People v. Barnes

• Decision Date: 20 September 1979
• Citation: 420 N.Y.S.2d 629,101 Misc.2d 76
• Parties: PEOPLE of the State of New York v. Paul BARNES.
• Court: New York Supreme Court

Page 629

420 N.Y.S.2d 629

101 Misc.2d 76

PEOPLE of the State of New York v. Paul BARNES.

Supreme Court, Criminal Term, Kings County, Part III.

Sept. 20, 1979.

Eugene Gold, Dist. Atty., Kings County by Kevin B. Frawley, Asst. Dist. Atty., Brooklyn, for People.

Paul Leonard Sass, Brooklyn, for defendant Barnes.

MEMORANDUM

NORMAN J. FELIG, Judge.

The defendant, Paul Barnes, and one Lee Kelly were indicted for the crime of murder in the second degree. The case was subsequently severed as to Kelly who pled guilty and is awaiting sentence. Defendant Barnes moved to suppress any evidence of his identification as one of the perpetrators of the crime. A pretrial "Wade " hearing was granted. At the conclusion of the hearing the defense, for the first time, raised the issue of probable cause as to the defendant's arrest and its effect upon any subsequent identification of the defendant as one of the perpetrators of the crime charged. The defendant, relying on the recent Supreme Court decision in Dunaway v. New York, --- U.S. ----, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) argued that if it should develop that the police did lack probable cause unless the taint of the unlawful arrest was attenuated, evidence as to the identification of the defendant should be suppressed. In Dunaway, the Supreme Court decided the question of the legality of custodial questioning where there was less than probable cause for the initial arrest. The case at bar would appear to be the first case where Dunaway is to be applied to an issue of identification. Without deciding the questions raised by the defendant this court believed that an evidentiary inquiry into the lawfulness of the police conduct was warranted (see: People v. Misuis, 47 N.Y.2d 979, 419 N.Y.S.2d 961, 393 N.E.2d 1034 (1979)). The hearing was reopened.

THE HEARINGS

THE INITIAL HEARING

Louis Pittman, Watson Pittman and Jimmy Mason testified that on the evening of July 13, 1978, they were on the corner of Quincy Street and Nostrand Avenue. At about 1:00 A.M. they observed three men walking toward them. Louis and Watson Pittman recognized two of the men, who were holding the third man between them, as the two men they saw "play boxing" in the street earlier that evening. One of them grabbed the man in the middle around the neck and dragged him back into a hallway; the other man began punching him while he was being held. It was not until the punching stopped that Louis and Watson realized that the puncher had a knife and that he was stabbing the victim. James Mason never saw the knife. The victim, later identified as Izell Hough, received multiple stab wounds which resulted in his death.

Immediately following the incident, Louis and Watson Pittman went to the 79th Precinct where they looked through books of mug shots, but did not make any identification. Upon leaving the precinct they went to a grocery store where they recognized the two perpetrators from earlier that evening. The two men were discussing the incident. The "holder" asked the "stabber" whether he felt bad about what he had done. The "stabber" answered that if had to he would do it again.

On July 18, Detective Paul Maurice, assigned to investigate the homicide, showed the Pittmans books of mugshots. Watson Pittman identified a man named George Bullock as one of the perpetrators. Louis Pittman identified a picture of the co-defendant, Lee Kelly, as the stabber. Although the picture of the defendant, Paul Barnes, was directly beneath that of Lee Kelly, neither of the Pittmans picked it out.

On August 15, 1978 Detective Maurice seized Paul Barnes on Nostrand and Lexington Avenues, handcuffed him and brought him to the 77th Precinct. Although the detective testified that he only brought Barnes in for investigation and that he was free to leave he never informed Barnes of this.

Later that evening at the stationhouse, the Pittmans were shown photographs on an array, prepared by the detective, containing sixteen photos and a page from a mugshot book containing eleven photos. Each contained one photograph of Barnes and one of Kelly. Neither of the Pittmans was able to pick out any photos from the array of sixteen, although both identified a photo of Lee Kelly as the stabber from the mugshot book. They again failed to identify a photo of the defendant Barnes, although there was one in each group. A lineup was then conducted. Both Pittmans identified the defendant in the lineup as the stabber.

