Friendly, Chief Judge, Timbers, Circuit Judge, and Jameson, District Judge.*fn*
The sole issue raised on this appeal from the denial of a state prisoner's petition for a writ of habeas corpus is whether a pre-trial lineup "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.*fn1
Ronald Bisordi and his co-defendant, James Clark, were convicted on June 21, 1961 in the New York Supreme Court, Bronx County, after a four week jury trial before Justice Abraham D. Levy of first degree robbery, first degree grand larceny, first degree assault, and possession of a weapon as a felony in connection with the robbery of a liquor store and the shooting of the store's manager on January 6, 1960.*fn2 After exhausting his state court remedies,*fn3 Bisordi filed a petition for a writ of habeas corpus on April 5, 1971 in the District Court for the Southern District of New York. Bisordi alleged that the manager's in-court identification of him as one of the robbers violated his right to due process, as the identification was tainted by an impermissibly suggestive pre-trial lineup. In an opinion dated July 26, 1971, Judge Tyler denied the petition without a hearing.*fn4 For the reasons stated below, we affirm.
The evidence adduced at the state court trial*fn5 established that on the evening of January 6, 1960 two men robbed a liquor store and shot the store's manager, Donald Ogilvie. The two men pretended to be customers. They made several requests of Ogilvie before the actual robbery and the assault. Ogilvie had approximately three minutes to observe them from the time they entered the well lighted store until the time he was shot. Ogilvie testified at trial that he was suspicious of the two men and watched them closely from the moment they entered the store, as one of the men was white and the store was located in a black neighborhood. Moreover, both men talked briefly during the course of the robbery, and Ogilvie noticed their manner of speaking, particularly that of his assailant, whom Ogilvie subsequently identified as Bisordi.
Before being removed to the hospital and while lying in the store with a bullet in his abdomen, Ogilvie described the two robbers to Officer Paris of the police department. The man who shot him was described by Ogilvie as a brownskinned male Negro, 23 to 24 years of age, 6 feet tall, 170 pounds, wearing a gray suit and felt hat. Ogilvie testified at trial that he did not recall giving any description to the police on the night of the crime.
Two days after the shooting, Ogilvie gave to the police another description of the robber who had shot him. This time Ogilvie described his assailant as a man about 6 feet tall, 170 pounds, wearing a charcoal gray overcoat and who "looked white" but "sounded like a colored person".
Nine days after the robbery, on January 15, 1960, Detective Carroll called Ogilvie, told him he had picked up two or three suspects and asked Ogilvie to come to the police station to determine whether he could identify "the man that had shot" him.*fn6 At the station Ogilvie looked through a peephole at a lineup consisting of three men: Bisordi, white, 6 feet tall; a Negro, 5 feet, 6 inches tall; and a second Negro, 5 feet, 7 inches tall.*fn7 Ogilvie immediately identified Bisordi as the man who had shot him.
At the state court trial, Ogilvie identified Bisordi as his assailant. Despite exhaustive cross-examination, Ogilvie remained positively convinced that Bisordi was the gunman. Ogilvie also identified James Clark, Bisordi's co-defendant, as the second participant in the robbery.
Ogilvie's in-court identification of Bisordi, while corroborated in part, for all practical purposes was the only evidence offered by the prosecution to connect Bisordi to the robbery and the assault. Thus, if that in-court identification was tainted by an unlawful lineup, the error could not be considered harmless.
Since the lineup here occurred prior to the Supreme Court's decision in United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), the controlling standard is that articulated in Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967), and in Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). As indicated in United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-15 (2 Cir.), cert. denied 400 U.S. 908, 27 L. Ed. 2d 146, 91 S. Ct. 151 (1970), the required inquiry is two-pronged: first, whether the identification procedure was impermissibly suggestive; and second, if it is found to have been so, whether the procedure had such a tendency to give rise to a substantial likelihood of irreparable misidentification that the in-court identification must be excluded. See also United States ex rel. Rivera v. McKendrick, 448 F.2d 30, 32-33 (2 Cir. 1971), cert. denied, 404 U.S. 1025, 30 L. Ed. 2d 675, 92 S. Ct. 678 (1972).
Turning to the first part of this twopronged test, there are plausible grounds for arguing that the lineup here was impermissibly suggestive. Of the three men in the lineup only Bisordi matched Ogilvie's description in terms of height, and only ...