Montgomery v. Fogg

• Decision Date: 16 October 1979
• Docket Number: No. 79 Civ. 2626.,79 Civ. 2626.
• Citation: 479 F. Supp. 363
• Parties: Charles MONTGOMERY, Petitioner, v. Walter J. FOGG, Superintendent, Eastern Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

479 F. Supp. 363

Charles MONTGOMERY, Petitioner, v. Walter J. FOGG, Superintendent, Eastern Correctional Facility, Respondent.

No. 79 Civ. 2626.

United States District Court, S. D. New York.

October 16, 1979.

Charles Montgomery, pro se.

Robert M. Morgenthau, Dist. Atty., New York County, New York City, for respondent; Robert M. Pitler, Gregory L. Waples, Asst. Dist. Attys., New York City, of counsel.

OPINION

EDWARD WEINFELD, District Judge.

Petitioner, Charles Montgomery, now serving a sentence of twenty years to life imposed pursuant to a judgment of conviction for murder in the second degree entered on October 31, 1975, upon a jury verdict in the Supreme Court of the State of New York, seeks his release upon a federal writ of habeas corpus. The judgment of conviction was affirmed by the Appellate Division First Department on April 27, 1978, and leave to appeal to the Court of Appeals was denied on May 26, 1978. The instant application is based upon the alleged denial of petitioner's right to due process of law, in that he was denied: (1) a Wade hearing,¹ (2) the right to confront and cross-examine the medical examiners who conducted an autopsy of the murder victim, (3) a fair trial because the prosecution in summation argued matters that were without evidentiary support in the trial record, and, finally (4) in that his guilt was not proved beyond a reasonable doubt.

The evidence presented upon the trial established:² that petitioner and two others, Andrew Sullivan³ and an unidentified masked male⁴ entered a dry cleaning store located at 2590 Eighth Avenue, New York City on February 8, 1974, at about 6:00 p. m. Each was armed; petitioner had a single barrel shotgun. The front portion of the store was where customers presented their materials for cleaning and obtained their return; the middle portion was used for pressing and dry cleaning operations; and the rear portion was an office, entry to which was through a locked door.

Announcing a stickup, Sullivan held up two store employees and a customer in the front part of the store. Montgomery and the unidentified third man, who was wearing a mask, went directly to the middle portion of the store where they encountered Charles Cooper, another employee. Montgomery was wearing a leather hat that was down over his forehead, but his face was otherwise uncovered and visible. The masked robber announced a "stickup." Cooper resisted, hitting Montgomery's accomplice and knocking him to the ground. Montgomery shoved his shotgun against Cooper's head, saying, "This is for real." Montgomery then took $40 from Cooper's pocket and a watch from his wrist. The assailants then announced they wanted to get into the back room where Lindsay the owner was, but the door was locked. After an unsuccessful attempt to gain entry through a buzzer signal, the masked man threatened to kill Cooper who then pounded on the door and pleaded with Lindsay to open it, yelling, "They're going to kill me." When Lindsay did not respond, the masked robber fired two rounds from his .38 gun at the lock. A bullet fragment ricocheted and struck Cooper's finger. Lindsay then opened the door slightly; upon seeing the armed masked man, he started to slam it shut, but while the door was still slightly ajar, the masked assailant shot point blank at Lindsay through the slight opening. Cooper was then forced at gunpoint by the two holdup men to batter down the locked door with his shoulder. Upon entry, they found Lindsay lying in a pool of blood with a bullet in his head. Placing his shotgun against Cooper's head, Montgomery forced Cooper to kneel in front of a bed in the rear of the room; he wrenched a class ring off Cooper's finger and tried to pull off his wedding band. When Cooper protested, Montgomery replied that, "The way it looked like you might not live to see another wedding day." Montgomery searched the office and found $1.00. The assailants engaged in a discussion with Cooper about the location of a telephone. He was told to remain on his knees whereupon Montgomery, Sullivan and the unidentified accomplice fled from the store. Lindsay was taken to a hospital where he died eight days later on February 16, 1974.

