Lumbard, Kaufman and Timbers,*fn* Circuit Judges. Timbers, Circuit Judge (concurring).
Milton Rivera, who was convicted in a New York state court in 1965 for robbery and assault, appeals from an order of the Southern District of New York, Edward C. McLean, J., dated June 10, 1970, denying his petition for a writ of habeas corpus. That petition alleged that his conviction, which was based solely on the identification testimony of two victims of the crimes, was obtained in violation of due process of law, because the victims' in-court identification of Rivera was tainted by impermissibly suggestive pre-trial identification procedures used by the police. Since the present record is inadequate for a full consideration of Rivera's claim, we reverse the district court's determination and remand the case for an evidentiary hearing on that claim.
The relevant facts are as follows: During the evening of March 5, 1965, two men, one dark-skinned and the other light-skinned, entered a grocery store in Brooklyn. Vega, an employee, and Vargas, a customer, were inside. The darkskinned man -- later identified as Torres, Rivera's codefendant -- held a gun on the two men, while the other took the money out of the cash register. The light-skinned man then grabbed Vega, took his wallet, and shouted to Torres to shoot Vega. Vargas then shouted to Vega not to be afraid, but Torres immediately shot Vargas and in an ensuing struggle Vargas received another shot in the neck. Meanwhile, after the first shot was fired, the light-skinned man dashed from the store; he was not inside for more than three minutes. Torres, too, finally escaped, but he was apprehended several hours later, having left identifying papers in the store. Three days later, the police sent out an alarm for Rivera, although the record does not show the basis for their determination that he was a suspect.
Thereafter, the police showed Vega certain photographs. According to Vega's testimony at trial, Detective Maxwell at one point told him that "he had him [Rivera] and showed me a photograph." Vega also testified that Maxwell "showed me a photograph and I said to him 'Is this the man?'" Apparently on another occasion, Maxwell showed Vega a group of four or five photographs of different men, including one of Rivera, and Vega picked one out. However, because of the New York rule that a witness may not testify as to his prior identification of a defendant by means of photographs,*fn1 there was no testimony as to whether Vega picked out Rivera's photograph. The record is not clear as to whether Vega was first shown the single photograph or the group of four or five. Similarly, Vargas was shown certain photographs -- it is unclear how many -- while he was in the hospital recovering from the gunshot wounds, and he was asked whether he would know a person from that group. Pursuant to New York law, there was no testimony as to his response, and none of the photographs shown to either victim was offered in evidence.
On March 17, Rivera's attorney advised the police that Rivera had heard that he was wanted for questioning, and later that day Maxwell arrested Rivera at his attorney's office. Maxwell first took Rivera to the station house, and he then called Vega and instructed him to come to the hospital where he was "going to have someone down for him [Vega] to identify." Maxwell presented Rivera to Vega in the hospital waiting room and asked Vega whether he "knew the guy." Vega said "yes" and Rivera remained silent. Maxwell then took Rivera into Vargas' hospital room, but there was no testimony as to whether Vargas identified him there. Maxwell never took either witness to the police station to identify Rivera in a lineup.
Both Vega and Vargas testified at trial in the Kings County Supreme Court, and both made an in-court identification of Rivera as the light-skinned man involved in the robbery. Rivera's co-defendant, Torres, on the other hand, while admitting knowing Rivera, testified that Rivera was not with him at any time during the evening of March 5; and a woman friend of Rivera testified that Rivera was with her throughout that evening. Rivera did not testify in his own behalf.
The prosecutor, in summation, stated that both Vega and Vargas had selected Rivera's photograph from several shown to them, and the court in its charge also stated that those witnesses had made such selection. As previously noted, there was no such testimony from any witness at trial.
The jury returned a verdict of guilty against both Rivera and Torres on the crimes of robbery in the first degree, assault in the first and second degree, and possession of a dangerous weapon as a felony. Rivera was sentenced to a prison term of ten to fifteen years on the robbery count and to concurrent lesser terms on the other counts. He is presently serving his term.
Rivera's conviction was affirmed by the Appellate Division, Second Department, which held that while the remarks by the prosecutor and the trial court as to the witnesses' prior photographic identification of Rivera were improper, the errors were harmless. People v. Rivera, 28 A.D.2d 687, 280 N.Y.S.2d 749 (2d Dept. 1967). The New York Court of Appeals similarly affirmed the conviction, but by a 4-3 decision. People v. Rivera, 22 N.Y.2d 453, 293 N.Y.S.2d 271, 239 N.E.2d 873 (1968). The three dissenters felt that the pretrial identification procedures used here were unnecessarily suggestive and that there was a grave risk that the witnesses' in-court identification of Rivera was based upon those prior identifications, and they therefore felt that the case should be remanded for a hearing on that question. 22 N.Y.2d at 456, 293 N.Y.S.2d 271, 239 N.E.2d 873 (Fuld, C. J., dissenting). The Supreme Court denied certiorari. Rivera v. New York, 395 U.S. 964, 89 S. Ct. 2107, 23 L. Ed. 2d 750 (1969).
Rivera filed this petition for habeas corpus on October 21, 1969. The district court denied that petition without holding an evidentiary hearing, finding that the material facts were adequately developed and fully explored in the state court trial and that "whether any more could be elucidated now, some five years later, is highly dubious." The district judge was also satisfied on the merits that the two witnesses' identification of Rivera as the criminal was accurate. By order dated February 19, 1971, we granted Rivera a certificate of probable cause, with leave to appeal in forma pauperis and for assignment of counsel.
We agree with Chief Judge Fuld's dissent in the New York Court of Appeals that the pre-trial identification procedures used by the police here were impermissibly suggestive and conducive to mistaken identification. While we cannot say, as a matter of law, that Vega and Vargas would not have been able to identify Rivera at trial without the aid of those previous and impermissible procedures, we believe that it is highly probable that the in-court identification was so tainted. Hence, we must remand the case to the district court for an evidentiary hearing as to whether the witnesses' in-court identification was based on the police's unnecessarily suggestive prior procedures, in which case the use of such testimony would be a denial of due process, or whether the trial identification was independent of those procedures.
Since the confrontations in question here occurred two years before the Supreme Court's decision in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), the governing principles are those of Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), and Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). We have previously set forth those principles as follows:
"The required inquiry is two pronged. The first question is whether the initial identification procedure was 'unnecessarily' [ Stovall ] or 'impermissibly' [ Simmons ] suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been 'unnecessarily' or 'impermissibly' suggestive was so 'conducive to irreparable mistaken identification' [ Stovall ] or had such a tendency 'to give rise to a very substantial likelihood of irreparable ...