The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Rudolph Young ("Young" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction, following a jury trial, on two counts of first degree robbery and one count of first degree burglary.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
II. Factual Background and Procedural History
The incident giving rise to Young's convictions was the home-invasion robbery of William Sykes ("Mr. Sykes") and Lisa Sykes ("Mrs. Sykes") on the night of March 29, 1991, in the Town of Brighton, just outside the City of Rochester. That night, an intruder entered the Sykes home, wearing a blanket wrapped around his body as well as a scarf covering his entire face except for the eyes and forehead. Brandishing an axe over Mr. Sykes' head, the intruder demanded money, which the Sykes gave to him, along with several watches, a pair of binoculars, and other items of personal property.
The description given by the victims was an African-American male, in his twenties, with a medium build, and about 5'10"-tall. The victims could not assist in the creation of a composite sketch of the intruder because he was covered with the blanket and the scarf was hiding his face.
About a month after the incident, on April 25, 1991, Mrs. Sykes viewed a photographic array containing Young's picture but did not make an identification. Mr. Sykes also viewed the array but did not identify anyone from it.
Young was arrested on April 27, 1991. That day, a lineup identification procedure was held. Mr. Sykes was unable to identify Young as the perpetrator; he indicated that the person in the #1 position sounded like the intruder and that #6 looked like the intruder. However, Young was #4. Although Mrs. Sykes had been unable to identify Young during the photo array, she did identify Young in the April 27th lineup. She testified at trial in 1993 that she made the line-up identification on the basis of a "combination"of factors--"from seeing him and also the voice."
Following a jury trial, Young was convicted as charged in the indictment and sentenced as a persistent felony offender. On direct appeal, the Appellate Division, Fourth Department, of New York State Supreme Court, determined that the police lacked probable cause to arrest Young and that the testimony regarding the lineup identification by Mrs. Sykes was improper: "Because the police obtained defendant's consent to the lineup by means affected by the primary taint, it must be concluded that the lineup identification flowed directly from the illegal arrest and was not attenuated therefrom[.]" People v. Young, 255 A.D.2d 905, 906 (App. Div. 4th Dept. 1998). The Fourth Department went on to hold that "[b]ecause proof of the line-up identification and other evidence obtained by police at the time of the arrest contributed to defendant's conviction," the conviction should be reversed and the motion to suppress the line-up identification granted. In remanding the case for a retrial, the Fourth Department indicated that the prosecution should be given the opportunity "to demonstrate that the ability of the victim to make an in-court identification stemmed from her observation of defendant at the time of the crime and therefore ha[d] a basis independent of the unlawful arrest and tainted identification procedure."Id.
1. The Independent Source Hearing
At the subsequent state court proceeding entitled an "Independent Source Hearing," defense counsel objected that, as a matter of law, there could be no "independent source" for Mrs. Sykes' identification, given the eight-year passage of time and the considerable news coverage of the incident and first trial. The new trial court (Ark, J.) disagreed, noting that the Appellate Division had directed such a hearing be held.
Mrs. Sykes was the only witness called at the independent source hearing. She described in some detail the actual incident and testified as to why she remembered the intruder from her observations of him during the crime, and not from the suppressed line-up procedure. Mrs. Sykes testified that when she first saw the intruder, he was standing "a couple of feet" away from her in the area of her dining room which was well lit. ISH.25-27 (Citations to "ISH.__" refer to pages from the transcript of the Independent Source Hearing). The intruder was wearing a blanket with a slit cut in it over his body and had a scarf draped around his face, covering up to his nose. Mrs. Sykes testified that the burglar was only a couple of inches taller than her, so she was able to look at him face-to-face. Id.
