Opinion
02 Civ. 7308 (WHP)(JCF)
September 29, 2003
REPORT AND RECOMMENDATION
Mark Smith brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County, for first degree robbery and burglary. Mr. Smith claims that the trial judge: (1) abused his discretion in not allowing Mr. Smith to present testimony regarding possible suggestiveness in the pretrial identification procedures; (2) erred in denying the petitioner's motion to admit expert testimony on eyewitness identification; and (3) incorrectly admitted a witness' testimony, which distorted the jury's perception of the accuracy, credibility, and weight of the victim's identification testimony. For the following reasons, I recommend that the petition be denied. Background
On May 30, 1997, James Thompkins, a 61-year-old resident of the Kenmore Hotel, was walking down a stairwell in the hotel when he heard someone behind him. He turned and recognized the person as a man he had seen in the building before. (Tr. at 138). He later described the man as wearing a denim jacket, denim slacks, and a red sweatshirt. (Tr. at 146). The man followed Mr. Thompkins, and pushed him when he arrived at the front door of his apartment. (Tr. at 139). The assailant displayed a handgun and told Mr. Thompkins that he needed $100.00. (Tr. at 139, 145). Mr. Thompkins gave him five twenty-dollar bills, and the assailant left. (Tr. at 139). After waiting a few minutes, Mr. Thompkins went to the lobby of the hotel to call the police. (Tr. at 147). When Officer Lissette Sassok and Detective William Hamilton arrived, Mr. Thompkins described his assailant as a clean-shaven, black male between the ages of 25 and 28, 5'6" tall, weighing about 140 pounds, with short black hair. (Tr. at 171-72). The hotel manager, Lawrence Oakes, was present while Mr. Thompkins described the man to the police. (Tr. at 191-92). Mr. Oakes pulled Officer Sassok aside and told her that he had seen Mark Smith, another Kenmore Hotel resident who fit the general description given by Mr. Thompkins, walk past him a few minutes earlier. (Tr. at 200). After obtaining the resident identification cards of Mr. Smith and four or five other black males from Mr. Oakes, Officer Sassok conducted an impromptu photographic lineup. (H. at 8, 27-28, 31). Mr. Thompkins reviewed the photographs but did not recognize any of the individuals. (H. at 5, 10). Officer Sassok then removed Mr. Smith's photograph and gave it to Detective Hamilton, who performed several computer background checks on Mr. Smith. (H. at 11, 116-17).
"Tr." refers to the trial transcript.
"H." refers to the transcript of a combined Wade and Huntley hearing held on Oct. 22, 1997. At a Wade hearing, the court determines whether an identification resulted from an impermissibly suggestive lineup pursuant to United States v. Wade, 388 U.S. 218 (1967). A Huntley hearing is held to determine the voluntariness of a defendant's confession pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965).
On June 2, 1997, Mr. Thompkins visited the robbery unit of the 13th Police Precinct in Manhattan. (H. at 34-36). Detective Joseph DiPaolo showed Mr. Thompkins a mug shot book of black males, ages 32 to 41, containing approximately 250 pictures. (H. at 36-37). After looking at the photographs for approximately 20 minutes, Mr. Thompkins identified Mr. Smith as his assailant. (H. at 38-40, 46). Mr. Oakes, who had accompanied Mr. Thompkins to the police precinct that day, told Detective DiPaolo that he had seen a man who could be a "possible suspect" leaving the building. (H. at 48-49). Mr. Oakes was then shown the photograph of Mr. Smith, whom he identified as the person he had seen leave the building on the day of the robbery. (H. at 49).
The next day, based upon Mr. Thompkins' identification, Detective Hamilton arrested Mr. Smith and placed him in a line-up with five men who were "similar in appearance to Mr. Smith." (H. at 69, 72; Prosecution Exhs. 1A IB, attached to Petitioner's Appendix; Tr. at 149). Mr. Thompkins positively identified the petitioner. (Tr. at 148-49, 175). After the lineup, Mr. Smith waived his Miranda rights and admitted to Detective Hamilton that he was in the hotel on the date of the robbery and that he did not leave until approximately 3:30 p.m. (Tr. at 221-24, 232-34).
On July 14, 1997, Mr. Smith was charged with first degree robbery and burglary by a New York County grand jury. On October 22, 1997, Justice Ira F. Beal conducted a combined Wade and Huntley hearing to determine whether the lineup identification and Mr. Smith's post-arrest statements should be suppressed. At the hearing, the defense attempted to call Mr. Oakes and Mr. Thompkins to demonstrate that any in-court identification would be the result of suggestiveness in the pretrial identifications. The trial court ruled that only suggestiveness initiated by the police was subject to challenge and summarily refused to allow Mr. Smith to call the witnesses. (H. at 115-115H). In response, the defense argued that the line-up identification, as well as Mr. Smith's post-arrest statements, should be excluded as the result of unduly suggestive pretrial identification procedures conducted by the police. (H. at 143-46, 149-50). The court denied the motion to suppress. (H. at 159).
