Appeal from a judgment of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, denying appellant's petition for a writ of habeas corpus. Affirmed.
Before Meskill, Cardamone and Pierce, Circuit Judges.
Petitioner Lonnie S. Sales, convicted of first degree robbery in New York State court, appeals from a judgment of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, denying his application for a writ of habeas corpus. On appeal, Sales primarily contends that the state trial judge erred in denying his motion to suppress identification testimony, that the trial judge improperly instructed the jury regarding the identification testimony, and that the prosecutor made improper remarks during summation. Petitioner claims that each of these errors deprived him of due process of law guaranteed by the Fourteenth Amendment. For the reasons stated below, we find that the motion to suppress was properly denied since the challenged identification testimony was sufficiently reliable and we further find that the prosecutor's closing argument did not deprive Sales of a fair trial. As to the petitioner's challenge to the judge's charge to the jury, we rule that a portion of the trial judge's instructions impermissibly took from the jury's consideration a factual issue concerning the reliability of the identification testimony. We find, however, that this error was harmless beyond a reasonable doubt and accordingly we affirm.
Appellant was charged with first degree robbery, N.Y. Penal Law § 160.15, in a Bronx County indictment which alleged that on June 15, 1977, Sales forcibly stole property from Jill Kaggen in a Daitch Shopwell supermarket and in the course of the robbery displayed a pistol. Prior to the trial, Sales moved to suppress Kaggen's testimony regarding the corporeal identification she made of him prior to trial and to preclude at trial an in-court identification of him by Kaggen.*fn1
The state trial judge held a two-day hearing with respect to the motion, at which the following evidence was adduced. Kaggen testified that at about 6:30 p. m. on June 15, 1977, a man she identified as the appellant appeared at the deli counter at the Shopwell supermarket where she and Catherine Bevilacqua were working. The appellant, wielding a pistol, ordered the two women to lie on the floor. He then instructed Kaggen to open the cash register and to stand up and load a bag with money. After Kaggen, with Sales' assistance, had loaded the bag, Sales handcuffed the two women together. Appellant then fled. During most of this encounter, which lasted "a few minutes", Kaggen testified that she was able to view appellant's face under the store's fluorescent lighting. Immediately after the robbery, Kaggen had an asthma attack. Shortly thereafter, the police arrived at the supermarket and though Kaggen did not describe the robber at that time, the record does not disclose that the police officers asked her to do so. Kaggen testified at the hearing that the robber had a moustache, but she did not recall his having a beard.
According to Kaggen, approximately one week after the robbery, two policemen came to the store and asked her to look at some photographs and to see whether she could identify the man who had brandished the gun and taken the money at the deli counter. The police gave her two manila envelopes each of which contained ten to twelve photographs of men. Most of the men depicted were black, although there were a few whites and hispanics. She selected the photograph of Sales, who is black, as a picture of the man who had confronted her with a gun at the deli counter. She testified that the officers made no suggestive statements while she viewed the photos.
Kaggen further testified that on August 25, 1977, Detective William Dowdell and another officer came to the Shopwell where she was working. They told her they had a suspect in custody, and asked her to view a lineup at the stationhouse. Thereafter, Kaggen viewed the lineup, which was comprised of five black males of similar age. She identified appellant as the robber after the five men were asked to stand at her request, revealing their differing heights. A photograph of the lineup, with the men seated, was admitted in evidence and Kaggen testified that the officers did not encourage her to select any particular person nor did they make any suggestive statements to her. Kaggen made an in-court identification of Sales during the evidentiary hearing.
Detective John Taylor of the Bronx Robbery Squad testified at the hearing that he had given Kaggen two sets of photographs at the end of August 1977, rather than in June as Kaggen had testified. Taylor stated that each of the two folders contained eight to twelve photographs and that the arrays had not been preserved because the police believed that all of the perpetrators had been convicted. Taylor testified that he made no suggestive statement to Kaggen during her review of the photographs. He confirmed that Kaggen selected the photograph of appellant as a picture of the robber.
Detective Dowdell of the Bronx Robbery Squad testified concerning the conduct of the corporeal lineup at which Kaggen identified Sales. On August 25, 1977, Dowdell picked up Kaggen at the Shopwell store and drove her to the stationhouse. Kaggen viewed five black men including Sales, and then signed a form indicating she had chosen Sales as the robber. Dowdell also testified that Kenneth Simmons, the security guard at Shopwell, separately identified Sales at the lineup as one of the men who robbed the store on June 15, 1977. Dowdell was extensively cross-examined by Sales' counsel, as were Kaggen and Taylor.
After hearing oral argument by counsel, the trial judge read his findings into the record and denied the motion to suppress. The judge found that there was nothing suggestive in the photo array shown to Kaggen, that nothing improper had been said to Kaggen by the officers who presented the array, and that the failure to preserve the array had been adequately explained. As to the time when the photo spread was shown to Kaggen, the judge did not reconcile the conflict between the testimony of Kaggen and that of Detective Taylor. He ruled that even if the photo spread was held 24 hours prior to the lineup, rather than in June, the corporeal identification at the lineup was not suggestive. He found that the procedures utilized at the lineup were not suggestive and that the officers did not suggest that Kaggen had to pick out any particular person. Finally, the trial judge found that Kaggen's identification of Sales had an independent basis apart from the display of the photo spread and lineup procedures, since during the robbery she was able to see his face fully and for a sufficient length of time.
At trial, Kaggen described the robbery in detail, including the circumstances of her opportunity to view Sales, and she made an in-court identification of him as the robber. On direct examination, Kaggen also described her identification of appellant at the lineup on August 25, 1977. On cross-examination, appellant's counsel fully explored the circumstances of the robbery, including Kaggen's opportunity to see appellant's face during the robbery, and he completely explored the circumstances of Kaggen's corporeal identification of Sales at the lineup. Furthermore, appellant's counsel carefully questioned Kaggen with regard to the photographs shown to ...