Denny v. Anderson
| Decision Date | 16 July 1971 |
| Docket Number | No. 141.,141. |
| Citation | 329 F. Supp. 945 |
| Court | U.S. District Court — District of Delaware |
| Parties | Howard DENNY, Petitioner, v. Raymond W. ANDERSON, Warden, Delaware Correctional Center, Respondent. |
Ciro C. Poppiti, Wilmington, Del., for petitioner.
Francis A. Reardon, James Erisman and Daniel A. Durkin, Deputy Attys. Gen., Wilmington, Del., for respondent.
Howard W. Denny ("Denny"), a state prisoner, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was permitted to proceed in forma pauperis.
Denny was convicted by a jury in the Superior Court of Delaware of assault with intent to commit robbery and assault with intent to commit murder. He was sentenced to a term of twenty years on each charge, to run concurrently. His conviction was affirmed by the Supreme Court of Delaware. Denny v. State of Delaware, 277 A.2d 682 (Del.Supr.1971).
This Court's jurisdiction is founded upon 28 U.S.C. § 2241. The requisite exhaustion of state remedies required by 28 U.S.C. § 2254 has been shown. Application to the United States Supreme Court for writ of certiorari is unnecessary for complete exhaustion of state remedies. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
Denny alleges that his conviction resulted from a violation of the Due Process and Equal Protection clause of the Fourteenth Amendment, and the Confrontation clause of the Sixth Amendment of the Constitution of the United States which is made applicable to the States by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). More specifically he alleges that the in-court testimony of Kagel, the victim, identifying him should have been excluded because of prior out-of-court photographic identifications by Kagel without his (Denny's) attorney being present, and because of Kagel's identification of Denny at the "probable cause" hearing in the Municipal Court, after Denny had been pointed out by the police. As part of its case the state made no reference to any of these out-of-court identifications.
On June 9, 1971, the defendant, who as warden of the Delaware Correctional Center, had custody of Denny, was directed to show cause on or before the 18th of June 1971 why the writ should not be granted. An answer to the petition was filed by the defendant and a hearing was held on July 14th. The only evidence offered by either party was a transcript of the trial on June 23rd and 24th, 1970 in the Superior Court which resulted in Denny's conviction.
The "Statement of Facts" alleged in the petition reads in part:
That night, while Kagel was in the hospital, he identified Denny (but not his alleged companion) from photographs which the police showed him.1 At the time Denny had not been taken into custody. He was not represented by an attorney during this examination of the photographs. The photographic examination was made at an investigatory stage of the case.
Both in the Supreme Court of Delaware2 and in his petition, Denny conceded that this identification procedure was not faulty in itself. He argues, however, that Kagel's photographic identification could have been suggestive and prejudicial, since, he argues, it can be safely assumed that Kagel was under heavy sedation.3
In speaking of a pre-arrest identification from photographs by witnesses who later made an in-court identification of a defendant, the court said in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968):
We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
The evidence must be examined in the light of this test.
At the trial Kagel identified Denny as one of the two persons who walked into his store. He said he had a good look at Denny's face, and that when he showed the two cans of turpentine to Denny he was "four or five feet at most" away.4 While Kagel stated that when the first shot was discharged he did not see specifically the faces of either Denny or his alleged companion, he testified that he had no doubt that Denny was one of the men in his store and that the shot which was fired came from the side of the cash register where Denny was standing.5 He said that when the store was entered neither of the two men were wearing sunglasses, both were clean shaven, and both had just normal hair.6 He testified further that the shorter of the two (not Denny) had an earring in one ear.
The photographic identification took place within hours after the crime had been committed, and at the time Kagel had an excellent opportunity to observe Denny. The procedure which was followed at the hospital was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The fact that it took place does not justify setting aside the conviction based as it was on the in-court identification testimony of Kagel.
The next time that Kagel identified Denny was in the Municipal Court in February or March of 1970 at the "probable cause" hearing to determine whether Denny should be held over for the Superior Court. This was three or four months after the shooting.
What took place in the Municipal Court was the subject of voir dire testimony by Officer Friedman and Kagel adduced by Denny. From this it appears that Kagel went to the Municipal Court with his wife and sat in the "gallery" until he was called to testify. He had met with no police officers before testifying nor had he been shown any photograph of Denny since he had been in the hospital. Kagel recognized Denny when he saw him sitting with his attorney in the court room. This was before his (Denny's) name was called out when his case was reached. Kagel took the witness stand and identified Denny. Whether or not Denny's attorney cross-examined Kagel is not shown by the record. Kagel had not been advised of Denny's name when he identified him from photographs in the hospital.7
It is not important to determine whether, as Denny contends, Kagel's testimony in the Municipal Court constituted an "out-of-court" identification merely because it was not an identification during the trial itself. Even if Kagel's Municipal Court testimony is construed to have been "out-of-court", nevertheless defendant was represented by an attorney at the time when the identification was made. The fact this identification was made "out-of-court", if it was, is not in itself sufficient to render incompetent Kagel's identification of Denny at the trial.
Nonetheless, Denny argues that the Municipal Court identification was highly suggestive and influenced Kagel's identification testimony at the trial because when Denny's name was called in opening the probable cause hearing, the effect was virtually to identify Denny for Kagel as the person whom the state was charging with the crime. This alleged vice in the Municipal Court procedure, Denny now contends, could have been avoided by the Municipal Court requiring a "lineup" type of identification, or some other procedure which would have been more protective of Denny's rights than that which occurred. So far as the record discloses the attorney for Denny made no effort to persuade the Municipal Court to follow an identification procedure more conducive to safeguarding his rights. The purpose of providing an accused with an attorney is to insure that his interests will be adequately protected at every stage of a criminal proceeding. It is because of this that the courts have condemned "in custody" lineup and photographic identifications which occur without an attorney for a defendant being present. Being represented by an attorney, as he was, Denny is in no position to challenge successfully the Municipal Court identification.
Some time after the Municipal Court hearing Kagel again was shown several photographs from which he identified Denny.8 Although Denny was then in custody and...
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