Opinion
04 Civ. 1416 (LAP)(JCF).
January 25, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE LORETTA A. PRESKA, U.S.D.J.
Luis Valentine brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction for Manslaughter in the First Degree. He argues that he was denied his Fourteenth Amendment due process rights by the trial court's failure to suppress evidence derived from a suggestive lineup procedure. Specifically, he alleges that during the lineup, the filler seated to his right, a police officer, pointed at him. For the reasons discussed below, I recommend that the petition be denied.
Background
During the early morning hours of June 22, 1996, Luis Burgos, his brother, and his cousin were drinking beer outside near the corner of 114th Street and Lexington Avenue in Manhattan, when a fight broke out between Mr. Burgos and the petitioner. (Tr. at 62, 148, 153-55, 157). After Mr. Burgos' brother intervened, the petitioner grabbed a gun and shot Mr. Burgos, who later died from his wound. (Tr. at 148).
"Tr." refers to the transcript of the suppression hearing.
Detective Domingo Barletta commenced an investigation of the Burgos homicide later that morning. (Tr. at 135, 154-55). He interviewed Mr. Burgos' brother, and then his cousin. (Tr. at 135-36). The brother stated that the shooter had a tear drop tattoo under his right eye, and that he recognized him as someone he had seen around the neighborhood during the four months prior to the crime. (Tr. at 158-59). The cousin described the shooter as "Male Hispanic, light skin, 18 to 19, five foot eight, 160 pounds, black moustache and goatee." (Tr. at 158).
The petitioner's tattoo is, in fact, under his left eye. (Respondent's Memorandum of Law and Appendix in Support of Declaration Opposing Petition for a Writ of Habeas Corpus ("Resp. Memo.") at 4 n. 2).
After the interviews, Detective Barletta showed the witnesses five binders containing photographs of possible perpetrators. The petitioner's photograph was not among those in the binders. Neither witness identified any of the photographs as resembling the shooter. (Tr. at 67-68). Several hours later, Detective Barletta showed each witness an array of six photographs (the "photo array"), including a photograph of the petitioner. (Tr. at 63-66, 135, 166-67). This time both men identified the petitioner as Mr. Burgos' shooter. (Tr. at 66-67).
The petitioner was arrested in Brooklyn almost two years after the shooting when he was recognized on the basis of a wanted poster. (Tr. at 7-16). While in custody, he participated in a lineup conducted by Detective Barletta. (Tr. at 81-88). There were five fillers in the lineup, two of whom were police officers. (Tr. at 84). The witnesses to the lineup were Mr. Burgos' brother and cousin. (Tr. at 81-82). Both men identified the petitioner from the lineup without hesitation. (Tr. at 86-88).
On April 9, 1998, the New York County District Attorney's office indicted the petitioner on one count of Murder in the Second Degree, one count of Criminal Possession of a Weapon in the Second Degree, and one count of Criminal Possession of a Weapon in the Third Degree. (Resp. Memo., Exh. A). Mr. Valentine subsequently moved to suppress statements that he made to the police, as well as the identification evidence derived from the lineup and the photo arrays. (Tr. at 435; Resp. Memo. at 2).
Supreme Court Justice James Yates conducted a suppression hearing on January 10, 2000. During the hearing, the prosecutor asked Detective Barletta to identify three photographs he had taken of the lineups. Barletta testified that the photographs "fairly and accurately depict[ed] the way the lineup looked when the witnesses viewed it." (Tr. at 85). During her closing argument, defense counsel raised, for the first time, the fact that the lineup photographs showed the filler who was seated to the petitioner's right, a police officer, pointing directly at him. (Tr. at 433-35). The prosecutor asserted that the filler was not pointing, and that it was "just the way he has his hand in his lap." (Tr. at 446-47). Neither party attempted to develop the record further. Justice Yates denied the suppression motion by oral decision on February 10, 2000. (Tr. at 451-60; Resp. Memo. at 2). With respect to the lineup evidence, he stated that he "had no reason to believe the prank of the officer during the time that the photos were taken was repeated in front of the witnesses." (Tr. at 459-60).
On May 18, 2000, the petitioner pled guilty to Manslaughter in the First Degree in violation of New York Penal Law § 125.20(1). He was sentenced to an indeterminate prison term of from twelve and one-half to twenty-five years. (Transcript of Plea Proceeding at 2; Resp. Memo. at 1-2). The petitioner subsequently appealed his conviction to the Appellate Division, First Department, arguing that Justice Yates had erred in denying the motion to suppress. (Brief for Defendant-Appellant, attached as Exh. B to Resp. Memo.). On January 23, 2003, the Appellate Division found that petitioner's suppression motion had been properly denied, and affirmed the conviction. People v. Valentine, 301 A.D.2d 450, 753 N.Y.S.2d 368 (1st Dep't 2003). Leave to appeal to the Court of Appeals was denied on April 17, 2003. People v. Valentine, 99 N.Y.2d 659, 760 N.Y.S.2d 124 (2003). Mr. Valentine then filed the instant petition.
