Appeal from grant of habeas corpus by the United States District Court for the Western District of New York, John T. Elfvin, Judge, on basis that concededly inadmissible eye-witness identification testimony was not harmless constitutional error. Affirmed.
Oakes and Winter, Circuit Judges, and Metzner, District Judge.*fn*
This appeal by the State is from the grant of a writ of habeas corpus by the United States District Court for the Western District of New York, John T. Elfvin, Judge. Concededly, identification testimony admitted against the habeas petitioner, Michael Kampshoff, in his trial for murder and other charges pertaining to the death of his aunt was erroneously admitted into evidence. The evidence was obtained though procedures disapproved as suggestive and unconstitutional in United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), and Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). See also Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). The sole question we have on appeal is whether the constitutional error was harmless or not under Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), and progeny.
We take our basic statement of the facts from the opinion of the Appellate Division in People v. Kampshoff, 53 A.D.2d 325, 385 N.Y.S.2d 672 (1976):
On February 17, 1973 Mrs. Gladys Kampshoff, age 71, was found by a neighbor dead in the garage attached to the home occupied by her alone at 2797 Tonawanda Creek Road, Amherst, Erie County. Her body was partially frozen. A makeshift blindfold and mouth gag were found taped to her face and the body was in a prone position next to the left rear wheel of her automobile. A board was lying partially on her head and a large monkey wrench was lying over one shoulder. While looking for her the neighbor saw the telephone off the hook and found all doors allowing access to the house secured and locked except a garage car door. The television set was on. Telephone Company records showed that the receiver was taken off the hook somewhere between 3:30 and 4:00 p.m. on February 16. The County Medical Examiner was called to Mrs. Kampshoff's residence February 17 and he confirmed the earlier finding of the location and appearance of the victim's body. The cloth binding around the deceased's head was held by an unusual tape used in surgery for binding the closures in operations. He stated that all four extremities of the victim were frozen. There was evidence of bleeding from the rear of the skull and black and blue marks and reddish marks appeared around her left eye and left temporal region. There was a linear wound across and underneath the angle of her jaw and contusions and abrasions to her forehead. There was a superficial laceration in the neck area and two stab wounds on the left side of the chest. The victim's breast bone was fractured and there were many broken ribs. The victim had a tear in the mesentery approximately four inches in length. The cause of death was given as due to multiple abdominal and chest trauma with hemorrhage, multiple trauma to the head and penetrating stab wounds of the left pleural cavity and lung.
The principal narrative of the events leading up to and surrounding the alleged crimes was given by Warren Strodel, an admitted accomplice of defendants who had been granted immunity. It was his testimony that on February 12 he met with the two defendants to discuss plans for the robbery. Defendant Kampshoff told him that he believed his aunt, Mrs. Kampshoff, had between $50,000 and $75,000 in her home. Kampshoff did not want his aunt to see his face. He wanted her subdued as gently as possible, overpowered, taken to another room and tied, so that Kampshoff could look for the money. In pursuance of the plan, on February 16 Strodel told Kampshoff to pick up defendant Jordan and make sure that he had tape and gloves. Kampshoff left and returned with Jordan, and Strodel asked Kampshoff if he had gotten the tape and Kampshoff said he had. Kampshoff and Jordan got into a beige two-door Cadillac with Strodel. Jordan had an attache case to use as a salesman's prop to assist in gaining access to Mrs. Kampshoff's home and Kampshoff had a gym bag. They also had a pellet gun and darts. Jordan had a bulky light sweater on and Kampshoff a brown coat. Both defendants had shoulder-length hair. They observed children playing hockey across the street from Mrs. Kampshoff's home, and passed the house once. It was then between 2:00 and 2:30 p.m. One of the defendants stated that the presence of the children would make no difference and they approached the house a second time and stopped. Jordan got out of the car, Kampshoff gave him some tape and he and Kampshoff drove ahead a distance. They saw Jordan ring the bell, wait a few moments and then walk around to where the garage doors were located. They then drove around and when they returned they did not see Jordan outside the house. Ten minutes from the time they dropped Jordan off they returned to the house and Strodel let Kampshoff off. Kampshoff took the gym bag with him and he saw him go around the corner of the house where the garage doors were located. He then drove around and passed the house every five minutes until 25 minutes had elapsed. At that time he pulled up in front of the house and, as a prearranged signal discussed several times with both defendants he fired a.22 caliber dart with blue feathers at a large window in the corner of the house. He then drove on, turned around and stopped just past the house. Both defendants, Kampshoff with a brown gym bag and Jordan with an attache case, then got back into the car. Jordan had a knife with him. Kampshoff got in first and said, "I think she's dead. He did a number on her." Strodel asked Jordan why he hit her and Jordan said that she wouldn't be quiet. He cut the victim to scare her. Kampshoff said that his aunt was lying on the floor of the garage and looked in pretty bad shape, and that if she was not dead already she probably would freeze to death. He left the phone off the hook because a busy signal would not be as suspicious as a failure to answer. The money they expected wasn't there and upon returning to Strodel's home they went through the contents of the gym bag and found that contained papers, music sheets, bills, cancelled checks, some government checks and $40 in cash. The money was divided and Strodel suggested that they burn the bag and its contents.