After initially screaming, Mrs. Sykes looked carefully at the intruder; she was in disbelief thinking that it was some kind of prank, that the incident could not be random. ISH.27-28. Mrs. Sykes stared at the intruder's eyes and realized that she did not know the person. ISH.27. At that point, the burglar walked directly behind Mr. Sykes and held the axe over his head. The burglar looked directly at Mrs. Sykes and stated, "I will kill him. Give me your wallets." Id. Still not believing that the break-in could be random, Mrs. Sykes "kept staring" at the intruder, trying to determine if it was someone she knew. ISH.28.
Mrs. Sykes again came face-to-face with the burglar when the three of them were walking down the hallway to the master bedroom to retrieve Mr. Sykes' wallet. Mrs. Sykes turned on the hall light and the intruder turned and looked right at her. Mrs. Sykes continued to watch the intruder as he relieved Mr. Sykes of his money and watches. ISH.28-29.
Next, the intruder demanded Mrs. Sykes give him her money, and he proceeded to rip two telephones out of the walls. During this time, Mrs. Sykes kept looking at the burglar "trying to figure out who this person was." ISH.30-32. The man then told her, "Don't look at my face." At that point, Mrs. Sykes averted her eyes; however, up until then, she had continuously looked at his face trying to determine who he was. ISH.32. The burglar left the house shortly after that.
Mrs. Sykes estimated that the intruder had been in her sight for about five to seven minute. Mrs. Sykes explained that she "really stared" at the burglar's eyes while he was inside the house. She did not believe she could assist with a composite sketch because she had not seen his whole face.
Mrs. Sykes testified that she woke up during many nights after the crime seeing the intruder's eyes in her nightmares. ISH.35.
With regard to her inability to made a positive identification from the photo array, Mrs. Sykes testified that the pictures in the array did not "look real" to her. ISH.64.
Mrs. Sykes insisted that she could identify Petitioner based solely on the appearance of his eyes. ISH.78. When questioned, she assured the trial court that her recollection of Petitioner's eyes was from her observations on the night of the crime and was not based upon her viewing him during the line-up procedure. ISH.85-86. Based on the results of this hearing, Petitioner was retried on the home-invasion robbery charges.
What follows is a summary of the prosecution's proof presented at Young's re-trial on the Sykes home-invasion.
At about 10 p.m. on March 29, 1991, Mr. and Mrs. Sykes were in their living room watching television when their dog began barking, leading them to notice that the door in the kitchen that led to the attached garage was ajar. Mr. Sykes, who was wheelchair-bound as the result of a disability, went into the kitchen, shut the door, and engaged the deadbolt lock. See T.31-34, 91-93 (Citations to "T.__" refer to pages in transcript of the re-trial). The couple continued to watch television.
About twenty minutes later, they heard loud noises coming from the kitchen area. Mrs. Sykes began to walk toward the kitchen to investigate. As she neared the dining room, Mrs. Sykes encountered an intruder carrying an ax and a sledgehammer. The man was wearing a blanket with a hole cut into it over his body, and he had a scarf covering his face up to the tip of his nose. T.34-36, 93-94. Mrs. Sykes recognized the blanket as one that had been in her car which was parked in the driveway; she also realized that the ax and sledgehammer had come from their garage. T.36-37.
The intruder yelled at Mr. and Mrs. Sykes to give him their money. Id. Mrs. Sykes testified that she was in "total disbelief" that a robber had entered their home. She stated that she concentrated on observing the intruder's partially covered face, thinking that perhaps it was someone she knew playing a bad joke on her and her husband. T.43. As events progressed, however, it became clear that this was not some kind of prank.
The robber walked behind Mr. Sykes, placed the axe above Mr. Sykes' head, and threatened, "I'll kill him!" Mrs. Sykes responded, "I believe you," and grabbed the dog in an attempt to keep her quiet. Mrs. Sykes testified that she was standing but three to four feet away from the intruder as he brandished the axe over her husband's head. Mrs. Sykes explained that the area in which they were all located was well lit, and that the intruder was looking directly at hear as he menaced Mr. Sykes. T.33, 37.
