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September 10, 1973

Elmer George ROE, Petitioner,

Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

In 1969 after a trial by jury in Monroe County Court, petitioner Elmer George Roe was convicted of first degree rape and first degree assault and sentenced to concurrent terms of imprisonment of eight to twenty-five years and up to fifteen years. His conviction was affirmed by the Appellate Division, Fourth Department, 36 A.D. 2d 1012, 321 N.Y.S. 2d 450 (4th Dept. 1971), and leave to appeal to the Court of Appeals was denied. The instant petition for a writ of habeas corpus followed.

 The basic facts relating to the crimes for which petitioner was convicted are as follows. *fn1" At approximately 8:45 p.m. on January 14, 1969 a fifteen year old girl [hereinafter referred to as Miss K] left her home on Avenue D in Rochester, carrying a radio. As she walked along Conkey Avenue a man came up to her, put his arm tightly around her waist and told her that he had a knife and that she should not scream. He dragged her to the yard behind a nearby house and garage, where he made her commit oral sodomy and then ripped off her clothes and raped her. Finally he jumped over a fence and left her lying in the yard.

 At approximately 7:00 or 7:30 p.m. on the evening of the crime Joanne Lagasse left her home at 10 Conkey Avenue to go to a nearby store. Near the store a man passed her, looked her "up and down" and said, "um-um." While she was in the store she saw the man walk by. Later in the evening, after she had returned home, Mrs. Lagasse looked out the front window of her home and saw the same man pulling a girl she later identified as Miss K. The man appeared to be drunk. At one point he fell and the girl tried to run away but he caught her. The couple then went out of Mrs. Lagasse's view.

 Prior to petitioner's trial, the court held hearings to determine the admissibility of identification testimony by Miss K and Mrs. Lagasse, of testimony by police officers relating to an oral confession given by petitioner and of a written confession signed by petitioner. The facts relevant to the admissibility of these items which were revealed at the hearings are as follows:

 Miss K first observed her assailant just prior to his grabbing her. After he did so, she had the opportunity to observe his face as he dragged her toward the yard and during the rape, a time totalling approximately twenty minutes. She described her assailant to the police as a white, stocky man with dark hair and a curl who was wearing a dark jacket. On several occasions following the crime, the police showed Miss K photographs to determine if any depicted her assailant. On January 17, 1969 they showed her approximately fifteen photographs, including one of petitioner taken in 1962, but she failed to make an identification. On April 17, 1969 they showed her several photographs, telling her they were interested in one in particular. She said that the first two did not portray her assailant but that she wasn't sure about the last, which in fact was either petitioner's 1962 photograph or one taken in 1968. On April 18 Miss K was taken to the Public Safety Building in Rochester to attend a lineup in which petitioner appeared without counsel and without having been informed of the right to have counsel present. At that time she had already heard on the radio the name of the man suspected of being her assailant, and she thought the police were going to show her the man depicted in the photograph they were interested in the previous day. Before viewing the lineup she was again shown the photograph, although no one pointed out petitioner in the lineup or said that the man suspected of being her assailant was in the lineup. The lineup consisted of petitioner, two men Miss K knew to be policemen and a fourth man who, unlike petitioner, had a dark complexion and a receding hairline. After viewing the men and listening to them speak, Miss K stated that, although petitioner resembled the man who had attacked her, she wasn't sure he was the assailant. Later, upon returning home she told her father she was sure petitioner was her attacker, and he so informed the police.

 When Mrs. Lagasse passed Miss K's assailant on her trip to the store, she saw his face "very clearly" from a distance of just a few feet. Her view of him from the store was through a large window into an area illuminated by light from the store. Later in the evening Mrs. Lagasse's view from her house of Miss K and her assailant was aided by a nearby street light. The next day she described the man she had seen to the police as a stocky white man about 35 years old who was dressed in "shiny" shoes or rubbers, a dark coat and a dark hat from which extended a piece of dark hair, and who had a round, pock-marked or whiskered face with good teeth and fat lips. On January 17, 1969 the police showed Mrs. Lagasse the fifteen photographs, including petitioner's 1962 photograph, that had been shown Miss K, but she made no identification. Nor on subsequent occasions did she make an identification, although once she thought she saw a photograph of the man she had seen the evening of the crime. On April 17, 1969 the police showed Mrs. Lagasse the photographs that were shown to Miss K that day. Looking at petitioner's photograph, she stated that his build was the same as that of the man she had seen on January 14 and that his face "slightly resembled" the man's. The next day Mrs. Lagasse was taken to a courtroom in the Public Safety Building to watch prisoners walking into court one at a time for appearances in court. *fn2" After seeing approximately half a dozen men pass by, she picked out petitioner as the man she had seen on the evening of the crime.

