Pettijohn v. Hall

• Citation: 599 F.2d 476
• Decision Date: 07 June 1979
• Docket Number: No. 78-1420,78-1420
• Parties: Carl PETTIJOHN, Petitioner, Appellant, v. Frank HALL, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 476

599 F.2d 476

Carl PETTIJOHN, Petitioner, Appellant, v. Frank HALL, Respondent, Appellee.

No. 78-1420.

United States Court of Appeals First Circuit.

Argued March 14, 1979.

Decided June 7, 1979.

Jack A. Goetz, Boston University Law Student, with whom John Leubsdorf, Associate Professor of Law, Boston, Mass., Court appointed counsel, and Judd H. Lees, Boston University Law Student, were on brief, for appellant.

Robert V. Greco, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Criminal Bureau, Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. ^*

PETTINE, District Judge.

This habeas corpus appeal concerns the scope of the sixth amendment right to call a witness in one's defense after having moved to suppress a portion of that witness' testimony.

A brief recitation of the facts is necessary. Carl Pettijohn was convicted of armed robbery in Massachusetts Superior Court solely on the basis of the victim's eyewitness testimony. David Smith, the victim, had been a security guard for the New England Wholesale Drug Company for approximately two weeks. On the afternoon of September 8, 1975, Smith was walking through the company parking lot and responded to the beckoning of a man he later identified as Pettijohn. He was somewhat familiar with Pettijohn, having seen him in the neighborhood a few times. When Smith drew near, the man identified as Pettijohn exposed two handguns stuffed in his pants. Simultaneously a second man appeared at Smith's right, threatening Smith and ordering him to cooperate. Pettijohn then removed Smith's weapons and told Smith that he would be released only if he forgot his assailant's face.

The next morning, Smith picked out a picture of Pettijohn from a group of nine police photographs and identified him as the robber.

Frank Griffin, the manager of the drug company was also an eyewitness to the robbery, which he observed from the first floor window of the Company's building some forty feet away. He immediately ran to get his gun, and by the time he had rushed out of the building to aid Smith, Smith was returning and Griffin could see only the backs of the fleeing robbers.

Griffin, who had worked at the company longer than Smith, was familiar with Pettijohn and the other boys living in the neighborhood. In fact, Griffin knew Pettijohn by his nickname "Bunny", while Pettijohn called Griffin "Big Al".

The next morning, the police also showed Griffin a group of nine photographs. Again a picture of Pettijohn was amongst the photographs. The police had inserted the picture because Pettijohn fit the various descriptions of the robber. The police officer had also heard Smith or Griffin mention Pettijohn's name. At some point, Griffin told the police officer that he knew the culprit by the name of "Bunny", but the record provides no clue as to whether he did this before or after inspecting the photographs. The government asserts that Griffin positively identified Pettijohn as the robber prior to his review of the photographs. However, this is a rather strained interpretation of the record in light of Griffin's questionable ability to independently identify Pettijohn at a later suppression hearing.

Despite this confusion in the record, there is no doubt that Griffin encountered serious difficulty when he attempted to identify the robber from the set of nine police photographs. Griffin narrowed the selection down to what the trial judge later described as two "remarkably similar" photographs: one was a photograph of Pettijohn, the other a photo of another man. Griffin selected the picture of the other man and stated, "I think that's him". The police officer replied, "No it's not". Not surprisingly, Griffin then selected the remaining photograph which depicted Pettijohn and stated, "It's definitely that one". The police officer confirmed this second choice with the words, "That's him".

Prior to trial, the defendant moved to suppress the photographic identifications of both Smith and Griffin. At the suppression hearing, Griffin expressed some doubt as to whether he could independently identify Pettijohn as the robber without relying upon the previous photographic display. Before Griffin was excused from the suppression hearing, Pettijohn's lawyer requested that Griffin be available "as a possible defense witness during the course of the trial". The trial judge ruled that Griffin's eventual identification of Pettijohn was inadmissible due to the impermissibly suggestive police tactics. Any in-court identification by Griffin of Pettijohn was also considered tainted by the police practices and, thus, declared inadmissible. The trial judge declined to suppress Smith's identification.

