Rickenbacker v. Warden, Auburn Correctional Facility

• Decision Date: 05 April 1977
• Docket Number: No. 39,D,39
• Citation: 550 F.2d 62
• Parties: Robert RICKENBACKER, Relator-Appellant, v. The WARDEN, AUBURN CORRECTIONAL FACILITY, and the People of the State of New York, Respondents-Appellees. ocket 76-2036.
• Court: U.S. Court of Appeals — Second Circuit

Page 62

550 F.2d 62

Robert RICKENBACKER, Relator-Appellant, v. The WARDEN, AUBURN CORRECTIONAL FACILITY, and the People of

the State of New York, Respondents-Appellees.

No. 39, Docket 76-2036.

United States Court of Appeals, Second Circuit.

Argued Sept. 14, 1976.

Decided Dec. 22, 1976.

Rehearing and Rehearing En Banc Denied April 5, 1977.

Lillian Z. Cohen, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondents-appellees.

Aaron J. Jaffe, New York City (Molly Colburn, Law Student, on the brief), for relator-appellant.

Before SMITH, OAKES and MESKILL, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Robert Rickenbacker appeals from the denial of his petition for a writ of habeas corpus by the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge. On appeal Rickenbacker's sole claim is that his counsel at his trial for murder was so incompetent as to violate his sixth amendment rights. We find no error and affirm the denial of his petition.

I.

About 6:30 p. m. on July 30, 1970 three men entered a grocery store in Brooklyn. During the ensuing robbery a man helping the store owner was killed. Two nearby New York City patrolmen, Thomas Walsh and Donald Scannapieco, heard shots and went toward the store. They saw three men running in the direction of a parked gypsy taxi containing a fourth man. Scannapieco arrested one of the three robbers and the man in the taxi. Walsh chased the other two men through the streets and a store, first in his patrol car and then on foot. He captured one robber, and the other one escaped. The police were told that the escapee was Rickenbacker and that he lived at 63 Decatur Street in Brooklyn. Police went to that address and were unable to locate Rickenbacker, despite a search of the neighborhood. About eight months later, on March 11, 1971, Detective Robert Mashall, who was in charge of the investigation, saw appellant in the police station while he was in custody for another unrelated offense. Marshall asked him his name and address. When he responded Robert Rickenbacker, 63 Decatur Street, he was arrested.

The driver of the parked car pleaded guilty to a lesser offense during the first trial in May, 1971. While the jury could not agree on a verdict as to Rickenbacker, it found the other two men guilty of murder. At Rickenbacker's second trial in October, 1971 he was represented by Joseph Lombardo, another court-appointed attorney. At the second trial, in New York Supreme Court (Kings County), the jury deliberated less than two hours and found him guilty of murder. He was sentenced to 25 years to life imprisonment and is currently confined in Auburn Correctional Facility.

His conviction was affirmed without opinion by the Appellate Division, Second Department, and leave to appeal to the New York Court of Appeals was denied on November 14, 1974. He then filed a petition for a writ of habeas corpus, which was denied by Judge Platt on February 24, 1976.

II.

Rickenbacker argues that his attorney's incompetence is shown by (1) his failure to make an opening statement, (2) his failure to object to the introduction of a gun, (3) his failure to object to portions of the charge to the jury, (4) his inadequate cross-examination, (5) his ineffective closing argument, and (6) his failure to object to portions of the government's closing argument. While we find no merit in the first three claims, the last three raise troublesome issues.

The testimony at the trial took some two hours to present. The government presented seven witnesses, and Rickenbacker presented none.

Sam Fichera, the owner of the store, testified and described the robbery. He said he was able to identify only two of the robbers, Morgan and Ferguson, and that Morgan had had a gun. On cross-examination he answered nine questions about the gun he owned and which he had fired at the robbers while pursuing them. ¹

Michael Petrancosta, who was helping Fichera at the time of the robbery and who is the son of the victim, testified and described the robbery. He said he was able to identify one robber, Morgan, and that Morgan had had a gun. There was no cross-examination.

Patrolman Thomas Moore testified that he saw the victim after the robbery and that he was dead. There was no cross-examination.