 On April 17, 1969 petitioner was in a group of prisoners at the Public Safety Building scheduled for appearance in court. A policeman investigating Miss K's case noticed him because he resembled the descriptions given by Miss K and Mrs. Lagasse and checked his record. The next day the policeman scheduled the aforementioned viewings of petitioner by the women and also arranged for his questioning by police officers. The questioning commenced shortly after petitioner was taken to an interview room at approximately 1:30 p.m. Initially petitioner denied involvement in the crime against Miss K, but after being told that he had already been identified as the assailant, he gave an oral statement. At approximately 2:30 p.m. a stenographer was summoned, and petitioner gave a statement which was taken down by the stenographer between 2:34 and 2:55 p.m. and later transcribed. No promises or threats were made during the session, and petitioner was twice advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), first at 1:35 p.m. before questioning commenced and again when the stenographer began to take down his statement.

 While the oral and transcribed statements made by the petitioner were substantially similar, they differed in one respect. At first petitioner orally admitted he had engaged in sodomy and intercourse with the girl he had attacked, but later he said he wasn't sure, and the transcribed statement reflects this uncertainty.

 At the conclusion of the identification hearing the trial judge ruled that testimony relating to the pretrial identifications of petitioner by Miss K and Mrs. Lagasse would be inadmissible at trial but their in-court identifications would be admissible. In a written memorandum filed thereafter he gave the following reasons for his rulings. In light of the fact that, at the time the confrontations with Miss K and Mrs. Lagasse occurred on April 18, 1969, petitioner had not yet been arrested or indicted for the attack of Miss K, the problem of the admissibility of identification evidence was governed not by 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), but by Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). The procedures followed at the confrontation involving Miss K were unfair and violated Stovall, and evidence relating to the identification she made at that time would therefore be inadmissible at trial. Although the prosecution had not demonstrated by clear and convincing evidence that an in-court identification would have a source independent of the prior confrontation, such an identification would nevertheless be permitted at trial because the hearing had given defense counsel the facts necessary to argue to the jury that the identification was based upon an earlier, unreliable one. Turning to Mrs. Lagasse, the procedures followed at her confrontation with petitioner did not violate Stovall. Nevertheless, she would not be allowed to testify about the identification she made at that time, for to do so would put defense counsel in the position of having to choose between referring to petitioner's presence in court on another charge and surrendering an effective cross-examination. She would be allowed to make an in-court identification of petitioner, for such an identification would not be tainted by any prior illegality.

 At the end of the hearing on the admissibility of petitioner's statements, the trial judge found that petitioner had been advised of, and had waived, the rights dictated by Miranda v. Arizona, supra, that he had not been physically or mentally abused or threatened or promised anything and that his statements were voluntarily and freely given and therefore admissible at trial.

 On petitioner's appeal of his conviction, the Appellate Division held that it was error to allow Miss K to make an in-court identification of petitioner because the prosecution had failed to show that the identification had a basis independent of unfair pretrial identification procedures. It held further, however, that this error was harmless beyond a reasonable doubt in light of petitioner's statement "giving details which only the perpetrator would know" and the identification testimony of "an independent witness." 36 A.D. 2d at 1012, 321 N.Y.S. 2d at 451.

 The state trial judge correctly held that the principles set forth in Stovall v. Denno, supra, governed petitioner's case. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972), clearly indicates that applicability of United States v. Wade, supra, and Gilbert v. California, supra, is triggered by the commencement of adversary judicial proceedings against an individual, not by his being taken into or held in custody. See United States v. Davis, 399 F.2d 948, 951 (2d Cir.), cert. denied, 393 U.S. 987, 89 S. Ct. 465, 21 L. Ed. 2d 449 (1968) ("We do not read Wade and its siblings as saying that the mere fact of custody, especially when this is for an unrelated crime, automatically triggers the Sixth Amendment right to counsel, as it would the Fifth Amendment privilege against self-incrimination").

 Under Stovall, the court, considering "the totality of the circumstances," must determine whether a confrontation "was so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law." 388 U.S. at 302, 87 S. Ct. at 1972. Applying the first prong of this test, the state trial judge held that the identification elicited at Miss K's pretrial confrontation with petitioner was so unfair that testimony about it would be inadmissible at trial. At oral argument on the instant petition, counsel for respondent hinted that under Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), the confrontation was not "unnecessarily suggestive." The instant case is, however, factually distinguishable from Biggers and is indeed closer to Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969), than to Biggers. The exhibition of petitioner's photograph to Miss K on both April 17 and 18, followed by the lineup containing two policemen known to her and a man different in physical appearance from petitioner "made it all but inevitable that [she] would identify petitioner whether or not he was in ...

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