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August 25, 1978

Edmond JACKSON, Petitioner,
Walter FOGG, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: BRODERICK


This is a petition for writ of habeas corpus under 28 U.S.C. § 2254. The petitioner, Edmond Jackson, is currently imprisoned at the Green Haven Correctional Facility in the State of New York. He was convicted, after a jury trial, of murder, felony murder, attempted robbery in the first degree, and possession of a weapon, and sentenced to two terms of twenty years to life, a term of three to fifteen years and a term of three to seven years, all terms to be served concurrently. The Appellate Division, Second Department, and the New York Court of Appeals both affirmed the conviction without opinion, People v. Jackson, 40 A.D.2d 1081, 337 N.Y.S.2d 1005 (1972), Aff'd, 35 N.Y.2d 856, 363 N.Y.S.2d 580, 322 N.E.2d 272 (1974).

 Petitioner here advances three claims: (1) that the trial testimony of three of the four eyewitnesses to the crime was tainted by an overly suggestive pre-lineup procedure; (2) that petitioner should have been allowed to conduct a new lineup so that the eyewitnesses could have had the opportunity to identify another suspect; and (3) that petitioner was unfairly and prejudicially surprised at trial as a result of a New York statute which required defendants to give notice of their intended alibi witnesses, but did not require the prosecution to give notice of alibi rebuttal testimony.

 Since I find that the trial testimony of three witnesses was tainted to a constitutionally impermissible degree by pre-trial "show-ups," I grant the petition. I also grant the petition on the basis of the application to petitioner's trial of New York's alibi statute, N.Y.C.C.P. § 295-L.


 1. The Killing at Harvey's Lounge.

 The crimes in question occurred on June 14, 1970 in the middle of the night in a crowded but well-lit bar Harvey's Lounge on Sutphin Boulevard in Jamaica, Queens. Four witnesses who would later identify petitioner as the perpetrator were inside the bar, together with 40 to 60 other people. Joseph Webb tended the bar. Mary Phifer, Edward Byrd, and Willie Johnson were customers sitting at the bar within 10 feet of the door. About 1:30 in the morning a man holding a gun and standing near the door announced, "This is a stick up." The gunman's words threw the Lounge into an uproar as the screaming customers rushed to the back of the bar. In the midst of the commotion, the gunman strode to the bar, levelled his pistol and fired once, wounding Harold Dixon, who, along with Webb, had been tending the bar. Dixon died ten days later.

 2. The Investigation.

 Detectives William Cash and Harold Cannon of the New York City Police Department arrived at the scene shortly after the shooting took place and began an investigation. Since the gun was never recovered and no relevant fingerprints could be found, the detectives focused their attention on persons they identified as eyewitnesses Phifer, Johnson, Byrd and Webb. The record does not indicate whether, apart from those four who testified, any of the 40 to 60 persons in the Lounge at the time of the incident had an opportunity to observe the gunman.

 The four eyewitnesses gave varying estimates as to the amount of time each of them had had to observe. None of them had ever seen the gunman before that night.

 Webb testified at the Wade hearing that he had observed the gunman for "about maybe two, three seconds or (a) minute might have been a minute." (Wade Hearing ("H") at 7). At the trial he stated that after the shot, he dived behind the bar and crawled to the rear. (Trial Transcript ("T") at 181-82).

 Mary Phifer was sitting at the bar next to Willie Johnson with her back to the door. She heard the gunman announce the holdup, turned, saw the man holding the gun, and nudged Johnson. Johnson then pushed her to the floor of the bar and told her to "(m)ake it to the bathroom." (T. 66-69). She went straight to the bathroom and arrived there before any of the other patrons (Id.). She claimed to have observed the gunman for between eight and fifteen seconds (T. 71, H. 63).

 Willie Johnson testified that he heard the gunman's words, turned and saw the man holding the gun, immediately knocked Phifer off her stool and then hurried out of harm's way. At various times he claimed to have observed the man for periods of from two (T. 142) to 60 (H. 79) seconds, but he stated at one point that he "couldn't say how long it was" (T. 163).

 Edward Byrd testified that he had "glanced at" the gunman in the bar 15 minutes before the shooting took place (T. 162). When the holdup was announced, Byrd turned, observed the gunman for four or five seconds, and ran to the back of the bar. He was lying on the floor when the shot rang out (T. 120-22).