In a hearing on October 27, 1997, the defense moved to re-open theWade hearing in order to call witnesses to testify about the suggestiveness of the photographic display. Defense counsel alleged that Mr. Thompkins would testify that he did not identify Mr. Smith as the assailant when he viewed the mugshots at the police precinct. (R. Tr. at 5-6). Rather, defense counsel argued that Mr. Thompkins may have said that the picture of Mr. Smith "could be or might be" the assailant. (R. Tr. at 16). The trial court summarily denied the motion. (R. Tr. at 19).
"R. Tr." refers to the transcript of the hearing on the motion to re-open which took place on October 27, 1997.
At the October 27 hearing, the court also addressed the defendant's motion to permit expert testimony. (R. Tr. at 27). Defense counsel sought to call an expert in eyewitness identification to inform the jurors "as to some of the lesser understood factors affecting the accuracy and reliability of eyewitness testimony and to present them with an appropriate perspective including empirical underpinnings for such factors." (Affirmation of Paulette Rubinsky in Support of Motion to Admit Expert Testimony on Eyewitness Identification ("Rubinsky Aff."), ¶ 5). The trial court summarily denied this motion. (R. Tr. at 27).
During the trial, the defense sought an in limine ruling preventing Mr. Oakes from testifying about the description he heard Mr. Thompkins give police, and from stating that the petitioner fit this description. In response, the prosecution argued that Mr. Oakes should be allowed to testify that Mr. Smith was the only Kenmore Hotel resident who fit the description. (Tr. at 181). Justice Beal ruled that Mr. Oakes could not testify to the description he overheard Mr. Thompkins give Officer Sassok and Detective Hamilton. (Tr. at 179-80). However, Mr. Oakes was permitted to testify that he heard a description, without disclosing the details, and that he consequently believed Mr. Smith to be the assailant. Justice Beal allowed this testimony for the purpose of completing "a narrative." (Tr. at 179-82).
On the witness stand (despite the in limine ruling), Mr. Oakes testified about Mr. Thompkins' description of his assailant, and he confirmed that Mr. Smith was the only hotel resident who fit this description. (Tr. at 191-93). Mr. Smith's counsel objected to the testimony, but was overruled. (Tr. at 192-93). The defense subsequently requested a jury instruction that Mr. Oakes' trial testimony "was not admitted for the purpose of the truth but only to complete the narrative and that was the reason why it was let in." (Tr. at 256). This instruction was not given. (Tr. at 316-46).
The jury convicted Mr. Smith of Robbery in the First Degree and Burglary in the First Degree in violation of N.Y. Penal Law §§ 160.15(4) and 140.30(4) respectively. Thereafter, the trial court imposed a determinate prison sentence of ten years on each count, with the sentences to run concurrently. (S. Tr. at 7-8).
"S. Tr." refers to the sentencing proceedings held on November 24, 1997.
Mr. Smith filed an appeal to the Appellate Division, First Department, on February 22, 2000. The petitioner argued: (1)that the trial court improperly admitted Mr. Oakes' testimony relating to Mr. Thompkins' description of the assailant; (2) that the trial judge incorrectly denied Mr. Smith the right to call witnesses during the pretrial hearing; (3) that Justice Beal abused his discretion when he denied the motion to reopen the Wade hearing; and (4) that the court erroneously denied the motion to admit expert testimony on eyewitness identification. (Appellate Division Brief for Defendant-Appellant ("App. Br.")at 21-46). On December 21, 2000, the Appellate Division denied Mr. Smith's appeal on all grounds. People v. Smith, 278 A.D.2d 139, 718 N.Y.S.2d 55 (1st Dep't 2000).
Mr. Smith then applied for leave to appeal to the New York Court of Appeals, contending that he had been unfairly denied the right to have witnesses testify at the Wade hearing and to have an expert testify about eyewitness identifications. He also alleged that Mr. Oakes' testimony that only the petitioner fit Mr. Thompkins' description, as well as the details of that description, should have been precluded. (Letter in Support of Defendant's Application for Leave to Appeal dated March 5, 2001 ("Def. Leave Letter")). Leave was denied on June 12, 2001.
On September 11, 2002, Mr. Smith filed the instant habeas corpus petition on three grounds. First, he alleges that the trial court denied his constitutional right to present a defense as guaranteed by the Sixth and Fourteenth Amendments by precluding him from calling witnesses to testify at the Wade hearing as to the reliability of identification procedures. Second, the petitioner claims that he was denied his right to present a defense and his Fourteenth Amendment right to due process when the trial court rejected his request to present expert identification testimony. Finally, Mr. Smith argues that the trial court erred in permitting Mr. Oakes' bolstering testimony, which resulted in unfair prejudice, and that the court deprived him of his right to a fair trial and due process of law.
The respondent contends that: (1) the petitioner's allegation of unfair bolstering is procedurally barred; (2) the petitioner's claim that the trial court ruled on his expert testimony motion without due consideration and in violation of due process was properly precluded under New York law; and (3) the petitioner's claims regarding the refusal to allow witnesses at the Wade hearing and the denial of expert testimony are without merit.
