Meadows v. Kuhlmann, 795

• Decision Date: 20 February 1987
• Docket Number: No. 795,D,795
• Citation: Meadows v. Kuhlmann, 812 F.2d 72 (2nd Cir. 1987)
• Parties: Quentin MEADOWS, Appellant, v. Robert H. KUHLMANN, Superintendent, Sullivan Correctional Facility, Fallsburg, New York, Robert Abrams, Attorney General of New York, and Denis Dillon, District Attorney of Nassau County, Appellees. ocket 86-2365.
• Court: U.S. Court of Appeals — Second Circuit

Page 72

812 F.2d 72

Quentin MEADOWS, Appellant, v. Robert H. KUHLMANN, Superintendent, Sullivan Correctional Facility, Fallsburg, New York, Robert Abrams Attorney General of New York, and Denis Dillon, District Attorney of Nassau County, Appellees.

No. 795, Docket 86-2365.

United States Court of Appeals Second Circuit.

Argued Feb. 5, 1987.

Decided Feb. 20, 1987.

Spiros A. Tsimbinos, Kew Gardens, N.Y., for appellant.

Bruce E. Whitney, Asst. Dist. Atty., Nassau County, Mineola, N.Y. (Denis Dillon, Dist. Atty., and Anthony J. Girese, Asst. Dist. Atty., Mineola, N.Y., on the brief), for appellees.

Before TIMBERS, PIERCE and ALTIMARI, Circuit Judges.

TIMBERS, Circuit Judge:

Quentin Meadows ("appellant"), a state prisoner, appeals from a judgment entered September 25, 1986 in the Eastern District of New York, Thomas C. Platt, District Judge, denying his petition for a writ of habeas corpus. 644 F.Supp. 757 (E.D.N.Y.1986). The court held that the error, if any, in the admission in evidence of an identification, made during a lineup after the right to counsel had attached but when defense counsel was not present, was harmless. The court also held that, because appellant's Sixth Amendment right to counsel had not attached at the time appellant made certain incriminating statements, such statements were properly admitted for impeachment purposes.

On appeal, appellant argues, first, that the admission in evidence of the identification made at the lineup when defense counsel was not present violated his right to counsel and that the error was not harmless beyond a reasonable doubt; and, second, that appellant was improperly impeached by the use of his incriminating statements, since the statements were taken in violation of his right to counsel after the right had attached.

We hold that any error in the admission of the lineup identification was harmless beyond a reasonable doubt, in view of the overwhelming evidence of appellant's guilt. We also hold that, although appellant's Sixth Amendment right to counsel had attached at the time he made the incriminating statements and the use of those statements for impeachment purposes was error, such error was harmless beyond a reasonable doubt.

We affirm the judgment denying the petition for a writ of habeas corpus, but we do so on grounds other than those set forth in the district court opinion.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

On the evening of October 21, 1980 three individuals were present at a gas station in Elmont, Long Island. Two of the individuals, John Taylor and Paul Cufalo, were attendants at the station. The third, James Alviti, was Taylor's cousin; he came to visit the attendants at approximately 9:15 P.M. Shortly after Alviti's arrival, appellant entered the gas station, displayed the butt of a gun to Taylor and Alviti, and ordered them into the back room where Cufalo was on the telephone. Forcing the three men to lie, or crouch, on the floor, appellant demanded money from them. Alviti had no money with him. After Taylor and Cufalo gave appellant their money, he fled, after having instructed the three victims to stay in the back room for fifteen minutes.

Taylor called the police and reported the robbery. When the police arrived, Taylor and Alviti gave detailed descriptions of the robber. Cufalo was unable to do so.

The next day Taylor and Alviti went to police headquarters to view some photographs and slides in an attempt to identify the robber. A slide presentation of individuals who fitted the general description, consisting of approximately sixteen slides, was made. Taylor and Alviti viewed the slide presentation together. When appellant's slide was shown, they simultaneously identified it as portraying the robber. A photographic array, consisting of approximately six photographs, was shown separately to Taylor and Alviti. Each of them again identified appellant and each gave statements to that effect.

On October 29, 1980--eight days after the first robbery--Taylor again was at work at the gas station. His co-attendant that evening was Vincent Rizzuto. At approximately 9:15 P.M., while Taylor was at the gasoline pumps servicing a car, Taylor observed appellant enter the gas station. He asked the customer to call the police. The customer declined to do so. Taylor then entered the station where he found appellant holding Rizzuto at gun point. Appellant, addressing Taylor by his first name, ordered Taylor and Rizzuto into the back room where he robbed them. Appellant fled, again having instructed his victims to remain in the back room.

