465 F.2d 1023 | 2d Cir. | 1972
Lead Opinion
George Saltys appeals from Judge Clarie’s denial of his habeas corpus petition, raising significant questions regarding the role of counsel at pretrial identification proceedings and the conduct of such proceedings. We hold that petitioner did not receive adequate representation at trial, and we grant the petition.
In May 1968 petitioner was convicted by a state jury on a charge of robbing a West Hartford, Connecticut, drugstore on February 7, 1968.
On the day after the robbery the process of trying to identify the bandits began. Polowitz and O’Brien examined photographs in the West Hartford police station on two occasions but made no identification. The record does not indicate whether petitioner’s picture was one of those displayed on those occasions. In late February petitioner and three others were arrested and charged with an unrelated Hartford robbery, a charge that was subsequently dismissed. Keys and a jacket belonging to Polowitz and taken from him during the West Hartford robbery were recovered from two of the men arrested with Saltys. On March 12 the Hartford police told Polowitz that his property had been recovered, and Polowitz told O’Brien about the retrieval. On the same day, Polo-
On the following day, March 13, the effort to identify the robber positively was renewed, and it is from this point that questions regarding the propriety of the identification procedures become especially acute. O’Brien and Polowitz looked at a spread of four to six “mugshots,” from which each man independently identified petitioner as a man resembling the robber. Immediately after the photographic identification the witnesses were led through the Hartford “bullpen,” the area where arrestees are held pending arraignment. At that time, Polowitz testified, he knew that the police wanted him to identify someone, and he was looking for the man whom he had just identified from the photographs. As might be guessed, petitioner was among the 30 or so men in the bullpen,
On the same day (March 13), after the day’s first photographic identification and the bullpen identification, the witnesses again looked at petitioner’s photograph, following which they again made two other identifications, one in the bullpen and one in “a glass-enclosed cage with two other guys,” the detention area for the Hartford Circuit Court. Apparently suspecting that he was under observation, petitioner unsuccessfully tried to get the attention of his Hartford lawyer, who was in an adjoining room unaware of the identification in progress.
At trial, petitioner presented an alibi defense and testified on his own behalf. The pretrial and in-court identifications were introduced as substantive evidence and were, on the record before us, the only pieces of evidence connecting petitioner to the crime, a fact pattern that distinguishes this case from most other identification cases reviewed by this court, see, e. g., United States v. Harrison, 460 F.2d 270 (2d Cir., 1972), and makes the identification procedure even more important than it is inherently.
Although the district court opinion indicates that no direct appeal from the judgment of conviction was taken, petitioner and his state habeas corpus lawyer (who was not his trial lawyer) testified at that habeas corpus proceeding that an appeal was taken and denied. In any event, his state habeas corpus petition was denied, and this federal action was instituted in mid-1970.
Petitioner is foreclosed by the law of this circuit from asserting a right to counsel at the pre-indictment, pre-arrest photographic identification sessions, a conclusion that follows from our decision denying the right to counsel at even later photographic displays. United States ex rel. Johnson v. New York Department of Correctional Services, 461 F.2d 956 (2d Cir., 1972) (no right to counsel at post-indictment, pretrial display); see United States v. Fernandez, 456 F.2d 638, 641 n. 1 (2d Cir. 1972); United States v. Mojica, 442 F.2d 920, 921 (2d Cir. 1971); United States v. Fitzpatrick, 437 F.2d 19, 25-26 (2d Cir. 1970); United States v. Bennett, 409 F.2d 888, 898-900 (2d Cir.), cert. denied sub nom. Jessup v. United States, 396 U.S. 852, 90 S.Ct. 117, 24 L.Ed.2d 101 (1969) (post-arrest, preindictment display). We adhere to the position of Bennett.
But whether petitioner had a constitutional right to counsel at the bullpen walk-through and the later courthouse viewing of him by the witnesses is an entirely different and more subtle question. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), as modified by Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), furnish guidelines. Wade and Gilbert established the right to counsel at the “critical stage” of a formal, post-indictment lineup. A plurality in Kirby held, however, that the right attaches only “at or after the initiation of adversary judicial criminal proceedings —whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” 92 S.Ct. at 1882. The Chief Justice was of the view that the right attaches “as soon as criminal charges are formally made against an accused . . . .” 92 S.Ct. at 1883. Here the viewings were before proceedings were instituted in respect to the crime testified to by the identification witnesses, but while petitioner was in custody awaiting arraignment on another crime and after counsel had been retained to represent him at the arraignment. Thus it is arguable that Wade and Gilbert, still would require counsel at the viewings here, even with the limitations of Kirby, especially in the light of this circuit’s own cases such as United States v. Roth, 430 F.2d 1137, 1140 (2d Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 583, 27 L.Ed.2d 633 (1971) (Wade applicable to informal, as well as formal, post-indictment confrontation arranged by Government).
