Boyd v. Henderson

• Decision Date: 16 May 1977
• Docket Number: D,No. 788,788
• Citation: 555 F.2d 56
• Parties: Henry O. BOYD, Sr., Petitioner-Appellant, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent-Appellee. ocket 76-2158.
• Court: U.S. Court of Appeals — Second Circuit

Page 56

555 F.2d 56

Henry O. BOYD, Sr., Petitioner-Appellant, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent-Appellee.

No. 788, Docket 76-2158.

United States Court of Appeals Second Circuit.

Argued Feb. 15, 1977.

Decided May 16, 1977.

Arthur T. Cambouris, New York City (The Legal Aid Society, William E. Hellerstein, William J. Gallagher, and Lawrence H. Sharf, New York City, of counsel), for appellant.

Mark C. Rutzick, Asst. Atty. Gen., of N.Y., New York City (Louis J. Lefkowitz, Atty. Gen. of N. Y. and Samuel A. Hirshowitz, First Asst. Atty. Gen. of N.Y., New York City, of counsel), for appellee.

Before LUMBARD and TIMBERS, Circuit Judges, and KNAPP, District Judge. ^*

WHITMAN KNAPP, District Judge:

Petitioner Henry O. Boyd, Sr., appeals from the denial by the United States District Court for the Eastern District of New York, Bruchhausen, J., of an application for a writ of habeas corpus made pursuant to 28 U.S.C. §§ 2241 and 2254. Boyd was convicted, after a jury trial in the New York State Supreme Court, of forcing his way into and looting the Brooklyn Heights apartment of one Fredricka Riordan. The only identifying witnesses were Mrs. Riordan and her employee, Mary Arrington, who were in the apartment at the time of the robbery. On this appeal, Boyd contends that the procedures used by the New York authorities to secure their identification testimony violated his constitutional rights to due process of law and to the assistance of counsel. We find that the testimony concerning Mrs. Riordan's identification presents no error of constitutional dimensions. With respect to Mrs. Arrington's, we find that any such error was harmless beyond a reasonable doubt. Accordingly, the order appealed from is affirmed.

I

On June 23, 1971, two men forced their way into the apartment of Fredricka Riordan in Brooklyn Heights, New York. After locking Mrs. Riordan and her employee in a closet, the men looted the apartment. ¹ Before being forced into the closet, Mrs. Riordan, a college graduate who described herself as having an "excellent visual memory," had a clear view of one of the assailants from a distance of one foot, for a period of approximately thirty-five seconds. Mrs. Arrington, the other victim, was also able to observe the man's face. Accordingly, Mrs. Riordan gave the police a rather detailed description of one of the robbers, in which Mrs. Arrington concurred. They described him as the taller of the two men, as a black male in his late 20's or early 30's, over six feet tall, with a lean muscular build, an Afro hair style, discolored front teeth, and armed with a silver pistol. Mrs. Riordan recalled that the man had "drooping" eyes and wore a white short-sleeved shirt and khaki-type pants.

At about the time of the robbery, a bartender who worked across the street from Mrs. Riordan's apartment noticed two men removing several items from the building and loading them into a parked car. His suspicions aroused, he took down a description of the car and its license number, which he later gave to the police.

The car thus observed by the bartender proved to be a stolen vehicle, and about a month later on July 24, 1971 petitioner Boyd was found sitting in that car. He was arrested and charged with its theft. At his first arraignment on that charge, he was assigned counsel and ordered to appear in two weeks for further arraignment.

In the meantime, the arresting officer notified Detective Glen J. Fitzgerald, who was charged with the investigation of the Riordan robbery, that Boyd apparently fit the description of one of the assailants given by the two women. Fitzgerald thereupon asked both Mrs. Riordan and Mrs. Arrington to be present for Boyd's arraignment on the stolen car charge, so that they might determine whether he was one of the robbers. Fitzgerald told the women that Boyd fit their description and had been arrested in the vehicle apparently used in the robbery.

Mrs. Riordan appeared at the arraignment on August 10, 1971, but Mrs. Arrington was unable to attend. Boyd was one of many defendants to be arraigned on that day, and Fitzgerald instructed Mrs. Riordan to observe all of the defendants as they appeared and to inform him "when you see the fellow, who did it committed this robbery at your residence." After sitting in the courtroom for approximately twenty minutes and observing several defendants, including six to eight who were black, stand up for arraignment, Mrs. Riordan saw Boyd and immediately identified him as one of her assailants. Three days later, at the preliminary hearing on the ensuing robbery charge, Mrs. Riordan testified that Boyd was one of the robbers. Immediately after the hearing, Mrs. Riordan told Mrs. Arrington that Boyd was clearly one of their assailants.

