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April 3, 1980

Kenneth SOLOMON, Petitioner,
Harold SMITH, Superintendent, Attica Correctional Facility, Respondent.

The opinion of the court was delivered by: BRODERICK



 On October 7, 1974, three black males, one with a hood and a gun whom the others called "Kenny," entered the Bronx office of Dr. Jean-Louis Casseus, robbed the doctor, and robbed, raped, and sodomized the doctor's receptionist, Nancy Padovani. Ten days later, petitioner Kenneth Solomon was arrested and charged with the crime. Eight months later, petitioner Kenneth Solomon was convicted on one count each of first degree rape and first degree sodomy, and on two counts of first degree robbery, in a state jury trial. Petitioner exhausted his appeals in the state courts, *fn1" and is currently serving four concurrent sentences of five to fifteen years. He is here on petition for a writ of habeas corpus under 28 U.S.C. ยง 2254.


 At his trial, petitioner was identified by Mrs. Padovani and Dr. Casseus as the gunman. There was no other evidence linking petitioner to the crime. Petitioner claims that the trial testimony of both Mrs. Padovani and Dr. Casseus was tainted by improper pre-trial identification procedures.

 I agree. I find that in the circumstances of this case there was, because of those improper pre-trial identification procedures, "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)), that petitioner was denied due process, and that a conviction predicated upon such tainted testimony must be set aside. Jackson v. Fogg, 589 F.2d 108 (2d Cir. 1978).

 I have considered, in determining to grant the application for a writ of habeas corpus, that the suggestiveness of the prior identifications and confrontations at issue could have been explored on cross-examination at trial, and the reliability of the in-court identification left to the jury. As a practical matter such an option is not normally open to defense counsel in a criminal trial, and was not open to defense counsel in this trial. Its exercise would parade before the jury evidence of other identifications nearer in time to the crime, thus strengthening rather than weakening in the jurors' minds the impact of the in-court identifications.

 Jurors sit on individual cases, and they apply their common sense to the resolution of the issues presented in those individual cases. They are not familiar with, and cannot be expected to be sophisticated with respect to, the propriety of investigative procedures. Where guilt of a heinous crime can be established solely by identification testimony and the crimes charged against petitioner were heinous crimes the jurors' determination will rest entirely on the credibility of the eyewitnesses.

 In the case at bar Mrs. Padovani, the key State identification witness, undoubtedly believed that her identification of petitioner as the criminal was accurate. She could not be expected to understand the subtle impact which investigative suggestiveness might play in translating a tentative identification into a positive one. Nor could she be expected to understand the psychological process by which an extended uncounseled showup on the heels of investigative suggestiveness could substitute the image of the petitioner for that of the gunman. Her testimony undoubtedly impressed the jury as being honest and believable, and one would expect a jury hearing that testimony to return a verdict of guilty.

 For these reasons it is for the court and not the jury to determine, within constitutional parameters, which identification procedures are suggestive, which are not; which suggestive identification procedures, considering the totality of the circumstances, so risk misidentification that they are unfair, and which do not; which uncounseled showups have been established, by clear and convincing evidence, not to have tainted later in-court identifications, and which have not. These determinations should be made by the trial court. Where they have not been made or where they have been made inadequately by the trial court they must be made elsewhere on appeal, or, as here, on habeas review.

 I grant the petition for a writ of habeas corpus on two grounds: a) the reception of the identification testimony of Mrs. Padovani; and b) the reception of the identification testimony of Dr. Casseus. If the indictment is not moved for retrial within 60 days of the date of this memorandum order, petitioner shall be released from all further custody with respect to the charges contained in the indictment.


 A. The Identification by Mrs. Padovani.

 1. Photographic Identifications

 On October 8, 1974, the day after the crime, Detective Lawrence Doherty of the Bronx Sex Crime Squad, who was in charge of the investigation, showed Mrs. Padovani an extensive photographic display containing over 200 pictures. Padovani selected five mugshots, among them petitioner's. (W. 55). *fn2" Petitioner's name, "Kenneth Solomon," was on the back of the photograph of petitioner. (W. 31). Detective Doherty "read the back of" the photograph of petitioner. (W. 11). Mrs. Padovani requested and received a duplicate of the photograph on which she sketched, in ink, a hood around petitioner's face. (W. 11). She claimed at the Wade hearing that this process sharpened her memory of petitioner:

Ans. . . . I drew the hood the way I see it.
. . . and then I was positively sure. (W. 73).

 Nevertheless, Detective Doherty recorded her identification of Solomon as "possible." (W. 39).

 Mrs. Padovani was periodically allowed to see a photograph of the petitioner, so his appearance became very familiar to her. Thus on October 17, 1974, Mrs. Padovani was told that petitioner had been arrested. She was summoned to the precinct station house, where she saw petitioner's picture on the bulletin board. (W. 75). She probably viewed petitioner's photograph again the next day at the courthouse, when she met Detective Doherty prior to petitioner's arraignment. (W. 28, 77). Doherty showed her petitioner's picture again after arraignment but before the case was presented to the grand jury (W. 14-16), and at least once more after petitioner was indicted. (W. 34).

