Appeal from a judgment entered in the United States District Court for the Southern District of New York (Morris E. Lasker, Judge), granting petitioner's application for a writ of habeas corpus due to the admission of constitutionally tainted eyewitness identification testimony at petitioner's trial, unless petitioner is retried within 60 days. Affirmed. Judge Newman concurs. Judge Friendly dissents.
Friendly and Newman, Circuit Judges, and Curtin, District Judge.*fn* Newman, Circuit Judge, concurring. Friendly, Circuit Judge, dissenting.
This is an appeal from the judgment of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, granting appellee David Dickerson's application for federal habeas corpus relief. Dickerson v. Fogg, 526 F. Supp. 1299 (S.D.N.Y. 1981). The court found that the victim's out-of-court and in-court identifications of Dickerson were unconstitutionally tainted under the fifth, sixth, and fourteenth amendments to the United States Constitution. We agree with the thorough and well-reasoned opinion of the court below, and affirm.
David Dickerson was charged with the armed robbery of Robert Colon, Jr. in May 1977. Ironically, he was arrested while sitting in a courtroom watching his cousin's arraignment on stolen car charges linked to the armed robbery. The police arrested him after Colon identified him as one of the four men who had stolen his automobile and personal property almost two days earlier.
Following a combined Wade-Huntley hearing, the state trial judge ruled that Colon's pre-trial identification of Dickerson was not suggestive, and denied Dickerson's motion to suppress. Colon later testified at trial that he had recognized Dickerson at the arraignment, and offered a contemporaneous in-court identification of Dickerson as the culprit. The jury found Dickerson guilty of robbery in the first degree, for which he was sentenced to a prison term of five to fifteen years.
The New York Supreme Court, Appellate Division, First Department, affirmed Dickerson's conviction in a split decision. People v. Dickerson, 67 A.D.2d 122, 414 N.Y.S.2d 712 (1st Dep't 1979). Although the majority acknowledged that Colon's pre-trial confrontation of Dickerson "partook of a certain . . . degree of suggestiveness," id. at 714, it found that the identification procedures were not unduly suggestive. The "somewhat suggestive" circumstances could not be avoided, the majority explained, because of the "concomitant . . . inability of the police to control the courtroom scene," and because the confrontation took place only on the hunch of police. Id. The three majority justices also found a reliable independent basis for Colon's in-court identification of Dickerson. On the other side of the bench, the two dissenting justices concluded that Colon's pre-trial identification was impermissibly suggestive and should have been suppressed, and that his in-court identification could not be isolated from the corrupting influence of the suggestive pre-trial identification. The New York Court of Appeals affirmed the majority's decision in a memorandum opinion. People v. Dickerson, 50 N.Y.2d 937, 431 N.Y.S.2d 453, 409 N.E.2d 927 (1980).
Dickerson applied for federal habeas redress in July, 1981. The district court held that the admission of both Colon's pre-trial and trial identifications of Dickerson deprived him of his due process rights under Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), and Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). He ordered Dickerson released unless a new trial were held without the use of Colon's identification testimony. This appeal by the state followed.*fn1
At about 4:00 a.m. on May 19, 1977, Robert Colon, Jr., a security supervisor at Sloan's Supermarkets, answered a call over his pager telling him to go to one of the chain's stores. Colon walked out of his house on Jerome Street in New York City to the company car which was parked across the street and a few houses down the street from his own. As he entered the car, a young man with a pistol wrapped in a jacket banged on the window and yanked on the door on the driver's side. The man ordered Colon to move over and open the front passenger's door. A second man, later identified as appellee's cousin and co-defendant, Ronald Brown,*fn2 entered the car through the passenger's door as the first man came in on the driver's side. Simultaneously, Colon sensed other people entering the car through the rear doors.
The car proceeded to drive off. During the whole time he was in the car, Colon never looked to see who was in the rear seat. Even when the driver handed his gun to the man sitting directly behind him, Colon did not turn around to see who accepted the weapon (H. 166-67).*fn3 The man who now wielded the gun pressed it against Colon's neck until a police car came into view, then lowered it and warned Colon to remain silent. As the car moved along, Brown reached over and removed Colon's jewelry and cash (H. 141-42, 169-70).
The automobile traveled perhaps seven or eight blocks before it came to a halt. When it did, Brown let Colon out on the passenger's side. Colon walked away from the car in the direction from where they had just come. When he was roughly a car's length from the vehicle, he turned and saw the left back seat passenger staring at him, trying to pull a beach hat on his head and over his face. The hat came down to the man's eyebrows (H. 159-60; T. 86, 110-11).
This was the only occasion Colon had to view the passenger's face. Colon testified at the Wade-Huntley hearing that he looked for "two minutes, I couldn't really say, about two minutes." (H. 160). However, he pared his estimate at trial when he guessed he stared at the man for "only a minute or so" while the car was stationary (T. 86, 110).