Wade, it will be recalled, said with respect to the right to counsel:
In sum, the principle of Powell v. Alabama [287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158] and succeeding cases requires that we scrutinize any pretrial*1027 confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.
388 U.S. at 227, 87 S.Ct. at 1932 (emphasis original). “Potential substantial prejudice,” it may be argued, inhered in the confrontation of Saltys. The witnesses had just picked out petitioner from a photograph as a man “resembling” the robber, and Polowitz went to the bullpen looking specifically for petitioner and aware that the man suspected by the police was there. Petitioner was seated, so Polowitz could not measure his height against the robber’s, and the racial composition of the group in the bullpen may have unduly distinguished petitioner.
As we said in Roth, supra, 430 F.2d at 1141 (citation omitted), “the more informal the viewing procedure the greater the possibility of subtle suggestiveness.” The procedures in this case were most informal, heightening the possibility of suggestiveness and making a faithful reconstruction of what happened at trial “difficult or even impossible.” Id. This particular confrontation was, as we have said, at a “critical stage,” at least in the sense that petitioner was suspected of complicity in the crime, was in custody albeit for another crime, and had been identified in photographs by the two witnesses who then viewed him in person.
If Wade applies, it flows also from Gilbert v. California, 388 U.S. 263, 272-273, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178 (1967), that the witnesses’ testimony that they identified petitioner in the bullpen and in the arraignment courtroom should have been excluded automatically at trial, without inquiring whether that testimony had an independent source. As the Court put it:
That testimony is the direct result of the illegal lineup “come at by exploitation of [the primary] illegality.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.
Ibid. Were this error, it alone would be enough, absent waiver, to require reversal of petitioner’s conviction under Gilbert. The district court held, however, that petitioner, by failing to object at trial, waived all constitutional arguments regarding his identification.
Under the classic test articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (assistance of counsel), waiver of a constitutional right consists of action
But we need not reach the waiver questions here, for on the basis of the record before us we take the view that Saltys was denied either effective or reasonable assistance of counsel. While the requirements for finding inadequacy of counsel are stringent, e. g., United States ex rel. Marcelin v. Mancusi, 462 F.2d 36 (2d Cir., 1972), here we have a case where not just the key but the only evidence against the defendant connecting him with the crime was identification testimony, and counsel failed to take even the rudimentary step of seeking at a suppression hearing in the absence of the jury to explore the evidence underlying the proposed in-court identification evidence. This was an available procedure in Connecticut at the time; it is described as “proper procedure” in State v. Duffen, 160 Conn. 77, 273 A.2d 863, 865 (1970).
Moreover, petitioner’s counsel never discussed the possibility of objecting to the admission of the identification testimony. Counsel apparently made no effort to inquire about the circumstances surrounding the photographic, bullpen, and pretrial courtroom identifications. Although apparently petitioner did not mention to trial counsel the absence of a lawyer at the bullpen and courtroom identifications, he was aware of the procedures only as they were terminating, and his state testimony indicates that he felt that it was too late to correct the damage that had already been done. In any event counsel should have inquired, since, irrespective of the limitations Kirby has placed on Wade, there was plainly a highly viable Wade and Gilbert argument available to him, a line of defense that prior to Kirby might have been impregnable. As Mr. Justice Brennan pointed out in his Kirby dissent, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, 13 of 18 states had applied Wade and Gilbert to pre-indictment confrontations for identification and all (i. e., 8) United States Courts of Appeals facing the question had done so, including our own. See United States v. Ayers, 426 F.2d 524, 526-527 (2d Cir.), cert. denied, 400 U.S. 842, 91 S.Ct. 85, 27 L.Ed.2d 78 (1970). It may be that after Kirby the objection might have been unavailing, but that does not take away from the proposition that in all probability a timely objection on Wade-Gilbert grounds would have prevailed and petitioner then been acquitted, especially when one realizes that in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), following Wade, the accused was confronted after arrest and before being formally charged. See Brennan, J., dissenting in Kirby v. Illinois, supra, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. Our point is that counsel’s errors of omission and commission at the time of trial resulted in Saltys’ conviction, albeit the same course of action taken today could not be wholly faulted. Even today, however, his omission to request a suppression hearing would be a serious one.
