Opinion
96-CV-929 (TJM/GLS).
September 1, 1998
THOMAS L. LEE, Petitioner, Pro Se, Oneida Correctional Facility, Rome, New York.
HON. DENNIS C. VACCO, Attorney General of the State of New York, Attorney for Respondent, Department of Law, Of Counsel, JEFFREY M. DVORIN, ESQ., Asst. Attorney General, Albany, New York.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by Chief United States District Judge Thomas J. McAvoy, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed the instant habeas corpus petition on June 12, 1996. This court issued an Order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. fol. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. Respondent has filed his answer, together with the pertinent state court records and a memorandum of law. Petitioner filed a memorandum of law and a traverse in response. (Docket Nos. 15, 16).
The state court records submitted by respondent are listed in the first paragraph of the answer.
Petitioner complains of a judgment of conviction rendered against him on September 28, 1993, in the Onondaga County Court after a jury found him guilty of two counts of attempted robbery in the first degree, two counts of menacing in the second degree, and criminal possession of a weapon in the fourth degree. Petitioner was sentenced to a cumulative indeterminate term of twelve to twenty-four years imprisonment. The Appellate Division, Fourth Department affirmed the conviction on September 30, 1994, People v. Lee, 617 N.Y.S.2d 81 (4th Dept. 1994), and the New York Court of Appeals denied leave to appeal on February 28, 1995. People v. Lee, 648 N.E.2d 803 (1995). Petitioner's subsequent application for a writ of error coram nobis was denied on December 22, 1995. People v. Lee, 636 N.Y.S.2d 963 (4th Dept. 1995).
Petitioner raises two claims in his application for habeas corpus relief. Petitioner alleges that: (1) his due process rights were violated by the admission at trial of identification testimony which resulted from impermissibly suggestive identification procedures; and, (2) he was denied the effective assistance of appellate counsel.
Respondent argues for dismissal of the petition, claiming that petitioner's claims are meritless.
1. Facts:
Petitioner's conviction resulted from an incident that occurred on September 30, 1992, in Syracuse, New York. Claudette Twum, owner and operator of an African-Jamaican grocery store and take-out restaurant on 314 West Onondaga Street, observed a black male enter her place of business at approximately 4:30 p.m. on that date. The man was wearing a dark jacket, loose hood, and dark pants, and had a mustache and "little beard." Upon entering the premises, the man went into the grocery part of the business. Ms. Twum walked to the adjoining doorway between the grocery and the restaurant to see what the man was doing. (Trial Tr. ("T") at 120-22, 175).
The man spent some time sorting through a rack of potato chips while Ms. Twum waited to ring up the sale. When the man approached Ms. Twum at the counter, he started rummaging through his pockets. Then he told Ms. Twum to open the register or he would kill her, and tapped on the counter with the blade of a knife. Ms. Twum said, "Excuse me?" and the man repeated his threat. (T 122-24, 172, 182-83).
Ms. Twum then ran back into the restaurant portion of the business and told two customers that the man had tried to rob her. She grabbed a pot of hot water and threw it at the man as he was about to exit the store. Ms. Twum ran out of the restaurant after the man and saw him run down the street toward a gas station. She then called the police. (T 125, 133-34).
At approximately the same time, a man wearing a two-tone tan and blue jacket with a hood entered the Express Mart/Citgo gas station at 380 West Onondaga Street, where Allen Cast was working as a cashier. The man, who had a knife in his hand, went behind the counter and told Mr. Cast to "open up or I'll kill you." Cast reached for the keys to turn off the register, and the man brought the knife down, scraping Cast's hand. Cast noticed that the knife was a butter knife, grabbed a pipe from behind the counter, and chased the would-be robber from the store. Cast then called the police. (T 211-18).
Investigator Kluge was assigned to investigate the two robbery attempts. (T 249-50). He interviewed Cast and showed Cast a mug book. Cast picked a photograph of petitioner out of the mug book and stated that it looked like the perpetrator, but that it was hard to tell as it was not a very good picture. Cast continued perusing the mug book and eventually picked out another photograph of petitioner. (Suppression Hrg. Tr. ("SH") at 13-14, 16-17).