At trial the prosecution rested solely upon Smith's identification of Pettijohn. In an effort to counter Smith's damaging identification, the defense sought to call Griffin as a witness and introduce his prior identification of another man. The court ruled against these efforts, finding that Griffin's testimony was irrelevant and inadmissible for the purpose of impeaching Smith's identification. Counsel then stated that impeachment was not the only purpose of the testimony; he also wished to call Griffin "as a witness for the defendant for the purpose of showing his identification of a person other than the defendant". After being rebuffed by the judge, counsel again attempted to clarify his offer of proof by stating that, "I would call Griffin for the purposes of the defendant's right to present evidence in his defense. . . ." The court reiterated its ruling that the testimony was "inadmissible because it's not material and not relevant."

On appeal, Pettijohn argued that he had a right to waive his success on the motion to suppress and that, under the sixth amendment right to present "witnesses to establish a defense", as articulated in Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), he was constitutionally entitled to call Griffin to show that Pettijohn was not the robber. The appeals court held that the trial judge did not abuse his discretion because

it was clear from the testimony given by Smith and Griffin at the hearing on the motion to suppress . . . that there were substantial differences between the respective opportunities of the two witnesses to observe and recollect the facial characteristics of the robber. Contrast Commonwealth v. Franklin, (366 Mass. 284), 318 N.E.2d 469 (1974).

Commonwealth v. Pettijohn, 351 N.E.2d 535 (Mass.App.Ct.1976).

In evaluating the relevancy of Griffin's testimony by contrasting it to Smith's, the Appeals Court apparently was only concerned with whether Griffin's testimony was sufficiently relevant and reliable to impeach Smith's testimony. The Appeals Court's focus upon the issue of impeachment is displayed by their citation of Commonwealth v. Franklin, supra, a case involving impeachment of a government witness.

The Massachusetts Supreme Judicial Court also upheld the evidentiary exclusion; again, the issue of relevancy was addressed solely in relation to impeachment In essence, the defendant asserts the right to impeach the witness Smith by showing that the witness Griffin was mistaken in his first attempt to select a picture of the person known to him as "Bunny." We fail to see the relevance of Griffin's mistake on the issue of Smith's credibility or reliability. In these circumstances the judge was clearly warranted in ruling, as he impliedly did, that the testimony of Griffin had little, if any, probative force for the defense. Nor do we agree that there was any Federal constitutional right under the Sixth Amendment, as argued by the defendant, to present evidence which was not probative, and hence not relevant. Cf. Washington v. Texas, 388 U.S. 14, 16-23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

Commonwealth v. Franklin, 366 Mass. 284, 318 N.E.2d 469 (1974), relied on by the defendant is distinguishable. . . .

Commonwealth v. Pettijohn, 364 N.E.2d 1070, 1073-74 (1977).

This analysis failed to consider the issue of the defendant's right to introduce a witness in his own defense; I. e., using Griffin's testimony to establish that another man was the robber and was identified as such by an eyewitness. The relevance of this affirmative evidence was never addressed.

In the last paragraph of the opinion, the Massachusetts Supreme Judicial Court apparently did acknowledge that defendant wished to introduce the witness not solely for impeachment purposes but also "as part of his (the defendant's) case". ¹ The court, however, felt that introduction by the defendant of evidence previously suppressed might produce "a tactical advantage unfair to the Commonwealth" that could not be overcome with special jury instruction. Commonwealth v. Pettijohn, supra, at 1074.

Defendant's brief supporting his habeas corpus petition in federal district court was no paradigm of clarity, but it did reassert that a dominant purpose for Griffin's testimony was to raise "a feasible defense that the jury should have had an opportunity to consider."

In the federal court, Magistrate Cohen, who originally considered the petition, stated that evidence of Griffin's initial identification "was proffered solely for the purpose of impeaching Smith." He recognized that the Massachusetts Supreme Judicial Court had ruled such testimony irrelevant for the purpose of impeachment. Having framed the issue in this fashion, the Magistrate could easily find that the constitutional right to present evidence in a defendant's behalf "is limited to evidence which is 'Relevant and Material to the defense'. Washington v. Texas, 388 U.S. 14, 23 (, 87 S.Ct. 1920, 18 L.Ed.2d 1019) (1967) (footnote omitted) (emphasis added)." He concluded that the exclusion of irrelevant matter was not constitutional error.

Chief Judge Caffrey adopted...