Appeal from an order of the United States District Court for the Southern District of New York, Lasker, J., conditionally granting a writ of habeas corpus. Reversed.
Before Van Graafeiland and Newman, Circuit Judges, and Neaher, District Judge.*fn*
Robert J. Henderson, Superintendent of Auburn Correctional Facility, appeals from an order of the United States District Court for the Southern District of New York, directing that a writ of habeas corpus issue if petitioner was not granted a new trial within ninety days. On July 1, 1980, this order was stayed pending the determination of this appeal. We now reverse.
Petitioner was convicted of first degree robbery after a jury trial in the Supreme Court of the State of New York, Bronx County. He appealed through the New York State courts without success. On October 2, 1978, the United States Supreme Court denied his petition for certiorari. He then sought and secured relief in the district court. The following are the pertinent facts.
On March 31, 1975, Mrs. Oyala Soto entered her apartment building in the Bronx. As she waited for an elevator to take her to her fifth floor apartment, she observed a stranger in the lobby. Mrs. Soto described him at the trial as a goateed black man, about six feet tall, wearing a brown sweater, blue pants, black shoes, and a cap. She asked him whether he lived in the building and whether he was waiting for an elevator. He answered both questions in the affirmative. When the elevator arrived, the stranger held the door so that Mrs. Soto could enter. She thanked him but refused, preferring to wait for the next elevator.
However, Mrs. Soto's plan to ride singly and safely to the fifth floor was thwarted by the stranger, who stopped her elevator on the third floor and entering, knife in hand, informed her, "This is a holdup." She gave him her change purse, wallet and pocketbook, which together contained less than one dollar. Pocketing the "loot" the robber fled down the stairs. Mrs. Soto continued her unhappy journey to the fifth floor.
As she left the elevator on the fifth floor, she met her neighbor, Luciano Rodriguez, and told him of the robbery. Hoping to find the assailant, Rodriguez ran down the stairs and out to the street. There he saw a man whom he identified as appellee. He called to the man, who turned around, pulled out a knife, said, "It wasn't me, brother, it wasn't me", and ran off.
Rodriguez gave chase, keeping the man continually in view, except for a brief interlude when a bus passed between them. Concluding that the fugitive had gone to bay in a nearby bar, Rodriguez entered and found appellee sitting in a booth. Rodriguez' vociferous accusations induced an auxiliary policeman seated nearby to handcuff appellee and place him under arrest. When the trio reached the street, they were joined by two policemen who had been alerted by a passerby. In the meantime, the bar manager found a knife stuck behind the seat in the booth, which he gave to the police.
The police drove appellee and Rodriguez back to the apartment house. While appellee waited in the patrol car, Rodriguez and one of the officers went to Mrs. Soto's apartment to secure her assistance in identifying the suspected robber. Because Mrs. Soto did not speak English well and Rodriguez served as an unofficial interpreter, there is some uncertainty as to what she understood the police officer to tell her. There is at least some indication, however, that she was led to believe the police had the culprit in custody. When she went out to the police car to view the suspect, she saw appellee sitting next to a uniformed police officer in the backseat of the car. She identified him then as the robber and repeated the identification when he stood outside the car. Rodriguez also identified appellee as the man he chased.
The district court, citing Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), concluded that the facts surrounding the identification gave rise to a substantial likelihood of misidentification. Responding to appellant's argument that suggestiveness alone does not require the exclusion of identification evidence, the district judge then proceeded to examine the "totality of the circumstances" to determine whether the identification, although suggestive, was reliable. See id. at 199-201, 93 S. Ct. at 382-83. Following the lead of the Neil Court, the district judge considered the following factors:
1) The opportunity of the witness to view the criminal at the time of the crime.
2) The witness' degree of attention.
3) The accuracy of the witness' prior description of the criminal.
4) The level of certainty demonstrated by the witness at ...