Appeal from an Order of the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, granting petitioner's motion for habeas corpus following conviction in state court on one count each of first degree rape and first degree sodomy, and on two counts of first degree robbery. Affirmed.
Before Newman and Kearse, Circuit Judges, and Dumbauld, District Judge.*fn*
The State appeals from a judgment of the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, granting the petition of appellee Kenneth Solomon for a writ of habeas corpus on the ground that the identifications of Solomon at his state trial were unreliable and resulted from impermissible police procedures, in violation of Solomon's rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution. This case, which arises from Solomon's conviction of robbery, rape, and sodomy, solely on the basis of eyewitness testimony, presents an unusual confluence of circumstances. The events commenced as a robbery of a doctor's office and ended with the three robbers, one of whom wore a hood and was addressed by his companions as "Kenny," raping and sodomizing the receptionist, Nancy Padovani. Padovani, the principal eyewitness, identified Solomon at trial with positive certainty. Her initial selection of a picture of Solomon, however, had been contemporaneously characterized by the police as a "negative" but "possible" identification. Between that initial selection of the Solomon picture and her positive identification at a Wade hearing*fn1 a week before trial, Padovani was shown the Solomon picture several times; she viewed Solomon at an extended, uncounselled show-up during his arraignment, and she viewed him in a lineup in which the only person even close to his height was 65 pounds heavier than he. The most striking feature of this case, however, was Padovani's selection from an unsuggestive lineup that did not include Solomon, of another man as her hooded assailant. It transpired that this man's name too was Kenny, Kenneth Anscombe, that Kenneth Anscombe fit Padovani's initial description of the hooded assailant better than did Solomon, and that Kenneth Anscombe has been convicted of participating in other armed robberies nearby, with one of the non-hooded assailants identified by Padovani.
The combination of circumstances persuaded the district court that the identification of Solomon at trial was impermissible under prevailing constitutional standards, and it ordered the State either to release Solomon or to retry him within 60 days. We affirm.
On October 7, 1974, three black males, one wearing a hood and carrying a gun, entered the office of Dr. Jean-Louis Casseus and announced a "stick-up." The receptionist, Nancy Padovani, led them to Dr. Casseus's office where they robbed the doctor at gunpoint of $50 and his watch. The three then returned to the reception area, took Padovani's watch and some cash from her pocketbook and ordered her to lock the doctor and a patient in a closet. The intruders then raped and sodomized Padovani. The hooded individual stood behind Padovani during some of this time and was the last to assault her. As he did, the other two assailants sought to leave and, apparently becoming nervous, shouted, "Come on Kenny, quick. Let's go." After leaving the doctor's office, the three fled in a taxi. The incident lasted approximately ten to fifteen minutes. Afterwards, Padovani released the doctor and patient from the closet and called the police. She was taken to a hospital for treatment and tests and it was there that she first spoke with Detective Lawrence Doherty. Padovani described the gunman to Detective Doherty as male, black, age 21, 5'7 tall, weighing 145 pounds, and wearing a blue parka with a hood. Although Padovani was later to testify at the Wade hearing that she thought this initial description included a prominent facial scar, there is no mention of a scar in the contemporaneous report of Detective Doherty, whose practice was to ask about and make note of any uncommon identifying marks. Doherty did not recall mention of a scar.
B. Identification by Padovani
On October 8, the day after the incident, Padovani went to the police station where she was shown two trays of photographs. One tray was labeled "Negro, Male, Sex" and the other "Negro, Male, Robbery under 5'8 ." Each tray contained approximately 100 pictures. She selected five or six pictures from these photos and then from that smaller set selected that of petitioner Kenneth Solomon. Doherty made a copy of the picture of Solomon, on which Padovani drew a hood around the face with a blue marker. Although Padovani testified at the Wade hearing nine months later that as soon as she drew the hood she was "positively sure" that Solomon was the hooded man who had raped her, on October 8 Detective Doherty recorded Padovani's identification in his photo log book by placing a check mark in the column headed "Negative," rather than in that headed "Positive," and merely wrote "possible" next to his entry in the Negative column. This negative/possible entry in the police log book is the only contemporaneous evidence as to the initial level of Padovani's certainty that Solomon was her hooded assailant.
By the time Solomon was to be tried in the summer of 1975, however, Padovani was quite certain that Solomon was the hooded assailant. In the interim, several events occurred that seem likely to have contributed to her objectively perceptible increase in certainty. First, near midnight on October 17 she was summoned to the precinct house for a lineup by Doherty, who told her Solomon had been arrested. She did not actually see Solomon that night, since by the time she arrived it had been decided not to have a lineup after all; she did, however, see Solomon's picture tacked to a bulletin board in the police station.
On the following day, October 18, Solomon was arraigned. Padovani testified that Doherty had in his hand the same picture of Solomon that she had seen on the police bulletin board the night before. It is unclear how long Padovani and Solomon were in the courtroom together on the occasion of the arraignment, but Padovani met Doherty in court on the morning of October 18, and Solomon was not actually arraigned until nearly 5 p. m. During at least part of the afternoon Solomon was in a detention area of the courtroom with several other persons. Doherty made no effort to ask Padovani at that time if she could pick out Solomon. He waited until after the arraignment had actually taken place a proceeding that lasted some 20-30 minutes, with only the prosecutor, Solomon, Doherty and Padovani standing before the judge and then asked, "Did you get a good look at him?" Padovani said she had. Doherty asked, "Is that him?" She said it was. At no time during the arraignment proceeding was Solomon represented by counsel.
After the arraignment there was a grand jury proceeding at which Padovani testified. Before she testified Doherty showed her Solomon's picture again. After Padovani testified before the grand jury, Doherty at least once showed her and other witnesses pictures of persons who might have been the nonhooded assailants. (One such person, Clayton Smalls, was identified by Padovani at a lineup in November.) On each occasion Doherty also showed Padovani the picture of Solomon again.
Finally, on January 16, 1975, Padovani was shown a lineup of five men that included Solomon, whom she identified. Having initially described the hooded assailant as 5'7 tall and weighing 145 pounds, her selection of Solomon from this particular array was perhaps not difficult. Solomon stands 5'6 tall and weighs 130 pounds; the only other person in the lineup who was within two inches of this height weighed in at 195 pounds:
Kenneth Solomon 5'6" 130 lbs
In addition, although none of the intruders had been described as having beards or mustaches, and Solomon had no such facial hair, some of the other participants in Solomon's lineup had beards or mustaches.
Before picking Solomon out of this suggestive lineup, Padovani had attended two other lineups on that day, neither of which included Solomon. At the second of these lineups there was an array that was composed entirely of persons close in height and weight to the description initially given by Padovani:
1. Larry Sutton 5'8 1/2" 135 lbs
2. James Alford 5'7" 169 lbs
3. Thomas White 5'7" 150 lbs
4. Kenneth Anscombe 5'6" 147 lbs
5. Vernon Tull 5'7" 150 lbs
As soon as the shade went up on this lineup, Padovani instantly picked out Anscombe as her hooded assailant: "I see him already, four. That's the one I said."
After Padovani left the viewing room, she retracted her identification of Anscombe. Her testimony at the Wade hearing on this identification was as follows:
Q. But in the second line-up, what you are saying, when you picked out that man, was that this was the number one man in the ...