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March 3, 1986

Patsy Kelly JARRETT, Petitioner,
Frank R. HEADLEY, Superintendent, Bedford Hills Correctional Center, Respondent.

The opinion of the court was delivered by: EDELSTEIN


EDELSTEIN, District Judge:

Patsy Kelly Jarrett ("Jarrett") petitioned this court for a writ of habeas corpus. This matter was referred to Magistrate Michael H. Dolinger who issued a Report and Recommendation dated November 26, 1985. Magistrate Dolinger recommended that the petition be granted and that respondent be directed to release petitioner unless she is retried on the charges against her within sixty days. Objections were filed by respondent and petitioner filed a response. Respondent, by letter, submitted a reply. The Report and Recommendation of the Magistrate is hereby adopted by this court and the petition is granted.


 Respondent objects to the Magistrate's Report and Recommendation on four grounds. First, that the Magistrate did not afford the proper deference to the factual findings of the state court; second, that the Magistrate's finding that the identification procedure was unfair was incorrect; third, that the reliability of the identification was strengthened by other corroborating evidence; and finally, that the claim that pretrial publicity affected the identification was not raised in state court and therefore the petition must be denied. The court hereby adopts the Magistrate's Report and Recommendation. Respondent's objections are addressed herein.

 Deference to State Court Findings

 Respondent asserts that pursuant to Title 28, Section 2254(d) of the United States Code, the findings of the state court are entitled to a presumption of correctness. The facts underlying the state court's decision on the constitutionality of the identification are governed by the statutory presumption. Sumner v. Mata, 455 U.S. 591, 597, 102 S. Ct. 1303, 1306, 71 L. Ed. 2d 480 (1982) (per curiam). The ultimate question regarding the constitutionality of the identification, however, is a mixed question of law and fact that is not governed by Section 2254(d). Id. The court finds that the Magistrate gave the proper deference to the state court's findings. The Magistrate did not make any factual findings that would be precluded by Section 2254. Rather the Magistrate relied on the facts established during the state court proceedings.

 Identification Procedure

 Respondent claims that the Magistrate incorrectly determined that the identification procedure was unfair. Respondent's arguments are unpersuasive.

 The events leading up to the incourt identification *fn2" must be examined to determine if the identification was unconstitutionally tainted. In objecting to the Report, respondent assumes that the only events that affected the in-court identification were the events leading up to the photographic identification made by William Hyland ("Hyland"). This is incorrect. All of the events occurring after the photographic identification and prior to the testimony by Hyland at trial are also relevant. For example, discussions Hyland had with the police following the photographic identification and his discussion with the District Attorney before taking the witness stand at trial are clearly factors that the court must consider. Further, the respondent examines each event affecting the photographic identification in isolation. This is also incorrect. Thus, the Magistrate correctly considered the effect of the combination of the pre-trial factors in making his determination that the in-court identification was the result of unduly suggestive procedures. See Dickerson v. Fogg, 692 F.2d 238, 245 (2d Cir.1982).

 For the reasons set forth in the Report and Recommendation, the court finds that the pre-trial occurences were unduly suggestive. Further, the court agrees with the Magistrate that there was no independent and reliable basis for the in-court identification by Hyland applying the factors set forth in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972).

 Corroborating Evidence

 Respondent asserts that the reliability of Hyland's identification is strengthened by corroborating evidence and was therefore reliable. There are two possible interpretations of respondent's assertion. The respondent may be asserting that even if the court finds that the in-court identification was flawed, there was sufficient additional evidence to support a conviction so that any error was harmless error, see People v. MacKay 98 A.D.2d 732, 469 N.Y.S.2d 146, 147 (2d Dep't 1983) (per curiam). This is not the case here. The crucial evidence against the petitioner was the identification testimony of Hyland. See People v. Sapp, 98 A.D.2d 784, 469 N.Y.S.2d 803, 804 (2d Dep't 1983) (per curiam).

 If respondent is asking the court to consider this additional evidence in making a determination regarding the reliability of the identification itself this would be improper. Such "corroborating" evidence is clearly inconsistent with the factors traditionally examined to determine reliability. See Manson v. Brathwaite, 432 U.S. 98, 114-16, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977).

 Pre-trial Publicity

 Finally, respondent contends that the Magistrate's consideration of pretrial publicity in determining whether the in-court identification was tainted was incorrect because petitioner failed to raise this issue in the state court. *fn3" It does not appear, however, that the Magistrate considered the pretrial publicity in making his determination. Rather the Magistrate simply indicated that Hyland was aware of the publicity. The Magistrate also indicated that the publicity was not the fault of the police indicating that this would not be considered in his determination although it may have affected the strength of the in-court identification. The court agrees with the Magistrate.

