identification itself must be weighed. In this case, the suggestive identification was highly corrupting. Under the circumstances of this case, it is hard to imagine a more suggestive procedure.
In light of the facts before me and weighing the corrupting effect of the highly suggestive identification procedure used by Scime, I find that the pretrial identification did not contain sufficient indicia of reliability. Thus, the use of the identification at trial violated Dunnigan's due process rights. Although I decline to find that this error, standing alone, had a "substantial and injurious effect" on the jury's verdict
, when considered in conjunction with the testimony concerning Dunnigan's parole status, the cumulative effect of the two errors provides more than a sufficient basis to find that Dunnigan's trial was fundamentally unfair.
III. Cumulative Error Analysis
As stated above, I find that the trial court's error in allowing Baes to testify as to Dunnigan's parole status was sufficiently egregious by itself so as to grant Dunnigan's petition for a writ of habeas corpus. However, when factoring in the trial court's additional constitutional error regarding its denial of a Wade-type hearing on Nuchereno's pretrial identification of Dunnigan, the cumulative effect of the two errors clearly support the conclusion that Dunnigan is entitled to a new trial.
"The issue of the cumulative effect of a number of different trial errors on a criminal defendant's right to a fair trial has not been addressed directly by either the Supreme Court or the Second Circuit Court of Appeals."
Collins v. Scully, 878 F. Supp. 452, 459 (E.D.N.Y. 1995). However, many circuits utilize some form of cumulative error analysis with respect to trial errors. See Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir.), cert. denied, 508 U.S. 960, 124 L. Ed. 2d 679, 113 S. Ct. 2928 (1992); Lundy v. Campbell, 888 F.2d 467, 481 (6th Cir. 1989), cert. denied, 495 U.S. 950, 109 L. Ed. 2d 538, 110 S. Ct. 2212 (1990); Bell v. Duckworth, 861 F.2d 169, 170 (7th Cir. 1988), cert. denied, 489 U.S. 1088, 103 L. Ed. 2d 855, 109 S. Ct. 1552 (1989); Walker v. Davis, 840 F.2d 834, 838 (11th Cir. 1988). But see Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990)("each habeas claim must stand or fall on its own"), cert. denied, 499 U.S. 978, 113 L. Ed. 2d 723, 111 S. Ct. 1626 (1991).
In Derden, for example, the court held that federal habeas relief was available for cumulative errors but only where "(1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors 'so infected the entire trial that the resulting conviction violates due process'" Derden, supra at 1454, quoting Cupp v. Naughten, 414 U.S. 141, 147, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973).
Here, both errors certainly involved matters of constitutional dimension and were not mere violations of state law. Furthermore, the errors involved the testimony of two of the most important witnesses at the trial, i.e., Baes and Nuchereno. Baes' testimony, as discussed above, informed the jury that the person before them, charged with violent and serious crimes, was previously convicted of a felony and was incarcerated at a corrections facility that is widely known to house violent criminals.
Nuchereno was the most crucial identification witness. The other eye-witness viewed the assailant for only a short period of time from her hotel room. Every other identification of Dunnigan stemmed from the photographs taken of a person at an ATM machine attempting to withdraw money. Thus, Nuchereno's identification of Dunnigan was very important to the state's case.
The magnitude of these two errors convinces me that they did so infect the entire trial that Dunnigan's conviction violated due process and cannot stand.
The petition for a writ of habeas corpus is granted, and respondent and the state are ordered to release Dunnigan from custody unless the state provides Dunnigan with a new trial within ninety (90) days of the date of entry of this order.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
July 23, 1997.