United States ex rel. Cannon v. Montanye

• Decision Date: 19 October 1973
• Docket Number: No. 122,123,Docket 73-1605,73-1606.,122
• Parties: UNITED STATES ex rel. Alton CANNON, Appellant, v. Ernest L. MONTANYE, Superintendent, Attica Correctional Facility, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

486 F.2d 263 (1973)

UNITED STATES ex rel. Alton CANNON, Appellant, v. Ernest L. MONTANYE, Superintendent, Attica Correctional Facility, Appellee.

Nos. 122, 123, Docket 73-1605, 73-1606.

United States Court of Appeals, Second Circuit.

Argued September 14, 1973.

Decided October 19, 1973.

Frederick A. Provorny, New York City, for appellant.

Burton Herman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N.Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellee.

Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

In January 1969, after a jury trial in Monroe County Court, Rochester, New York, Alton Cannon was convicted of the first degree rape of Shirley Rippel. He was given an indeterminate sentence of six years and eight months to 20 years in prison. On appeal, the case was remanded by the Appellate Division to the trial court for further proceedings to determine if appellant had waived his right to counsel at a lineup. People v. Cannon, 33 A.D.2d 641, 305 N.Y.S.2d 106 (4th Dep't 1969). Waiver having been found,¹ the Appellate Division affirmed the conviction without opinion, People v. Cannon, 33 A.D.2d 1104, 309 N.Y.S.2d 894 (4th Dep't 1970), and the New York Court of Appeals denied review.

Subsequently, appellant twice petitioned the United States District Court for the Western District of New York for a writ of habeas corpus. He now appeals from orders of Chief Judge John O. Henderson and Judge Harold P. Burke denying the applications without a hearing.² For reasons stated below, we remand to the district court for further proceedings in accordance with this opinion.

I

Appellant first contends that the state court erroneously permitted the prosecution to refer to a suppressed typewritten confession and indirectly reveal its contents. The issue arose in the following context: Five days after the rape of Mrs. Rippel, the police picked up appellant for questioning. At a Huntley hearing shortly before trial, Detective Mahoney testified as follows: From 8:30 to 8:45 A.M., Cannon made oral admissions concerning both the Rippel incident and unrelated attacks on Marilyn Stevens and Rose Sprague. At 8:45 A. M., the police took a question and answer statement transcribed by a stenographer, which we will call the stenographic statement, relating to the Stevens case. At 9:15 A.M., a typewritten statement was prepared concerning the Sprague complaint, and signed by Cannon. Between 9:40 and 10:00 A.M., a typewritten statement was made dealing with the rape of Shirley Rippel, and was signed.

Because the stenographic statement showed that Cannon twice requested a lawyer before making it, the trial judge suppressed that statement and the later two signed statements as well. However, the judge refused to bar evidence of Cannon's earlier oral admissions³ made before any request for counsel. The "cut-off" point was 8:45 A.M., the time when the stenographic statement was started.

At the trial, Detective Funk, who had not been called at the Huntley hearing, corroborated Detective Mahoney. (The latter also testified, in substance repeating his earlier account given at the Huntley proceeding.) On cross-examination, appellant's counsel sought to impeach Detective Funk by reading from his testimony at a preliminary hearing where he had stated that Cannon was first questioned on the Rippel case at 9:30 A.M., 45 minutes after the crucial cut-off time. Detective Funk affirmed the accuracy of the preliminary hearing version and said: "That was the first statement we took in regards to this Rippel incident." On redirect, the officer testified that the word "statement" referred to a signed typewritten statement and that an oral statement had been obtained at 8:30 A.M. The prosecutor then showed the signed statement to Detective Funk. After various remarks identifying it (to which appellant's counsel took a continuing objection), the following colloquy ensued:

Q. And in sum or substance does that document relate what the defendant previously told you orally?

A. Detective Funk Yes sir, it is.

Appellant's primary argument is directed to this exchange. According to him, even if reference to the suppressed typewritten statement can be justified as an attempt to rehabilitate Detective Funk (a point he does not concede), the "sum or substance" comment clearly exceeded this purpose and permitted the jury to consider the statement's contents in violation of due process. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Furthermore, appellant contends, the judge enhanced the prejudicial effect by allowing the jury to hear the detectives' testimony again⁴ and by refusing to charge that the jurors should ignore the typewritten statement and anything connected with it.

