As I mentioned in my last District Court Review post, an MJ out in WDNY has issued three habeas grants so far in 2011. This is number 3. It's an enjoyable read as the MJ not only finds that the state court decisions were unreasonable, but points out that the Court of Appeals completely whiffed on the Wade issue.
- Habeas Granted
- Lower Ct. Info: 07-CV-6047, 2011 WL 240578 (WDNY Jan. 27, 2011)
- Issue: Improper admission of tainted identification evidence
- Notes: parties consent to proceed before MJ; pro se petitioner
ANALYSIS: This was a home-invasion robbery. Two people were in the house at the time, Mr. and Mrs. Sykes. One of the robbers,who was later identified as petitioner, was wearing a scarf that covered the bottom half of his face. Mr. Sykes was never able to identify as this particular robber. After the robbery, Mrs. Sykes told the police that she would not be able to assist them in creating a sketch since she did not see the entire face. She later viewed a photo array containing petitioner but did not identify him as the robber. At a lineup, she identified petitioner as the robber.
On appeal, the Appellate Division reversed the conviction. It held that the lineup was the fruit of an unlawful arrest and should have been suppressed. It ordered an independent source hearing (a hearing at which the prosecution would attempt to show that the victim's in-court testimony had a source independent of the illegal, suppressed lineup identification).
At the hearing, Mrs. Sykes stated that her independent source was the long time that she stared at the perpetrator's eyes during the robbery. The trial court concluded that there was an independent source. Later on appeal, a three-judge majority upheld that conclusion, but a two-judge dissent believed that there was no independent source. The Court of Appeals accepted review of the case, but declined to address the merits of this question, stating that it was a question of fact, which it was not authorized to review. In dissent, one judge did address the merits and stated that there was no independent source.
On habeas review, the MJ states that Wade is the controlling law. Where there has been an illegal lineup, in-court identification testimony is only admissible where the in-court testimony is not an exploitation of the illegality but, instead, is based on means sufficiently distinguisable to be purged of the primary taint.
Here's where the MJ points out a flaw in the Court of Appeals decision. According to the MJ, the Supreme Court in Wade stated that this conclusion is a mixed question of law and fact. He points out that the Court of Appeals was incorrect in deferring to the Appellate Division on this question. However, due to the Court of Appeals failure to address the issue, the MJ stated that he had to look at the Appellate Division's decision to see if that decision was unreasonable.
He concluded that it was. The MJ analyzes the Wade factors -- opportunity to view, discrepancy between pre-lineup descriptions and defendant's description, did the witness identify anyone else as the perpetrator, did the witness identify the defendant from photographs, the eyewitness failed to identify defendant on prior occassion, and lapse of time between incident and identification -- and concludes that they weigh heavily in favor of petitioner. He states that the state court acted unreasonably in concluding otherwise. Further, the error was not harmless.
In fact, the MJ believed that the error was so crucial to the case that, in the remedy section, it BARRED the prosecution from retrying petitioner on the charges. According to the MJ, without the identification, there was not legally sufficient evidence to support the conviction. That's a pretty big step.
Of course, the impact of that is minimized in one crucial way. Petitioner received a persistent felony offender sentence in this case. That sentence is now vacated. However, this sentence was running consecutively to another persistent sentence imposed in a separate case. Thus, petitioner will still have to serve a maximum term of life. But there remains an advantage to petitioner (as far as I can tell) -- he should now be eligible for parole a tad earlier.