Discussion
Prior to the passage of the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996), factual findings made by a state court after an evidentiary hearing were presumed correct in a federal habeas proceeding, but federal courts were not required to defer to state court determinations of law and of mixed questions of law and fact. See Thompson v. Keohane, 516 U.S. 99, 107-12 (1995); Brown v. Artuz, 283 F.3d 492, 497 (2d Cir. 2002). Under the AEDPA, however, federal courts may not grant a writ of habeas corpus unless the state court's decision was either "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1); see also Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001). However, this deference is only required where the state court "adjudicated [the claim] on the merits," 28 U.S.C. § 2254(d); otherwise, the pre-AEDPA, de novo standard of review applies. Noble, 246 F.3d at 98. In this case, there is no suggestion that the Appellate Division rejected the petitioner's claims on non-substantive grounds. Accordingly, they appear to have been adjudicated on the merits. See Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001).
The Supreme Court has differentiated between the "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d)(1).Williams v. Taylor, 529 U.S. 362, 405-08 (2000). It has held that a state court decision is "contrary to" federal constitutional law if the decision either "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [it]." Id. at 405. The "contrary to" clause does not, however, encompass state court decisions where the court applies the correct legal rule, no matter how erroneous or unreasonable the application. Id. at 405-07. In contrast, a state court decision involves an "unreasonable application" of Supreme Court precedent if the state court "identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case," or if the state court either "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407.
The AEDPA standard applies to this case since Mr. Smith filed his petition after the Act's effective date. See Brown, 283 F.3d at 498 n. 2.
A. Exhaustion and Procedural Default
In order to receive habeas corpus review, a petitioner must have "fairly presented" his federal constitutional claims in state court.Picard v. Connor, 404 U.S. 270, 275 (1971); see also Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). Although the petitioner need not have cited "book and verse on the federal constitution," he must have articulated "the substantial equivalent" of a federal habeas claim.Picard, 404 U.S. at 278 (citations omitted). He can accomplish this by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Dave v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc).
Previously, a petitioner in a habeas corpus proceeding was required to exhaust all available state remedies for each claim prior to federal review. 28 U.S.C. § 2254 (b),(c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990). However, with the enactment of the AEDPA, the habeas corpus statute was amended to provide that "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). Thus, if the federal court finds that all the claims are meritless, the court has the discretion to dismiss the petition on its merits, even though it may contain some unexhausted claims. The amendment effectively overruled Rose v. Lundy, 455 U.S. 509, 522 (1982), which held that a petition containing both exhausted and unexhausted claims is a "mixed petition" and must be dismissed without prejudice.
Mr. Smith's claim that the trial court impermissibly allowed Mr. Oakes to bolster the sole eyewitness' identification testimony is unexhausted since he has failed to meet any of the criteria set forth in Daye or cite to any provision of the Constitution. In presenting the bolstering claim on direct appeal, defense counsel argued only that admission of Mr. Oakes' testimony denied the petitioner his "right to a fair trial." (App. Br. at 21-22). The defense failed to mention any federal cases, and none of the state cases cited — People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841 (1953); People v. Cotto. 169 A.D.2d 517, 564 N.Y.S.2d 172, 173 (1st Dep't 1991); People v. Michael J., 54 A.D.2d 655, 387 N.Y.S.2d 875 (1st Dep't 1976); and People v. Harris, 52 A.D.2d 560, 382 N.Y.S.2d 322 (1st Dep't 1976) — made any reference to federal case law or constitutional provisions. The claim raised by defense counsel did not identify a specific right protected by the Constitution, nor did it allege a pattern of facts within the mainstream of constitutional litigation.
The exhaustion requirement is not automatically satisfied every time an alleged trial error is claimed to deny a defendant a "fair trial." State court briefs routinely characterize a variety of errors as a denial of a fair trial, conveying the thought that the error, simply as a matter of state law, warrants a new trial.Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir. 1982). The Supreme Court has stated that such a generalized claim is insufficient to apprise the state courts of a Fourteenth Amendment violation: "If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court." Duncan v. Henry, 513 U.S. 364, 366 (1995). Here, the petitioner's only claim in state court was that the evidentiary ruling of which he complained was a violation of state law.
Nevertheless, a federal court may deem a claim exhausted if it is clear that the state court would find the claim procedurally barred. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (citing Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)). Mr. Smith is now precluded from returning to state court to argue these claims on federal constitutional grounds as New York law provides for only a single application for direct review. N.Y. Rules of Court, Court of Appeals, § 500.10(a); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000). A defendant who fails to press an available claim on direct appeal is likewise barred from raising it on collateral review. N.Y. Crim. Proc. Law § 440.10(2)(c); Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000); Spence, 219 F.3d at 170. Substantive review is unavailable unless the petitioner is able to show both cause for the default and actual prejudice to the petitioner, see Gray v. Netherland, 518 U.S. 152, 162 (1996); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), or "demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice, or, in other words, an unjust incarceration." Spence, 219 F.3d at 170 (internal quotation marks and citations omitted). A petitioner establishes cause for default when he shows that "some objective factor external to the defense impeded [his] counsel's efforts to comply with the State's procedural rule."Murray v. Carrier, 477 U.S. 478, 488 (1986). Mr. Smith has made no such showing. And, since a habeas corpus petitioner has the burden of demonstrating both cause and prejudice, the Court need not decide whether the petitioner suffered actual prejudice. Levine v. Commissioner of Correctional Services, 44 F.3d 121, 127 (2d Cir. 1995). Finally, Mr. Smith has not shown that manifest injustice will result if his claim is not considered. Accordingly, this claim is procedurally barred and may not be reviewed on the merits. Mr. Smith has, however, successfully exhausted both of his other claims. In his state court appeal, Mr. Smith mentioned the right to "compulsory process at a Wade hearing" (App. Br. at 29), and he cited state cases, such as People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72 (1990), and People v. Granville, 175 A.D.2d 213, 572 N.Y.S.2d 352 (2d Dep't 1991), that discuss the issue in terms of the federal constitutional right to compulsory process and the right to present a defense. He also cited decisions from the lower federal courts, such as Dunniqan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998), that address the issue of whether suggestiveness in an identification that is not created by the police is relevant to a Wade determination. (App. Br. at 31). The Appellate Division discussed and rejected Mr. Smith's challenges to the Wade hearing procedures on the merits. People v. Smith, 278 A.D.2d at 140, 718 N.Y.S.2d at 56.
