United States ex rel. Crispin v. Mancusi

• Decision Date: 12 July 1971
• Docket Number: Docket 35553.,No. 684,684
• Parties: UNITED STATES ex rel. Pedro CRISPIN, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden, Attica State Prison, Attica, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

448 F.2d 233 (1971)

UNITED STATES ex rel. Pedro CRISPIN, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden, Attica State Prison, Attica, New York, Respondent-Appellee.

No. 684, Docket 35553.

United States Court of Appeals, Second Circuit.

Argued February 19, 1971.

Decided July 12, 1971.

Certiorari Denied November 22, 1971.

Joel Martin Aurnou, White Plains, N. Y., for appellant.

Steven M. Hochberg, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellee.

Before LUMBARD, SMITH and FEINBERG, Circuit Judges.

Certiorari Denied November 22, 1971. See 92 S.Ct. 346.

LUMBARD, Circuit Judge:

Pedro Crispin was indicted for robbery in the first degree and convicted of robbery in the second degree in New York County Supreme Court in 1966. On direct appeal, he raised the same two claims now pressed here, that counsel was incompetent and that the pre-trial identifications were impermissibly suggestive. After his claims were rejected, 30 A.D.2d 935, 1 Dept.1968, cert. denied, Crispin v. New York, 396 U.S. 851, 90 S.Ct. 109, 24 L.Ed.2d 100 (1969), he brought this habeas corpus action in the Southern District of New York. Judge Murphy denied Crispin's petition without a hearing. We affirm.

Only the first issue, the alleged ineffective assistance of counsel, need concern us. Crispin was represented by an attorney from the Legal Aid Society, Mrs. Rae Selwyn. In evaluating this contention, we start by examining the strength of the prosecution's case. If that case is overwhelming, there may be little that defense counsel can do, and counsel will very likely be faulted by the dissatisfied client either for doing too much or too little. United States v. Katz, 425 F.2d 928, 930 (2d Cir. 1970).

The government's case against Pedro Crispin was very strong. The sequence of events it sought to establish in support of the charge of first degree robbery was as follows: The victim, Mrs. Pagan, entered the elevator in the lobby of her building and pressed the button for her floor, the seventh. A man on the elevator grabbed her from behind, took her to the sixteenth floor, and then forced her into the staircase. The assailant wrapped a fire hose around her neck and body, grabbed her purse, and then beat her with the nozzle of the fire hose. Ameliano Rosado, the building's caretaker, heard noises and came to the scene. He saw the assailant standing over Mrs. Pagan and beating her. Surprised by Rosado, the attacker turned and made a motion as if to strike him, at which point Rosado pulled a bulb snatcher from his belt and scared the assailant away. The perpetrator fled down the stairs to the street and disappeared, with Rosado in pursuit. Lawrence Stevenson, a 15-year-old boy, standing at the fifteenth floor landing, witnessed both the assailant and Rosado running downstairs. Going to his window, Stevenson saw the same man rush from the building.

At trial Mrs. Pagan, Mr. Rosado, and Lawrence Stevenson all positively identified Crispin as the assailant. Stevenson also testified that shortly before the attack, he had seen the same man, the defendant, in the elevator. Through the testimony of Mrs. Pagan and Rosado, the prosecution established that the attack was most vicious, and that Mrs. Pagan was seriously and perhaps permanently injured. Finally, a Dr. Wu from Knickerbocker Hospital testified to her condition upon arrival at the hospital. Her eye was swollen and blackened, and she was bleeding from the back of the head and the right side of her forehead. He said the injury to the back of her head could have been caused by a fire hose nozzle.

Faced with such a strong case, it would have been suicide for the defense to rest upon the prosecution's burden to convince the jury beyond a reasonable doubt. So counsel quite properly decided to "flail around and raise a considerable amount of dust, with the inevitable risk that some may settle on his client." Katz, supra. The thrust of the argument on this appeal is that Mrs. Selwyn gave incompetent assistance because she settled far more dust on Crispin than the prosecution was able to do. We have read the entire transcript, and conclude that counsel consciously adopted and pursued a three-pronged strategy which in view of the strength of the government's case was not unreasonable and certainly was not incompetent.

