APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Civil Action 1251-72).
Aldisert and Gibbons, Circuit Judges, and Joseph F. McGlynn, Jr., District Judge.*fn*
The central question for decision is whether one who makes a timely and nonfrivolous motion to suppress in-court identification testimony at a state criminal trial on the ground that it has been tainted by improper pre-trial identification procedures is entitled to have the motion heard and determined by the trial court outside the presence of the jury. After considering a habeas corpus petition which was based on the theory that impermissibly suggestive identification testimony was admitted at a state trial, the district court denied the petition. The relator has appealed. We reverse the judgment of the district court and remand these proceedings.
On February 27, 1968, an armed robbery occurred at the Louis Wides Company, a real estate and insurance agency in Englewood, New Jersey. Helen Westervelt, secretary and office manager of the company, was an eyewitness to the incident. Appellant was accused of the crime and was brought to trial. At trial, the state prosecutor called Mrs. Westervelt as a witness to provide in-court identification of the accused. When the state prosecutor asked her to make the in-court identification, defense counsel immediately requested a voir dire examination of Mrs. Westervelt before she would be permitted to continue. The trial judge denied the motion.
Mrs. Westervelt subsequently identified appellant as the robber. She testified that she had watched the robber throughout the 15 minutes in which he took money from her pocketbook and from a cash box in an open safe drawer. She described him as wearing a blue woolen "navy helmet" which covered the sides of his face to the middle of his cheeks, as well as his chin. Although she indicated that the robber's eyes, nose, mouth, and part of his cheeks were visible, Mrs. Westervelt testified that the "helmet" prevented her from seeing whether the robber had a mustache.
During cross-examination, Mrs. Westervelt confirmed that she had testified before the grand jury that the robber wore a blue knitted glove on his left hand and held a gun in his right hand. She also revealed, in her exchange with defense counsel, that she had been shown a copy of appellant's photograph, which apparently was attached to the prosecutor's file, just moments prior to testifying.
Appellant was convicted and sentenced by the County Court of Bergen County, New Jersey. His conviction was affirmed by the Appellate Division of the New Jersey Superior Court, and the New Jersey Supreme Court denied certification on July 1, 1970. State v. Fisher, 56 N.J. 477, 267 A.2d 59 (1970).
On July 21, 1972, appellant filed a habeas corpus petition in federal district court. An evidentiary hearing was subsequently ordered. Because Mrs. Westervelt was unable to appear at the scheduled hearing due to illness, the district court permitted a deposition de bene esse to be taken at her home on December 21, 1972. In a Letter Opinion and Order dated January 22, 1975, the district court denied the habeas corpus petition, concluding that neither an impermissibly suggestive identification procedure nor a substantial likelihood of misidentification had tainted the challenged Westervelt testimony.
Our analysis begins with the Supreme Court's pronouncements on tainted in-court identifications. The dangers inherent in the eyewitness identification of a criminal suspect were noted by the Supreme Court in United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). There, the Court sketched the parameters of the problem:
The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. . . . A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. . . . Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.
Id. at 228-29 (footnotes omitted).
In Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967), the Court applied these observations to a state prosecution, finding it error of constitutional dimension to admit challenged in-court identifications without first determining that they were not tainted. And in 1968, the Court in Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), further molded the contours of this body of law by directing that "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside . . . only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. at 384.
Relying upon the Wade/Gilbert/Simmons trilogy, appellant contends that he is entitled to a new trial, free of the tainted Westervelt identification testimony. He argues that the federal habeas court should have found impermissible suggestiveness as a matter of law due to Mrs. Westervelt's examination of the photograph just moments prior to testifying.
The state challenges this argument by asserting that, after a review of the 1968 Westervelt trial testimony and her deposition taken at the federal habeas corpus proceeding in 1972, the district court could properly find that the pre-trial examination of the photograph was not impermissibly suggestive.*fn1 Moreover, under this view, even if the photo viewing was improper, the reception of Mrs. Westervelt's testimony could be sustained if it were established by "clear and convincing evidence" that it stemmed from her view of appellant at the time the crime was committed and not from the tainted identification procedure. United States v. Wade, supra, 388 U.S. at 240, and Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), are cited as support for the latter proposition.
These arguments prove too much. Both appellant and the state fail to perceive the limited role of the federal habeas corpus court under circumstances in which, as here, the appellant's major habeas corpus contention is that he was denied a hearing prior to reception of challenged identification testimony at a state criminal trial. The parties to this appeal have bypassed a threshold procedural question: whether it is for the federal or state court, in the first instance, to make the Wade/Gilbert/Simmons determinations ...