He testified that there was adequate light -- there were Christmas lights, illuminated signs and a street light nearby. (Trial Tr. at 46.) Before the perpetrator took Chandler's money and the struggle ensued, the two men stood together, face-to-face, for between three and four minutes, with no one else nearby. (Trial Tr. at 46.) Moreover, Chandler testified that during the approximately five-minute face-to-face struggle, which began when he grabbed his robber's jacket by the zipper and pulled the robber to him, the two men were "kissing close" and Chandler could, therefore, see the other man's face clearly. (Trial Tr. at 47-50.)
Second, Chandler's degree of attention was high. In fact, it appears that his attention was focused solely upon his attacker. Because he was so intent on getting his money back, Chandler lunged at the perpetrator and held onto his jacket tightly so that he would not escape. (Hearing Tr. at 29.) See Wong, 40 F.3d at 1360 (witness's observation of a gunman while the witness was ducking under a table, which consisted of her staring the gunman in the face for two or three seconds, was sufficiently reliable where the witness's degree of attention was "very high" as she stared at the assailant's face because she feared that he would shoot her and her husband).
Third, Chandler's very first description of the man who robbed him was accurate. Immediately after he was attacked and while he was being treated by the paramedics, Chandler described his attacker in detail. (Trial Tr. at 86.) While it is true that Chandler later provided a more detailed description, the latter description was not inconsistent with his initial description and Chandler's explanation for the disparity -- that he was able to focus more on providing a detailed description after he calmed down and received treatment from the paramedics, (Trial Tr. at 86, 91-92), -- is credible.
Fourth, Chandler demonstrated a high level of certainty with respect to the identity of his attacker, both on the street and at the stationhouse. Chandler testified at trial that as soon as he saw Boles on the street, he identified him, even without being asked to do so by the police. (Trial Tr. at 61.) Moreover, Officer Deuel, who, along with Officer Fontaine, took Chandler to South and West Streets to see whether he could identify Boles, testified that when Chandler saw Boles, he was so excited that he kept trying to get out of the window of the police car and that the police officers had to restrain him. (Hearing Tr. at 114-15.) Similarly, while there was no actual identification procedure conducted at the stationhouse, Chandler recognized Boles as soon as Boles walked through the room. (Hearing Tr. at 58.)
Finally, the short length of time between the crime and the confrontations between Chandler and Boles weighs in favor of finding the identifications to be reliable. While it is not totally clear at precisely what time all of the events of the night transpired, all of the testimony at the suppression hearing and at trial establishes that the identification of Boles on the street took place between approximately twenty and thirty minutes after the incident. The viewing at the stationhouse appears to have occurred within several hours of the robbery. (Trial Tr. at 37-8.)
Because the identifications of Boles by Chandler were not the result of impermissibly suggestive police procedures and because all of the Neil factors weigh in favor of finding the identifications of Boles by Chandler reliable independent of any suggestive identification procedures, there has been no constitutional violation and Boles is not entitled to habeas corpus relief on this ground.
For all of the foregoing reasons, the petition for writ of habeas corpus is denied.
John G. Koeltl
United States District Judge
Dated: New York, New York
March 13, 1995