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May 15, 1973

UNITED STATES of America ex rel. Mackey Raymond CHOICE, Appellant,
Joseph BRIERLEY, Superintendent and District Attorney of Philadelphia

Broderick, District Judge.

The opinion of the court was delivered by: BRODERICK

Broderick, District Judge.

 Currently before the Court is Mackey Choice's petition for a writ of habeas corpus. On June 22, 1966, a jury in the Quarter Sessions Court of Philadelphia County found Mackey Choice guilty of burglary, conspiracy and aggravated robbery, and he is presently serving a sentence of 10 to 20 years in the State Correctional Institution at Graterford, Pennsylvania. Choice applied to this District Court for a writ of habeas corpus, and the district court judge denied him a 28 U.S.C. ยง 2254 evidentiary hearing and dismissed the petition. Choice appealed, and the Court remanded the case for an evidentiary hearing based on Mackey Choice's contention that the circumstances surrounding his station house identification were so unnecessarily suggestive and conducive to irreparable mistaken identification that the subsequent in-court identification by those present at the station house denied him due process of law. United States of America, ex rel. Mackey Raymond Choice v. Brierley, 460 F.2d 68 (3rd Cir. 1972).

 On October 30, 1972, pursuant to the mandate of the Court of Appeals, this Court held an evidentiary hearing. Based on a review by this Court of the State court record, the notes of testimony taken at the hearing before this Court, and the briefs and arguments of counsel, the Court issues this Memorandum and Order granting relator's petition for a writ of habeas corpus.

 The background of this case is as follows:

 On October 4, 1965, petitioner Mackey Choice was arrested by the police of the City of Philadelphia and charged with burglary, conspiracy and aggravated robbery. He was subsequently indicted on these charges, as set forth in Bill of Indictment Nos. 979-81 of October Sessions 1965 of the Quarter Sessions Court of Philadelphia County. Choice's first trial, held on December 13-15, 1965, ended when the jury could not agree on a verdict. On June 22, 1966, at a second trial before the Honorable James T. McDermott, the jury returned a verdict of guilty on all counts of the indictment. Post-trial motions were argued and denied, and on May 26, 1967, Mackey Choice was sentenced to a term of ten to twenty years on the aggravated robbery count. This sentence is to be followed by twenty years' probation on the burglary count. Sentence was suspended on the conspiracy count.

 Mackey Choice appealed the judgment of sentence to the Superior Court of Pennsylvania, alleging inter alia that pre-trial identification procedures used by the police were so impermissibly suggestive as to deny him due process of law. *fn1" On November 21, 1967, the conviction was affirmed in a per curiam order, Judges Hoffman and Spaulding filing dissenting opinions. Commonwealth v. Choice, 235 A. 2d 173, 211 Pa. Super, 176. On April 30, 1968, the Supreme Court of Pennsylvania denied Choice's request for allowance of appeal per curiam.

 On May 16, 1968, a Post Conviction Hearing Act petition was filed in the Quarter Sessions Court of Philadelphia County, setting forth numerous grounds for relief, including the Stovall claim originally raised in the appeal before the Superior Court. A hearing on the petition was held before Judge McDermott on September 30, 1968.

 On October 30, 1968, Mackey Choice filed his first petition for a writ of habeas corpus in this Court. On December 12, 1968, one of the learned judges of this Court dismissed the petition without prejudice on the ground that a Post Conviction Hearing Act proceeding was still pending in the Quarter Sessions Court of Philadelphia County.

 On May 21, 1969, Judge McDermott filed an opinion dismissing Choice's Post Conviction Hearing Act petition, noting that the Stovall issue previously raised on direct appeal to the Superior Court was "admittedly mooted" by the decision of the Superior Court.

 On June 17, 1970, Mackey Choice filed his second petition for a writ of habeas corpus in this Court. As in his first petition, he again raised the Stovall claim originally asserted on direct appeal to the Superior Court. This time, the same learned judge of this Court in an Opinion filed on September 9, 1970 denied Choice's Petition for Writ of Habeas Corpus without a hearing and concluded that there was no probable cause for appeal.

