Robert Escalera appeals from a judgment of the United States District Court for the Eastern District of New York, Glasser, J., dismissing his petition for a writ of habeas corpus. Escalera was convicted of felony murder after a jury trial in the New York Supreme Court. Held: Escalera exhausted his habeas claims before the New York courts; the trial court's preclusion of his important alibi witness solely as a sanction for violation of New York's alibi notice statute, N.Y. Crim. Proc. Law § 250.20, absent a showing of substantial prejudice to the prosecution's case, violated Escalera's rights under the Sixth and Fourteenth Amendments; and the district court erred in failing to determine the sufficiency of evidence concerning the reliability of in-court eyewitness identification testimony under United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967).
Oakes, Meskill, Pratt, Circuit Judge.
New York state prisoner Robert Escalera appeals from a judgment entered by the United States District Court for the Eastern District of New York, Glasser, J., dismissing his habeas corpus petition. The court determined that the petition presented substantial questions for appellate review and issued a certificate of probable cause in accordance with Fed. R. App. P. 22(b).
We hold that the nature and presentation of Escalera's state appellate brief was adequate to alert the New York state courts to the constitutional basis of his argument and that his claim was, therefore, exhausted. We also conclude that the state trial court's preclusion of an important alibi witness solely as a sanction for noncompliance with New York's alibi notice statute, N.Y. Crim. Proc. Law § 250.20 (McKinney 1982), absent a showing of substantial prejudice to the prosecution's case, violated Escalera's rights under the Sixth and Fourteenth Amendments. Finally, we hold that the district court erred in failing to review the sufficiency of evidentiary support for the state court's ultimate conclusion that an in-court eyewitness identification was reliable under United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), and was therefore admissible.
The judgment of the district court is reversed and the case is remanded with a direction to grant the petition for a writ of habeas corpus unless the state conducts a new Wade hearing and grants Escalera a new trial within sixty days.
On August 18, 1975, Jesus Cordero was walking in Fort Greene Park in Brooklyn with his friends Pasquale Nieves and Felix Torres. At approximately 6:30 p.m., the group was approached by four men who announced a holdup. One of the robbers shot Cordero in the chest, and all four robbers fled the scene.
Five days later Cordero died from his gunshot wound. By that time, witnesses Nieves and Torres had already viewed photographs of potential suspects at the police station. Tr. 176. They later testified that they both had selected Robert Escalera's photograph at this initial viewing as that of the gunman. H. 88-94, 133-137 (Wade hearing), Tr. 155-56 (trial).
On September 3, Detective Harold Ruger, who was assigned to the case after the initial viewing, showed Nieves and Torres, independently, an array of eight photographs. No identification was made. On September 28, Ruger added to the original array photographs of Robert Escalera and another suspect. Nieves and Torres, independently, again selected Escalera's photograph as that of the man who shot Cordero. Both witnesses later testified that Ruger's photograph of Escalera was the same one that they had picked out at the police station shortly after the shooting. H. 93, 139, Tr. 155. Escalera was immediately brought to the police station, and Ruger brought the two witnesses, together, to see him. Nieves and Torres, together, observed Escalera, alone, through a one-way mirror and confirmed that he was the gunman. Ruger testified that both Nieves and Torres claimed to have seen the gunman some time prior to the shooting, Tr. 204, and Torres confirmed that on five, six or seven occasions Escalera had visited the frankfurter stand where Torres worked one to two years before the shooting.
The state trial court, and the district court in its habeas review, correctly noted that a one person showup of the sort conducted by Ruger, in which two witnesses jointly view the suspect, is suggestive enough to require further inquiry into the reliability of any subsequent in-court identification. See Stovall v. Denno, 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967) ("The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned."); Wade, 388 U.S. at 234 (joint viewing of lineup is fraught with dangers of suggestion). The state's brief on this appeal does not contest the state court's ruling that the showup was suggestive.
