Opinion
November 5, 1984
Appeal from the Supreme Court, Kings County (Feldman, J.).
Judgment reversed, on the law, and new trial ordered. The findings of fact have been considered and are determined to be established.
The evidence at trial established that Mrs. Ronni Freed was robbed at knifepoint in front of her fourth grade class at P.S. 26 in Brooklyn on September 28, 1981. The central issue at trial was the identity of the robber. One of Mrs. Freed's students on that date was Calvin Davenport, who was 10 years old at the time of the trial. He described the perpetrator and testified that he could identify him if he ever saw him again. Davenport further testified that in looking around the courtroom he could not identify anyone as him. Since defendant was clean shaven at trial and Davenport described the robber as having a full beard, the court, over defense counsel's objection, allowed Davenport to view a photograph taken of defendant on the day he was arrested in which defendant, had a full beard. Davenport identified the man in the photograph as the robber.
We conclude that the court erred in allowing Davenport to be shown a single photograph of a man who resembled the description that he had provided of the robber. This act was so suggestive that it created a substantial likelihood of irreparable misidentification by Davenport (cf. Manson v Brathwaite, 432 U.S. 98). The only proper way to have shown Davenport defendant's photograph would have been to place it in an array of photographs of other men with beards who also fit the general description of the robber.
Further, this error cannot possibly be deemed harmless because the only other evidence linking defendant to the crime — the identification by Mrs. Freed — was far from overwhelming. The description of the robber which Mrs. Freed gave to the police immediately following the commission of the crime and defendant's actual appearance contained marked discrepancies. Thus, at the time of the incident, Mrs. Freed described her assailant as having extremely black skin and curly black hair with some white in it. Also, at the request of the police, she had examined photographs and picked out a photograph of a man who she believed was not the perpetrator but apparently resembled him in skin tone and hair. However, it was established upon trial by medical records and his arrest photograph that defendant had a medium brown complexion and black hair and, more important, that prior to the date of the robbery, he had suffered an extensive depressed skull fracture which left the entire right side of his forehead severely crushed in and scarred. Concededly, Mrs. Freed never noticed that the robber had such a facial deformity. While ultimately Mrs. Freed's identification testimony presented a question of credibility for the jury, it was not such overwhelming proof of guilt as to render harmless the error in Davenport's photo identification. Bracken, Niehoff and Rubin, JJ., concur.
This appeal concerns "what is apparently becoming a popular defense tactic" ( United States v Jackson, 476 F.2d 249, 253) — the drastic alteration of one's appearance between the occurrence of the crime and the time of trial (see Grano, Kirby, Biggers and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting The Innocent?, 72 Mich L Rev 717, 751). Defendant's strategy is rewarded by a majority of this court with a reversal. Because this determination rests upon a refusal of the majority to distinguish between an out-of-court and in-court identification, I dissent.
To be sure, the display of a single photograph to an eyewitness as a means of identifying a suspect may, in some instances, be improper (cf. Manson v Brathwaite, 432 U.S. 98, 116; People v Leonard, 66 A.D.2d 805; People v Laguer, 58 A.D.2d 610). As the Supreme Court explained in Simmons v United States ( 390 U.S. 377, 383-384), the vice in that technique is that "the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification".
The risk of misidentification is diminished, however, when the identification procedure takes place at trial where "a course of cross-examination [may expose] to the jury the method's potential for error" ( Simmons v United States, supra, p. 384). Consequently, the limitations placed upon out-of-court use of photographs do "not apply to the in-court use of photographs" ( United States v King, 433 F.2d 937, 938, cert den. 402 U.S. 976; see People v Massey, 34 N.Y.2d 877).
In-court identification procedures rest in the sound discretion of the Trial Judge ( United States v Satterfield, 572 F.2d 687, 690, cert den. 439 U.S. 840; United States v Harvey, 439 F.2d 142, 143, cert den. 403 U.S. 934; United States v Sherman, 421 F.2d 198, 200 cert den. 398 U.S. 914; United States v Frazier, 417 F.2d 1138, cert den. 397 U.S. 1013; United States v Peacock, 400 F.2d 992, 1000, cert den. 393 U.S. 1040; Kessler v Cupp, 11 Or. App. 392; State v Sprague, 113 R.I. 351) and a variety of "suggestive" in-court procedures have been sustained, such as requiring a defendant to don distinctive clothing used in the crime ( United States v King, supra; Kessler v Cupp, supra; State v Sprague, supra), admitting what is commonly referred to as a "mug shot" into evidence to establish the defendant's appearance at a prior time ( People v Logan, 25 N.Y.2d 184, 195-196, cert den. 396 U.S. 1020; People v Greenridge, 46 A.D.2d 947, 948), and permitting the prosecutor to comment upon such a change in appearance ( United States v Jackson, 476 F.2d 249, supra). Indeed, the defendant's mere presence at trial itself probably constitutes the most suggestive show-up conceivable (see Moore v Illinois, 434 U.S. 220, 230, n 5; 4 Wigmore, Evidence [Chadbourn Rev], § 1130; Uviller, The Role of the Defense Lawyer at a Lineup in Light of the Wade, Gilbert and Stovall Decisions, 4 Crim L Bull 273, 281-284).