Choice was tried in 1966, a year prior to the decision in Stovall. His conviction was based on the in-court identification by Alexander Johnson, the head bank teller and Lorraine Custis, another teller. Both were eye witnesses to the robbery. Each had been shown an array of photographs on the day of the robbery and prior to Choice's arrest. In addition, the two tellers had simultaneously participated in a show-up held a "few weeks" after the hold-up.
At trial the appellant tried to challenge the credibility of the eye witnesses by making reference to their prior identifications. He did not attack the admissibility of in-court identification, because at that time the prevailing rule was that "the manner of an extra judicial identification affects only the weight, not the admissibility of identification testimony at trial." Simmons v. United States, 390 U.S. 377 at p. 382, 88 S. Ct. 967 at p. 970, 19 L. Ed. 2d 1247 (1968). The appellant, therefore, had no hearing at which he could challenge the admissibility of the in-court identification and it was left to the jury to pass on the credibility of the witnesses.
The practice of leaving the reliability and credibility of identification evidence to the jury was repudiated by Stovall. Under the mandate of Stovall, a judge is required to make his own inquiry into the manner of the out-of-court identification. The test is whether the in-court identification the government seeks to introduce is based on the witness' recollection of the crime or whether it is the product of suggestion instilled during the course of the pretrial investigation. Only if his evaluation of the testimony convinces him that the out-of-court identification by a witness was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" that it denied the defendant due process, can he permit subsequent in-court identification by that witness to reach the jury. Choice is entitled to the protection of Stovall. United States ex rel. Trignani v. Russell, 405 F.2d 1119 (3d Cir. 1968).
Stovall calls for a consideration of the out-of-court identification in terms of the "totality of the circumstances surrounding it." The factors which the district court must consider in applying the Stovall standard coincide with those applicable to a Wade or Simmons situation: (1) the manner in which the pretrial identification was conducted; (2) the witness' prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant's actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification. See United States v. Zeiler, 447 F.2d 993, 995 (3d Cir. 1971), United States v. Higgins, 458 F.2d 461 (3d Cir. filed March 28, 1972).

 United States ex rel. Choice v. Brierley, supra, pp. 72-73.

 Pursuant to the mandate of the Court of Appeals, this Court held an evidentiary hearing on October 30, 1972 for the purpose of determining whether the facts surrounding the out-of-court identification of Mackey Choice were so unnecessarily suggestive and conducive to irreparable mistaken identification that subsequent in-court identification by the same witnesses denied Mackey Choice due process of law.

 On September 22, 1965, at approximately 9:15 A.M., two men entered the Citizens and Southern Bank located at 19th Street and South Street in Philadelphia and robbed it of approximately $38,000. There were four tellers in the bank at the time, but two of them were unable to identify Mackey Choice. While one of the robbers held a shotgun on the three women tellers, the other robber took the fourth teller, Alexander Johnson, into the bank's vault and ordered him to fill up a bag with money. June Cutler, one of the tellers who could not identify Mackey Choice, testified that the other robber had a shotgun and "gave us orders to stay right where we were and to look straight at him" (N.T. Second Trial 112-13). June Cutler testified that she did just that and was, therefore, unable to observe the robber who entered the vault with Alexander Johnson (N.T. Second Trial 113, 116). Lorraine Custis, another teller, was also confronted by the unknown robber with the shotgun, but at the trial identified Mackey Choice as the robber who went into the vault. She testified that she had her head down counting travelers checks when she "saw a shadow go past" (N.T. Second Trial 50). Assuming it was a customer on his way to speak with Alexander Johnson at the rear of the bank, she did not look up (N.T. Second Trial 51). Suddenly she heard someone say "this is a stickup. Don't anyone move", and looking up she saw a man whom she identified as Mackey Choice vaulting over a gate or railing six or seven feet away (N.T. Second Trial 51-52). Lorraine Custis testified that she got a profile view only of the man, who "didn't take very long to go over the gate" (N.T. First Trial 95), "about three seconds or so" (N.T. Second Trial 78). While in the vault with Alexander Johnson, only the robber's back was visible to Lorraine Custis (N.T. Habeas Corpus 97). When he came out, she saw him "just like a shadow" because the man with the shotgun ordered her to keep looking straight ahead (N.T. Second Trial 79). Finally, she saw the front of his face "very quick" (N.T. Second Trial 56-57; N.T. First Trial 97). He then walked out of the bank, while his companion with the shotgun kept everyone covered (N.T. Second Trial 57). According to Lorraine Custis, the man she identified as Mackey Choice was wearing a hat and a jacket (N.T. First Trial 94), but she couldn't see "too well as far as color"; "it appeared to be a sort of khaki material" (N.T. First Trial 94). She could only see the side of his hair (N.T. First Trial 116), and at the preliminary hearing conceded that she couldn't describe his hair at all (N.T. Preliminary Hearing 10/12/65, p. 19). She heard him make the one statement: "This is a stickup; don't anyone move" (N.T. Second Trial 62-63). Even this, she admitted, was not said "directly" to her (N.T. First Trial 99).

