Waterman and Friendly, Circuit Judges, and Zampano, District Judge.*fn*
This appeal by a state prisoner presents the question whether a stationhouse identification, alleged and here found to have been made under circumstances that were unduly suggestive, requires a conviction obtained in part on the basis of a subsequent court-room identification to be set aside in federal habeas.
Petitioner Robert Phipps was convicted in the County Court of Nassau County, New York, of burglary in the third degree, petit larceny, and possession of burglars' tools. The Appellate Division affirmed without opinion, 31 A.D.2d 1007, 300 N.Y.S.2d 296 (2d Dept. 1969), and leave to appeal to the Court of Appeals was denied.
As a result of notice by the prosecutor that he intended to rely on an identification to be made by the victim after show-up not conforming to Wade requirements, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), the court conducted a pre-trial hearing with respect to possible taint.*fn1 The witness, Allen Mattson, lived in a back room of the service station that had been robbed. He testified he had been awakened in the early morning hours of February 2, 1967, by the sound of some coins hitting the floor. He opened the door leading from his room to the lighted sales office of the service station and was confronted by Warren Edwards, a co-defendant who pleaded guilty. A struggle ensued during which Mattson pushed Edwards over a snowplow and got on top of him. At this point Edwards yelled "Phipps, Phipps, Phipps." A moment later another man entered through the broken lower panel of a wooden door. Mattson observed him try to wedge himself through this small opening some 10 feet away, crawl through the door and stand up inside the office. When the man picked up a sledge hammer, Mattson released Edwards. The second man then backed out through the opening in the door, with Edwards following. Mattson observed the man for 20 or 30 seconds, during part of which he was struggling with Edwards. He then called the police and gave them a description.
An hour later Mattson was called to the station-house and shown two men who were said to be suspects. The men, both black, were in a small room along with some police officers. One was Edwards, the other Phipps; Mattson identified both. He next saw Phipps at a preliminary hearing in a state court and again identified him as one of the burglars. He encountered Phipps at the pre-trial hearing and repeated the identification. He there testified that he recognized Phipps "through" three previous encounters -- in the service station, at the police precinct, and at the preliminary hearing, but also that his identifications were not "because" of having seen Phipps at the station-house.
The state judge concluded that the station-house identification "was unfair and was a violation of defendant's constitutional rights." We cannot quarrel with that. Mattson had had a good, long look at Edwards and knew that both of the burglars were Negroes. When Phipps, a Negro, was displayed with Edwards shortly after the crime, the danger that Mattson would transfer the assurance of his recognition of Edwards to Phipps was great, and the danger could readily have been avoided. However, the judge further held that the People had sustained the burden "of showing that the identification by the witness of the defendant in the police station did not affect his or did not taint his original observation of the defendant so as to make his testimony as to the original identification of the defendant inadmissible for consideration of the jury at the trial." Mattson repeated his identification at trial and adhered to it despite a number of rather minor inconsistencies developed by defense counsel. Other damaging testimony was given by Edwards and police officers who had apprehended Edwards and Phipps; we will recount this at the end of this opinion.
On a petition for federal habeas the district judge, after reading the state record, concluded that the finding of lack of taint "is amply supported by the record and is, therefore, binding on the court," citing Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). Indeed, he thought the finding "compels the conclusion that relative to the in-court identification the 'show-up' was not so 'impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,'" quoting from Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). Accordingly he dismissed the petition but granted a certificate of probable cause.
Since the show-up here antedated United States v. Wade, supra, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), the governing principle is that enunciated on the same decision day in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). That is whether petitioner "is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law."*fn2 Although at first sight this test seems fairly simple and straightforward, it has given rise to difficult problems, many of which are discussed in the searching opinions of Judges McGowan, Leventhal and Wright in Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (in banc, 1968), cert. denied, 394 U.S. 964, 89 S. Ct. 1318, 22 L. Ed. 2d 567 (1969).
As was recognized by all the judges in that case and by the state judge here, the required inquiry is two-pronged. The first question is whether the initial identification procedure was "unnecessarily" [ Stovall ] or "impermissibly" [ Simmons ] suggestive. If it is found to have been so,*fn3 the court must then proceed to the question whether the procedure found to have been "unnecessarily" or "impermissibly" suggestive was so "conducive to irreparable mistaken identification" [ Stovall ] or had such a tendency "to give rise to a very substantial likelihood of irreparable misidentification" [ Simmons ] that allowing the witness to make an in-court identification would be a denial of due process. The only Supreme Court decision that has ruled out an in-court identification on this basis is Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969);*fn4 see also Biggers v. Tennessee, 390 U.S. 404, 88 S. Ct. 979, 19 L. Ed. 2d 1267 (1968).
