U.S. ex rel. Lucas v. Regan

• Decision Date: 03 September 1974
• Docket Number: No. 1070,D,1070
• Citation: 503 F.2d 1
• Parties: UNITED STATES of America ex rel. Cornelius LUCAS, Petitioner-Appellant, v. Paul J. REGAN, Chairman, New York State Division of Parole, Respondent-Appellee. ocket 74-1094.
• Court: U.S. Court of Appeals — Second Circuit

Page 1

503 F.2d 1

UNITED STATES of America ex rel. Cornelius LUCAS, Petitioner-Appellant, v. Paul J. REGAN, Chairman, New York State Division of Parole Respondent-Appellee.

No. 1070, Docket 74-1094.

United States Court of Appeals, Second Circuit.

Argued May 16, 1974.

Decided Sept. 3, 1974.

Lewis B. Oliver, Jr., The Legal Aid Society, New York City (William J. Gallagher, The Legal Aid Society, and Federal Defender Services Unit, New York City, on the brief), for petitioner-appellant.

Arlene R. Silverman, Asst. Atty. Gen. of N.Y. (Louis J. Lefkowitz, Atty. Gen. of N.Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellee.

Before KAUFMAN, Chief Judge, and HAYS and OAKES, Circuit Judges.

HAYS, Circuit Judge:

Appellant commenced this action for a writ of habeas corpus alleging that an impermissibly suggestive pre-trial identification and certain errors in the state court trial at which he was convicted deprived him of various constitutional rights. The district court found no deprivation of constitutional rights and denied the writ. 365 F.Supp. 1290 (E.D.N.Y.1973). We affirm.

On the evening of April 23, 1964, three men gained entry to the apartment of Carl and Almeta Gardner by giving a false name. They proceeded to rob the Gardners of $140.00. In the course of the robbery Mr. Gardner was struck with a gun and had to be hospitalized.

Appellant, Edward Polhill and Norman Adderley were arrested and charged with the crimes. Shortly before trial Adderley pleaded guilty to a charge which was reduced in return for his promise to testify. Appellant was tried with Polhill before a jury and convicted in the Supreme Court, Kings County, New York. On October 15, 1968, the Supreme Court, Kings County, denied coram nobis relief. The Appellate Division affirmed on a consolidated direct appeal and coram nobis appeal. 33 A.D.2d 994, 308 N.Y.S.2d 299 (2d Dep't 1970). The New York Court of Appeals affirmed, 28 N.Y.2d 761, 321 N.Y.S.2d 371, 269 N.E.2d 914 (1971), rehearing denied, 29 N.Y.2d 549, 324 N.Y.S.2d 95, 272 N.E.2d 583 (1971). The United States Supreme Court denied certiorari. 404 U.S. 994, 92 S.Ct. 542, 30 L.Ed.2d 547 (1971). Appellant then commenced this action for a federal writ of habeas corpus, which the district court denied.

I.

Appellant claims the state trial court deprived him of a fair trial by denying a continuance to locate a material witness and to obtain psychiatric records for purposes of cross-examining a prosecution witness.

After the robbery Mrs. Gardner identified Polhill and Adderley as two of the robbers. After some hesitation she identified one Ulysses Bryant as the third robber. Shortly, thereafter, however, she was shown Lucas. She immediately stated that she had been mistaken in her earlier identification and that Lucas was actually the third robber. Defense counsel did not learn of Mrs. Gardner's earlier identification of Bryant until a year later on May 21, 1965, the second day of the trial. ¹ During the next four days the defense tried but failed to locate Bryant. On May 25, the last day of the trial, the defense moved for a continuance, which the trial judge denied.

In Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964), the Supreme Court said:

'The matter of continuance is traditionally within the discretion of the trial judge . . .. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.'

Under the circumstances of this case the trial judge did not abuse his discretion in denying a continuance. It was not crucial that Bryant appear as a witness. The defense did not want him primarily to testify-- the jury already knew that Mrs. Gardner had originally identified another as the third robber. The defense wanted Bryant primarily to show the jury how different his appearance was from Lucas'. But this could have been accomplished with photographs or by examination of other witnesses.

