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Brisco v. Ercole

May 13, 2009

FRANK BRISCO, PETITIONER-APPELLEE,
v.
ROBERT ERCOLE, SUPERINTENDENT OF GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT-APPELLANT.



SYLLABUS BY THE COURT

Appeal from a judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge) granting petitioner's application for a writ of habeas corpus on the ground that an unnecessarily suggestive eyewitness identification procedure created a substantial likelihood of misidentification of the petitioner. We reverse the judgment of the District Court and conclude that the petition must be denied. Petitioner has failed to establish that the state court's decision was "an unreasonable application of[ ] clearly established federal law" within the meaning of 28 U.S.C. § 2254(d)(1).

The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge

Argued: January 11, 2007

Before: WINTER and CABRANES, Circuit Judges, and KORMAN, District Judge.*fn1

Judge Korman concurs in a separate opinion.

Respondent Robert Ercole, Superintendent of Green Haven Correctional Facility, appeals from a judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge) granting petitioner Frank Brisco's application for a writ of habeas corpus. Brisco was arrested for burglary after he was identified by the crime victim in a "showup" identification that took place approximately one hour after the crime was committed. Following the denial of his pretrial motion to suppress the showup identification in a New York state trial court, Brisco pleaded guilty to attempted burglary but preserved his right to appeal pretrial rulings. The Appellate Division and the New York Court of Appeals affirmed the suppression ruling on direct appeal. In federal habeas proceedings, the District Court concluded that: (1) the pretrial eyewitness identification procedure was unnecessarily suggestive; (2) the identification was not independently reliable; and (3) it was an unreasonable application of clearly established federal law for the state court to conclude that, had there been a trial, the admission of the identification would have comported with due process. Brisco v. Phillips, 376 F. Supp. 2d 306, 319-21 (E.D.N.Y. 2005) ("Dist. Ct. Op.").

We reverse the judgment of the District Court and deny the petition because Brisco failed to establish that the state court's decision was "an unreasonable application of[ ] clearly established federal law" within the meaning of 28 U.S.C. § 2254(d)(1).

BACKGROUND

A. Factual Overview*fn2

On July 6, 1999, at 11:30 a.m., Suffolk County Police Detective Brian McNeil responded to a report of a burglary at 51 Mills Pond Road in St. James, New York. The complainant was Augusta Kemper, a seventy-eight-year-old woman, who called the police that morning when she encountered a burglar fleeing her property. Kemper described the suspect as a white male in his twenties, approximately 5 feet 10 inches tall, well-built, "stocky," having brown hair, and wearing maroon shorts with no shirt. She also reported that the man had fled north.

Approximately twenty minutes later, at 11:50 a.m., Officers Brian Holtje and Thomas Bafundo received a report of the crime over police radio, and they arrived within five minutes at the scene in their patrol car. After briefly conferring with Detective McNeil, officers Holtje and Bafundo canvassed the neighborhood by car.

Less than a tenth of a mile north (the direction in which the suspect fled) of the crime scene the officers noticed a house at 66 Mills Pond Road with the front door apparently open. The house*fn3 appeared to be under renovation. Officer Holtje approached the front of the house and knocked on a closed door behind the open front door. Meanwhile, Officer Bafundo went to the back, where he saw a swimming pool and a man inside the house wrapping himself in a towel. When Officer Holtje knocked a second time, a wet-haired man wearing a towel answered and identified himself as Frank Brisco. Unbeknownst to the officers at the time, Brisco had a long history of theft crimes on Long Island, including four prior convictions for burglary, attempted burglary, and robbery.*fn4

Officer Holtje observed that Brisco was approximately thirty years old and was not visibly nervous during their initial conversation. Brisco told the officers that the house belonged to his sister and that he and his friend were renovating the bathroom. After this brief conversation, both officers returned to their patrol car. Shortly after leaving the house, Officer Holtje reflected that it was suspicious that Brisco answered the door in a towel even though he had claimed that he was at the house to renovate the bathroom.

At approximately 12:10 p.m.-forty minutes after the burglary report-Officers Holtje and Bafundo returned to 66 Mills Pond Road accompanied by Detective McNeil. They knocked on the door and Brisco answered, this time wearing a pair of tan shorts and no shirt. Brisco talked to the policemen in the kitchen. Another person in the house, Brian McGraff, was working in the bathroom. Detective McNeil told Brisco that there had been a burglary in a house down the street. The detective asked him where he had been that morning and Brisco replied that he had not left his sister's house. As the four men conversed in the kitchen, one of the officers noticed a wet pair of maroon shorts on the floor of an adjoining bedroom. He asked Brisco if the shorts were his, and Brisco responded affirmatively. Detective McNeil then asked Brisco to go down the street with the officers "to see if someone could recognize him [in] reference to the burglary." Dist. Ct. Op., 376 F. Supp. 2d at 309. Brisco agreed, and Detective McNeil took the maroon shorts with him without objection from Brisco. Brisco was then seated in the back of the police car and driven to the scene of the burglary.

The detective, the two police officers, and Brisco returned to the crime scene at approximately 12:25 p.m., slightly less than one hour after the officers received the initial report from Kemper. Brisco exited the police car and stood at the bottom of the driveway, at a distance between fifteen and fifty feet from Kemper's house. Brisco was still wearing tan shorts and no shirt. He was not handcuffed. Detective McNeil went inside the house and spoke with Kemper. Another uniformed officer, Christine Ward, joined officers Holtje and Bafundo, and together with Brisco they waited in front of the house.

After ten to fifteen minutes, Detective McNeil went back outside and retrieved the wet maroon shorts from the patrol car. McNeil asked Brisco to take the shorts; Brisco complied with the request, holding the shorts in his hands at waist level, just next to his hip. At the time he held up the shorts, three uniformed police officers were standing in close proximity to Brisco and three police vehicles were parked behind him. That said, Brisco had accompanied the officers to Kemper's house voluntarily and-according to the officers-would have been allowed to leave if he had asked to do so. At this time, McNeil returned to the house, brought Kemper to the front window, and asked her*fn5 to look outside to see if she recognized anyone. Kemper identified Brisco as the burglar and identified the maroon shorts as those worn by the burglar. Brisco was then asked to go to the precinct, where he was questioned and subsequently released. Three days later, Brisco was arrested and later indicted for one count of Burglary in the Second Degree and one count of Petit Larceny.

B. Procedural History

Prior to trial, Brisco moved to suppress Kemper's eyewitness identification of him. A Wade hearing was held on March 28, 2000 in New York State Supreme Court to assess whether Kemper's identification of him should be suppressed because the procedure was unnecessarily suggestive. See United States v. Wade, 388 U.S. 218 (1967). Holtje, Bafundo and McNeil testified at the Wade hearing. McNeil testified with respect to the manner in which the identification was made:

Q: After giving the shorts to the defendant in the driveway of 51 Mills Pond Road, did you go back into the house?

A: Yes, I did.

Q: And what did you do at that time?

A: I had [Kemper] look out the window of the house to see if she would recognize anyone.

Q: When you went back into the house, after giving the defendant the shorts from your car, was [Kemper] in the back of the house or the front?

A: Yes, she was. I went to the rear of the house and brought her to the front room.

Q: And what did you say to her when you brought her to the front room?

A: I asked her if she recognized anyone standing outside.

Q: Do you remember if [Kemper] said anything when she viewed the defendant at this time?

A: Yes, she looked at the subject standing outside, and she stated that this is the person that she saw leaving the house, and that he was the same height, color hair, build, and she ...


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