It is true that counsel and petitioner did agree, after discussion, not to bring out evidence disassociating petitioner from the inculpatory coat and keys.
We cannot see what conceivable trial strategy was followed in, or what tactical advantage could obtain to Saltys from, failing to object — we might add with vigor — on Wade and Gilbert grounds to the admission of the identification testimony. This may have stemmed from the failure, as we say, to have explored the identification question at a suppression hearing. It may have stemmed from a lack of knowledge of Wade and Gilbert. By virtue of what we consider “woefully inadequate,” United States v. Currier, 405 F.2d 1039, 1043 (2d Cir.), cert. denied, 395 U.S. 914, 89 S.Ct. 1761, 23 L.Ed.2d 228 (1969), representation, key objectionable evidence, without which Saltys in all probability could not have been convicted, was admitted without objection. It was then strengthened, or at least expanded on, by an ill-advised cross-examination. With resultant prejudice, counsel’s omissions here justify reversal. Cf. People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963) (en banc) (Traynor, J.).
Although the record indicates that there is probably no evidence on which petitioner can now be retried, the State must be given an opportunity to retry him constitutionally. This is true even though retrial is doubtful in any event because Saltys has served his sentence and is on parole.
The ruling below is reversed, with directions to issue the writ unless Saltys is retried within 60 days from the issuance of our mandate or such further reasonable time as the district court, for good cause shown, may allow. We need not examine the other substantial questions of the admissibility of photographic identification evidence presented in the case.
Judgment in accordance with opinion.
. Sentenced to a term of 4 to 7 years, he was paroled in January 1972.
. At the federal habeas corpus hearing, O’Brien testified that there were about 10 photographs in this series and in the series he looked at the next day.
. Petitioner, who is white, contends that, of the 30 men, only three others were white, and even roughly similar in age and appearance. The Hartford police and the identifying witnesses contend that half the group was composed of whites.
. One commentator has properly cautioned “ . . . that no class of evidence is less to be relied upon than evidence of identity.” Sobel, Identification: Legal and Practical Problems, 166 N.Y.L.J. No. 122, at 3 (Dec. 28, 1971) (one part of a ten-part article by the Hon. Nathan R. Sobel, Surrogate of Kings County, New York, appearing in the New York Law Journal between Dec. 20, 1971, and Jan. 4, 1972, hereinafter cited as Sobel, with appropriate references). This article has been reprinted sub nom., Assailing the Impermissible Suggestion : Evolving Limitations on the Abuse of Pre-Trial Criminal Investigation Methods, 38 Brooklyn L.Rev. 261 (1971).
. Even assuming, which we do, that what was here involved was a post-arrest situation, albeit an arrest for an unrelated charge, no right to counsel attaches. United States v. Bennett, 409 F.2d 888, 898-900 (2d Cir.), cert. denied, 396 U.S. 852, 90 S.Ct. 117, 24 L.Ed.2d 101 (1969). Most circuits agree with this position. United States ex rel. Johnson v. New York Dep’t of Correctional Services, supra. Contra, United States v. Ash, 461 F.2d 92 (D.C.Cir., 1972) (en banc; 5-4 decision), cert. granted, 407 U.S. 909, 92 S.Ct. 2436, 32 L.Ed.2d 682 (1972); see Sobel, 166 N.Y.L.J. No. 122, at 3 (Dee. 28, 1971).
. Whether the arrest were for the crime in dispute or, as here, for a different crime is relevant to the “critical stage” question. In either case a person is in custody, and there is no reason for the police to use an informal and suggestive procedure without counsel when a proper one with counsel could be arranged. Cf. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (one-person “showup” usable only in narrow circumstances) .
. Petitioner’s trial counsel did not testify at either the state or the federal habeas corpus hearing, so we have no evidence of his reasons for failing to object. We know only that he and petitioner did not discuss the matter.
. We have pointed out the desirability of conducting a pretrial suppression hearing in United State ex rel. Phipps v. Follette, 428 F.2d 912, 913 & n. 1 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970).