More important, the defense did not show that a reasonable continuance would enable it to locate Bryant. The probability of locating the witness must be considered in the light of 'the reasons presented to the trial judge at the time the request is denied.' Ungar v. Sarafite, supra, at 589, 84 S.Ct. at 850. See also United States v. Ellenbogen, 365 F.2d 982, 986 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967); Neufield v. United States, 73 App.D.C. 174, 118 F.2d 375, 380 (1941), cert. denied, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199 (1942). The defense here did not even indicate what steps had been taken or would be taken to locate Bryant.

The denial of a continuance to secure psychiatric records of Adderley was also within the area of the trial court's discretion. The defense hoped to attack Adderley's credibility by showing that his mental state was poor. The defense claims that it first learned of Adderley's psychiatric history at the trial. The judge signed a subpoena for the records on the second day of the trial. Four days later the records still had not been produced. In seeking a continuance the defense did not indicate, and before this court still does not indicate, what measures it took to secure compliance with the subpoena. Appellee here claims, and appellant does not deny, that a single phone call would have insured production of the records.

The trial court had to exercise its discretion in determining whether the records were so important that a continuance was warranted pending their production. At the time of the motion the significance of the records was unknown. Defense counsel had not examined them or, apparently, even attempted to examine them. The defense had already brought out on cross-examination that Adderley had undergone psychiatric examination. It was not unreasonable for the trial court to assume, in the absence of proof to the contrary, that the records of these examinations would not disclose any additional information of great importance to the trial. Under these circumstances denial of a continuance did not deprive appellant of due process.

II.

Three days after the robbery, and 90 minutes after she had identified Bryant, Mrs. Gardner was shown Lucas alone. She immediately stated that her prior identification of Bryant was incorrect and that Lucas was the third robber. Appellant claims that this showup was so impermissibly suggestive as to lead to a substantial likelihood of misidentification.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court held that in cases like that now before us, where the identification occurred before the decision in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), a confrontation is not objectionable even though impermissibly suggestive, if it is reliable.

'The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.' Neil v. Biggers, supra, 409 U.S. at 199, 93 S.Ct. at 382.

Applying this standard, we find Mrs. Gardner's identification reliable. She testified that she had been able to see the robbers at close range when they first entered the apartment, that the light in the apartment was good, and that she was able to watch the robbers the entire time they were in the apartment. She stated that she couldn't forget their faces and that they made an impression on her. As soon as she saw Lucas at the station house she withdrew her prior identification of Bryant and stated that Lucas was the third robber. This identification took place only three days after the robbery. Although she claimed to have given the police a description of the robbers before the showup, the nature of the description does not appear in the record. To the extent that the appearance of Bryant differed from that of Lucas, her identification of Bryant might be taken to be a prior inaccurate description. But in view of the other factors supporting the reliability of the identification, this single factor does not render the identification unreliable. The prior identification of Bryant was merely one factor affecting the credibility of Mrs. Gardner which the defense could and did raise to the jury.

III.

Shortly before the trial Adderley was permitted to plead guilty to a reduced charge in return for his promise to testify. Appellant claims that under the bargain Adderley would not have obtained the reduction in the charge unless his testimony implicated Appellant and Polhill. He claims that at the trial Adderley denied he would lose the bargain unless he implicated the defendants and that the trial judge and the prosecutor failed to correct this testimony. Indeed, appellant claims that the trial judge himself supported Adderley's claim. Appellant argues this denied him a fair trial.

Immediately after the judge accepted the plea he explained to Adderley the scope of his duty in no uncertain terms:

The Court: 'Bail continued. When you take the stand, I want the Gospel truth. I don't care if it varies from what you said, you tell the Gospel truth.'

Defendant Adderley: 'I will, your Honor.' ² Thus it was accurate for Adderley to testify, and for the trial judge to support the testimony, that his promise was only to tell the truth.

Affirmed.

OAKES, Circuit Judge (dissenting): I respectfully dissent.

The pretrial identification of appellant by Mrs. Gardner was unnecessarily and impermissibly suggestive. Under all of the circumstances, Mrs. Gardner's subsequent...