 Over the next several days, after the incident, the four eyewitnesses were shown a large number of mugshots. Finally on June 14, 1970, Mary Phifer selected two pictures of men who, she said, "strongly resembled" the gunman. Johnson, Byrd and Webb later confirmed Phifer's reaction.

 The pictures were of a "Veryl Walker" and a "John Walker". Although John Walker was in prison at the time of the shooting, the identification of Veryl Walker provided an apparently promising lead. On June 16, an informer told Detective Cash that a man named "Snake" had committed the murder. He also said that "Snake" and Veryl Walker were the same person. Cannon made one visit to an address given by the informant in an unsuccessful effort to find Walker, but he ended his efforts on the day that Edmond Jackson was apprehended.

 3. The Lineups.

 Petitioner was identified in two successive lineups by the four eyewitnesses on July 13, 1970 at a stationhouse in Queens. How the petitioner got there and how the eyewitnesses happened to be at the stationhouse is not entirely clear, due in major part, to contradictory testimony from the detectives, Cash and Cannon, who were together throughout the day (H. 134-35, 161, 167, 185, 190).

 At the Wade hearing, which was held (on the day before petitioner's trial) to establish whether there were any improprieties regarding the identification process, Detective Cannon testified that he and Cash "happened to be cruising around in the neighborhood" where petitioner lived (H. 134). They were not "working on any information that lead . . . to Edmond Jackson" (H. 158). The two bumped into Jackson, and Cannon struck up a conversation. Petitioner said he was looking for a tenant for his house in hopes of easing the mortgage payments. Cannon suggested that they go down to the stationhouse and call an acquaintance of Cannon's who might be interested in leasing. (H. 159). Arriving at the station, the two detectives and petitioner walked up the stairs and into the detective room. According to Cannon, just inside the door of that room sat Webb, the bartender who had been at the lounge on the night of the shooting and who had been cooperating with the police in the investigation. The detectives and petitioner walked directly past Webb and into a back room (H. 135). Webb then called Detective Cash back into the outer room and informed him that petitioner was the gunman. (H. 164). Cannon testified that Webb said that he "came up to see if anything had developed in the case" (H. 167). Petitioner, again according to Cannon, was placed under arrest and was given the Miranda warnings (H. 136-38).

 At trial, Cannon told a different story. He then said that he and Cash were actively seeking Jackson in relation to the investigation (T. 222-23). But moments later, confronted with his Wade testimony, Cannon acknowledged that they had no information about Jackson "with reference to a crime." (T. 224).

 An explanation for the discrepancies in Cannon's testimony may lie in the fact that Cannon had the benefit of hearing Detective Cash's Wade hearing testimony before giving his trial testimony. Cash, who did not appear at the trial, testified that he and Cannon had driven to Jackson's house "to further conduct this homicide investigation and talk with Jackson" (H. 189). Cash had previously contacted Webb and "other people" and had asked them "to stand by" in case they had to be called in to view a lineup (H. 182).

 Cash's description of the initial conversation with petitioner (regarding Jackson's desire to find a tenant) was similar to that of Cannon (H. 134). Once in the car, according to Cash, petitioner was advised that he was under suspicion of criminal activities and was informed of his Miranda rights (H. 180-81). Upon arrival at the stationhouse petitioner was told that he was suspected of committing the Harvey's Lounge murder. Petitioner denied having ever been at Harvey's Lounge (H. 182-83).

 Cash made no mention of the encounter with Webb, so carefully described by Cannon. He said that he did not see Webb until sometime after the three had arrived at the stationhouse (H. 185), and that Webb did not say anything to him (H. 186). After the petitioner had been questioned briefly, "the witnesses in question were phoned and told to appear at the stationhouse" (H. 183). Cash also said that he did not bring any witnesses to the station that day to identify Jackson (H. 201). This brings us to Edward Byrd's Wade hearing testimony.