The foregoing was the substance of Cooper's testimony as to what transpired in the middle and rear portions of the store. At the trial, Cooper made a positive identification of Montgomery as the one who carried the shotgun during the robbery.⁵ He testified that all the lights were on in the premises and that he had no problem seeing. He estimated that about five minutes had elapsed from the time the two men entered the middle portion of the store until they left. He further testified that about a week or two after Lindsay died, Montgomery appeared at the dry cleaning store where Ronald Frazier, whose sister had been in the rear room with Lindsay at the time of the shooting, asked Cooper if he knew Montgomery, whose name he announced as Bucky. Montgomery then "said something about he wasn't there at the time this took place. Was he the guy?". Cooper testified that as he was "looking at him Montgomery and he Montgomery was looking at him Cooper," he recognized Montgomery as the man who put the shotgun to his head. He further testified that he was scared. He left the premises and immediately telephoned the police and informed them of the situation and returned to the store where Montgomery still was present. Three homicide detectives responded to his call. Upon their arrival, the detectives inquired if Montgomery was still around; Cooper said, "No," because he was still scared.

Cooper further testified that three or four days later, he again saw Montgomery at a corner standing with some fellows, and upon recognizing him as the man who put the shotgun to his head on February 8, Cooper promptly notified the police that he had seen Montgomery and told them the location. Thus, on three occasions subsequent to the robbery Cooper unequivocally identified Montgomery as one of the robbers: the first about two weeks after the holdup; the second, within four days thereafter; and, finally, upon the trial. No evidence was presented by the defense.

The first challenge to conviction is based upon the denial of a Wade hearing. Prior to the trial, petitioner's counsel moved for a Wade hearing;⁶ the motion was returnable in the calendar part and was referred by the calendar judge to the trial judge for disposition. The case was called exactly one year after the motion was made. Defense counsel failed to renew the motion either at the start, or at any time during the progress, of the trial. There is nothing in the record to indicate that the motion was ever presented to the trial judge, or that his attention had been called to any application for a Wade hearing.

During the course of the trial one of the female employees who was in the front part of the store testified upon cross-examination that Cooper told her he had identified Montgomery; she added, "He saw pictures, I presume." No further inquiry was made of her on the subject. Thereafter, Cooper testified. Despite the prior testimony about pictures, defense counsel failed to renew the Wade motion;⁷ failed to cross-examine Cooper about the pictures; and failed to request that his in-court identification testimony be stricken as the product of suggestive police practices. It was not until the conclusion of the People's case, when petitioner's counsel, in moving to dismiss the indictment on the ground that the prosecution had failed to establish beyond a reasonable doubt the elements of the crime charged, first raised the further ground that the court had refused to permit a Wade hearing prior to trial. His application made no mention of the picture array to which the witness had alluded. The motion was denied.

Upon appeal, however, petitioner's counsel sought to revive the issue. In oral argument before the Appellate Division he evidently raised the matter; both counsel were directed to present their contentions by way of letters as supplements to their briefs. Petitioner's appellate counsel referred to the motion that had been made prior to trial to suppress Cooper's identification testimony on the ground "that it may have been the product of suggestive police procedures"; that "Cooper, the only witness who recognized appellant as one of the robbers, may have viewed a photographic array in connection with his identification of appellant." In this same communication to the Appellate Division he also noted that in preparing the appeal the Assistant District Attorney had assured him that no pre-trial identification procedures had been used; that on the day of the argument of the appeal the Assistant informed him for the first time that Cooper had viewed photos in connection with his identification of appellant. Other than the foregoing no claim was made that in fact Cooper's identification was the product of suggestive pre-trial practices. Petitioner's counsel urged the Appellate Division to hold in abeyance determination of the appeal and to return the matter to the trial court for a hearing upon the admissibility of the identification evidence against defendant at his trial.

In opposing petitioner's application the state stressed that the record failed to show that the motion for a Wade hearing had ever been called to the trial court's attention apart from the reference made by counsel in his motion for dismissal after the state had offered its testimony and rested. In addition, the state contended that, even assuming the original motion had been revived and called to the trial court's attention, the affidavit upon which it was based was legally insufficient because it failed to set forth any factual allegation of unconstitutional identification procedures that would taint and render inadmissible Cooper's two unequivocal identifications prior to the courtroom identification; and further that there was no allegation of any improper police...