United States Ex Rel. Edward Stanley Miller and Joseph T. Quinones v. J. E. Lavallee, Warden of Clinton Prison

436 F.2d 875, 1970 U.S. App. LEXIS 6391

• Court: Court of Appeals for the Second Circuit
• Decided: November 16, 1970
• Docket: 374, Docket 35395
• Status: Published

Opinions

PER CURIAM:

Petitioners, who are serving lengthy New York prison sentences imposed on January 11, 1963 after they had been, at a joint trial, convicted of having committed robbery in the first degree, obtained a writ of habeas corpus from the district court below, Judd, J., which, after an evidentiary hearing, was sustained on the ground that a pretrial viewing of the petitioners by one of the robbery victims “created such a risk of misiden-tification that the conviction should not stand.” F.Supp. (EDNY, July 29, 1970). Respondent Warden has appealed and contends that the district court applied the wrong standard to these pr e-Wade1 identifications and that, in any event, in view of the entire state case, any error in the identifications was harmless error.

We agree that less stringent standards are applicable to pr e-Wade identifications, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), than to identifications made subsequent to that opinion, and, indeed, we have set out appropriate guidelines in United States ex rel. Rutherford v. Deegan, 406 F.2d 217 (2 Cir.), cert. denied, 395 U.S. 983, 89 S.Ct. 2145, 23 L.Ed.2d 771 (1969). However, the application of the Rutherford guidelines involves mixed questions of fact and law, especially since subtle psychological factors often affect identifications. Judge Judd held a thorough hearing both on the identification issue and on the probable effect that the identification had upon the result reached at petitioners’ trial, and he weighed the evidence by the applicable standard, that of whether the viewing, in the light of the totality of surrounding circumstances, was “so unnecessarily suggestive and conducive to irreparable mistaken identification that [petitioners were] denied due process of law.” Stovall v. Denno, supra at 302, 87 S.Ct. at 1972, see Rutherford, supra at 219. Although we might well have reached a different conclusion than Judge Judd reached on the same evidence, we are not convinced that his findings of fact are clearly erroneous. We have in mind that when the issue the trial judge must determine relates to the validity of a witness’s identification of a defendant we ought to accord great weight to the determination the judge makes, for he has seen and has heard that witness. And, as we have held in United States ex rel. Phipps v. Follette, 428 F.2d 912, 915-916 (2 Cir. 1970), this principle must apply in federal habeas if the federal judge has held a full evidentiary hearing. Accordingly, we affirm the order Judge Judd entered.

Because of our disposition of respondent’s appeal, we do not reach the points raised on petitioners’ cross-appeal.

Affirmed.

1 . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); See also Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).