Similarly, Mr. Smith's claim that the trial court erred in rejecting his request to present expert identification testimony is also exhausted. On appeal, he referenced Second Circuit cases such as Lyons v. Johnson, 99 F.3d 499 (2d Cir. 1996) (citing Kampshoff v. Smith, 698 F.2d 581 (2d Cir. 1983)), in which federal constitutional issues, including the Sixth Amendment right to trial as it relates to the presentation of misidentification evidence, were presented. (App. Br. at 39-40). Again, the Appellate Division "considered and rejected" this claim on the merits. People v. Smith, 278 A.D.2d at 140, 718 N.Y.S.2d at 56. Accordingly, the substance of these claims must be reviewed.
B. Rejection of Wade Hearing Witnesses
Mr. Smith argues that the pretrial identification procedures (the failed identification procedure at the hotel, the mugshot identification at the police precinct, and the lineup) were unduly suggestive and that the court erred in refusing to allow him to call witnesses to testify about these issues at the Wade hearing. Specifically, he asserts that he was denied his right to present a defense as guaranteed by the Sixth and Fourteenth Amendments.
First, there is no absolute right to a Wade hearing. Due process does not require a state "to conduct a hearing outside the presence of the jury whenever a defendant contends that a witness' identification of him was arrived at improperly." Watkins v. Sowders, 449 U.S. 341, 349 (1981). Rather, the reliability of the identification evidence can be ensured through the "time-honored process of cross-examination" — "the device best suited to determine the trustworthiness of testimonial evidence." United States v. Rucrcriero, 824 F. Supp. 379, 396 (S.D.N.Y. 1993) (quoting Watkins, 449 U.S. at 349); see also James v. Senkowski, No. 97 Civ. 3327, 1998 WL 217903, at *7 (S.D.N.Y. April 29, 1998); Garcia v. Kuhlmann, 897 F. Supp. 728, 730-31 (S.D.N.Y. 1995).
Furthermore, the suppression of identification evidence violates the Due Process Clause of the Fourteenth Amendment only if "under all the circumstances of [the] case, there is a very substantial likelihood of irreparable misidentification." Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (internal quotation marks and citation omitted); see Dunnigan, 137 F.3d at 128. "Short of that point, such evidence is for the jury to weigh." Brathwaite, 432 U.S. at 116. The constitutional validity of in-court identification testimony is analyzed according to a two-step process. First, the court must determine whether the procedure by which the initial identification was obtained was impermissibly suggestive. See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994); Bond v. Walker, 68 F. Supp.2d 287, 301-02 (S.D.N.Y. 1999), aff'd, 242 F.3d 364 (2d Cir. 2000). If it was, the admission of the evidence will nevertheless satisfy constitutional standards if the identification was independently reliable. See Brathwaite, 432 U.S. at 114; Dunnicran, 137 F.3d at 128; Wong, 40 F.3d at 1359. In making that determination, the court must examine various factors, including the opportunity of the witness to view the suspect at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the perpetrator, the level of certainty demonstrated by the witness, and the length of time between the crime and the identification. Neil v. Biggers, 409 U.S. 188, 199-200 (1972); accord Brathwaite, 432 U.S. at 114; Dunnicran, 137 F.3d at 128.
While Mr. Smith argues that the testimony of Mr. Thompkins and Mr. Oakes at the Wade hearing was critical to proving suggestiveness in the pretrial identification procedures, he fails to offer evidence of why such evidence could not have been obtained from cross-examining those two witnesses or from the testimony of other witnesses, such as Officer Sassok and Detective Hamilton, who testified at the Wade hearing. Defense counsel adequately questioned the suggestiveness of identification procedures in her cross-examination of Mr. Thompkins (Tr. at 168-74) and Mr. Oakes (Tr. at 199-202, 212), as well as in her summation. (Tr. at 263, 266-69, 280-86, 288-90). Moreover, as the Appellate Division stated, "There was no evidence of suggestiveness in any aspect of the complainant's identification of defendant, and in each instance the value of the additional information sought to be introduced by defendant was speculative and could not have affected the outcome of the hearing." People v. Smith, 278 A.D.2d at 140, 718 N.Y.S.2d at 56.