Louis Pittman testified that after viewing the lineup he changed his mind about who the stabber was because the photos that he was shown were in black and white and he had difficulty distinguishing the features. He stated that the hair of the stabber was short, which is similar to the length of Kelly's hair as it appears in the picture and that the defendant Barnes has a lot more hair and looks healthier in the photo than on the night of the incident. Assistant District Attorney Groman testified that the photo in the array is only accurate as to Barnes' face structure but not as to his hair and mustache, and the photo in the mugshot book is of Barnes at a younger age.

On August 17, James Mason identified Lee Kelly as the holder and the defendant Barnes as the puncher from the photos in the mugshot book.

During the hearing, both of the Pittmans made an in-court identification of the defendant as the stabber. James Mason was unable to make an in-court identification but identified a photograph of the individual who he alleged did the punching. This was not a photo of Kelly or of Barnes.

Based on the evidence adduced at the hearing, this court rendered an oral decision which, in essence held: (1) that the pictorial and corporeal viewings of the defendant were not tainted by any impermissible police

activity or conduct so as to result in a misidentification and (2) that the in-court identifications were based upon the witnesses' independent recollection. The motion to suppress the identification was denied.

THE REOPENED HEARING

The additional issue of whether there was probable cause for the arrest of the defendant Barnes was raised at the conclusion of the hearing by the defense attorney during the course of his argument citing Dunaway, supra. This court granted the motion to reopen the hearing and recalled its decision. Detective Maurice was recalled and testified that:

On July 15, 1978, he attempted to locate witnesses in the area in which the alleged homicide occurred. On Quincy Street between Nostrand and Marcy Avenues, he was approached by an elderly woman who asked him if he was a detective and if he was trying to find out what took place around there in the last couple of days. She stated that although she did not see anything, the people he wanted were Lee Kelly and Paul Barnes. The woman would not identify herself and walked away. The detective stated that he attempted to follow her, but lost her. He did not learn her name or where she lived. Subsequently the detective went to the 79th Precinct where an officer told him that Kelly and Barnes "hung out together."

Detective Maurice testified that the initial description of the perpetrators was taken by two other officers directly after the occurrence. In a police report made by Detective Ebert, perpetrator # 1, the stabber, is described as a male black, approximately 23 years old, 6'2 , slim, with a short Afro; and perpetrator # 2, the holder, is described as a male black, 21 years old, 5'7 , about 135 pounds, short Afro, blue jumpsuit, red stripes, blue T-shirt, white sneakers, and a K-5 knife. There is no indication in the report as to who gave these descriptions. A police report made by Detective Navarro contains the same descriptions, which were given to him by Louis Pittman.

On July 18, the Pittmans gave Detective Maurice a description of the perpetrators. They described the person who held the deceased as about the same height as the deceased and the stabber or puncher as a few inches taller, dark skinned, with a close-cropped Afro haircut. Detective Maurice made a report with Louis Pittman's description of perpetrator # 1, the stabber, as male, Black, in his twenties, 5'9 , 150 pounds, with "black" hair, and perpetrator # 2, the holder, as male Black, in his twenties, 5'7 , 150 pounds, with black hair.

The detective testified that when the Pittmans viewed the books of mug shots on July 18, they stated that they had problems with the black and white photos, saying that some looked light and others dark. They stated that they could be sure they were picking the right man if they could see him in person. Louis Pittman identified Lee Kelly from a page in the mugshot book. Watson Pittman identified a photo of George Bullock. The detective was unsuccessful in his attempt to locate Bullock and never received any more information connecting him to this incident. The detective testified that the photo of the defendant Barnes was underneath that of Kelly's but was not identified.

A few days prior to the arrest on August 15, 1978, the detective had a conversation with Barnes on the corner of Nostrand and Lexington Avenues. He testified that he stopped his car and asked the defendant his name; whether he lived in the area and whether he knew Lee Kelly. The defendant replied that he did not have to tell the detective anything. He did tell him that his name was Eddie or Edward; that he lived in the area and did not know Kelly. At this point the detective took no official action against the defendant.

Detective Maurice testified that the defendant Barnes and Lee Kelly were taken into custody between 5:30 and 6:00 P.M. on August 15, 1978. The detective and his partner, without their guns drawn, approached the defendant and Kelly, who were standing in a group of four or five people on the corner of Nostrand and Lexington Later that evening the Pittmans identified a photo of Lee Kelly as the stabber; neither identified a photo of Barnes. The detective then informed the...