This is an appeal from a judgment entered in the United States District Court for the Southern District of New York, granting Carlos J. Gonzalez, Jr.'s (Gonzalez) application for a writ of habeas corpus. The District Court granted the writ, finding that a prior identification of Gonzalez was inadmissible at trial because it was impermissibly suggestive and unreliable. We hold that this identification was inherently reliable and properly admitted. Reversed.
Before Moore, Mulligan and Meskill, Circuit Judges.
On July 18, 1975 at 10:20 p. m. Francisco Acevedo ("Acevedo") was helping a customer at a Merit Safe-Way Gas Station in the Bronx. He was approached by a tall, thin man, later identified as Jesus Velez ("Velez"), who removed a .45 caliber revolver from a bag and said "It's a stick up". (T. 142)*fn1 Velez took money from Acevedo and ordered him to walk toward the gas station office. On his way Acevedo saw a man (alleged to be Gonzalez) of medium height with a T-shirt, large Afro haircut and a dungaree hat pulling a shotgun out of his bag. (T. 146-50).
At the same time, the other gas station attendant, Erald Grant ("Grant"), was accosted by a short, dark-skinned man with a small shiny gun (later identified as one Devia). Velez joined Devia and ordered Grant to give him all his money, and then to walk toward the gas station office. On his way to the office, Grant passed and saw a man whom he later identified as the Petitioner.
The robbers escaped in a gold Cougar but were followed by a passing police car. After a chase, the Cougar stopped and Devia stepped out of the passenger side and began firing a .45 caliber pistol at the police. The fire was returned and Devia was killed. One Rodriguez, the fourth robber, jumped out of the driver's seat and fired a shotgun blast. He was wounded by the return fire but managed to escape. Rodriguez was later captured. The police found Velez and Gonzalez huddled in the back seat of the Cougar. A small silvery pistol was found on the front seat, where it had been thrown by Gonzalez.
Velez and Gonzalez were taken to the 42nd Precinct. Later, the witnesses, Grant and Acevedo, were taken to the same precinct. Although Grant knew he was being taken to the precinct in connection with the robbery, he did not know if there were any suspects in custody. At the precinct Grant was put in a room where he could see, through an open door, the suspects (Velez and Gonzalez). When he was interviewed and asked whether he could describe the robbers, Grant described Devia and then simply stated that the other two were the men he could see in the precinct, and described what each had done at the gasoline station.
Prior to the trial a Wade*fn2 hearing, which addressed itself to the admissibility of identification testimony by the two gas station attendants (Grant and Acevedo), was conducted. The trial judge held that "the procedures followed by the police in this case were not so unnecessarily suggestive and conducive to irreparable mistaken identification". (Petitioner's Br. at A5-6). There was no suggestion that the police had planned the so-called "show up" by stationing Grant where he could look into the office where Velez and Gonzalez were.
Gonzalez was convicted of two counts of robbery in the first degree in a trial before the Supreme Court of New York. His defense was based on a contention that he remained in the car and Rodriguez had actually been the robber. Gonzalez's conviction was affirmed on appeal to both the Appellate Division, People v. Gonzalez, 61 App.Div.2d 666, 403 N.Y.S.2d 514 (1st Dept. 1978), and the Court of Appeals, People v. Gonzalez, 46 N.Y.2d 1011, 416 N.Y.S.2d 239, 389 N.E.2d 834 (1979).
On appeal the Appellate Division focussed upon the propriety of the identification testimony stating: "At trial, Grant was unable to identify Gonzalez; however, Officer Moroney testified that while he questioned Grant at the station house and asked him to describe the third man, Grant looked into an adjoining office where appellant Gonzalez was standing and identified appellant Gonzalez as being the third man at the gas station". 61 A.D.2d at 669, 403 N.Y.S.2d 514.*fn3 The court concluded "beyond any reasonable doubt that the third man was Gonzalez and not Rodriguez". 61 App.Div.2d at 669, 403 N.Y.S.2d at 516. Of importance is the physical appearance observed. It would require no more than a fleeting glance to identify an Afro hair style. The police officer stated that when taken out of the car Gonzalez had an Afro hair style. Rodriguez on the other hand had short hair. As the Appellate Division said: "the only way a jury could find that Gonzalez was not the third person at the gas station was, if in the course of the chase, Gonzalez and Rodriguez were somehow able to switch hair styles and shirts", 61 App.Div.2d at 670, 403 N.Y.S.2d at 516-a reductio ad absurdum situation. The New York Court of Appeals unanimously affirmed this Appellate Division decision. 46 N.Y.2d 1011, 416 N.Y.S.2d 239, 389 N.E.2d 834 (1979).
Gonzalez then petitioned in the United States District Court for a writ of habeas corpus. The District Court granted the writ on October 12, 1979 finding that the identification of Gonzalez by Grant was unduly suggestive and created a substantial likelihood of irreparable misidentification. The Government appeals from the grant of the writ.
The only issue on this appeal is whether Gonzalez's due process rights were violated by the admission at trial of the evidence of Grant's identification of Gonzalez at the police station. (Petitioner's Br. at 23). The Supreme Court has long been concerned with the accuracy of eyewitness identification, that concern stemming from the fear that an erroneous identification would put an innocent man behind bars. See, e. g., Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). However, the Court has adopted, in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) one solution to the problem.
Manson rejected the contention that evidence from any suggestive identification procedure must be excluded. Instead, the Court adopted an approach which held that reliability was "the linchpin in determining the admissibility of identification testimony . . .." 432 U.S. at 114, 97 S. Ct. at 2253. Thus, even if a confrontation is suggestive, "the central question (is) whether under the "totality of circumstances' the identification was reliable . . .." 409 U.S. at 199, 93 S. Ct. at 382. In assessing ...