United States ex rel. Haynes v. McKendrick, 70 Civ. 3041.

• Decision Date: 25 October 1972
• Docket Number: No. 70 Civ. 3041.,70 Civ. 3041.
• Parties: UNITED STATES of America ex rel. James C. HAYNES, Petitioner, v. Charles L. McKENDRICK, Warden, Wallkill State Prison, Wallkill, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

350 F. Supp. 990

UNITED STATES of America ex rel. James C. HAYNES, Petitioner, v. Charles L. McKENDRICK, Warden, Wallkill State Prison, Wallkill, New York, Respondent.

No. 70 Civ. 3041.

United States District Court, S. D. New York.

October 25, 1972.

COPYRIGHT MATERIAL OMITTED

Michael Meltsner, Columbia University School of Law, New York City, for petitioner.

Louis J. Lefkowitz, Atty. Gen. State of New York by Michael Colodner, Asst. Atty. Gen., New York City, for respondent.

OPINION

MOTLEY, District Judge.

On December 11, 1965, at approximately 9:00 P.M., three men robbed a delicatessen in Niagara, New York, of about $130.00 in bills and coins. In the course of the robbery, one of the robbers hit a customer of the delicatessen with a gun, knocking him unconscious and taking his wallet and money. This robber was wearing a beige trench coat, a black beret, and a mask which covered his mouth. He was pursued by two policemen who saw him running out of the delicatessen, but he escaped apprehension after a chase. In the meantime, two other officers had come on the scene and, after losing sight of this suspected robber for a brief time, spotted petitioner and arrested him.

At the time of his arrest, petitioner was wearing a beige trench coat and black beret. Two black stockings, which appeared to fit the description of the robber's mask, were discovered in his pockets along with over $25.00 in change and $73.00 in bills, only $20.00 of which was in his wallet.

Petitioner was taken to police headquarters where he was placed in a series of lineups and identified by three witnesses to the robbery, including two who claimed to have known petitioner previously. All three witnesses identified petitioner at trial as did a fourth eyewitness who claimed to have seen petitioner in front of the store before he put on his mask. Petitioner steadfastly professed his innocence before and after his arrest. At trial, he presented an alibi defense through his own testimony, elements of which were corroborated by various defense witnesses.

During the night of the robbery, the police also arrested a 17 year old, Terry Fox, after he had been named by an eyewitness as a participant in the crime. Cox was identified in a lineup that night and signed a confession the following morning. At trial, Cox denied the truthfulness of the statement, charging that he was scared at the time and that he was told that he would go free if he confessed. The confession referred to the fact that "the stout fellow one of the other two robbers told the people in the store to stick em up."

Petitioner, Cox, and a third co-defendant, Norman Jones, were subsequently indicted and were brought to trial in the County Court of Niagara County, New York on March 2, 1966. At the end of the taking of testimony, but before the summations by counsel, the District Attorney was granted a motion to dismiss the indictment against Jones for lack of evidence against him.

On March 19, 1966, the jury returned verdicts of guilty against both petitioner and Cox on five counts of robbery in the first degree, one count of grand larceny in the first degree, and one count of petit larceny. Petitioner was sentenced to a term of from ten to twelve years on the robbery counts and a concurrent term of five to ten years on the grand larceny count. On direct appeal, the Appellate Division affirmed the judgment of conviction without opinion¹ and leave to appeal to the Court of Appeals was denied in April, 1970.

Petitioner now seeks a federal writ of habeas corpus to release him from Wallkill State Prison, Wallkill, New York, where he is presently serving his term. He raises several claims of federal constitutional error in the state proceedings, which the court shall consider seriatim. Unless otherwise noted, petitioner's claims were presented to the state appellate courts and are cognizable here. 28 U.S.C. § 2254(b) (1970).

I. The Lineups

Petitioner contends that his constitutional rights were violated during the post-arrest lineups conducted for identification purposes in that 1) he was denied counsel at the time, and 2) the procedure utilized denied him due process of law. Since the lineups were conducted in 1966, the right to counsel claim is clearly without merit. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). While petitioner's due process claim may have substance, he neither raised it on direct appeal of his conviction nor in any other post-conviction proceeding in the state courts.² Thus, petitioner has not satisfied the exhaustion requirement of 28 U.S.C. § 2254(b)³ and must first seek redress on this claim through presently available remedies in the state courts, viz., N.Y. C.P.L. 440.10 (McKinney's Consol.Laws, c. 11-A, 1971) (motion to vacate judgment) or N.Y.C.P.L.R. § 7002 (McKinney 1963) (habeas corpus).

