Appeal from an order entered on October 25, 1980, by John T. Elfvin, Judge, of the District Court for the Western District of New York, granting the application of petitioner, a state prisoner, for a writ of habeas corpus. Affirmed .
Before Friendly, Mansfield and Kearse, Circuit Judges.
Harold Smith, the Superintendent of Attica, appeals an order issued on October 25, 1980, by John T. Elfvin, Judge, of the District Court of the Western District of New York, 501 F. Supp. 880, granting the petition of Seymour Styers, a state prisoner now on parole, for a writ of habeas corpus. Styers, who was on June 24, 1974, convicted after a jury trial of robbery and possession of a dangerous weapon, successfully argued below that the trial judge denied him his Sixth and Fourteenth Amendment rights to confront the witnesses against him by allowing the state prosecutor to withhold the identity of an informer after eliciting testimony from a police officer that the informer had told police that the robbers could be found at a certain address. We affirm, but on a different ground. The record reveals that the procedures employed by the police to secure an identification of Styers by the two witnesses to the robbery were unconstitutionally suggestive.
On December 27, 1973, two men entered a Buffalo, N.Y., liquor store occupied by the proprietor, Stephen Faso, and his friend Paul Dodge. After checking certain whiskey brands and lingering a few minutes, they left the store. Faso, who was busy waiting on another customer, paid little attention to them. Dodge watched them meet with a third person on the corner. Five minutes after leaving the store the two returned and robbed it. One man held a knife to Dodge's throat, while the second held a knife to Faso's chest and emptied the cash register. The robbery lasted one to three minutes. During the robbery, Dodge, who was far-sighted, was not wearing his glasses. He and Faso were terrified, with Faso concentrating his attention on the knife used to threaten his life.
Faso called the police immediately after the robbery. He and Dodge gave a general description of the men as "a colored male twenty-five to thirty years old, five foot eight inches tall; a colored male about six foot, between twenty-five to thirty years old, wearing a black hat." The next day, Buffalo Police Officer Cannizzaro brought Dodge into the station to look at mug shots. From these photographs, Dodge identified one Anthony Burt as one of the robbers.
While Officer Cannizzaro was meeting with Dodge, he received a phone call from an unidentified informant who, according to Cannizzaro, told him that the two Burt brothers (Anthony and Vincent) and a third participant in the robbery could be found at 47 Whitney Place. After telling Dodge that he was leaving to pick up the robbery suspects, Cannizzaro went with Detective DiPasquale to 47 Whitney Place and arrested the two Burt brothers and Seymour Styers, the petitioner-appellee. Their arrest of Styers, based entirely on the informant's statements, was concededly without probable cause.*fn1
The police officers immediately brought Vincent and Anthony Burt and Seymour Styers before Dodge at the station, to see if he could identify them as the robbers. Dodge identified Vincent Burt and Styers, recanting his previous identification of Anthony Burt. Dodge also made an oral statement, later reduced to a written statement which he signed, that Vincent Burt had been the man who held a knife to his throat and that Styers had approached Faso with a knife in his hand. Styers and Vincent Burt were then booked and photographed.
Detective DiPasquale and Dodge returned to Faso's liquor store armed with photos of Styers and Vincent Burt and several mug shots.*fn2 The photos of the two suspects were fresh glossy Polaroid color prints, while the mug shots were older and black and white, depicting individuals bearing no substantial resemblance to the two suspects. Anthony Burt's photograph was not among this collection. When DiPasquale and Dodge entered the store, Dodge told Faso that he had just seen the two robbers at the police station. DiPasquale then laid down the photos he had brought, including the two fresh color shots of Vincent Burt and Styers, and asked, "Are these the two fellows?" Faso picked the Polaroid color photos of Styers and Vincent Burt.
Anthony Burt was not charged with any crime relating to the robbery of the liquor store. Vincent Burt pleaded guilty to third degree robbery. Styers pleaded innocent, suggesting that Anthony Burt, and not he, must have been the second robbery participant, and was brought to trial.
At a pretrial hearing pursuant to the ruling of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and again at trial, both Faso and Dodge exhibited considerable confusion in testifying to their identification of the robbers. Dodge, who had picked out a picture of Anthony Burt when Officer Cannizzaro had first shown him pictures, and who had then changed his mind and pointed to Vincent Burt as the man who put a knife to his throat, changed his mind again at the pretrial hearing and indicated that Styers had been the man who pulled the knife on him. He then said that he had identified Styers before the showup, apparently confusing Styers with Anthony Burt, but withdrew his statement when prompted later.
At one point in the suppression hearing Dodge also identified Anthony Burt as Styers' accomplice in the robbery, apparently confusing Anthony Burt with his brother Vincent, and once again recanted this position when given a second chance. Dodge explained at the pretrial hearing that he was sure Styers, and not either of the Burts, had drawn the knife on him because he remembered the scar on Styers' chin. At trial, when he had a chance to see that Vincent Burt, and not Styers, had a scar, he changed his testimony again, stating that he remembered Styers as his assailant from his sideburns and wide nose, and confirming that Vincent, not Styers, had the scar.
At the Wade hearing Faso also initially identified a picture of Anthony Burt as Styers' accomplice, but then responded to the state prosecutor's cues by correcting himself and identifying Vincent Burt as the second robber. Faso seemed quite sure that Styers had been the man who pulled a knife on Dodge and eventually asserted that Vincent Burt had pulled the knife on Faso himself. At trial Faso denied having heard Dodge say that he had just seen the robbers at the police station on the afternoon when Dodge and DiPasquale came to his liquor store, until confronted with his contrary Wade hearing testimony that Dodge had made this statement upon entering the liquor store.
The confusion and internal inconsistencies in the statements and testimony of Faso and Dodge were compounded by their additional testimony at both the Wade hearing and later at trial that prior to the robbery they had both been well acquainted with the Burt brothers and Styers. Faso said that he had sold liquor to Vincent Burt 40 or 50 times, and that Styers usually came to the store with the Burt brothers. Dodge testified that he knew the Burts from seeing them in the neighborhood eight or ten times a day, usually with Styers. He even knew the Burts' last name and their approximate address. Yet neither witness told police, either in his immediate post-robbery description or at any other time until well after the show-up and photographic display, that he had recognized any of the robbers as someone known to him before the robbery. The two witnesses offered a collection of troubling explanations for this glaring omission. Dodge stated at the suppression hearing that at the time of the crime he did not think the perpetrators were Styers and "the Burt boy." Faso said, "one customer looks the same as the other one," and confessed, "When they came and robbed me I wasn't sure who they were." Both witnesses also were unable to explain why they had described the robbers as between 25 and 30 when both Styers and Vincent Burt were under 18.
Styers was convicted by the jury, and his conviction was upheld without opinion by the New York State Appellate Division, People v. Styers, 49 A.D.2d 699, 373 N.Y.S.2d 1017 (4th Dept. 1975). The New York Court of Appeals denied leave to appeal, and Styers filed a petition in the Western District of New York for a writ of habeas corpus on September 12, 1975, which was not acted on by ...