. An example of the confusion in one judge’s mind regarding these two distinct issues can be seen in the following question put to petitioner by the state habeas corpus judge:
Q. So you were objecting to the introduction of these coat and keys as evidence linking you with the identification of the accused as being the bandit? A. Yes. That’s what I wanted brought out.
Dissenting Opinion
(dissenting) :
If this appeal had been decided before Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), I could have accepted the result reached by the majority. However, that case
The majority endeavors to escape the clear direction of Kirby by saying that because Saltys was awaiting arraignment on another robbery charge and had either retained or been assigned counsel to that end, “it is arguable that Wade and Gilbert still would require counsel at the viewings here, even with the limitations of Kirby, especially in the light of this circuit’s own cases such as United States v. Roth, 430 F.2d 1137, 1140 (2d Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 583, 27 L.Ed.2d 633 (1971) . ” While Roth held that a pretrial corporeal identification which is something less than a formal lineup can violate the Wade-Gilbert principle, that decision’s bearing on the issue here escapes me since the viewing there was long after the indictment. On the question of whether custody on one charge triggers the right to counsel for every other charge, it is necessary to distinguish, as Mr. Justice Stewart did in Kirby, between problems arising under the self-incrimination clause of the Fifth Amendment and the assistance of counsel clause of the Sixth. When a person is in custody on one charge, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), would rule out admissions with respect to another, in the absence of the appropriate warnings, because of the effect of custody of any sort on the will of the suspect. See Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). But the Sixth Amendment guarantee of counsel is to assist in defending against the crime charged, not against some other not yet charged. See United States v. Davis, 399 F.2d 948, 952 (2 Cir.), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 449 (1968). To be sure, the fact that Saltys had a lawyer on the other robbery charge would have made it easy to have the attorney present at the walkthrough. But the narrowing of Wade and Gilbert by Kirby did not rest on the difficulty in getting a lawyer at all pre-prosecution lineups
The inapplicability of Wade and Gilbert still leaves the question whether the identification of Saltys was “so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The majority conveys the impression that it was, without ever explaining exactly why. There is no indication that the array of photographs displayed to Polowitz and O’Brien, was unfair in any way. The fact that the witnesses were “aware that the police suspected a particular person” is utterly lacking in significance; a victim almost always knows this when he is asked to inspect a group of photographs. Neither do I see any
The case is unusual in that if counsel had objected to testimony concerning the bullpen identification, he would quite probably have been sustained on the basis of what was then thought to be the law, see Justice Brennan’s dissenting opinion in Kirby, 406 U.S. at 704 n. 14, 92 S.Ct. 1877, 32 L.Ed.2d 411, although, as we now know, wrongly so. I cannot escape the impression that this is what underlies the decision here. But the statutory provision on Federal habeas corpus for state prisoners, 28 U.S.C. § 2254(a), authorizes us to direct Saltys’ release only if “he is in custody in violation of the Constitution or laws or treaties of the United States.” Under the Court’s most recent pronouncement he is not. The contrary position of the majority, with the frequent citation of the Wade and Gilbert dicta, fails to recognize the force of Kirby v. Illinois.
. Although the majority opinion here, like the dissent in Kirby, refers to Mr. Justice Stewart’s opinion, in which Chief Justice Burger, Justice Blackmun, and Justice Behnquist joined, as a “plurality opinion,” which is technically correct, the negative inference apparently sought to be drawn from that phrase seems unwarranted, at least as applied to this case. I read Mr. Justice Powell’s statement that he “would not extend the Wade-Gilbert per se exclusionary rule” as indicating a desire to keep open the issue of per se exclusion of testimony concerning lineups without counsel after the beginning of the criminal prosecution, and not at all as favoring such exclusion in the case of such lineups before the prosecution commenced.
. In Wade the lineup was conducted 49 days after the indictment had been filed and 15 days after counsel was appointed. In Gilbert the lineup was held 16 days after the indictment and appointment of counsel.
. Difficulty did indeed exist in some such situations, notably night-time arrests shortly after the crime, but by no means in all.
. This case is a peculiarly inappropriate one for creating confusion as to a possible continuing vitality of the Wade and Gilbert dicta in regard to pre-prosecution lineups since Saltys served over three years of his four to seven year sentence and is currently free on parole.
