Saltys v. Adams

Citation465 F.2d 1023
Decision Date18 August 1972
Docket NumberDocket 71-1973.,No. 679,679
PartiesGeorge M. SALTYS, Petitioner-Appellant, v. Frederick E. ADAMS, Warden, Connecticut State Prison, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Bonnie P. Winawer, New York City, for petitioner-appellant.

Richard F. Banbury, Asst. State's Atty., Hartford, Conn. (John D. LaBelle, State's Atty., Hartford, Conn., on brief), for respondent-appellee.

Before FRIENDLY, Chief Judge, and SMITH and OAKES, Circuit Judges.

OAKES, Circuit Judge:

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, 1968.1 Three people observed the robbery: Jim Polowitz, a stock clerk, who testified that he saw one robber's face for about 20 seconds before he was forced to lie on the floor and identified petitioner as the culprit in court; Richard O'Brien, a friend of Polowitz's, who testified that he "caught a glimpse" of that robber's face for 10-30 seconds and also identified petitioner in court; and William Doria, a pharmacist, who, despite approximately the same time for observation, was unable to make a positive identification. None of the men saw the face of the second robber. The robber whose face was seen wore a coat with a turned-up collar and a hat with a turned-down brim.

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, Polowitz, aware that the police suspected a particular person, examined four to six police "mugshots"2 at the Hartford station, picked out a photograph of petitioner as "resembling" or "looking like" the robber, and subsequently identified his coat and keys.

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,3 and both men then identified him positively as the robber. In the court below, Polowitz said he was not "100 percent sure" of his identification until he saw petitioner in the bullpen. Polowitz, who is 5 feet 7 inches tall, had described the robber as one of the same height; petitioner is 5 feet 11 inches tall and was seated in the bullpen when Polowitz saw him. This bullpen "walk-through" was done without notice to petitioner or to petitioner's lawyer, who was representing petitioner that very day at his arraignment on the unrelated Hartford robbery charge.

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.4 Petitioner's appointed counsel did not object, before or at trial, to the in-court identifications, relying instead on cross-examination to show the unreliability of the identification. In doing so, petitioner's counsel brought out many more facts as to the pretrial identifications. Petitioner and his counsel, according to petitioner, never discussed that trial decision. On the basis of this failure to object the State argues that petitioner waived any complaints regarding the manner in which he was identified. Counsel also refrained, over petitioner's objection, from eliciting testimony that Polowitz's coat and keys had been recovered from someone other than petitioner, apparently on the theory that any mention of Saltys' arrest for another robbery would prejudice him.

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.5

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 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...

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