Kluge interviewed Ms. Twum on the day after the robbery attempt. After Ms. Twum described the incident to Kluge, he showed her photographs from a mug book page of several black males who were between five feet seven inches and five feet eleven inches tall and under the age of 34, one of which had been previously identified by Cast. (SH 6; Copy of Photo Array No. 1). Kluge told Twum that the person who tried to commit the robbery may or may not be on the page, and that if she saw him, she should point him out. Ms. Twum indicated that the photo located in position number two (petitioner's photo) looked like the perpetrator, but she couldn't be sure. (SH 6-7).
On October 6, 1992, Kluge spoke with Ms. Twum again and showed her another photo array, which included Polaroid photographs of petitioner and five others. Kluge told Twum that the perpetrator may or may not be on the sheet of photos. Within a minute, Ms. Twum pointed to petitioner's photo in position number two as the person who had tried to rob her. (SH 9-11; Copy of Photo Array No. 2).
On March 12, 1993, Investigator Carol Sacco of the Onondaga County District Attorney's Office conducted a line-up for Ms. Twum in the Public Safety Building. Ms. Twum positively identified petitioner as the man who tried to rob her. (SH 31, 34).
2. Identification Procedures:
In ground one of the petition, petitioner alleges that his due process rights were violated by the admission at trial of identification testimony which resulted from impermissibly suggestive identification procedures
Under the Fourteenth Amendment's due process clause, eyewitness identification evidence is unreliable and must be suppressed "if suggestive identification procedures have led to `a very substantial likelihood of irreparable misidentification.'" Dickerson v. Fogg, 692 F.2d 238, 244 (2d Cir. 1982) (quoting Manson v. Brathwaite, 432 U.S. 98, 116 (1977) and Simmons v. United States, 390 U.S. 377, 384 (1968)). For example, "[a] photo array is improperly suggestive if `the picture of an accused, matching descriptions given by the witness, so stood out from all of the other photographs as to suggest to an identifying witness that [that person] was more likely to be the culprit.'" United States v. Eltayib, 88 F.3d 157, 166 (2d Cir. 1996) (quoting United States v. Thai, 29 F.3d 785, 808 (2d Cir. 1994)). See also Neil v. Biggers, 409 U.S. 188, 198 (1972); Simmons v. United States, 390 U.S. 377, 384 (1968).
Evaluation of identification evidence obtained from a pre-trial identification procedure involves a two-step inquiry. First, it must be determined whether the identification process was impermissibly suggestive. If so, in-court identification testimony will still be admissible if, considering the totality of the circumstances, the court considers such testimony to be independently reliable. United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (citations omitted); Fletcherv. Mann, 956 F. Supp. 168, 171 (N.D.N.Y. 1997). "Even grossly suggestive procedures will not require suppression of a witness'[s] identification testimony if it is clearly reliable, independent of improper procedures." Styers v. Smith, 659 F.2d 293, 297 (2d Cir. 1981). See also Neil v. Biggers, 409 U.S. 188, 198-200 (1972); Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998).
In the present case, the Appellate Division found that different photographs of petitioner were used in the two arrays shown to Ms. Twum. The court further found that in the second array, although petitioner was wearing a dark jacket similar to the one described by Ms. Twum, the jacket was not so distinctive as to single out petitioner, especially as two other men in the second array were also wearing dark jackets. After reviewing a photograph of the lineup, the Appellate Division found that the lineup consisted of five males similar in age, height and body type. People v. Lee, 617 N.Y.S.2d 81 (4th Dept. 1994).
Determinations of factual issues made by a state court are presumed to be correct. 28 U.S.C. § 2254(e)(1). However, the presumption applies only to "matters of `historical fact' and to factual inferences to be drawn from the historical facts," although it applies to the findings of state appellate courts as well as state trial courts. Ventura v. Meachum, 957 F.2d 1048 (2d Cir. 1992) (citations omitted); see also, Boles v. Senkowski, 878 F. Supp. 415, 420 n. 2 (N.D.N Y 1995). Thus, the court must accept the Appellate Division's findings of fact, but must draw its own legal conclusions as to whether the photo arrays and lineup in this case were impermissibly suggestive.