 2. The Arraignment Showup

 Petitioner was arraigned in Bronx Criminal Court on October 18, 1974. He was not represented by counsel.

 Present throughout the arraignment, which lasted 20 to 30 minutes (T. 183), were petitioner, Detective Doherty, Mrs. Padovani, and the assistant district attorney. The judge considered holding petitioner's case for night court, but proceeded with the arraignment when Doherty protested. (W. 28). Petitioner was identified by Mrs. Padovani. (W. 76).

 3. The January Lineups

 The victims had described the gunman among the three persons committing the October 7, 1974 crimes as 21, 5'7, 145 pounds (wearing a blue hooded parka with the hood up, work shoes, and blue dungarees). (W. 32).

 At a lineup on November 19, 1974, Mrs. Padovani identified one Clayton Smalls as looking like one of the participants in the crime (T. 190-192; W. 42).

 A series of three lineups was held on January 16, 1975. (W. 80). The second of these lineups consisted of the following:

1) Larry Sutton, 22, 5'81/2, 135 lbs.
2) James Alford, 21, 5'7, 169 lbs.
3) Thomas White, 28, 5'7, 150 lbs.
4) Kenneth Anscombe, 18, 5'6, 147 lbs.
5) Vernon Tull, 21, 5'7, 150 lbs.

 (Transcript of lineup).

 Mrs. Padovani positively identified Kenneth Anscombe as the gunman:

Mr. O'Malley: Let the record reflect the witness is Nancy Padovani. Just to make sure you understand, because I told you before, when the shade goes up and you make your viewing, indicate the number if you see somebody who looks like the person involved in the incident of October 7, 1974. Indicate by number.
The Witness: I see him already, four. That's the one I said.

 (Transcript of Lineup).

 Mrs. Padovani recanted her identification of Anscombe when she realized that Anscombe was not Solomon. She explained this at the Wade hearing:

Q. And you picked somebody out in that (the second) lineup?
A. Yes. Well, I can explain about that one. He looked so much like that. They just lifted up the thing and I got frightened when I seen him because they looked like him. They pulled down the window. I told them to pull down the shade but I had specified him (Anscombe) when I had come outside. I said, "I made a mistake, it's not him he is not much too heavy." I said, "It couldn't be him. If there is any way you can forget what I said because I knew it wasn't him, but it looked like him." If you look at the pictures together, you could see they looked alike in the face.
Q. But in the second lineup, what you are saying, when you picked out that man, was that this was the number one man in the office, right?
A. (Indicating in the affirmative).
Q. In other words, this was Mr. Solomon?
A. Yes but I only seen him for one second, not even I just got scared because I seen the facial features and I, you know, didn't really look. All I saw was the face and I walked away, run out of there because I got scared and I told them outside, "I made a big mistake because he was much too heavy, you know, Solomon was a little skinnier." (W. 81).

 Moments after the second lineup ended, the third lineup was held. It consisted of petitioner and four others, all substantially larger than petitioner, and larger than Mrs. Padovani had described the gunman to be:

1) Eric Sharpe, 23, 5'8, 195 lbs.
2) Brian Ellick, 18, 6', 170 lbs.
3) Bruce Patten, 24, 6', 165 lbs.
4) Petitioner, 16, 5'6, 130 lbs.
5) Frederick Goodman, 24, 5'10, 146 lbs.

 (Transcript of lineup).

 Petitioner was identified by Mrs. Padovani.

 4. The Wade Hearing and Trial.

 At the Wade hearing and at the trial Mrs. Padovani positively identified petitioner as the gunman.

 B. The Identifications by Dr. Casseus.

 1. Photographic Identifications

 The photograph of petitioner on which Mrs. Padovani drew a hood became a part of Detective Doherty's investigation. It was shown to the other witnesses to the crime, including Dr. Casseus, usually as part of a collection of photographs. *fn3" It served the obvious purposes of suggesting to those witnesses that particular attention be given to that photograph, and that at least one other witness had identified the person pictured in the hooded photograph.

 Dr. Casseus made two photographic identifications of petitioner within several weeks of the incident. The displays from which Dr. Casseus picked petitioner's picture contained about ten "mugshots." (W. 94). Either one or both displays shown to Dr. Casseus contained the hooded photograph. (W. 95-96). Initially, Dr. Casseus said that while he was certain he selected the "hooded photograph," he was unsure whether he did so at the first display, which was held at the police precinct, or at the second display, which took place at his office:

Ans. Somebody draw a hood
Q. On one of the pictures that was shown to you?
Ans. Yes
Q. Are you positive of that?
Ans. One that was in my office, I saw him with the hood drawn, or if in the detective office. I can't recall exactly.
Q. But on one of the two occasions the pictures that you were shown
Ans. Right.
Q. Had a hood drawn ...

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