Mr. Sykes informed the intruder that his money was in his wallet, located in the master bedroom. The three proceeded down the hallway; Mr. Sykes went first, followed by the intruder, and then Mrs. Sykes, who turned on a light in the darkened hallway. The intruder turned around and stared at her from about a foot away. Mrs. Sykes testified that the intruder was only a couple inches taller than her so that when he turned and stared at her, she was looking directly into his eyes. T.37-38, 96-97.
Once they were in the master bedroom, Mr. Sykes and the intruder went into the room, while Mrs. Sykes remained in the hallway with the dog. Mr. Sykes gave the intruder the cash in his wallet, approximately $160. However, he convinced the intruder not to take the entire wallet.
T.39-40, 98-99. After taking a backpack and three watches from Mr. Sykes' dresser, the robber told Mrs. Sykes, "I want your money, too." Mrs. Sykes retrieved her purse which was on a chair in the hallway, and gave the intruder her cash. T.40-41.
The intruder then asked where the telephones were located; they told him that one was in the master bedroom. The robber went back down the hallway and ripped that telephone of the wall. He returned and asked where the other phones were located. Mrs. Sykes testified that she was looking at the intruder's face again, because she still could not believe that this man was inside their house; she was trying to recognize him or determine if she knew him somehow. At that point, the robber said, "Don't look at my face," and Mrs. Sykes looked away. T.42-43. The robber then ripped the kitchen telephone out of the wall and left through the same door he had used to gain access to the house. T.44, 104-05.
Mr. Sykes looked out a window in the kitchen to see if the intruder had left the area. Unable to see him, Mr. Sykes went to a telephone about which they had not informed the intruder and called the police. T.44-45, 105-06.
Mrs. Sykes described the intruder to the police as a "[a] man, light black in color, around five-ten, medium build, and later twenties." Because a portion of the intruder's face had been covered up with a scarf, Mrs. Sykes told the police that she did not feel she could help them create a composite sketch. Mrs. Sykes testified that she believed that in order to assist with a composite sketch, she would have had to have seen the robber's whole face. T.48.
Mrs. Sykes testified that she was in close proximity to the intruder for the entire time he was insider their home, which she estimated to be five to seven minutes. Mrs. Sykes related that during the incident, she focused intently on the intruder's eyes. Mrs. Sykes made an in-court identification of Young as the person who had broken into their home and robbed them. T.46-47.
On cross-examination, Mrs. Sykes admitted that she was unable to identify anyone in a photographic array shown to her just over a month after the crime. T.68-69. (Petitioner was depicted in picture #5 in that array. T.292). Mrs. Sykes testified that the pictures in the photo array did not "seem real" to her and she therefore was not confident in making an identification when she viewed the photo array. T.89.
Mr. Sykes was unable to identify Young as the perpetrator.
The prosecution introduced testimony from Taunja Isaac ("Isaac"), an acquaintance of Young's. Isaac testified that at around the time the Sykes' house was burglarized, she purchased three watches and a pair of binoculars from Young. Isaac described the watches as a Bulova-brand sport watch with a plastic band and waterproof face, a gold watch which was engraved, and a silver watch. The binoculars bore a name tag that read "Sykes". T.130-33. The three watches and the binoculars matched the description of the items stolen from the Sykes' home on March 29, 1991. T.99-100, 111.
About a month after the robbery, a sheriff's investigator met with Isaac hoping to recover some of the property stolen from the Sykes' house. At Investigator Crough's request, Isaac, having previously disposed of the property, attempted to retrieve the watches and binoculars; Isaac was partially successful, recovering the binoculars which she provided to Investigator Crough the next day. T.134, 233-34. At trial, Isaac identified the binoculars introduced into evidence as those she turned over to Investigator Crough. Mr. Sykes identified the binoculars as those stolen from his car. T.112, 136. Although Isaac was cross-examined at length regarding her prior criminal record, ...