Before beginning Escalera's trial for felony murder, Justice Corso of the New York Supreme Court conducted a Wade hearing to determine whether the proffered in-court identification testimony of Nieves and Torres was sufficiently reliable to be admitted, despite the suggestive police station showup. Justice Corso heard testimony from the two witnesses and Ruger and concluded that the in-court identifications were based on independent recollections and were not influenced by the suggestive showup or the properly conducted photographic identification made on September 28. J. App. at 131-33. Although both Nieves and Torres testified that they had picked out Escalera's photograph at the police station, Justice Corso did not refer to that viewing. Rather, he explicitly ruled that the suggestive showup occurred only after the nonsuggestive September 28 photographic identification and that Torres had seen Escalera on several occasions prior to the shooting. Id. Torres' testimony, however, suggests that the initial identification may have resulted from a joint viewing of an array of photographs never submitted to the trial court and from Torres' selection of a photograph for Nieves' approval. H. 135-36, Tr. 155-56. Such an uncontrolled, joint selection, if it took place, would render the photographic identification suspect. See Styers v. Smith, 659 F.2d 293, 297-98 (2d Cir. 1981).
Escalera's trial consumed two days of testimony. Nieves and Torres described the events in the park and identified Escalera as the gunman. The sole evidence linking Escalera to the shooting was the identification testimony of Nieves and Torres. Detective Ruger confirmed that, according to police records, the witnesses had viewed photographs at the police station and that he knew of the viewing during his investigation. Tr. 175-76. He testified that he did not know that that initial viewing resulted in an identification of Escalera because he was not present at the initial viewing. Tr. 176. Torres repeated the testimony that he gave at the Wade hearing regarding the initial joint viewing and selection of Escalera's photograph. Tr. 155-57.
Escalera's defense concentrated on discrediting the identification, particularly by pointing out differences between the witnesses' description of the gunman immediately after the shooting and their later in-court descriptions and identifications. Escalera testified in his own behalf and claimed that he had met his friend Samuel Gonzalez at a bus stop at 5:30 p.m. on the day of the shooting and remained with him until 7:30 p.m., except for the period from 6:00 to 6:30 p.m., during which Escalera was at home eating and showering. Tr. 228-30. Gonzalez also testified that he had been with Escalera except for the half-hour period at issue here. Id. at 272-74.
After the state completed its presentation and after one defense witness finished testifying, Escalera's counsel requested leave to call Escalera's brother, Peter Escalera, to testify that Escalera was at home during the half-hour period not covered by Gonzalez's testimony, 6:00 to 6:30 p.m. Peter was not on the list of alibi witnesses that Escalera's attorney had provided to the prosecutor before trial in accordance with New York's alibi notice statute, N.Y. Crim. Proc. Law § 250.20.*fn1 Escalera's counsel offered the court no reasonable explanation for this failure.
The prosecuting district attorney expressed surprise at the request and asked "that the witness be precluded and that I be given ample opportunity to examine [Peter] with a stenographer present." Tr. 233. Justice Corso precluded the witness based on the discretion granted to him in section 250.20(3), the lack of explanation for the late request, the likelihood that the jury would discredit testimony produced so late in the trial and the adverse impact the testimony and any continuance would have on his anticipated schedule for a pending trial. Tr. 234-35, 291-94.
During its deliberations, the jury asked "to hear the testimony regarding Torres [sic] viewing of photographs . . . at the precinct," Tr. 402, noting that the initial police report "says that Torres viewed photographs at the precinct." Tr. 403. In response, unspecified testimony was read to the jury.
The jury found Escalera guilty of felony murder and he was sentenced to fifteen years to life imprisonment. The Appellate Division affirmed the conviction by memorandum decision, 61 A.D.2d 890, 402 N.Y.S.2d 700 (2d Dep't), leave to appeal denied, 44 N.Y.2d 953, 408 N.Y.S.2d 1032, 380 N.E.2d 342 (1978).
Escalera's petition for a writ of habeas corpus raised the two issues that he repeats here. He claims that the preclusion of his alibi witness violated his Sixth Amendment right to compulsory process and that the in-court identification was so tainted by the pre-trial procedures that suppression was required. The district court first reviewed Escalera's brief to the Appellate Division and found that its references to "the fundamental and important constitutional right of a defendant to have compulsory process" and its citation to cases employing constitutional analysis satisfied the exhaustion test articulated in Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (in banc), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984).
Moving to the merits, the district judge noted that neither we nor the United States Supreme Court has ever decided whether preclusion is a constitutionally permissible sanction for substantial failure to comply with an alibi notice statute. He concluded that there is a rebuttable presumption under the Sixth Amendment ...