David Dickerson v. Walter Fogg

FRIENDLY, Circuit Judge,

dissenting:

I respectfully dissent. This seems to me an instance where commendable judicial de*249sire to prevent the risk of misidentification has turned into hypercritical scrutiny of police conduct and the reversal of a jury’s verdict, founded on substantial evidence and observation of the witnesses, by federal judges working only from a cold record. See Foster v. California, 394 U.S. 440, 446-47, 89 S.Ct. 1127, 1130-1131, 22 L.Ed.2d 402 (1969) (dissenting opinion of Justice Black). I agree with Justice Lupiano’s opinion in the Appellate Division that “[wjhile the pretrial identification of defendant by Mr. Colon, the complainant, partook of a certain, albeit unavoidable, degree of suggestiveness, it was not unduly suggestive.” 67 A.D.2d 122, 125, 414 N.Y.S.2d 712, 714 (1st Dept. 1979). There is thus no basis for suppressing Colon’s pretrial identification and no need to subject his identification at Dickerson’s trial to the Biggers criteria. The suggestiveness of what was done here was considerably less than of that in Foster v. California, supra, a case in which the majority’s finding of suggestiveness was unpersuasive to Justices White, Harlan, Stewart and Black. The facts are still further from those in Jackson v. Fogg, 589 F.2d 108, 109-10 (2 Cir.1978), a decision in which I joined.

The majority follows the district court in condemning Officer Dugan and his colleagues for not conforming to a code of conduct which defies human nature. The first fault found by the district judge was that when Colon was asked to come down to the Criminal Court, he was told that the police had recovered his car. Surely Colon was entitled to know this important fact. What could have been more natural and less suggestive than to tell him? If the police had simply requested him to come to the courthouse, would he not have asked why? If the police had said they wanted him to look at someone, that would have been viewed as just as bad or worse. Suggestiveness could have been avoided, on the district court’s view, only by refusing to give any reason. On that hypothesis, would not Colon, on his journey to the courthouse, have been thinking that the police had found someone? In other words any suggestiveness in telling Colon about the recovery of the car was inherent in the situation; we must not forget that what the due process clause condemns is “unnecessarily suggestive identification.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).

The district court also stressed that when Colon got to the courthouse, Officer Dugan was wearing the Sloan security shield which Colon had kept in his car. This added nothing in the way of suggestiveness to the good news that the car had been recovered. Dugan is then faulted by the district court for telling Colon that Brown had been arrested and was being arraigned. Again any other course would require the police to act in a wholly unnatural fashion. Colon had been requested to come to the Criminal Court and was about to be asked to go into the courtroom. It would be altogether natural for him to want to know why. Was Dugan required to say simply “Something is going on in there”?

Although I agree that it would have been better if Colon had been asked to observe the entire right hand side or perhaps even the whole of the courtroom and had not had his attention focused on a group which supposedly had come down for Brown’s arraignment, I do not think this alone made the identification impermissibly suggestive. Both the police and Colon acted with care. On his first viewing Colon was only “pretty sure”. The majority’s statement, echoing the district court’s opinion, that by sending Colon back so he “could take a better look” Officer Dugan “necessarily encouraged Colon to make a positive identification of Dickerson and implicitly communicated his belief that Colon’s leaning was correct” seems to be made up of whole cloth. The majority of the Appellate Division considered Colon’s reluctance to make a firm identification on his first viewing and Dugan’s insistence on his having “a better look” not as pressure but as “evincpng] a reflection which only seems to buttress the probability of a reliable identification”, 67 A.D.2d at 126, 414 N.Y.S.2d at 715. “Although the ultimate question of impermissible suggestiveness” is a mixed question of *250law and fact that is not governed by [28 U.S.C.] § 2254”, Sumner v. Mata (II), 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982), the Court expressly held that the question “whether the witnesses were under pressure from prison officials or others” is one of the “questions of fact to which the statutory presumption applies.” Id. The majority’s statement that Officer Dugan “illegitimately pressured Colon into taking a second and third look”, thus cannot stand since there was as much or, in my view, more evidence to support the inference drawn by Justice Lupiano as to support the majority’s. I find equally little cause for objection in Dugan’s arrest of Dickerson. Just what was Dugan to do?1 Neither United States v. Leonardi, 623 F.2d 746, 754-55 (2 Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3027, 65 L.Ed.2d 1123 (1980), nor United States v. Jarvis, 560 F.2d 494, 499-500 (2 Cir.1977), cert. denied, 435 U.S. 934, 98 S.Ct. 1511, 55 L.Ed.2d 532 (1978), holds that taking necessary action upon an identification which has become as positive as Colon’s renders the identification suspect. Indeed, this court noted in Leonardi that it is almost inevitable that, after a positive identification, “a witness may be asked to give a sworn statement, or else to appear before a grand jury, or to aid the police in other ways, all of which might confirm the ‘correctness’ of his choice.” 623 F.2d at 755.

In an opinion subsequently reversed by the Supreme Court as too favorable to defendants who claim to be the victims of mistaken identification, Brathwaite v. Manson, 527 F.2d 363, 371 (2 Cir.1975), rev’d, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), I spoke of the necessity for rules that will “force police administrators and prosecutors to adopt procedures that will give fair assurance against the awful risks of misidentification.” Strongly adhering to that view, I would not carry it so far as to condemn what seems to me to have been the proper, if not perfect, police conduct in this case. Several of the majority’s criticisms seem to lie beyond our power under 28 U.S.C. § 2254(d), as construed in Sumner v. Mata (II), supra. Even on the ultimate issue of impermissible suggestiveness I would pay considerable deference to the denial of a suppression motion by a justice of the Supreme Court of New York who saw and heard the witnesses, to the careful (although divided) analysis by the Appellate Division of the First Department, and to the unanimous affirmance of that decision by the Court of Appeals, 50 N.Y.2d 937, 431 N.Y.S.2d 453, 409 N.E.2d 927 (1980), even though that court was confined to questions of law.

. Petitioner’s brief in the district court (p. 24) suggests that “the police could temporarily have excused the complainant and effected the arrest outside his presence.” Would Colon have been fooled by this elaborate antic? At least he would not have been fooled for long; he was going to learn of Dickerson’s arrest sometime before his identification at trial.