The first aim of counsel's attack was to convince the jury that no dangerous weapon was used by the assailant — that Mrs. Pagan really was not hit with a fire nozzle. This was important because, under New York law, the offense of first degree robbery requires use of a dangerous weapon. In the end, counsel's strategy succeeded, because the jury returned a verdict for second degree robbery. Mrs. Selwyn began this line of attack by cross-examination of Mr. Perotti, a building superintendent for the City Housing Authority which administered the victim's apartment building. Perotti admitted that many nozzles are stolen by children. Next, she elicited from Dr. Wu that any blunt instrument could have caused Mrs. Pagan's head injury. In extensive cross-examination of the caretaker, Rosado, counsel established that Rosado first heard a noise like banging against a wall, and then thought he saw the assailant bang Mrs. Pagan's head against the floor, although in the end Rosado conceded he could not be sure what he saw. The defense called five witnesses, all either Housing Authority or city police. Patrolman Browne testified that Mrs. Pagan told him at the time that the assailant struck her in the face, and his investigative report bears the same notation. Patrolman Cade affirmed that Mrs. Pagan said someone punched her in the eye. Cade then investigated the scene of the crime, and did not notice a nozzle. Detective Harley testified that Rosado saw a man standing over the victim beating her. His incident report says he struck her with his hands and feet. Thus, counsel in summation was able to argue successfully that the only testimony regarding the nozzle was Mrs. Pagan's account of an incident in which she was obviously terrified, and when Mrs. Pagan first described what had happened she had not mentioned a nozzle.

Crispin now complains that counsel repeatedly brought out the details of the beating, and thus prejudiced the jury. But this course was necessary in order to show that no nozzle was used, and this was the argument with greatest chance of success. Moreover, after Mrs. Pagan's initial description of the assault, all later characterizations of the incident by witnesses seemed tame by comparison. While different tactics were possible, that argument falls far short of showing ineffective assistance of counsel. United States v. Gonzalez, 321 F.2d 638 (2d Cir. 1963).

The second aspect of counsel's defense strategy was to try to show that the assailant never took Mrs. Pagan's purse. If Mrs. Selwyn had succeeded, Crispin could only have been convicted on the lesser charge of assault. The strategy ultimately failed, but it is apparent that she had created doubt in the jurors' minds because they asked the court to reread portions of Patrolman Cade's testimony as to what Mrs. Pagan told him concerning her purse.

Counsel began this attack by eliciting from Mrs. Pagan on cross-examination that the first time she mentioned the theft of $37 was when she came to court for the preliminary hearing. Patrolman Browne, testifying for the defense, said he asked Mrs. Pagan at the time if anything was missing, and she did not say that anything was. Patrolman Cade said Mrs. Pagan told him that her purse was missing or taken, but she did not give an intelligible response to his repeated question of what was in it. In summation, counsel argued reasonably enough that Mrs. Pagan lost her purse and just assumed the assailant had grabbed it.

This strategy, too, had its obvious disadvantages, for along with the police officers' testimony came the incident reports, which referred to a robbery. Again, this is the kind of weighing of advantages and drawbacks which counsel must make, and does not show that counsel failed in her duty toward her client.

The third line of attack, and one virtually certain of failure, was to try to convince the jury that all three eyewitnesses were mistaken in their positive identification of petitioner. Crispin now complains that counsel did what the government could not have done under New York's rules of evidence, namely, to introduce pre-trial identifications. But the alternative was to leave the jury with the three witnesses who turned to Crispin and said "that's the man." If counsel's efforts failed, if instead she succeeded in convincing the jury that all descriptions of the assailant given to the police matched each other and fit Crispin, this was the unfortunate result of a valiant effort to sow doubt where none would have existed...