The opinion of the court was delivered by: CURTIN
Petitioner William E. Wright was convicted of robbery in the first degree and robbery in the second degree (violations of New York Penal Law §§ 160.15 and 160.10, respectively) on August 3, 1972, following a jury trial in Erie County Court. In his application to this court for a writ of habeas corpus, petitioner has presented four grounds which he claims require reversal of his conviction:
(1) the pre-trial identification procedures were unnecessarily and impermissibly suggestive;
(2) the double jeopardy ban of the fifth amendment of the Constitution was violated when the court allowed the jury to find petitioner guilty of both robbery in the first degree and robbery in the second degree;
(3) the trial judge's comment to the jury following the testimony of an alibi witness, petitioner's sister, that she would not lie to help her brother, violated due process; and
(4) the trial judge's charge to the jury on the matter of petitioner's alibi defense shifted the burden of proof to petitioner and thereby resulted in a denial of due process of law.
At petitioner's trial, Mrs. Ruth Kowles, an employee of the Erie County Department of Social Services, testified that on November 11, 1971, at approximately 4:45 p.m., her purse was forcibly taken from her by two black men in the vicinity of the Commodore Perry Housing Project in Buffalo, New York. The entire episode lasted less than one minute. In court, Mrs. Kowles identified petitioner as one of her assailants and she further testified that petitioner had threatened her with a knife during the incident.
Upon conviction, petitioner, an admitted narcotics addict, was sentenced to an indeterminate period of incarceration of up to 25 years on the first degree robbery charge and an indeterminate prison term not to exceed 15 years on the second degree robbery charge, the terms to run concurrently. The Appellate Division, Fourth Department, reversed the conviction only with respect to the sentence imposed and remanded the case to the Erie County Court for resentencing. 42 A.D.2d 680, 346 N.Y.S.2d 787 (4th Dept. 1973). Petitioner was resentenced in September 1973 to an indeterminate sentence of 0-15 years for the first degree robbery count and 0-7 years for the second degree robbery count, the terms again to run concurrently. The New York State Court of Appeals then denied leave to appeal (November 5, 1973). Petitioner has thus exhausted his state court remedies for those claims which he has presented to this court.
Petitioner first contests the validity of the identification procedures that were used by law enforcement officials prior to the in-court identification of petitioner made by the victim of the robbery. Shortly after the robbery, Mrs. Kowles described her assailant as being a Negro male in his early 20's, approximately 5 feet 8 inch tall, of medium build and medium skin color, with a closecut bush hairstyle. On the day following the crime, Mrs. Kowles viewed over 100 mug shots at police headquarters and was unable to identify her assailant as being among those mug shots.
At the Wade hearing held on July 31 and August 1, 1972, Detective Donald Peacock of the Buffalo Police Department testified that he had learned from other officers that petitioner William Wright had been "active" at the time of the robbery in the seventh precinct where the Perry Project is located. Detective Peacock then added petitioner's picture to some 30 other pictures from his "personal collection" and had Mrs. Kowles view a number of these pictures in her home. At the Wade hearing, Mrs. Kowles testified that she viewed approximately 5 pictures and was able to identify the petitioner from among this group of pictures. Detective Peacock testified that he had shown Mrs. Kowles approximately 12 photos. The court accepted the detective's testimony in its findings.
There is nothing further in the transcript of the Wade hearing that would indicate any improper suggestions in police conduct at the time that Mrs. Kowles viewed these photographs. I find that these photo identification procedures used by the police were not so unnecessarily suggestive and so conducive to irreparable mistaken identification that the defendant was denied due process of law.It was therefore proper to admit this identification evidence at petitioner's trial. See Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).
On December 6, 1971, approximately three weeks after she had identified petitioner from among police mug shots, Mrs. Kowles was asked to view a lineup at police headquarters, in further efforts to identify her assailant. The same 5 black males participated in each of two lineups viewed by Mrs. Kowles on that date. The testimony at the Wade hearing indicated that three of the participants in the lineup were taller than the petitioner. The height difference between these three individuals and petitioner was further accentuated by the fact that each of these three taller individuals had Afros or bush hair styles. The other lineup participant was approximately the same height as petitioner, 5 feet 8 inch tall, and wore a close-cut hair style, similar to petitioner's. Petitioner was represented by an attorney who was present at the lineup and who expressed his objection to the fact that only one individual other than petitioner had short-cropped hair and that this individual was the only one of the group who was within 3 inches of petitioner's height. The transcript of the Wade hearing contains no other testimony that would indicate suggestiveness in police conduct during the course of the lineup.
Petitioner contends that these differences in physical appearance, hair style and height, as identified at the Wade hearing, are clearly indicative of an impermissibly suggestive procedure followed by police at the lineups. It is true that certain discrepancies existed between the height and hair style of the defendant and those of three other participants in the lineup. One other lineup participant was approximately the same height as petitioner and wore his hair in a similar fashion. As Judge Friendly of this circuit has recognized, there is no requirement that a defendant in a lineup must be surrounded by people nearly identical in appearance, however desirable that may be.United States v. Reid, 517 F.2d 953, 966, n. 15 (2d Cir. 1975). The Second Circuit Court of Appeals has found that the fact that a defendant, a short man, was placed in a lineup with mostly taller men, "while certainly not the most desirable procedure, does not by itself warrant a finding of unnecessary suggestiveness." United States ex rel. Pella v. Reid, 527 F.2d 380, 384 (2d Cir. 1975). See also United States v. Jackson, 166 U.S.App.D.C. 166, 509 F.2d 499 (1974) (of 11 men in lineup, defendant was the only participant with a "bush" or Afro hair style). Cf. United States ex rel. Cannon v. Smith, 527 F.2d 702 (2d Cir. 1975).
While the two lineups may not have been conducted under optimum conditions, given the totality of the circumstances I do not think that the likelihood of misidentification was so great as to constitute a violation of due process. See Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). Mrs. Kowles had only 30 to 60 seconds in which to view the assailant during the robbery but, as she testified at the Wade hearing, she looked at her assailant very closely so that she would be able to identify him later. The description of her assailant which the victim gave to the police shortly after the crime fit the description of the petitioner. The time that elapsed between the crime and the photo identification was approximately one week and the lineups were held approximately three weeks later. At the lineup, each participant was required to repeat the words, "Shut up, give me the purse, give me the purse." The victim then identified the petitioner, both by his voice and by his appearance, as the individual who had taken her purse. At the time of the photo identification and at the time of the two lineups, Mrs. Kowles was positive of her identification of the petitioner.
The evil to be avoided in the course of a lineup identification procedure is "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). I find that neither a due process violation nor a miscarriage of justice occurred as a result of the procedures that were relied on at the lineup. Mrs. Kowles' lineup identification testimony was therefore admissible at trial. See United States ex rel. Pella v. Reid, supra; Caver v. State of Alabama, 537 F.2d 1333, 1334-5 (5th Cir. 1976); Stovall v. Denno, supra.
Petitioner next alleges that he was subjected to double jeopardy, in violation of his rights under the fifth and fourteenth amendments to the Constitution, when the court allowed the jury to consider and to find him guilty of both robbery in the first degree and robbery in the second degree. In this instance petitioner was convicted on two counts which arose out of the same act or transaction. First, petitioner was convicted on the charge of robbery in the first degree because the jury found that he forcibly stole property from another and that he used the threat of the immediate use of a dangerous instrument, a knife, to accomplish this taking. Second, petitioner was convicted of the court of robbery in the second degree because the jury found that he forcibly stole property from another and that he was aided by another person who was actually ...