II. Dismissal of Charges against Jones

Petitioner's second contention is that the trial court committed error when it granted a motion by the District Attorney, in the hearing of the jury, to dismiss charges against co-defendant Jones. See Trial Record, Vol. IX, at 2-6. The motion was made and granted prior to summations by counsel⁴ and the trial judge gave proper cautionary instructions at the time. This court does not think that petitioner's contention raises a claim of federal constitutional error and, therefore, the court cannot entertain this part of the application. 28 U.S.C. §§ 2241(c), 2254(a) (1970). Cf. United States v. Edwards, 366 F.2d 853, 870 (2d Cir. 1966), cert. denied, Jakob v. United States, 386 U.S. 908, 919, 87 S.Ct. 852, 17 L.Ed.2d 782 (1967) (guilty plea of co-defendant during trial made known to jury); United States v. Aronson, 319 F.2d 48, 51-52 (2d Cir. 1963), cert. denied, 375 U.S. 920, 84 S. Ct. 264, 11 L.Ed.2d 164 (1963) and cases cited therein.

III. Co-defendant Cox's Confession

Petitioner next contends that the admission into evidence of Cox's confession at the joint trial violated petitioner's constitutional rights. The challenge is made on two grounds. First, petitioner claims that since the confession arguably implicated him in the crime, its introduction at the trial violated the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). However, in those cases appellants, who were implicated by the extra-judicial confessions of their codefendants, had no opportunity to cross-examine these codefendants at trial and were thus denied their Sixth and Fourteenth Amendment rights. Here, in contrast, Cox did testify at the joint trial and was cross-examined by petitioner's counsel. Cox admitted making the statement, but denied its truthfulness, and otherwise testified favorably to petitioner. Trial Record, Vol. X, at 72-79, 141-43, 153-155. Consequently, petitioner has no viable Bruton claim. See Nelson v. O'Neil, 402 U.S. 622, 628-630, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971). Cf. California v. Green, 399 U.S. 149, 159-164, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). In any event, if error there were, it would be harmless beyond a reasonable doubt for the reason stated below. See Harrington v. California, 395 U.S. 250, 252-253, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Second, petitioner claims that the trial judge's failure to make a preliminary determination, outside the hearing of the jury, of the voluntariness of Cox's confession transgressed the rule of Jackson v. Denno, 378 U.S. 368, 377, 391, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and, therefore, rendered the confession inadmissible at trial.⁵ Assuming arguendo that petitioner has standing to raise this issue,⁶ and has not waived it by failing to move for a Huntley hearing at or before trial,⁷ this court rejects the claim on the ground that, in any event, the alleged error of the trial court was harmless beyond a reasonable doubt. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The only part of Cox's confession which inculpated petitioner was its reference to "the stout fellow who told the people in the store to stick em up." (sic) Trial Record, Vol. VII, at 19. At worst, this statement was merely cumulative evidence supplementing other overwhelming evidence on the issue of petitioner's identity. Petitioner was captured immediately following the robbery in clothing matching the description of that worn by one of the robbers. In addition, he was identified by four eyewitnesses at trial. Thus, there is not the slightest possibility that the description of one of the robbers as a "stout fellow" affected the jury's determination on the identity issue. Compare Harrington, supra, where the Supreme Court found the alleged error harmless beyond a reasonable doubt, although the challenged statements were more incriminatory and the evidence against the defendant less conclusive than in the instant case. (See p. 1001 infra)

IV. The District Attorney's Summation

Petitioner finally argues that the state prosecutor employed improper and prejudicial argument in his summation, thereby depriving petitioner of a fair trial within the meaning of the due process clause of the Fourteenth Amendment. Petitioner cites no less than eighteen different remarks in the summation to support this contention. Plaintiff's Memorandum of Law, at 6-8.

Respondent urges the court to dismiss this claim on the ground that it does not raise a federal question. While some decisions in this Circuit have held particular statements by state prosecutors to be trial errors without constitutional dimensions, see, e.g., United States ex rel. Garcia v. Follette, 417 F. 2d 709, 713 (2d Cir. 1969); United States ex rel. Colon v. Follette, 366 F.2d 775 (2d Cir. 1966); United States ex rel. Castillo v. Fay, 350 F.2d 400, 401 (2d...