Boyd was subsequently indicted, and on March 7, 1972, the court held a Wade hearing. Both Fitzgerald and Mrs. Riordan then testified that neither had known when Boyd would appear at the stolen car arraignment, and that neither had heard Boyd's name called out in court. Fitzgerald further testified that he had never before seen Boyd and therefore could not, and did not, signal to Mrs. Riordan when Boyd appeared.

After Mrs. Riordan had thus testified and identified Boyd, Mrs. Arrington was called as a witness. Defense counsel objected to her appearance on the grounds that (1) she had not identified Boyd in the eight and one-half months since the crime, (2) Boyd was the only defendant and the only black male in the courtroom, and (3) Mrs. Arrington knew that Mrs. Riordan had positively identified Boyd and that Boyd had been apprehended in the car used for the robbery. Nevertheless, despite counsel's request that a lineup be conducted, Mrs. Arrington was permitted to testify. She identified Boyd as one of the two men who had committed the robbery.

Defense counsel's motion to suppress the identifications of both witnesses was denied and both were permitted to testify at Boyd's trial. On direct examination, Mrs. Riordan again identified Boyd, and in addition described her identification of Boyd at the car theft arraignment. Mrs. Arrington also identified Boyd on direct examination, but it was only on cross-examination that the details of her Wade hearing identification were brought out. The only other evidence presented by the state was the testimony of the investigating officers and that of the bartender who had noted the license plate number of the car in which Boyd had ultimately been arrested. Boyd did not testify and presented no evidence.

On May 12 the jury found Boyd guilty of robbery in the first degree, grand larceny in the third degree, and burglary in the second degree. After the judgment of conviction had been affirmed without opinion by the Appellate Division, Second Department, Chief Judge Breitel denied leave to appeal to the New York Court of Appeals.

On June 4, 1976, Boyd filed a petition for habeas corpus in the Eastern District, essentially repeating the claim unsuccessfully pressed in the state courts. In an unpublished Memorandum and Order filed July 23, 1976, Judge Bruchhausen denied the application. This appeal followed.

This case presents essentially three questions:

1. Was Mrs. Riordan's arraignment identification (to which she testified on direct examination at trial) conducted in an impermissibly suggestive manner?

2. Was that identification conducted in violation of Boyd's sixth amendment right to the assistance of counsel?

3. Was Mrs. Arrington's in-court identification of Boyd based on an impermissibly suggestive confrontation at his Wade hearing?

For the reasons which follow, we hold that no error of constitutional dimensions is presented by Mrs. Riordan's identification testimony, and that any such error involved in the admission of Mrs. Arrington's testimony was harmless beyond a reasonable doubt.

II

With respect to Mrs. Riordan's testimony, Boyd contends that its admission in evidence constituted constitutional error because (1) the circumstances in which she made her identification at the stolen car arraignment were impermissibly suggestive, thus making it violative of due process to permit her to testify at trial about that identification and rendering it impossible for her to make an untainted identification at the trial itself, and (2) the arraignment identification was conducted in such a manner as to violate his sixth amendment right to counsel.

A. The Due Process Claim

It is well settled that "impermissibly suggestive" identification procedures are inconsistent with due process. See, e. g., Brathwaite v. Manson (2d Cir. 1975) 527 F.2d 363, 366-71, cert. granted (1976) 425 U.S. 957, 96 S.Ct. 1737, 48 L.Ed.2d 202; United States v. Reid (2d Cir. 1975) 517 F.2d 953; United States ex rel. John v. Casscles (2d Cir. 1973) 489 F.2d 20, 24, cert. denied (1975) 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310; United States ex rel. Gonzalez v. Zelker (2d Cir. 1973) 477 F.2d 797, 801, cert. denied (1974) 414 U.S. 924, 94 S.Ct. 254, 38 L.Ed.2d 158. Thus under the test mandated by Stovall v. Denno (1967) 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199, ² evidence of Mrs. Riordan's identification at the August 10 arraignment must be excluded if, under the "totality of the circumstances," the confrontation was "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to violate due process.

The Stovall "totality of the circumstances" standard requires that we examine both the likelihood of irreparable misidentification and the need for the particular identification procedure employed. See Brathwaite v. Manson, supra, at 370; Pulaski, Neil v. Biggers, The Supreme Court Dismantles the Wade Trilogy's Due Process Protection (1973) 26 Stan.L.Rev. 1097, 1107-08. We hold that the circumstances of Mrs. Riordan's identification of Boyd on August 10 were not so unnecessarily suggestive as to violate due process. It is therefore...