 Remaining Evidence

 As the Magistrate noted "[t]he prosecutor's case plainly was far from overwhelming." Report at 58. However, additional evidence was presented. The court agrees with the Magistrate that this remaining evidence is "sufficient to pass constitutional muster." Id. Therefore, the respondent is ordered to release the petitioner unless she is retried on the charges against her within ninety days in conformity with this Memorandum and the Magistrate's Report and Recommendation adopted herein.


 The petition is hereby granted. Respondent is directed to release the petitioner unless petitioner is retried on the charges against her within ninety days of the filing of this Memorandum in conformity with this Memorandum and the Magistrate's Report and Recommendation which is adopted herein.




 MICHAEL H. DOLINGER, United States Magistrate.

 A. Introduction

 On August 11, 1973 near Utica, New York, a seventeen year old gas station attendant was murdered at his place of work and the gas station robbed of approximately $279.00 in cash receipts. More than three and a half years later, on March 29, 1977, two individuals were convicted of these crimes following a jury trial. Based upon their convictions on two counts of murder and two counts of robbery, the defendants were each sentenced to prison terms of twenty-five years to life.1a

 One of those two defendants, Patsy Kelly Jarrett, has now petitioned for a writ of habeas corpus. She asserts principally that the key evidence against her -- the testimony of the one witness who specifically identified her as being at the gas station at about the time of the killing -- was the result of impermissibly suggestive police procedures and was otherwise so unreliable that its introduction denied her due process. For the reasons that follow, I recommend that the petition be granted.

 The Nature of the Petitioner's Claims

 By her original petition, filed January 23, 1984, petitioner raised three claims. First, she asserted that her conviction had been based upon the eyewitness identification testimony at trial of one William Hyland, and that this testimony was purely the product of a series of efforts by the local police to encourage Mr. Hyland, long after the incident, to conclude that he could positively identify her as being present at the gas station. According to the petition, absent these suggestive procedures, the witness would not have so testified, as evidenced by his repeated statements prior to trial, and his testimony was entirely unreliable. Second, petitioner argued that, even if admissible, Hyland's testimony was incredible as a matter of law and, as a result, the evidence in the record was constitutionally insufficient to sustain her conviction. Petitioner's third claim -- now withdrawn -- was that the denial of her pre-trial motion for a severance denied her due process.

 In his response, respondent asserted that the petition must be dismissed because petitioner had failed to exhaust available state remedies with respect to her severance claim. He further argued that the pre-trial and trial record fully justified the introduction of the in-court identification of petitioner as reliable and not the product of police suggestion and that the denial of her motion to sever was proper.

 Apparently as a result of respondent's exhaustion argument, in her reply papers petitioner limited her severance argument,2a and thereafter withdrew the claim.3a Accordingly the only issues to be addressed relate to the identification question and the sufficiency of the evidence.

 B. The Identification Process

 The state court pre-trial and trial record reflects a lengthy sequence of events leading ultimately to the eyewitness identification of petitioner at trial. Because the state court did not make detailed findings of historical fact, there are few if any findings to which deference is owed under 28 U.S.C. ยง 2254(d) and accordingly I rely directly on the state evidentiary record. *fn4"

 On August 13, 1973, two days after the murder in question, William Hyland was interviewed by the police concerning the events he had observed the prior date at the Seaway gas station. (Tr. 688-90.) *fn5" Hyland's observations proved to be crucial because the evidence at trial tended to establish that the gas station attendant had been murdered at around the time that he was at the station.

 During the course of Hyland's interview, his version of the facts was encapsulated in a statement typed by an interviewing police investigator (Tr. 693-94) and signed under oath by Mr. Hyland. (Deft.Exh.A) According to the statement, Mr. Hyland drove into the station at approximately 12:50 P.M. on August 11, and parked next to the gas pumps on the side nearest the road. Since no attendant was in view, Hyland got out of his car and stood for approximately one-and-a-half minutes behind his car. At that point, an automobile pulled out from the west side of the station, backed up, and then drove forward and parked parallel to the gas pumps on the side nearest the station building. Hyland's description of the driver was as follows:

 I am not sure, but I believe the operator was a white female. She had long black shoulder length hair and was wearing dark clothing. I saw no clothing or baggage inside of this car. Upon moving closer to the gas pumps I observed this female going through items in a brown hexagon type pattern pocketbook. I noticed this pocketbook had gold trim on it. The material that it was made of appeared to be of an alligator type imitation. The type of hair style that this person had did not allow me to see her face. The girl did have a tan. I had never seen the girl or the car before.

