Appeal from a judgment of the United States District Court for the Southern District of New York, David N. Edelstein, Judge, granting petition of habeas corpus on the ground that identification of petitioner at her state trial violated due process, See 633 F. Supp. 1403 (1986).
Feinberg, Chief Judge, Newman and Kearse, Circuit Judges.
Respondent Frank R. Headley (hereinafter "the State"), Superintendent of the New York State correctional facility at which petitioner Patsy Kelly Jarrett is imprisoned, appeals from a judgment of the United States District Court for the Southern District of New York, David N. Edelstein, Judge, conditionally granting Jarrett's petition for a writ of habeas corpus on the ground that the identification of Jarrett at her state trial was unreliable and resulted from impermissibly suggestive police and prosecutorial procedures, in violation of her right to due process under the Fourteenth Amendment to the Constitution. See 633 F. Supp. 1403 (1986). The State contends principally that the police and prosecutorial procedures were not impermissibly suggestive and that, in any event, the identification of Jarrett was independently reliable. We conclude that the district court erred in finding that the in-court identification of Jarrett at trial was the result of impermissibly suggestive law enforcement procedures, and we therefore reverse.
In the summer of 1973, Jarrett and her paramour Billy Kelly drove Jarrett's blue Oldsmobile from their hometown in North Carolina to Utica, New York, where the two lived together. They remained in Utica until about the middle of August, when they returned together to North Carolina. In 1977, in connection with events that had occurred in Utica in 1973 about two days before their departure, Jarrett, along with Kelly, was found guilty on two counts of murder, in violation of N.Y. Penal Law §§ 125.25(1) and (3) (McKinney 1975), and two counts of robbery, in violation of N.Y. Penal Law §§ 160.15(1) and (3) (McKinney 1975). Jarrett was sentenced to a prison term of 25 years to life.
A. The Events and Robert Hyland's Initial Statement
In the early afternoon of August 11, 1973, a Seaway gas station near Utica was robbed and its attendant bound and slain. On August 13, 1973, Robert Hyland went to State Police Headquarters in Oneida, New York, and made a sworn statement to Investigator Ronald Hojnacki. As transcribed by Hojnacki and signed by Hyland, the statement described Hyland's observation of the events of August 11 as follows.
At approximately 12:50 p.m. on August 11, Hyland drove into the Seaway station and pulled up to the pumps. Shortly after he got out of his car to look for the attendant, a blue/green car backed around from the side of the station and parked opposite him near the pumps. Hyland described the car's driver as follows:
I am not sure, but I believe the operator was a white female. She had long black shoulder length hair and was wearing dark clothing. . . . Upon moving closer to the gas pumps I observed this female going through items in a brown hexagon type pattern pocketbook. . . . The type of hairstyle that this person had did not allow me to see her face. The girl did have a tan.
A few seconds after the other car had parked, a white male, whom Hyland described in detail, approached Hyland's car, and sold him $5 worth of gas. Hyland paid for his gas, received change, and left the station. The man who sold Hyland gas was not the station's attendant.
B. Hyland's Pretrial Identifications of Jarrett
More than two years later, police matched a latent fingerprint, lifted from the tape that had been used to bind the slain attendant, with that of Billy Kelly. In December 1975, New York State Police Investigator John Ingraham went to Hyland's home and showed him two groups of photographs. From the first array, of males, Hyland selected two pictures, both of Billy Kelly, as the man who sold him gas at the Seaway station on August 11, 1973.
Ingraham then gave Hyland a dozen photographs of females. They bore the notation "New York State Police," one the notation "NY STA," and the one of Jarrett, "Sheriff's Department." The other seven bore no markings. Hyland initially selected two photographs, the one of Jarrett and one of the three photographs bearing a "New York State Police" legend, and eventually settled on the photograph of Jarrett as the driver of the other car at the Seaway station on August 11, 1973.
In March 1976, Hyland testified before the grand jury. He stated that the driver of the other car at the gas station "was combing her hair in the car" and "looked like a female." Shown the picture of Jarrett, Hyland testified:
A. Well, I can't say positive about this, about the way -- it was the same style, long hair.
Q. Is it safe to say then that the best you can say is that it could be the girl but you can't say for sure?
Following the grand jury's indictment, Jarrett moved to preclude the State from offering an in-court identification of her by Hyland at trial, on the ground that the identification procedures used by the police had been unduly suggestive. In February 1977, a Wade hearing, see United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), was held in State Supreme Court, at which Jarrett was present at the counsel table. Hyland testified that the other car at the gas station had been driven by a woman. He described the process of his selection of Jarrett's picture from among those shown him by Ingraham in December 1975, stating that he had initially selected two photos and then narrowed his choice to one. He testified that he had selected the one photo as "possibly being the female that was in the car at the gas station," but that he still thought that both of the photos he had initially selected looked like the driver.
He testified that Ingraham had given him the photographs in a pile and had not suggested which he should select or otherwise engaged him in conversation about the photos, even after he had made his selection. He said that he "may have" observed the "New York State Police" and "Sheriff's Department" markings on four photographs and that "I figured it was police pictures," but did not have the markings "in mind, at all. . . . I was more concerned with the picture."
On cross-examination, in response to Jarrett's counsel's inquiry as to whether he could describe the woman in the car, Hyland stated:
A. Yes. It was a question whether I was going to be served first with the gasoline or the girl. And this girl had long, darker hair, it seemed, than the one that's right there, now.
Q. Darker than the one right there, right now, you're referring to who?
A. That girl, right, there.
Following the Wade hearing, the state court denied Jarrett's motion to preclude Hyland's identification testimony, holding that the photographic identification procedures had not "create[d] a very substantial likelihood of irreparable misidentification":
[Hyland] observed . . . Jarrett under favorable lighting conditions at close range, for a sufficient length of time and under such conditions as to make an impression upon him. The series of photographs of persons having approximately the same physical characteristics do not contain any element of suggestiveness, nor were any suggestive statements made to him by Investigator Ingraham. In response to a question as to certain photographs bearing police notations, the witness said he thought at the time that all the photographs were police shots.
The court also pointed out that Hyland "testified he could see [Jarrett] sitting in the car and that at the time her hair was darker than in the courtroom," and noted that in a companion hearing there had been evidence that Jarrett had worn her hair longer and dyed darker in August 1973 than it was in March 1976.
C. Hyland's Testimony at Trial
Jarrett and Kelly were tried together on the murder and robbery charges. At trial, Hyland identified Jarrett as the other driver he had seen at the Seaway station.
When confronted on cross-examination with his initial statement that he had not seen the driver's face and was "not sure" even that the driver was a "female," Hyland's responses as to the gender of the driver grew far more certain than they had been prior to trial. Although perhaps occasionally displaying his earlier lack of certainty, he now stated that he was sure the driver was a female based on her "motion and everything"; that while her hair "was covering up a lot of her face," he could see her nose, eyes, and forehead; and that he "knew" on the day of his August 13, 1973 statement that the driver was a female. He maintained that the typed version of his initial statement was wrong and that he did not know how it had come to include the statement that he was "not sure." He said he did not read the statement but may have "scanned" it and have "thought it was probably right." On redirect examination by the district attorney and recross examination by counsel for Kelly, Hyland's testimony on this issue included the following questions and answers:
Q. [By district attorney Wolff] . . . Let me ask you this: When you were in the station, on August 11th, were you sure in your own mind that it was a girl that was in the car?
A. Yes. I would stake my life on that, that it was a girl.
Q. Is Patsy Jarrett the female you saw sitting in the car in front of the Seaway gas station on August 11, 1973?