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February 14, 1979

RAMON CEPEDA, Petitioner, against ROBERT J. HENDERSON, Superintendent of Auburn, Respondent.

The opinion of the court was delivered by: KNAPP

David Frazier was shot to death on a street corner in the Bronx in May of 1974. Petitioner Ramon Cepeda was arrested about two months later and charged with that murder. He was tried before a jury in state court, found guilty, and sentenced to a term of twenty-five years to life. He now applies for a writ of habeas corpus under 28 U.S.C. ยง 2254, challenging the validity of that conviction and sentence. He claims (1) that pre-trial identification procedures were unnecessarily suggestive, (2) that he was denied his Sixth Amendment right to confront witnesses by the introduction of hearsay evidence, and (3) that prosecutorial misconduct before the grand jury deprived him of due process. For reasons that follow, we deny the petition.


 Testimony at petitioner's trial established that on the evening of May 10, 1974, David Frazier was standing with six other young men on the corner of Harrison Street and Kingsland Place in the Bronx. The group had formed at about 9:00 P.M. that evening. Its members had been sharing one or two six-packs of beer and telling jokes when, at about 11:20 P.M., two men walked up Harrison Street towards the group. They stopped when they reached the youths and demanded to know whether they were the target of the youths' laughter. One of the youths assured them that they were not and they continued on their way. They had not gone very far, however, when renewed laughter erupted from the group. The two men turned around and again approached the youths this time with drawn guns. One of the men ordered everyone not to move. The other man, who was the taller of the two, strode into the center of the group and asked the young men if they were looking for trouble. Without waiting for an answer, he struck one Neil Miller, who happened to be Frazier's cousin, across the face with his gun. Frazier at that point stepped forward, away from the car against which he had been leaning. Waving his pistol, the taller man announced that he was looking for someone to kill that night and if they weren't careful, it could be one of them. He pointed his gun at Frazier and said "So you're not afraid of this." He then shot Frazier in the face from point-blank range and fled with his companion.

 Police arrived on the scene shortly after the shooting. The five witnesses *fn1" Neil Miller, Jose Perez, Karl Pacheco, Stuart Pacheco, and Jose Marquez then accompanied police officers to a local precinct house where they looked through bins containing hundreds of photographs. Petitioner's photograph was not among them and none of the witnesses at that time selected any photograph as depicting the killer. They did, however, select several photographs of persons whom they found to resemble him.

 The witnesses continued their cooperation with the police, viewing photo arrays on several other occasions. In July of 1974, about two months after the killing, Neil Miller and Karl Pacheco selected photographs of petitioner, from arrays containing ten and eighteen photos respectively, as the man who shot David Frazier. After viewing arrays on at least five occasions without identifying anyone, Jose Perez also made a photo identification of petitioner as the killer from a folder containing about twenty photos. *fn2"

 Several witnesses also identified photographs of one Jesus Milan as the killer's companion. Milan was never apprehended.

 Before trial, a Wade hearing *fn3" was held on the questions of whether pre-trial identification procedures were unnecessarily suggestive and if so, whether such suggestiveness produced a likelihood of irreparable misidentification. Nothing brought out at the Wade hearing indicates any suggestiveness in the pre-trial procedures in which Jose Perez, Karl Pacheco, and Stuart Pacheco participated. Jose Marquez, however, testified that when he was shown an array of five or six photos, a detective pointed to one photo and said, "This is one of them." Marquez could not recall whether the photo was of petitioner or some other person (such as Milan) and indeed, could not remember whether he had ever been shown a photograph of petitioner. Despite the attention called to the one photograph, Marquez made no photo identification, either at this or any other time.

 Neil Miller testified at the Wade hearing that on one occasion before he was shown an array, Detective Rudolph Francis told him that police had arrested a suspect and that he, Miller, should be able to select his photo from the ten photos in the array since he had already drawn a picture of the killer. There is no indication that anyone or anything called attention to any particular photo or photos in the array. Miller further testified that he asked Detective Francis if he could view a line-up at that time and that his request was refused. Detective Francis, in his Wade testimony, presented a different picture of the events surrounding Miller's view of the array. He denied telling Miller that police had a suspect in custody, that he (Miller) should be able to select the suspect's photo, and that Miller had asked to see a line-up. As noted above, Miller identified a photograph of petitioner as the killer.

 Like the other witnesses, Miller had observed the killer for a few seconds during the first confrontation and for a minute or two during the second. Like the others, he had stood two to five feet away from him on both occasions and observed him under the light of a nearby street lamp. Each of the witnesses had drunk a can or two of beer before the shooting. *fn4"

 At the conclusion of the Wade hearing, Justice Donald Sullivan, the state trial judge, denied the motions to suppress evidence of identifications made by Jose Perez, Karl Pacheco, Stuart Pacheco, and Neil Miller. He found no suggestiveness in the procedures in which they participated and none, in any event, that would produce a substantial likelihood of irreparable misidentification. Justice Sullivan did not, however, rule on the propriety of the procedure in which Marquez participated, expressly finding the question of such propriety to be beyond the purview of the Wade hearing. He did, however, allow Marquez to testify. Like the four other eyewitnesses, Marquez positively identified petitioner at trial as the killer.

 At trial, the prosecution also presented as a rebuttal witness one Juan Rivera, who testified that on the night of the shooting he had been driving in the Bronx with petitioner and a man he thought was petitioner's cousin, looking for another man who had knifed Santos Cepeda, petitioner's brother. At one point, petitioner and his "cousin" got out of the car to conduct their search on foot. They came running back to the car a short time later. Rivera testified that after they returned to the car, petitioner's "cousin" told Rivera that they had "just shot a colored guy."

 The jury returned a guilty verdict on January 19, 1976, after about five hours of deliberations. Petitioner was sentenced on February 19, 1976 by Justice Sullivan to a term of twenty-five years to life.

 On appeal, four justices of the Appellate Division found error in the admission of petitioner's "cousin's" statement. These justices held that the statement did not come within any of New York's exceptions to the hearsay rule and further questioned whether its admission violated petitioner's Sixth Amendment right to confront the witnesses against him. The court affirmed the conviction, however, finding the error to be harmless beyond a reasonable doubt. *fn5" People v. Cepeda (1st Dept. 1978) 61 A.D.2d 962, 403 N.Y.S.2d 248. Leave to appeal to the Court of ...

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