In evaluating the likelihood of misidentification, the court must consider the following factors: (1) the opportunity the witness had to view the suspect at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the suspect; (4) the level of certainty demonstrated by the witness; and, (5) the length of time between the crime and the identification. United States v. Eltayib, 88 F.3d at 167; Neil v. Biggers, 409 U.S. at 199-200. Ms. Twum had an ample opportunity to view petitioner while he was sorting through a rack of potato chips a short distance away from Ms. Twum, and while he rummaged through his pockets while standing before Ms. Twum at the counter. (T 122, 125-26, 172). The store was well-lit and nothing obstructed Ms. Twum's view of petitioner. (T 142). Ms. Twum also demonstrated a high degree of attention by looking directly at petitioner during the attempted robbery while petitioner stared back at her, and looking directly at petitioner's face when he repeated his threat to kill her. (T 126-27, 177, 187). The state court records do not contain Ms. Twum's initial description of the suspect, so it is impossible to determine the accuracy of the description. Although Ms. Twum's identification of petitioner during the first photo array was tentative, she demonstrated a high level of certainty in identifying petitioner in the second photo array and in the lineup (SH 10-11, 34), and testified that she had "no doubt" that petitioner was the man who tried to rob her. (T 126, 127, 140-42). In addition, Ms. Twum's first definitive identification of petitioner, in the second photo array, occurred just six days after the crime, while her identification of petitioner in the lineup occurred approximately six months later. (SH 9; Lineup Tr.).
The absence of a prior description by the witness does not necessarily render her subsequent identification suspect. United States v. Concepcion, 983 F.2d 369, 377-78 (2d Cir. 1992).
Ms. Twum's uncertainty was apparently due to difficulty discerning the amount of facial hair petitioner had in the photograph. (SH 19-20).
A long length of time between the crime and the confrontation may be outweighed by other indicia of reliability. United States v. Wong, 40 F.3d at 1360. See also United States v. Eltayib, 88 F.3d at 167 (identification occurring ten days after crime is not probative either for or against reliability).
The court has reviewed copies of the photo arrays included in the state court records. Despite the poor quality of the copies, it does not appear that petitioner's picture stands out from the other photographs in any way that would have suggested to Ms. Twum that petitioner was more likely to be the culprit. Moreover, each time Investigator Kluge showed Ms. Twum the photo arrays, he stated that the suspect's photo may or may not be in the array, and did not suggest a particular photo to Ms. Twum. (T 7, 10-11).
Based upon all of the above, this court finds, as a matter of law, that the photo arrays and lineup were not impermissibly suggestive. Ground one of the petitioner is without merit and must be dismissed.
3. Assistance of Appellate Counsel:
In ground two of the petition, petitioner claims that he was denied the effective assistance of appellate counsel. Petitioner alleges that appellate counsel failed to raise an ineffective assistance of trial counsel claim on direct appeal.
A claim of ineffective assistance of appellate counsel is sustainable only if counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that absent counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686 (1984); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992) (citation omitted), cert. denied, 113 S.Ct. 2347 (1993). In applying this test, a reviewing court must be "highly deferential" and presume that counsel's conduct falls within the range of reasonable performance. Strickland, 466 U.S. at 689. Tactical decisions made after thorough investigation are "virtually unchallengeable," Id. at 690, and appellate counsel need not raise every non-frivolous issue requested by the defendant. Jones v. Barnes, 463 U.S. 745, 754 (1983).
Petitioner alleges that trial counsel failed to seek dismissal of the charges related to the attempted robbery of the gas station based upon Allan Cast's inability to identify petitioner at a pretrial hearing. However, Cast was not called upon to identify petitioner at trial. Cast did provide circumstantial evidence of petitioner's identity in the form of testimony related to the clothing the suspect was wearing and some of his facial characteristics, but petitioner's trial counsel thoroughly cross-examined Cast and argued in summation that Cast's perceptions were inaccurate. (T 207-38). Trial counsel sought suppression of Ms. Twum's identification testimony in a pretrial suppression hearing, cross-examined prosecution witnesses, and made numerous objections and motions during trial. In closing arguments, trial counsel attempted to persuade the jury that Ms. Twum was mistaken in her identification of petitioner, that no other evidence connected petitoner to the crimes, and that the evidence presented the prosecution left at least a reasonable doubt as to petitioner's guilt.
Nothing in the state court records suggests that the performance of petitioner's appellate counsel fell below an objective standard of reasonableness in failing to raise an ineffective trial counsel claim. Nor is there a reasonable probability that such a claim would have succeeded. Ground two of the petition is without merit and should be dismissed.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.