Id. at 327-29, 385 N.Y.S.2d at 675-76.
At trial the eyewitness testimony of Philip Heimiller, age fourteen, was admitted. It is the identification testimony of this witness which, it is conceded, was unconstitutionally obtained. Philip Heimiller testified that he was playing hockey on February 16 on a creek across from Mrs. Kampshoff's house about 130 feet away when at about 2:15 or 2:30 p.m. he saw a car stop and a man with long brown hair, wearing a three-quarter-length brown coat and carrying a brown gym bag exit from the car and walk to Mrs. Kampshoff's driveway. About fifteen to thirty minutes later he saw the same man run around the same car and enter it. He saw the man between fifteen and twenty seconds the first time and about ten seconds the second time. At trial he identified the defendant Kampshoff as the man he saw and a burned gym bag produced by the State as looking like the bag that man was carrying. As Judge Elfvin found,
Philip, who was twelve years old at the time of the Kampshoff homicide, was engaged in play with his companions while the crime was being committed. He saw the man whom he identified as petitioner from a distance of about 130 feet on two occasions lasting between 10 and 20 seconds each and separated by 15 to 30 minutes. W, Vol. I, pp. 111-118; People v. Kampshoff, supra, 385 N.Y.S.2d at 678. On the first occasion he had no clear view of the man's face, and on the second occasion he viewed him frontally for no more than five seconds. T, Vol. II, pp. 1100-1101. His attention to the man was very casual; he did not regard his sighting of him as unusual in any way, or speak of it to anyone until news of the crime committed in the nearby Kampshoff residence surfaced. W, Vol. I, pp. 110-111, 120-122; T, Vol. II, pp. 1098-1099. Cf., Manson v. Brathwaite, supra, 432 U.S. at 115. The prior description that Philip gave the police cannot be characterized as highly accurate -- a man, about twenty years old, having long brown hair, wearing a medium-brown three-quarter length jacket. W, Vol. I, pp. 125-126. Philip's level of certainty in the identification was quite low. Although he unequivocally stated on direct and cross-examination that petitioner was the man he saw (T, Vol. II, pp. 1103, 1148-1149, 1152), he also testified that he could not say for certain that the man he viewed on the two brief separate occasions was the same person each time (id. at 1143), that he was not certain six months after the incident that that man was petitioner, although he was certain at trial (id. at 1146, 1149-1151), and that in fact he could at most state only that the petitioner "looked like" the man he saw, not that he was certain that the two are one and the same person (id. at 1244-1246). As to the final Biggers factor, the lapse of two weeks is ample time for memory of such a casual, brief and distant observation of an individual to fade and be subject to replacement by a plausible substitute suggested by the police. Cf., Manson v. Brathwaite, supra, 432 U.S. 98, 116.
I note further that there was no apparent urgency necessitating use of a suggestive identification procedure, which the cases suggest may sometimes excuse the use of such procedures.
Kampshoff v. Smith, No. Civ.-80-1037E, Memorandum and Order at 6-8 (W.D.N.Y. July 6, 1982) (footnotes omitted).*fn1
On the question of harmless error, the Appellate Division observed that Philip's testimony "certainly tended to corroborate the testimony of the accomplice Strodel as to the identity of defendant Kampshoff." 53 A.D.2d at 335, 385 N.Y.S.2d at 678. The Appellate Division further observed that "clearly the accomplice testimony of Warren Strodel was the critical evidence introduced against both Kampshoff and [codefendant] Jordan," id. at 338, 385 N.Y.S.2d at 682, and proceeded to imply that Philip Heimiller's identification testimony was the strongest evidence corroborating Strodel: "Kampshoff was placed at the scene of the crime by Philip Heimiller's in-court identification testimony, which also corroborated the testimony of Strodel." Id.
Judge Elfvin referred to the Chapman harmless error test that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. at 24. He noted that while uncorroborated accomplice testimony may constitutionally provide the exclusive basis for a criminal conviction, it is better for the courts to caution juries against too much reliance upon such testimony and to require corroborating testimony, Caminetti v. United States, 242 U.S. 470, 495, 61 L. Ed. 442, 37 S. Ct. 192 (1917), which in fact is required under the law of the State of New York. Even without such a rule, a jury would be inclined to look carefully for evidence to corroborate the testimony of Strodel, a borderline psychotic and an abuser of phenothiazine drugs who admitted on the stand to having ...