Taylor immediately called the police and reported that the same person who had robbed him the week before had robbed him again. Police officers arrived at the gas station soon after Taylor's call. The officers took a description of the robber. Taylor reiterated that it was appellant who again had robbed him. Detective Byron Bartlett arrived with the photographic array assembled by him the week before and showed it to Taylor and Rizzuto separately. Each identified appellant and gave statements to that effect.

On November 7, 1980 a felony complaint was filed and an arrest warrant for appellant was obtained from a state court judge. On November 20 appellant was arrested at his home by detectives of the Nassau County Police Department. Appellant was given his Miranda warnings and was taken to the Robbery Squad Room of the Nassau County Police Department. Several hours later, while still in custody, appellant made incriminating statements to Detective Thomas P. Howell in which he confessed to having committed the two robberies.

On January 26, 1981 appellant was indicted in the Nassau County Court on two counts of robbery in the first degree and two counts of criminal use of a firearm in the first degree. At his arraignment on March 25, 1981, appellant was represented by retained counsel. The attorney requested a two-month adjournment to prepare for trial and to make appropriate motions. The court granted the adjournment as requested. However, no motions were ever filed, nor did the attorney respond to several attempts by the court to contact him to arrange a pre-trial conference.

On February 13, 1981 the state moved by order to show cause for a pre-trial lineup. Defense counsel did not answer the state's motion and made no appearance in response to the order to show cause. On May 19, 1981 the lineup was conducted in the absence of defense counsel, the detective in charge having attempted to contact the attorney unsuccessfully. The only witness who appeared at the lineup was Rizzuto. He immediately identified appellant, selecting him from the five individuals who participated in the lineup.

On November 20, 1981 a hearing on identification issues raised by the defense was held before the state court. ¹ At the close of the hearing, the court issued its findings of fact and conclusions of law. It found that the photographic arrays and the lineup were not unduly suggestive and that each of the three victims who testified had independent sources for their in-court identifications of appellant, based on their observations during the robberies. The court held, however, and the state conceded, in accordance with People v. Samuels, 49 N.Y.2d 218, 400 N.E.2d 1344, 424 N.Y.S.2d 892 (1980), that the incriminating statements made by appellant to Detective Howell could not be used in the prosecution's case-in-chief because they were made after the right to counsel had attached, and yet counsel was not present when the statements were made. The court further held that the state could use the statements to impeach appellant should he choose to testify because the statements had been made voluntarily within the meaning of Harris v. New York, 401 U.S. 222 (1971). The court also held that appellant was not denied his right to counsel at the lineup because of his counsel's refusal to attend.

Appellant's trial commenced January 11, 1982. Taylor, Rizzuto and Alviti all testified regarding the identification proceedings which had been held prior to trial. All three made in-court identifications of appellant. Rizzuto also testified to his prior identification of appellant at the May 19, 1981 lineup. Appellant took the stand in his own defense and testified that he never had been at the gas station involved and that he did not commit the robberies on either occasion. The prosecution then introduced, in accordance with the court's ruling of November 20, 1981, appellant's prior incriminating statements through the rebuttal testimony of Detective Howell. On January 19, 1982 the jury returned a guilty verdict. On March 5, 1982, appellant was sentenced as a second violent felony offender to two concurrent indeterminate terms of ten to twenty years imprisonment. The court ordered the instant sentence to be served consecutively to any other sentence previously imposed.

Appellant appealed his judgment of conviction to the Appellate Division, Second Department, which unanimously affirmed without opinion on June 4, 1984. People v. Meadows, 102 A.D.2d 1016, 476 N.Y.S.2d 230 (2d Dept.1984). Leave to appeal was granted. On March 21, 1985 the New York Court of Appeals affirmed, holding that the error, if any, in the introduction of evidence of Rizzuto's lineup identification was harmless. That court also held that appellant's incriminating statements were properly used for impeachment purposes. People v. Meadows, 64 N.Y.2d 956, 477 N.E.2d 1097, 488 N.Y.S.2d 643 (1985). Subsequently, appellant filed a petition for a writ of certiorari with the Supreme Court of the United States. That petition was denied on October 7, 1985. Meadows v. New York, 106 S.Ct. 69 (1985).

On December 17, 1985 appellant filed the instant petition for a writ of habeas corpus. The petition was denied by a judgment entered in the district court on September 25, 1986. A certificate of probable cause was...