 Lorraine Custis' observations of the man she identified as Mackey Choice were, at best, fleeting glimpses of a swiftly moving individual made under the barrel of a shotgun while ordered to look straight ahead. *fn2"

 Alexander Johnson, the teller who went into the vault with the robber, identified Mackey Choice at the trial. Alexander Johnson testified that he was talking with another teller when he heard a voice say "just stay where you are" (N.T. Habeas Corpus 54). Looking up, he saw a man jumping over the gate in the rear of the bank (N.T. First Trial 15, 38-39), a gate he variously described as four or five feet (N.T. First Trial 15) and eight or ten feet (N.T. Habeas Corpus 58) away. As the man vaulted over the gate, he was facing Alexander Johnson, who testified that he had a half or three quarters of a minute to observe his face (N.T. Habeas Corpus 75). The man then came within two feet of Alexander Johnson and ordered him to open the vault (N.T. Second Trial 10-11). As they walked to the vault, they were "kind of side by side" (N.T. Habeas Corpus 56) while at the vault Alexander Johnson was told to "go in first" (N.T. Second Trial 11). In the vault, it took Alexander Johnson a minute or a minute and a half to fill a bag provided him by the robber (N.T. Second Trial 12). During this time he only saw the robber's face for "a few seconds" (N.T. Habeas Corpus 75-76). When the bag was filled, Alexander Johnson was ordered to stay in the vault while the robber left (N.T. Second Trial 13). As the robber walked away, his back was to Alexander Johnson, who never saw his face again (N.T. Habeas Corpus 77). Alexander Johnson's opportunity to observe the man he identified as Mackey Choice was apparently limited to little more than a minute: the thirty or forty seconds when the robber was jumping over a gate four to five or eight to ten feet away, the brief face to face encounter when he was ordered into the vault, and the "few seconds" when they faced each other in the vault.

 At noon about two hours and 45 minutes after the robbery, Policemen Charles Canty, Eugene Wright and William Braxton -- all of the Special Investigation Squad -- arrived at the bank with some ten or twelve pictures for the tellers to look at (N.T. Habeas Corpus 8, 27-28). William Braxton testified at the hearing before this Court and stated that he was present at the time Mackey Choice's photograph was selected from the batch by Alexander Johnson and Lorraine Custis.

[BY MR. BRAXTON]: At that time, and they had gone through all the pictures that I had and gone through the pictures that Canty had, and they had chose -- picked out Choice's picture, at which time they looked at the picture among themselves and they kept it in their hands for quite a little while looking at the picture, and they said positive that this is the man, this man is the man.
But they said could we see this man? (N.T. Habeas Corpus 10).
* * *
Q. But when they came to Officer Canty's group they found the picture?
A. That's right.
Q. At least one?
A. That's right.
Q. And they gathered around and they said this ...

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