 According to Hyland, "[a]fter the car had parked and a few seconds had elapsed," he observed a white male emerge from the station and approach Hyland's car. The man, whom Hyland described in his statement, walked to a position between the two cars and asked "which one is first[?]." Hyland told the man that he could pump either car, and the man apparently indicated that he would first take care of Hyland. Hyland then asked for $5.00 worth of gasoline and the man pumped the gas for him, at all times holding the nozzle of the hose. While this occurred, Hyland and the man engaged in "general conversation about the weather." When the gasoline had been pumped, Hyland got in his car and left. According to the statement, Hyland "did not pay any attention as to what service [the man] offered the other car the girl was sitting [in]." By Hyland's estimate, he left the station at 12:55 P.M., approximately five minutes after arriving.

 At the time that he first talked to the police Hyland was able to provide a relatively detailed description of the man who had pumped the gasoline. As a result of these discussions -- which occurred on four occasions -- the police subsequently prepared and circulated a sketch of the man. (Tr. 242-45, Gov't.Exh. 28.) No such sketch was made of the person who had driven the other car at the Seaway station. (Tr. 277.)

 Following the preparation of this sketch, Hyland was not contacted again by the police until December 1975, approximately 28 months after the murder. (Tr. 246.) At that time a police officer came to Hyland's home with two photo spreads to show him. He first displayed a set of ten to twelve photographs of males. Hyland narrowed the choice to two photographs, and when the officer told Hyland that the photos were of the same man (Tr. 316-17), he selected one as the man who had pumped gas for him on August 11, 1973. (Tr. 316, Gov't.Exh. 7.) The photograph selected was of Billy Ronald Kelly, petitioner's alleged paramour. (Wade Tr. 82).

 The officer then gave Hyland a set of twelve photographs of women. (Wade Tr. 57-58, Gov't.Exhs. 16-27.) Of these, eight were unmarked photographs (Gov't.Exhs. 19-26), *fn6" three were marked "New York State Police" (Gov't.Exhs. 17, 18 & 27), and one bore the notation "Sheriff's Department." (Gov't.Exh. 16.) Hyland, who observed the markings at the time (Wade Tr. 73), initially selected two photographs, each of a different woman (Wade Tr. 74-75 & Gov't.Exhs. 16 & 17), and both of which displayed law enforcement notations. He ultimately signed the back of one (Gov't. Exh. 16), according to his Wade testimony, because it was "possibly" the person who had driven the other car at the gas station (Wade Tr. 61), although the second photograph also "look[ed] like" the driver. (Wade Tr. 75.) In explaining his choice to the grand jury, he stated that he had selected the photograph from the array because "[i]t was the same style hair, long hair," as the driver had worn on the day of the murder (GJ 37), and confirmed that the selected photograph "could be" the driver "but [he couldn't] say for sure." (GJ 38.) The photograph that Hyland chose was of petitioner.

 Before leaving Hyland after he had made his selection from the photo array, the police officer engaged him in conversation about his choice. Specifically the officer told Hyland "who they might be," their names, and "where they were from." (Tr. 286-87.) Such disclosure meant that Hyland was informed that the two individuals were both from North Carolina and, quite probably, that they were believed to have been living together in Utica at the time of the murder. *fn7"

 Three months later, in March 1976, Hyland appeared before a grand jury. At that time he testified -- in terms similar to his original statement -- that the driver "looked like a female." (GJ 30.) When asked whether he could positively identify the photograph of petitioner as depicting the driver, he stated: "Well, I can't say positive about this, about the way -- it was the same style hair, long hair." (GJ 38.) As noted above, he agreed with the prosecutor's characterization: "Is it safe to say then that the best you can say is that it could be the girl but you can't say for sure?" (GJ 38.)

 The grand jury returned an indictment naming both Kelly and petitioner. Subsequently petitioner was arrested in her native North Carolina, and returned to Utica. The State never placed her in a line-up. Rather, in the course of pre-trial proceedings, the prosecutor informed petitioner's counsel that the State intended to rely at trial on an identification by Hyland of a photograph of petitioner "as possibly being the girl seen seated in blue car at [the] station. . . ." (See "Notice Pursuant to Section 710.30 in Petitioner's Appendix II at 32.)

 Following this notification, petitioner moved to suppress any identification testimony by Hyland. *fn8" At the Wade hearing, which was commenced on January 31, 1977, Hyland recounted his selection of photographs from the two photo arrays presented to him in December 1975. He denied that the police officer had given him any information prior to his making the selections (Wade Tr. 54), but admitted that he had noted the "Sheriff" and police markings on some of the photos. (Wade Tr. 73.) With respect to his choice from the female photo array, he testified that he had narrowed the selection to two photographs and that he had picked one because he "thought that was the one" although he also thought that both of the photographs ...

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