Mr. Smith does assert that by restricting his use of witnesses in theWade hearing, he was effectively prevented from proving suggestiveness altogether. He claims that he was hindered in cross-examination at trial because questioning the witnesses about the facts and circumstances surrounding the mugshot identification would have opened the door for the prosecution to raise his prior arrests and convictions. (Memorandum of Law in Support of Petition for Writ of Habeas Corpus ("Pet. Memo") at 30-33). This argument is without merit. The petitioner had the opportunity to explore the circumstances surrounding the identification via "a medium that would not establish its character as a `mug shot.'"People v. Bond, 198 A.D.2d 509, 510, 604 N.Y.S.2d 195, 196 (2d Dep't 1993). The photograph could have been introduced into evidence through the testimony of the victim or admitted as evidence on stipulation, without calling attention to Mr. Smith's prior criminal history. Additionally, this dilemma is essentially present in every criminal case and is inherent any time "a lawyer decides on cross-examination to ask a question that may produce an answer unfavorable to his client." Watkins, 449 U.S. at 349. Moreover, as discussed previously, the record reflects that defense counsel did adequately explore these issues in cross-examination and summation despite this alleged handicap.
Even assuming that the procedure by which the initial identification was obtained was impermissibly suggestive, the court found that Mr. Thompkins' identification of Mr. Smith was independently reliable. First, the eyewitness, Mr. Thompkins, had a clear view of his assailant. He first saw him on a well-lit stairway. Then, facing the assailant, he was forced from the hallway, which contained overhead fluorescent lights, into his brightly lit room. (Tr. at 138-40). Second, the witness' degree of attention was high because he was alerted to his assailant's presence behind him minutes before the crime occurred and because he recognized the assailant as someone he had seen in the building before. (Tr. at 138). Third, there is a high likelihood of accuracy in the witness' initial description. Prior to the identification procedures, the witness was able to give a reasonably comprehensive description of his assailant. (H. at 6-7, 18-19). Fourth, the witness exhibited a high level of certainty each time he identified the petitioner. The one inconsistency in Mr. Thompkins' identification of Mr. Smith is the fact that he was unable to make an identification when questioned in the hotel lobby. This appears to be the result of the nature of the identification photos used, rather than of any equivocation by Mr. Thompkins. The photos shown to him were small, black-and-white xeroxed copies (Exh. H at 8-9). Also, there is no evidence that Mr. Thompkins ever faltered or hesitated during either his in-court or out-of-court identifications. Finally, little time elapsed between the crime and the confrontation. The mug shot identification occurred only three days after the crime, and the lineup took place the day after that. Thus, the admission of the in-court identification was constitutionally valid, and the trial court did not err in denying petitioner's proffered witnesses at the Wade hearing. Since this claim fails on the merits under the less deferential pre-AEDPA standard, there is no need to conduct the AEDPA's more intricate analysis.
C. Denial of Expert Testimony
Mr. Smith alleges that the exclusion of expert testimony violated his Sixth and Fourteenth Amendment rights because the omitted testimony was crucial to his misidentification defense. (Pet. Memo, at 35-36). Mr. Smith endeavored to have Dr. Roy Malpass, a professor of psychology and a recognized expert in the area of memory and perception, testify about factors affecting the accuracy of eyewitness identifications. Specifically, Dr. Malpass would have testified: (1) that a violent encounter with an armed assailant may lead to a less accurate identification; (2) that initial perceptions may be selective and may unconsciously be supplemented after the fact; (3) that there is no correlation between a witness' confidence and the reliability of the witness' identification; and (4) that cross-racial identifications are often less accurate than same-race identifications. (Memorandum of Law in Support of Motion to Admit Expert Testimony of Eyewitness Identification at 41-43).
The Supreme Court has established that a defendant has a right under the Sixth Amendment compulsory process clause to present witnesses in his defense. See Taylor v. Illinois, 484 U.S. 400, 402 n. 1 (1988); Chambers v. Mississippi, 410 U.S. 284, 294 (1973)("The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process."). The Second Circuit has held that this principle includes expert witnesses. See, e.g., Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001); Agard v. Portuondo, 117 F.3d 696, 705 (2d Cir. 1997). This right is limited, however, by "the requirements of relevancy and by the trial court's traditional discretion to prevent prejudicial or confusing testimony."Agard, 117 F.3d at 704; see also United States v. Onumonu, 967 F.2d 782, 786 (2d Cir. 1992). In reviewing expert determinations, "the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous." United States v. Brown, 776 F.2d 397, 400 (2d Cir. 1985) (citations omitted).
Expert testimony about eyewitness identification is not directed specifically to the accuracy or inaccuracy of the particular identification at issue. An expert testifying about eyewitness identifications generally only addresses the factors that could affect the accuracy of an identification. "Unlike other witnesses, who assess particular evidence in the record, experts on eyewitness identification attempt to bolster the jury's own ability to assess the evidence. . . . The eyewitness expert thus more resembles a judge giving jury instructions than a psychiatrist commenting on the credibility of a particular defendant." Christopher M. Walters, Admission of Expert Testimony on Eyewitness Identification, 73 Cal. L. Rev. 1402, 1406 (1985). The testimony does, however, bear on the ultimate issue of the defendant's guilt or innocence. The utility of an eyewitness expert is thus most significant where it can be found that the jury is operating with misconceptions about eyewitness identifications. If it can be shown that the jury's "collective common sense" leads to an incorrect inference, expert testimony can be important in providing potentially counterintuitive information. See id. at 1404-06.