Discussion
Prior to passage of the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), factual findings made by a state court after an evidentiary hearing were presumed correct in a federal habeas proceeding, but federal courts were not required to defer to state court determinations of law and of mixed questions of law and fact. See Thompson v. Keohane, 516 U.S. 99, 107-12 (1995); Brown v. Artuz, 283 F.3d 492, 497 (2d Cir. 2002). Under the AEDPA, however, a writ of habeas corpus may not issue "with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
A decision is contrary to clearly established Federal law if it "contradicts the governing law" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from" the Supreme Court. [Williams v. Taylor, 529 U.S. 362,] 405-06 (2000). An unreasonable application of federal law is more than an incorrect application, but the petitioner need not show that all reasonable jurists would agree that a state court determination is incorrect in order for it to be unreasonable. Id. at 409-12. Instead, a federal court should review a state court's interpretation of federal law using a standard of objective reasonableness. Id. at 409. Objective unreasonableness includes an unreasonable refusal "to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d 36, 45 n. 2 (2d Cir. 2002). The "increment of incorrectness beyond error . . . need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002).
The AEDPA standard applies to this case since Mr. Valentine filed his petition after the Act's effective date. See Brown, 283 F.3d at 498 n. 2. However, as his claim fails under the less deferential pre-AEDPA standard, there is no need to conduct the AEDPA's more intricate analysis. Cf. Kruelski v. Connecticut Superior Court for the Judicial District of Danbury, 316 F.3d 103, 106-07 (2d Cir. 2003) (suggesting, in post-AEDPA cases, that habeas courts assess first whether state court's ruling was erroneous under "correct interpretation" of the federal law at issue, then whether the ruling was unreasonable).
The petitioner maintains that he was denied due process by the trial court's decision to admit the lineup evidence. Specifically, he argues that the trial court's decision to admit the evidence on the ground that the officer's "prank" could not have occurred in the witness' presence was not supported by the record. While the petitioner is correct, his claim nevertheless fails because the identification evidence was independently reliable and its admission was therefore constitutional.
The Supreme Court has established a two-part test for the constitutional validity of identification testimony. First, a court must determine whether the procedures used to obtain the initial identification were "so suggestive as to raise `a very substantial likelihood of irreparable misidentification.'" United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (quoting Jackson v. Fogg, 589 F.2d 108, 111 (2d Cir. 1978)). Second, if the procedure is suggestive, the evidence may nevertheless be admitted if the identification is independently reliable. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers, 409 U.S. 188, 199-200 (1972); Wong, 40 F.3d at 1359.
The record establishes that the lineup was impermissibly suggestive. The lineup photographs were introduced into evidence by the prosecution as fairly and accurately representing the lineup at the time it was viewed, and there is nothing in the record to show that the misconduct evident in those photographs did not occur in the witness' presence. Although the trial court and Appellate Division reached the opposite conclusion, those determinations were entirely speculative. It was the prosecution's burden under state law to establish the reasonableness of the identification procedures employed, People v. Jackson, 98 N.Y.2d 555, 559, 750 N.Y.S.2d 561, 564 (2002); Valentine, 301 A.D.2d at 450, 753 N.Y.S.2d at 368, but the prosecutor made no attempt to develop the record with respect to when the conduct documented in the photographs occurred. And, while the factual determinations of the trial court and Appellate Division are entitled to a presumption of correctness, 28 U.S.C. § 2254(e)(1), that presumption may be rebutted where, as here, there is no factual support in the record for the court's determination.Morris v. Reynolds, 264 F.3d 38, 47 (2d Cir. 2001); see also 28 U.S.C. § 2254(e) (presumption of correctness may be rebutted by "clear and convincing evidence").
Yet, even though the lineup was impermissibly suggestive, the identification was properly admitted because it was independently reliable. Independent reliability is measured by the factors set out inBiggers. These include: (1) the witness' opportunity to view the defendant at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witnesses at the time of the confrontation; and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200; see also Manson, 432 U.S. at 114.
In this case, both witnesses had an opportunity to view Mr. Burgos' shooter during the fight. Both also identified the petitioner in the lineup without hesitation, despite the passage of a significant period of time. The chances of misidentification were minimal both because Mr. Valentine's tear drop tattoo is distinctive and because Mr. Burgos' brother recognized the petitioner from seeing him around the neighborhood during the months prior to the homicide. Finally, and perhaps most importantly, both witnesses had previously identified Mr. Valentine as the shooter approximately 12 hours after the crime occurred after seeing his picture in a photo array.
Accordingly, while the trial court erred in concluding that the lineup was not suggestive, its refusal to suppress the identification evidence was sound, and the petitioner's claim must therefore be denied. Conclusion
For the reasons set forth above, I recommend that the petitioner's application for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copes delivered to the chambers of the Honorable Loretta A. Preska, Room 1320, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.