The instruction that resolution of this issue "depends on the totality of the circumstances," 388 U.S. at 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 although probably as good a start as could have been made, does not instruct very much. There can be no doubt that, once a witness has made an identification, the image of the person identified will remain in his mind to some degree. Yet the Supreme Court, knowing this quite as well as we do, recognized that the witness would not necessarily be prevented from saying in court that the defendant was the man. The effort must be to determine whether, before the imprint arising from the unlawful identification procedure, there was already such a definite image in the witness' mind that he is able to rely on it at trial without much, if any, assistance from its successor.*fn5 See United States v. Wade, supra, 388 U.S. at 241, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. In making this subtle determination much will depend on the witness' initial opportunity for observation and also on whether he was motivated to make a careful observation of the perpetrator. A person unaware that a crime is being committed, see Wall, Eye-Witness Identification in Criminal Cases 125-27 (1966), or even perhaps a bystander who knew that one had been, would have less of a desire to seek out and retain such an image than would the victim. Quick and sure identification at the first exposure also affords some, although by no means conclusive, evidence of the definiteness of the earlier image. See United States v. Ayers, 426 F.2d 524 (1970). On the other hand, initial uncertainty would tend, although again not conclusively, to a fear that the witness was relying on the image formed at the legally impermissible confrontation. See Wall, supra, at 113-19. Lapse of time between the crime and the confrontation is also important; the longer the interval, the greater the dangers that the initial image will have dimmed and that the second image will play a significant role. Also, a long interval between the initial observation and the trial coupled with an improper confrontation a comparatively short time before the witness appears in court enhances the danger that he may be relying on his most recent encounter. And there is always the question how far in-court identification is affected by the witness' observing the defendant at the counsel table. Mere statement of these difficulties indicates what great weight must be given to the determination of the judge who saw and heard the witness. See Clemons v. United States, supra, 133 U.S.App.D.C. 27, 408 F.2d at 1241-1242, 1246. As said by Judge Leventhal, speaking also for Judge Burger, as he then was, "these matters are properly to be resolved by the trial judge, at least in the first instance, and * * * appellate resolution marks the rare exception," 133 U.S.App.D.C. 27, 408 F.2d at 1252. The same principle must apply in federal habeas.
Under these principles we see no basis for rejecting the conclusion of the state judge that Mattson was able to identify Phipps through his encounter at the service station rather than in the police station. Mattson was a prospective victim of an assault, not a mere bystander. There was time enough for the second burglar's image to become indelibly seared in his memory. His 20 to 30 second observation was much more than a fleeting glance, as anyone who watches the second hand of a clock sweep by for that period can attest. Mattson never entertained the slightest doubt about the identity of the second man. When he saw Phipps only an hour or so after the burglary, he immediately identified him, as he was to do on three later occasions. All this distinguishes the case sharply from Foster v. California, supra, on which Phipps heavily relies. There, after seeing the defendant in a suggestive lineup followed by a face-to-face confrontation, the witness still could not be sure the defendant was the right man and became convinced only after another misleading lineup a few days later. The Court considered it incredible that a witness who had been through this experience could make an in-court identification free from the taint of what had gone before.
We are fortified in affirming the denial of the writ by the abundant other evidence that Phipps was the right man. Edwards*fn6 told in great detail how he had recruited Phipps as a collaborator and what they had done. He corroborated Mattson's testimony that he had thrice called out "Phipps" for help.*fn7 Mattson observed the "second man" to be wearing a black coat; Phipps was wearing one on his arrest less than an hour later. Mattson saw Edwards and the "second man" drive away in a 1960 Buick convertible; shortly thereafter the police stopped such a car and discovered Edwards and Phipps in it. A police officer found a quantity of small bills and change in Phipps' coat pocket. In short this was not at all a case where the prosecution depended upon an identification alone or almost so.
We need not here decide whether such other evidence can be considered in determining whether the in-court testimony was "conducive to irreparable mistaken identification" (emphasis supplied), as Judges Leventhal and Burger seem to have thought in Clemons, 133 U.S.App.D.C. 27, 408 F.2d at 1251; whether such evidence can be considered only as demonstrating harmless constitutional error, as defined in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) and Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); or whether in a case like this where the confrontation was pre- Stovall but the trial post- Stovall, the less stringent test of Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), should be applied, as Judge Wright has proposed for pre- Stovall trials, ...