Some nineteen hours later, at approximately 10:30 p.m., Police Officers James D. Dugan and Craig Moruzzi were on radio motor patrol when they spotted what they determined to be a stolen car driving in the opposite direction from them on Seventh Avenue in Manhattan. The policemen reversed their direction, pulled alongside the driver's side of the vehicle, and, at gunpoint, ordered the driver to stop. Instead of yielding, the driver ducked his head below the window and sped away. Officers Dugan and Moruzzi immediately chased the fleeing car, but not for long. The stolen car crashed into a halted car and three men jumped out, fell to the ground, and ran off. Officer Dugan pursued and nabbed Ronald Brown. Officer Moruzzi chased the other two men who had exited the car on the driver's side, but was unable to apprehend either of them.
Officer Moruzzi identified Dickerson as the driver of the stolen automobile at both the Wade-Huntley hearing and trial. He testified he saw the driver's face just before the man slid from view when the squad car pulled up for anywhere from 2 to 20 seconds (T. 150-56), and again when the driver jumped out of the car, falling with his face towards the squad car right before he took off. Moruzzi noted that the driver was seventeen to nineteen years old, short, 110 to 120 pounds, and had close cropped hair and large ears. (H. 86-87). Despite this otherwise detailed description, Moruzzi could not recall what the young man was wearing, nor did he write down a description of the incident.
The next evening, May 20, 1977, the police phoned Robert Colon, informed him they had his automobile, and asked him to come by to swear out a complaint (H. 151, 173, 191). Police Officer Dugan, wearing the Sloan's security shield Colon normally kept in his car, greeted Colon at Manhattan Criminal Court where Ronald Brown, Dickerson's co-defendant, was being arraigned. Earlier, Dugan had learned that two men and two women*fn4 who were sitting together on the right side of the courtroom were present on Brown's behalf. Upon meeting Colon, Dugan asked Colon to describe the culprits. Colon told him they were four young male blacks (H. 57-57a, 61). Dugan stated he then pointed to the right side of the courtroom where the people in question were sitting in a row and asked Colon if he could identify anyone (H. 56-57).
Colon testified at both the Wade-Huntley hearing and trial that when Dugan met him in court he directed Colon's attention to the right side of the room to see if he could identify anyone in a group of two males and one female sitting there (H. 153, 193-94; T. 91-92). Noticing that the group was sitting towards the front of the courtroom, Colon walked down the aisle to obtain a closer view before returning to the courtroom foyer. There he told Dugan he was "pretty sure" that one of the men was, or "looks like," the man who had sat directly behind him in the car (H. 156, 194). Colon did not recognize the other man (H. 194-95).
Officer Dugan urged Colon to "take a better look," and sent him back into the courtroom with a court officer. When he returned this time, Colon informed Dugan that one of the men "looked just like" the back seat passenger (H. 157). As Dickerson and his male companion left the courtroom and passed within ten feet of Colon, Dugan pressed Colon by asking, "Is it him or not?" Colon responded yes with respect to Dickerson but felt he "couldn't tell you anything about the other one." (H. 157). Following this identification, Dugan arrested Dickerson, handcuffed him, and removed him and his companion to a nearby court robing room.
Colon also testified that at one point he had described three of his assailants, including the back seat passenger with the hat, to the police over the phone. Significantly he could not remember whether he furnished his descriptions to the police before or after he identified Dickerson at the Manhattan Criminal Court, or to whom he had given his description, although he suggested he might have spoken with either officer Viggiano or Officer Dugan (H. 177-78, 195). Colon described the man with the hat as a black male with a short afro haircut and a tiny moustache. The driver, according to Colon, was about five feet six inches tall, chubby, and round-faced. The man sitting to Colon's right in the car, Ronald Brown, was about five feet ten or eleven inches, thin, light-skinned, and dark-haired.
At trial, Colon conceded he might have initially reported to the police that he had seen and could identify only two of the four men who had jumped into his car. He further testified he could only recall telling the police initially that his assailants were "four black males." (T. 129-30). Dugan confirmed Colon's memory on this point, testifying that the only description of the men he received from the precinct was "four male blacks" (T. 204-06).
The fingerprints found on the automobile were the only other relevant piece of evidence offered at trial. Ronald Brown's fingerprints were discovered on the inside front window. However, Dickerson's fingerprints were nowhere to be found (T. 198-204, 230-36, 244-51).
The respondent ascribes error to the district court opinion in two respects. He contends first that the court failed to apply properly the presumption of correctness to the state court's findings of fact as required by 28 U.S.C. § 2254(d). He also argues that notwithstanding the district court's analysis, Colon's in-court identification was free from the taint ...