While eyewitness identification is often used as evidence connecting an individual to a crime, it has long been criticized as being unreliable. See, e.g., Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir. 1978) (" [C]onvictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect [and] the least reliable, especially where unsupported by corroborating evidence."); United States v. Russell, 532 F.2d 1063, 1066 (6th Cir. 1976) (cautioning lower courts to be particularly vigilant where identification of a stranger is based upon a single brief observation made during a time of stress); United States v. Greer, 538 F.2d 437, 442-43 (B.C. Cir. 1976). While most jurors understand, both from their own experience and intuition, how certain factors can affect the accuracy of an identification (such as lighting, distance, or duration of exposure), many do not have an understanding of the impact of other factors. See People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 364 (2001) ("Despite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror."). A mistaken identification may result from any number of deficiencies in an observer's perception or memory. Nonetheless, it has been found that jurors place considerable weight on the testimony of eyewitnesses. See Edward B. Arnolds et al., Eyewitness Testimony 297 (1984). Expert testimony on eyewitness identification typically focuses on how specific circumstances surrounding an identification may affect its accuracy. The body of research and commentary on eyewitness identification is substantial. It is worth focusing on several factors that have been shown to affect the reliability of eyewitness identification most dramatically.
Cross-racial identifications have frequently been shown to be less accurate than identifications made by someone of the same race. See Elizabeth F. Loftus James M. Doyle, Eyewitness Testimony Civil and Criminal 86-88 (1997); John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 Am. J. Crim. L. 207, 211-14 (2001) (also referencing Stephanie J. Platz Harmon M. Hosch, Cross-Racial/Ethnic Eyewitness Identification: A Field Study, 18 Journal of Applied Social Psychology 972 (1988)). As a general proposition, we are much less able to differentiate members of other races than members of our own. See Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934, 951-57 (1984) (detailing problems of cross-racial identification in courtroom). Many people are unaware of the magnitude, or even the existence, of this cross-racial effect. The most widely cited study in this area was co-authored by Dr. Malpass, the expert tendered by the petitioner here. Loftus Doyle, supra, at 86 (citing Roy Malpass Jerome Kravits, Recognition for Faces of Own and Other Race, 13 Journal of Personality Social Psychology 330-34 (1969)). In the Malpass study, researchers found that subjects recognized faces of their own race better than faces of another race. Id. Subsequent studies have shown consistent results. Id. (citing Brigham Barkowitz, Do They All Look Alike? The Effect of Race, Sex, Experience, and Attitudes on the Ability to Recognize Faces, 8 Journal of Applied Social Psychology 306-18 (1978); Luce, Blacks, Whites and Yellows: They All Look Alike to Me, Psychology Today, Nov. 1974, at 106-08). This effect has been shown to occur in photographic arrays and lineups, as well as in-court identifications. The cross-racial effect has clear implications for the accuracy of an eyewitness identification when the witness and the accused are of different races, and expert testimony on this topic can help educate the jurors on the subject. See United States v. Smith, 736 F.2d 1103, 1106 (6th Cir. 1984) (per curiam) (finding that expert testimony on cross-racial misidentifications would have assisted jury, though determining exclusion of testimony to be harmless error); United States v. Norwood, 939 F. Supp. 1132, 1137 (D. N.J. 1996) (finding expert testimony on this issue to be "helpful" to the jury). In this case, the petitioner sought to have Dr. Malpass testify about the cross-racial effect, as Mr. Thompkins is Caucasian and Mr. Smith is African-American. In addition to informing the jury about this potential effect, "jurors are more apt to comfortably discuss racial differences without fear of discord in the jury room if there is some basis for such discussion in the record." People v. Beckford, 141 Misc.2d 71, 76, 532 N.Y.S.2d 462, 465 (N.Y.Sup.Ct. 1988). Dr. Malpass' testimony on the subject would likely have been probative and useful for the jury to hear.
Another relevant topic of expert testimony is how stress can affect the reliability of an identification. The effect of stress on an identification is described in what is known as the Yerkes-Dodson law, named for the two psychologists who first discovered it in 1908. Loftus Doyle, supra, at 27. This law states, in essence, that "while moderate stress may sharpen perception, sustained high stress causes a dramatic decline in accuracy." Walters, supra, at 1406; see also Norwood, 939 F. Supp. at 1137. Researchers have studied the effects of stress on memory by interviewing people after they have witnessed disasters and by watching people perform in stressful situations and other occasions where stress can be measured. Loftus Doyle, supra, at 29. "[0]ne reason why people are poorer perceivers under conditions of high stress seems to be that stress causes a narrowing of attention. In a highly stressful state, people concentrate more on just a few features from their environment, and they consequently pay less attention to others." Id. at 29-30.