Patrolman Walsh testified and said he saw three men running toward the taxi and that two, Morgan and Rickenbacker, were carrying guns. He described the chase and identified Rickenbacker as the person who had eluded him. He said that during the chase Rickenbacker threw a gun between the two parked cars. The gun was later retrieved and was introduced in evidence. On cross-examination Walsh answered nine questions and said that during the chase, which lasted three or four minutes, the robbers were running fast and that he had turned possibly five corners. ²

Patrolman Scannapieco testified that he saw three men run toward the taxi and that two, Morgan and Rickenbacker, were carrying guns. He said that Rickenbacker ran within 20 feet of him and that he saw his face. He then identified Rickenbacker. On cross-examination he answered seven questions and said all three robbers were male Negroes. ³

Detective Marshall testified that he searched 63 Decatur Street and other places in the neighborhood for about a month and was unable to find Rickenbacker and that when he was arrested on March 11 Rickenbacker gave 63 Decatur Street as his home address. On cross-examination he answered four questions and said that the first time he had ever seen Rickenbacker was on March 11 at the Brooklyn police station. ⁴

The identification testimony concerning Rickenbacker was essentially the same as in the first trial, in which the jury failed to agree. In the second trial the state for the first time brought in the evidence of Rickenbacker's absence from his usual haunts on a theory of flight to avoid prosecution. Lombardo succeeded in keeping out evidence the state sought to adduce that Rickenbacker had failed to make his weekly report to his parole officer during the eight months between the holdup and his arrest.

Dr. Wald, the medical examiner, testified that the victim died from a gunshot wound. There was no cross-examination.

At the close of the state's case Rickenbacker's attorney told the court that Rickenbacker wanted to call some witnesses. After some discussion between Rickenbacker and his attorney, the defense decided not to call any witnesses.

Rickenbacker's attorney gave a brief (13 double-spaced typed pages) summation in which he stressed the failure of the state to introduce any fingerprints from the gun Rickenbacker allegedly threw between the two parked cars, the failure of Fichera and Petrancosta to identify Rickenbacker, the circumstances under which Walsh and Scannapieco saw the robber during the chase, the meager efforts the police made to find Rickenbacker, and the fact that Rickenbacker was later found in Brooklyn.

The state's closing argument emphasized Rickenbacker's flight from his home and the reliability of the identification by Walsh and Scannapieco. During his argument the prosecutor said, without objection, "if one juror is fooled, the People have lost the case and I don't mean lose like Baltimore losing to Pittsburgh. We've lost on behalf of the People of the State of New York, to bring a defendant to justice whom the People feel merits justice in the form of a guilty verdict."

III.

Rickenbacker concedes that in this circuit the standard for inadequate counsel was enunciated in United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950). "(U)nless the purported representation by counsel was such as to make the trial a farce and a mockery of justice, mere allegations of incompetency or inefficiency of counsel will not ordinarily suffice as grounds for the issuance of a writ of habeas corpus . . . . A lack of effective assistance of counsel must be of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice." This court has reaffirmed this standard numerous times in recent years. Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir. 1976); United States v. Yanishefsky, 500 F.2d 1327, 1333 (2d Cir. 1974); United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1312 (2d Cir.), cert. denied, 417 U.S. 972, 94 S.Ct. 3179, 41 L.Ed.2d 1144 (1974); United States v. Sanchez, 483 F.2d 1052 (2d Cir. 1973), cert. denied, 415 U.S. 991, 94 S.Ct. 1590, 39 L.Ed.2d 888 (1974); United States ex rel. Marcelin v. Mancusi, 462 F.2d 36, 42 (2d Cir. 1972), cert. denied, 410 U.S. 917, 93 S.Ct. 977, 35 L.Ed.2d 279 (1973); United States ex rel. Scott v. Mancusi, 429 F.2d 104, 109 (2d Cir.), cert. denied, 402 U.S. 909, 91 S.Ct. 1385, 28 L.Ed.2d 651 (1971); United States v. Katz, 425 F.2d 928, 930-31 (2d Cir. 1970).

We agree with Judge Platt that by the Wight standard Rickenbacker's attorney was not so incompetent as to warrant reversing Rickenbacker's conviction.

Wight is based on the due process clause of the fifth amendment and the assistance of counsel clause of the sixth amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and its progeny rest on the sixth and fourteenth amendments. Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970) (per curiam).

Rickenbacker invites this court to follow other courts in rejecting the "farce and mockery" standard. The District of Columbia Circuit, which originated the "farce and mockery" standard in Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945), has now said that the test is whether the defendant had "reasonably competent assistance of an attorney acting as his diligent conscientious advocate." United States v. DeCoster,...