look like petitioner Miller as he now appears. In any event, there was a serious issue of fact concerning the validity of the identification.

 The petitioners were arrested in Brooklyn about ten days after the robbery in connection with an accident to a stolen car. An alert policeman assigned to the case that night, on learning that Miller was on parole from a Queens robbery, suspected that both men might have been connected with other robberies, and decided to check unsolved cases in the 104th Precinct in Queens. He summoned Walker by phone at about two o'clock the next morning to come to a Brooklyn station house and identify the suspects, saying that they had them on another charge. Mr. Walker testified:

"I tried my best to get out of it and he placed an awful lot of importance on the fact that these might be the men and it was then that I went down."

 Walker and his wife drove to the Liberty Avenue station house, where he was first shown a revolver which the police said was taken from one of the men he was about to view. It looked like the one used in the robbery. The policemen said, "We think we have the men." Walker was then taken upstairs through the squad room to a smaller room where he could look through a glass window into the squad room.

 The testimony concerning the viewing of the petitioners is inconsistent, but it is clear that there was not a normal lineup. A police officer who was present testified that the petitioners were in handcuffs and that they were bloody and disheveled from the accident. Walker, curiously, denies any recollection of the handcuffs, or of petitioners' clothes being torn. I accept the testimony of the policeman, which confirms that of both petitioners in this respect. It may have been that Walker was looking at the faces more than at the rest of their bodies, or that he was convinced before he looked, or that his recollection was dim in 1970.

 Walker saw eight or more men strolling around the room, and immediately identified the petitioners. He had been shown at least fifty photographs on the night of the robbery, and had not identified any of them; there is nothing to show that a photo of either petitioner was shown to him. After this viewing, Walker saw the petitioners about eight times in court at various adjournments of the arraignment.

 The policeman who arrested petitioners did not know any reason why a lineup could not have been held.

 Walker told his son that he had identified the suspects. Four months later his son was taken to a lineup, where the two petitioners appeared with two older and taller detectives. He picked out the petitioners. The usual practice was to have six men in a lineup.

 The third identification witness at the trial, Walter Funk, testified at the habeas corpus hearing that Miller did not look like either of the men who held him ...

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