One way this "selectivity of attention" is manifested is in crimes involving a weapon. Id. at 30. Studies have indicated that a crime witness' attention will often be highly focused on the weapon being used in the crime (the barrel of a gun or the blade of a knife), resulting in a reduction in ability of the witness to remember other details of the crime (including the face of the assailant). Id. (referencing C. Johnson B. Scott, Eyewitness Testimony and Suspect Identification as a Function of Arousal, Sex of Witness, and Scheduling of Interrogation (Paper presented at the American Psychological Association Annual Meeting, Washington, B.C., 1976)). Researchers have concluded that "narrowing of perceptual focus can occur in response to a weapon even when the events are not especially stressful." Id. at 31. Accordingly, some courts have found that expert testimony relating to the "weapons focus" phenomenon can be helpful to a jury. See e.g., Smith, 736 F.2d at 1106; Norwood, 939 F. Supp. at 1137. Here, the assailant is alleged to have wielded a gun at the time of the crime, using it to threaten Mr. Thompkins. This undoubtedly increased Mr. Thompkins' stress level. Expert testimony on the effect that increased stress level might have on Mr. Thompkins' memory and perception could have been relevant and useful to the jury.
Eyewitness identification experts have also been used to testify about the absence of correlation between eyewitness confidence and accuracy. Generally, jurors tend to believe eyewitness testimony offered with confidence. Loftus Doyle, supra, at 2. In fact, the Supreme Court has formally endorsed eyewitness confidence as an indication of accuracy. See Neil v. Bicrcrers, 409 U.S. 188, 199 (1972) ("[T]he factors to be considered in evaluating the likelihood of misidentification include . . . the level of certainty demonstrated by the witness at the confrontation."). But cf. Commonwealth v. Santoli, 424 Mass. 837, 845-46, 680 N.E.2d 1116, 1121 (1997) (forbidding the use of a jury instruction equating confidence with accuracy). This perceived relationship between confidence and reliability, however, appears to be wrong. Studies have indicated that "the empirical evidence does not support the idea that eyewitness confidence is a valid measure of eyewitness accuracy under ecologically valid conditions." Gary Wells Donna Murray, Eyewitness Confidence, in Eyewitness Testimony: Psychological Perspectives 155, 161 (Gary Wells Elizabeth F. Loftus eds., 1984). One reason for this phenomenon is the malleability of eyewitness confidence:
Among the reasons undermining the reliability of eyewitness confidence as a predictor of accuracy is the extreme malleability of eyewitness confidence. As soon as the eyewitness enters the legal system, confidence and accuracy seem to take different paths. Even routine witness preparation and questioning, conducted without Machiavellian intent, will tend to boost the eyewitness's certainty, while having no positive impact on the eyewitness's accuracy.
Loftus Doyle, supra, at 3-4. An individual's instinctive trust of a person speaking with confidence may thus not be an accurate way of evaluating an eyewitness. If jurors are operating under such a potentially flawed framework, expert testimony could certainly be probative.
Here, Mr. Thompkins was a confident witness, identifying Mr. Smith in the courtroom (Tr. at 140) and maintaining that confidence throughout cross-examination. Given the findings that eyewitness confidence is not a reliable indicator of accuracy, Dr. Malpass's testimony could have helped the jury understand the counterintuitive relationship between confidence and reliability.
Finally, experts are often utilized to elaborate on the concept of "unconscious transference." This is a phenomenon in which a person seen in one situation is confused with or recalled as a person seen in a second situation. Loftus Doyle, supra, at 89; Francis A. Gilligan, Edward J. Imwinkelried Elizabeth F. Loftus, The Theory of "Unconscious Transference": The Latest Threat to the Shield Laws Protecting the Privacy of Victims of Sex Offenses, 38 B.C. L. Rev. 107, 111-17 (1996). Studies conducted in this field have shown that an eyewitness may unwittingly associate a face or description of a person they have seen before in place of that of their assailant. Beckford, 141 Misc.2d at 76, 532 N.Y.S.2d at 465 (citing Veronica Abney, Expert Testimony and Eyewitness Identification, 91 Case Commentary 28 (1986), and referencing generally Wallace D. Loh,Psycholegal Research: Past and Present, 79 Mich. L. Rev. 659, 660-61 (1981); Brian R. Clifford Ray Bull, The Psychology of Person Identification (1978); Elizabeth F. Loftus, Eyewitness Testimony (1979); David McCord, Syndromes, Profiles and other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or. L. Rev. 19, 20-108 (1987)). "[T]he unconscious transference theory does not posit that the witness's recollection of the litigated event is generally poor; rather, the hypothesis is that the witness has a weak memory of a certain detail such as the perpetrator's identity. . . . If the phenomenon of unconscious transference is to occur, there must not only be a gap in the witness's memory of the event, there must also be a detail from another event with which to fill the gap." Gilligan et al., supra, at 112-13.
In the case at hand, Mr. Thompkins testified that he had seen Mr. Smith several times around the hotel. (Tr. at 165-67, 174-75). Accordingly, it is possible that Mr. Thompkins confused his assailant with Mr. Smith. The facts of this case could have presented a situation where the unconscious transference phenomenon may have occurred. This type of information may certainly be said to be outside the common knowledge a juror may have. Dr. Malpass' testimony could have explained this complex concept to the jury and would therefore have been probative.
