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November 5, 1971

UNITED STATES of America ex rel. James CARTER, Relator,
Honorable Vincent R. MANCUSI, as Warden of Attica State Prison, Attica, New York, Respondent

MacMahon, District Judge.

The opinion of the court was delivered by: MACMAHON


MacMAHON, District Judge.

 Petitioner, James Carter, confined in Attica Correctional Facility, Attica, New York, collaterally challenges under 28 U.S.C. § 2254 a conviction for rape in the first degree and an indeterminate sentence of twenty-five years imposed by the Supreme Court, Bronx County, on September 19, 1969, sitting without a jury. Petitioner's conviction was affirmed by the Appellate Division, First Department, on June 4, 1970 and by the New York Court of Appeals on January 6, 1971, both without opinion. The Court of Appeals, on February 4, 1971, amended its remittitur to state that it had passed upon petitioner's contentions under the Fourth, Sixth and Fourteenth Amendments and had found no denial of constitutional rights.

 Petitioner now claims violations of the Fourth and Fourteenth Amendments, alleging that the in-court identification of him was tainted, first, because he was identified by the victim during a line-up held in the police station while he was detained without probable cause and, second, because fifteen months after the crime the prosecutor showed two key witnesses photographs of him just before they testified on the trial. Determination of petitioner's contention requires a brief review of the facts.

 On January 21, 1968, a seven-year-old girl, Tammy Small, was raped on the ground floor of the apartment building in which she lived. When the police arrived, they elicited from Tammy an approximate description of her attacker and that he had mentioned the name "Debra." Acting on this lead, the police asked a girl by that name, who had lived in Tammy's building, to produce a list of her ex-boy friends. Donald Carter, petitioner's brother, was on the list.

 Six police officers visited Donald Carter's apartment at eleven o'clock that evening and questioned both Donald and petitioner. The brothers consented to accompany the officers to the station house. Once there, petitioner consented to stand in a line-up with his brother and was identified by Tammy Small through a one-way mirror as the attacker. Petitioner was forthwith placed under arrest and given the Miranda warnings.

 Two key witnesses upon the trial placed petitioner in Tammy Small's apartment building on the day of the crime. Valerie Gregg testified that she saw petitioner about 4:00 P.M., an hour and one-half before the rape. Paula Small testified that she saw petitioner in the building once in the morning and again at 5:30 or 6:00 P.M. Neither witness spoke with the police or prosecutor about their observations until more than a year later.

 Mrs. Gregg was first approached fourteen months after the crime. A detective showed her a line-up photograph of five men, and she identified petitioner. The photograph showed petitioner wearing a black, three-quarter length leather jacket dissimilar to the jackets worn by three of the four others, and his age and appearance also differed markedly.

 Mrs. Small was first approached thirteen months after the crime and, although she told the police that she thought she could make an identification, nothing was done about it until the day of the trial, two months later.

 On the morning of the trial, both witnesses were shown a police "mug" shot and a full-length photograph of petitioner by the district attorney.

 The guidelines for determining petitioner's tainted identification claim are found in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), and Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). Stovall and Simmons teach a two-pronged inquiry: whether the initial identification procedure was unnecessarily or impermissibly suggestive and, if so, whether the procedure was so conducive to irreparable mistaken identification or has such a tendency to give rise to a very substantial likelihood of irreparable misidentification that allowing the witness to make an in-court identification would be a denial of due process. United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir. 1970).

 We, therefore, consider first whether the prosecutor's action in showing the photographs to the witnesses just before they testified was "unnecessarily" or "impermissibly" suggestive. We, thus, consider the facts pertinent to the first essential inquiry.

 Mrs. Small testified that the photographs bore New York City Police legends and that she viewed them about fifteen seconds "to make sure." The inference seems clear that Mrs. Gregg, shown the same photographs, was similarly uneasy. Corroboration of the victim's testimony was required under New York law, and surely, both witnesses were aware that they were expected to make a positive identification in the courtroom later that morning. We think that the failure to anchor the eyewitness identification earlier in a prompt and proper line-up, the timing, the focus on petitioner, and the circumstances surrounding the photographic session compel the conclusion that the identification procedure here was unnecessarily and impermissibly suggestive. Mason v. United States, 134 U.S. App. D.C. 280, 414 F.2d 1176, 1182 (1969).

 We consider next, therefore, whether the photographic session was "so conducive to irreparable mistaken identification" or had such a tendency "to give rise to a very substantial likelihood of irreparable misidentification" that petitioner was denied due process of ...

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