The judge, however, did give a limiting instruction. A few hours after the jurors retired, they returned and asked the court whether they could consider the typewritten statement as evidence. The judge responded as follows:

Reference was made to the statement on one or more occasions, that one was typed, where it was typed and some of the circumstances concerning it.

Now these references are testimony and may be considered by you. However, the statement itself was never introduced into evidence, and therefore you may not consider it as evidence.

The jury again retired and several hours afterward returned a verdict of guilty.

Appellant argues that the sequence of events recited above resulted in reversible constitutional error. However we might feel if these were the only relevant facts before us, another portion of the trial record is crucially important. Appellant took the stand in his own defense and denied that he had ever attacked, or even seen, Mrs. Rippel or that he had orally admitted committing the rape. In cross-examination, the prosecution tried to use the suppressed statement to impeach defendant's credibility, but the trial judge barred this tactic. The trial antedated the decision of the Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), which held that a Miranda-violative statement could be used to impeach the accused's credibility, so long as it had not been coerced and a limiting instruction was given. See also Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (impeachment on collateral matter).

With the 20-20 hindsight afforded by Harris, we now know that the prosecutor, with the requisite foundation, could properly have utilized the typewritten statement under an instruction that the jury could consider it on credibility alone.⁵ Cf. United States v. Briggs, 457 F.2d 908 (2d Cir.1972), cert. denied, 409 U.S. 986, 93 S.Ct. 337, 34 L.Ed.2d 251 (1973). Here the prosecutor's witness testified only obliquely to the contents of the writing by stating that in "sum or substance" the typed statement incorporated the earlier oral admissions. Furthermore, the judge charged the jury, in effect, that it could not consider the statement itself as evidence on any issue. Cf. United States v. Kahan, 479 F.2d 290 (2d Cir. 1973) (no limiting instruction). Although the prosecutor should not, in his case in chief, have placed before the jury even indirectly the substance of the statement, the mistake would have had no independent significance had the trial judge allowed the prosecutor proper latitude in cross-examination. Nonetheless, appellant urges this court to reject the implications of Harris because of the chance that "appellant would not have taken the stand if the existence and contents of the typewritten statement had not been revealed to the jury. . . ." The present circumstances, however, render this possibility very remote. Given the verbal admissions, which were properly before the jury,⁶ and the lack of direct reference to the matter in the People's closing argument, the "sum or substance" remark could have added only marginal strength to the prosecution's case. We are persuaded beyond a reasonable doubt that this evidence was not a substantial factor in inducing appellant to testify, and that therefore its admission did not prejudice Cannon by unreasonably burdening his right to remain silent. Cf. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

In addition, it is worth noting that the jurors showed every indication of being thoughtful and receptive to the court's guidance. No less than four times, the jurors returned to the courtroom to seek further enlightenment. On one of these occasions, as indicated, they asked for instructions regarding the appropriate use of the very statement in issue. Therefore, one may realistically assume that the jury obeyed the judge's charge—a charge that, in light of Harris, was overly favorable to appellant—and declined to consider the substance of the statement as evidence. On these facts, we decline to rule that appellant was denied due process.

II

Appellant further contends that he was denied due process by Mrs. Rippel's identification of him at trial and by admission of evidence of her prior lineup identification. Specifically, he claims that the lineup was unduly suggestive and violated the fourteenth amendment. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); see also Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L.Ed.2d 402 (1969). At a Wade hearing held just before trial, appellant testified that Lieutenant Reiss, who picked him up at home in the early morning five days after the rape, told him to wear a green sweater.⁷ He did so, and later that morning at a lineup was named by Mrs. Rippel as her assailant. This fact assumes significance because of the Lieutenant's prior testimony given at the Huntley hearing. There, he stated that before picking up appellant, he had read the complaints of the women in the three cases in which he suspected Cannon, noted that in two of the incidents the attacker wore a green shirt and further...