A defendant not bent on gamesmanship is entitled, however, to some protection against a suggestive in-court identification procedure (see United States v Archibald, 734 F.2d 938; Kampshoff v Smith, 698 F.2d 581). Upon a proper application, a defendant presenting a misidentification claim may be entitled to an in-court lineup or pretrial lineup, in the exercise of discretion, before being required to confront identification witnesses in court ( United States v Archibald, supra; United States v Williams, 436 F.2d 1166, cert den. 402 U.S. 912; Evans v Superior Ct. of Contra Costa County, 11 Cal.3d 617; People ex rel. Blassick v Callihan, 50 I11 2d 330; Commonwealth v Sexton, 485 Pa. 17; Sobel, Eye-Witness Identification, Legal and Practical Problems [2d ed], § 818, subd [a]; ALI Model Code of Pre-Arraignment Procedure, § 170.2, subds [2], [8]; cf. Moore v Illinois, 434 U.S. 220, 230, n 5, supra; but see United States ex rel. Clark v Fike, 538 F.2d 750, 755 , cert den. 429 U.S. 1064; United States v Edward, 439 F.2d 150).
Our decision in People v Rivera ( 74 A.D.2d 857) offers a useful illustration. In that case we held (p. 858) that the use of a single photograph as the basis for an in-court identification "coupled with [a concededly] suggestive pretrial showup, created a substantial likelihood that the complainant's in-court identification * * * was not reliable". Thus, because the out-of-court identification could have tainted any subsequent identification, the in-court identification became suspect (cf. Kampshoff v Smith, 698 F.2d 581, supra).
I would note, parenthetically, that an inability to make a pretrial identification of the defendant, whether corporal or photographic, goes only to the weight of the in-court identification and not its admissibility ( United States v Toney, 440 F.2d 590; State v Myers, 117 Ariz. 79, cert den 435 U.S. 928; People v Horne, 619 P.2d 53, 57 [Col]; State v McKinney, 498 S.W.2d 768 [Mo], cert den. 415 U.S. 926; Sobel, Eyewitness Identification, Legal and Practical Problems [2d ed], § 6.8).
Here, in contrast, we have no prior taint and the court correctly found that the photograph was the most accurate representation of the defendant's appearance at the time of the robbery because the defendant had radically altered his appearance by shaving off his beard just before trial. Defense counsel never requested that a lineup or other out-of-court identification technique be employed, thus waiving the issue ( Moore v Illinois, 434 U.S. 220, 230, n 5, supra). Had a lineup been requested, it would have been a fair quid pro quo that some means be taken to assure that defendant's physical appearance was the same as that at the time of the crime (cf. ALI Model Code of Pre-Arraignment Procedure, § 160.2, subd [7], par [a]; United States v Gaines, 450 F.2d 186, 195, cert den 405 U.S. 927; United States v King, 433 F.2d 937, supra; Andrews v State, 291 Md. 622). Be that as it may, the admission of the photograph in this case was for a proper purpose and infringed no constitutional or other rights ( United States v King, supra; People v Massey, 34 N.Y.2d 877, supra; People v Logan, 25 N.Y.2d 184, 195-196, supra; People v Greenridge, 46 A.D.2d 947, 948, supra).
Although extra-judicial photographic identifications are not usually admissible in New York (e.g., People v Caserta, 19 N.Y.2d 18, 21), I would tend to think that a defendant cannot have it both ways. If he changes his appearance and requests an out-of-court photographic procedure, the results should be received at trial (cf. People v Lindsay, 42 N.Y.2d 9; People v Brown, 62 A.D.2d 715, aff'd. 48 N.Y.2d 921).
Finding no merit to any of the other contentions, I cast my vote for affirmance.