 On July 13th, the day of the lineup, Byrd had stopped by Harvey's Lounge on his way home from work. He testified that Detectives Cash and Cannon picked him up at the bar and drove down to the stationhouse (H. 132). On the way, Cash told Byrd that "he found the fellow who shot Harold Dixon" (H. 133). Arriving at the stationhouse, the detectives escorted Byrd into their office. Once in the office, Byrd noticed the petitioner sitting by himself in a back room. Spotting him through the "two-way glass," Byrd identified Jackson as the gunman. (H. 116-117).

 Webb's account of the pre-lineup events also differed from that given by the detectives. Webb testified that a police officer called and asked him to come to the station "to see if I could pick out the individual who did the shooting" (H. 43). Arriving at the station, Cash met Webb and escorted him to the detective room. While walking with Cash, Webb said that he spotted and identified the petitioner, who was sitting 15-20 feet away, as the gunman.

 Willie Johnson, the third eyewitness, had two opportunities to observe petitioner before the lineup ceremony. Johnson arrived at the station around 3:30 or 3:45. He came in response to a message, left at his home, to the effect that the police "had somebody down there that they wanted me to look at in a lineup" (H. 96). Johnson got to the stationhouse and went to a waiting room near the detectives' office. From that vantage point he noticed petitioner in an adjoining room (H. 97). A short time later, Detective Cash and the petitioner walked directly past Johnson as he sat in the waiting room (H. 100). Following that, Cash told Johnson that a lineup would be held and that Johnson would be asked if he could recognize any of the suspects (H. 101).

 Mary Phifer was taken to the station in the early evening of July 13. She did not see the petitioner until the lineup procedure was underway.

 Two lineups were held on July 13, both of them composed of the same six black men. In both lineups the four witnesses picked Jackson out as the gunman.

 4. The Wade Hearing.

 At the Wade hearing, all four witnesses described the gunman in virtually identical terms. (H. 35-36, 52, 65, 80, 115, 127). He was a light-complexioned negro of medium build, about 5'8, wearing tan pants and a gold shirt and sporting a "slight" (or "light") moustache. All four characterized the gunman's haircut as being a "semi-Afro." All four identified Jackson at the Wade hearing as being the gunman.

 Police reports indicated that Mary Phifer did not report seeing a moustache on the night of the crime, and the description issued by the police, which was based on descriptions given by various people at the bar that night, also made no mention of a moustache. (T. 204). It did, however, conform on the whole to the description given by the four witnesses at the Wade hearing.

 At the close of the Wade hearing, the court ruled that the identification procedure was not impermissibly tainted by suggestive activity on the part of the police, clearing the way for the subsequent in-court identifications. His ruling on this point, made on the record soon after the hearing had ended, reads as follows:

The people in the lineup was proper the Court holds. It was a proper lineup. The identification for the lineup was proper.
However, there is a further question in the entire situation. Three of the witnesses; namely, Webb, Johnson and Byrd, all testified that they saw the defendant seated in the police station before he was taken to the lineup.
Query: Would that fact render a situation where there would be a tainted identification before the Court?
Webb stated that this defendant was some fifteen or twenty feet away and seated with someone else when he saw them. And no mention was made to him and nothing was stated to him concerning the identification by any police officer. But he did make this identification voluntarily.
And the same held good for Johnson and Byrd.
Of course, the thought arises with the Court whether the police had planned this, whether the police had planned for this defendant to be there at the time.
I think the situation was highly unusual. And the Court during the luncheon recess read through the minutes which you were kind enough to have printed, and there is absolutely no testimony that this was planned which entered my mind.
Therefore, the Court holds and I say there was a very, very serious question before the Court, and I did a lot of deliberation on it, and I was very concerned about it. But after reading all the testimony and going through it I will hold that the identification was proper and would not so contaminate an in-court identification.
Let's proceed.

 (H. 203-204).

 Petitioner's attorney then called the court's attention to the fact that Byrd was specifically told beforehand that he would be asked to identify Dixon's murderer. The court answered:

I appreciate your argument. But he said that at the place. But there is no showup as we know a showup. He just happened to be sitting there. No one said there was anyone else there. There were other people around.

 (H. 206).

 Petitioner's counsel then suggested that the police had "contrived the scheme" (Id.). The court answered:

The main point in this whole issue is would it so contaminate the testimony; and I think it won't. Even if what you say would be true, I don't think it would.


 Petitioner's attorney asked the court to consider the "complete divergence" between the police officers' testimony ...

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