These factors indicate that jurors may be operating under incorrect or incomplete understandings about eyewitness testimony. This may well contribute to jurors' excessive reliance on eyewitness testimony, which could ultimately increase the danger of a wrongful conviction. Courts have traditionally relied upon cross-examination and jury instructions as mechanisms to alert the jury to any inaccuracies or inconsistencies in the testimony of an eyewitness. See United States v. Kime, 99 F.3d 870, 884-85 (8th Cir. 1996); United States v. Rincon, 28 F.3d 921, 925-26 (9th Cir. 1994); United States v. Harris, 995 F.2d 532, 536 (4th Cir. 1993). These methods are generally presumed to enable the jury to assess the credibility and reliability of each witness. However, these safeguards are not sufficient because, "[t]o the extent that a mistaken witness may retain great confidence in an inaccurate identification, cross-examination can hardly be seen as an effective way to reveal the weaknesses in a witness' recollection of an event." United States v. Downing, 753 F.2d 1224, 1231 n. 6 (1985). Moreover, "exposing inconsistencies in witness testimony and probing about details . . . [may] raise doubts about the reliability of an eyewitness identification, [but] it is not clear whether this strategy actually improves the quality of jurors' decisions." Jennifer L. Devenport et al., Eyewitness Identification Evidence: Evaluating Commonsense Evaluations, 3 Psychology Public Policy and Law, 338, 351 (1997). Here, the prosecution's case rested almost exclusively on Mr. Thompkins' identification of the petitioner, as "there was no physical evidence connecting [Mr. Smith] to the crime and no other eyewitnesses." (Pet. Memo, at 38). Given the presence of several factors that could have diminished the reliability of Mr. Thompkins' identification, Dr. Malpass' testimony would have been relevant. In this case, expert testimony about the various factors affecting eyewitness testimony would have reduced the potential for a mistaken identification; therefore, Dr. Malpass should have been allowed to testify.
Nevertheless, despite the growing body of research indicating the potential dangers of eyewitness testimony, courts have regularly denied admission of expert testimony on the topic. See Washington v. Schriver, 255 F.3d 45, 59-60 (2d Cir. 2001) (finding that exclusion of expert testimony did not rise to level of constitutional error under the confrontation and due process clauses because the issues the expert would have testified to were presented to the jury in other ways); United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999) (upholding the district court's determination that the proffered psychologist's testimony "would have confused the jury's assessment of the [eyewitness'] credibility"); United States v. Serna, 799 F.2d 842, 850 (2d Cir. 1986) (upholding exclusion of expert testimony regarding reliability of eyewitness identifications because it would have confused jury). Courts have been reluctant to admit expert evidence for a variety of reasons; for example, "courts have said that the jury could decide the credibility issues itself; that experts in this area are not much help and largely offer rather obvious generalities; that trials would be prolonged by battles of experts; and that such testimony created undue opportunity for confusing and misleading the jury." United States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995).
Thus, although the decision to exclude Dr. Malpass' testimony was almost certainly erroneous, it is not grounds for habeas corpus relief. Under the AEDPA, the challenged decision must have been "contrary to," or have involved an "unreasonable application of," "clearly established Federal law," as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). "Clearly established federal law" refers only to Supreme Court "holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.
The Supreme Court has not yet ruled on the issue of whether the exclusion of an eyewitness expert in a case such as this constitutes a violation of the Sixth or Fourteenth Amendments. The trial court's decision was therefore not "contrary to" federal law, as the court did not reach a conclusion opposite to any legal principle enunciated by the Supreme Court; nor has the Supreme Court decided any factually indistinguishable case. See Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001). Rather, the issue here is whether the state court's determination "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407. Therefore, this claim should be analyzed under the "unreasonable application" prong of § 2254(d)(1).
The relevant Supreme Court standard governing claims for the denial of an accused's right to present a defense was set forth in Chambers v. Mississippi, 410 U.S. 284, 294 (1973) ("The right to . . . call witnesses in one's own behalf [has] long been recognized as essential to due process."). Accord United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992) ("[T]he right to present a defense is one of the minimum essentials of a fair trial.") (internal quotation marks and citations omitted). "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.' . . . An essential component of procedural fairness is an opportunity to be heard." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal citations omitted).
Yet, as discussed previously, the admissibility of expert testimony in the area of eyewitness identification remains a widely debated topic in both federal and New York state law. Mr. Smith cannot claim that "all reasonable jurists" would have allowed Dr. Malpass' testimony, nor can he show that Justice Beal's decision was "objectively unreasonable" in declining to extend the general principles enunciated in Chambers to this case. See Williams, 529 U.S. at 409-12. The decision to admit or exclude an expert's testimony has traditionally been within the discretion of the trial judge. See United States v. Brown, 776 F.2d 397, 400 (2d Cir. 1985). If the trial court found that an expert's testimony would confuse the jury or would be cumulative of other evidence in the case, it would be within its discretion to refuse to admit the testimony. See, e.g., Agard, 117 F.3d at 704; Brown, 776 F.2d at 402. Given the discretionary nature of the decision, as well as the abundance of decisions that reject expert testimony of this sort, there was no unreasonable application of clearly established federal law.
Conclusion
For the foregoing reasons, I recommend that Mr. Smith's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objection shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable William H. Pauley III, Room 2210, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.