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January 27, 1971

UNITED STATES of America ex rel. Samuel VALENTINE, Petitioner,
Hon. John L. ZELKER, Warden, Green Haven Prison, Stormville, New York, Respondent

Frankel, District Judge.

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

On the night of October 13, 1965, shortly after 8:30 p.m., a sixteen-year-old girl was watching television while she served as a baby sitter in a home in New Castle, New York. Sensing the presence of someone behind her, she turned and saw a man standing in the room holding a rag in his hand. The room was amply lighted, and she saw him face-to-face for a period of a half minute or so. He proceeded to put the rag on her face and knock her down. There followed a scuffle, after which the assailant took the girl through the house, forcing her to look through various rooms and articles of furniture for money or other things to steal. Then he took her to the houskeeper's room, where she was thrown upon a cot, raped and subjected to acts of sodomy. Some minutes after the man had left the house, the girl called her home to report the crime, whereupon her family notified the police, who were soon at the scene to commence their investigation of the crime and search for its perpetrator.

 The victim gave the police a fairly detailed description of the criminal, portraying him as a tall male Negro about 35-40 years old with a mustache, describing his grey jacket and trousers, and mentioning that he had been wearing a white hat. Her description was made the subject of a teletype distributed throughout Westchester County.

 Within about six hours following the rape, the police showed the girl a picture of a black musician and asked whether this had been her attacker. She replied that this was not the man. Then, at 10 p.m. on October 14, just over twenty-four hours after the crime, the girl was shown a second picture, this one of petitioner. She promptly identified him as the one who had attacked her. About an hour or so later she was taken to the Tarrytown Police Station where she was directed to look through a one-way window into a room in which there were two men, the petitioner and a uniformed black police officer. She identified petitioner immediately as her assailant. In the course of her observations, he was wearing a grey jacket and grey pants, and, at least at some point, a white hat. In addition to identifying the petitioner, the girl described his clothing as the garments that had been worn by the man who attacked her.

 Petitioner was brought to trial in April of 1967 on charges of rape, sodomy and burglary. Appearing as the crucial witness for the prosecution, the girl victim made a courtroom identification of the petitioner. There was additional evidence, including medical and other matters, but none of these details is important for present purposes.

 The petitioner did not take the witness stand, but presented two witnesses in support of an alibi defense. The trial judge, petitioner having waived a jury, found these defense assertions incredible, and the whole record, which has been studied by this court, seems quite vividly to confirm that view. Upon all the evidence, convinced of guilt beyond a reasonable doubt, the judge convicted the petitioner on all counts.

 The judgment was affirmed on appeal. However, one judge in the Appellate Division dissented, concluding that a hearing should be held on the question of whether the trial identification of Valentine was "tainted" by the pretrial show-up procedure. People v. Valentine, 32 A.D. 2d 822, 302 N.Y.S. 2d 983, 984 (2d Dept. 1969). The State Court of Appeals unanimously affirmed without opinion. 26 N.Y. 2d 654, 308 N.Y.S. 2d 385, 256 N.E. 2d 540 (1970).

 Petitioner thereafter made an unsuccessful application for coram nobis, the grounds of which are not made clear in the papers here presented. The details of that make no difference, however, since it is undisputed that the issue of identification upon which the petitioner now seeks federal habeas was thoroughly exhausted in the initial state proceedings. The claim here is that the pretrial identification on a "show-up" (of which evidence was admitted at the trial) was itself fundamentally unfair, and, in addition, that the later in-court identification was so tainted by the earlier observation that it should have been excluded.

 Petitioner's trial having antedated the decisions in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), the rules of those cases are inapplicable. Our question is whether, in "the totality of the circumstances," Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), the identification prior to trial made the total procedure of identification "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, 971, 19 L. Ed. 2d 1247 (1968); see also Foster v. California, 394 U.S. 440, 442, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). This is a "very difficult test to meet," United States ex rel. Williams v. La Vallee, 415 F.2d 643, 645 (2d Cir. 1969), although petitioner's argument is a substantial one. Considering all the circumstances together, this court has concluded that the petition must be denied.

 The already considerable body of cases on the subject of this petition makes it evident that decision must turn upon the particularized "totality of the circumstances" comprising each situation. There are, unquestionably, imperfections of a troublesome nature in the identification procedures of which petitioner complains:

(1) The display to the victim of a single photograph is far from ideal. Cf. Simmons v. United States, 390 U.S. 377, 383-84, 385-86 [88 S. Ct. 967, 19 L. Ed. 2d 1247] (1968); United States ex rel. Beyer v. Mancusi, 2d Cir. No. 34723, Jan. 5, 1971, slip op. 1161 [436 F.2d 755].
(2) The "show-up," with only petitioner and a uniformed officer in the room, was a poor alternative to a soundly organized lineup. Cf. Stovall v. Denno, 388 U.S. 293, 302 [87 S. Ct. 1967, 18 L. Ed. 2d 1199] (1967); Foster v. California, 394 U.S. 440, 443 [89 S. Ct. 1127, 22 L. Ed. 2d 402] (1969); Biggers v. Tennessee, 390 U.S. 404, 407 [88 S. Ct. 979, 19 L. Ed. 2d 1267] (1968) (equally divided court, Douglas, J. dissenting); Palmer v. Peyton, 359 F.2d 199, 201 (4th Cir. 1966); Crume v. Beto, 383 F.2d 36, 39 (5th Cir. 1967); United States ex rel. James v. Follette, 301 F. Supp. 569, 572 (S.D.N.Y. 1969). The problem in this aspect was aggravated when the police officers, taking the young victim to the police station, told her she was going to Tarrytown "to further identify for positive identification the man she [was] accusing."
Cf. Simmons v. United States, supra [390 U.S.], at 385 [88 S. Ct. 967]; Biggers v. Tennessee, supra [390 U.S.], at 408 [88 S. Ct. 979]; Palmer v. Peyton, supra 359 F.2d], at 201; United States ex rel. James v. Follette, supra [301 F. Supp.], at 572.
(3) The victim's trial testimony was inconsistent in noticeable respects with her initial statements to police officers *fn1" and her testimony at a preliminary hearing, *fn2" and there were shifts again in the course of the trial itself. *fn3" These by no means destroyed the efficacy of the ...

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