United States ex rel. Gilliard v. LaVallee, 72 Civ. 4569 (WCC).

• Citation: 376 F. Supp. 205
• Decision Date: 07 May 1974
• Docket Number: No. 72 Civ. 4569 (WCC).,72 Civ. 4569 (WCC).
• Parties: UNITED STATES of America ex rel. Raymond M. GILLIARD, Petitioner, v. Hon. J. E. LaVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

376 F. Supp. 205

UNITED STATES of America ex rel. Raymond M. GILLIARD, Petitioner, v. Hon. J. E. LaVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent.

No. 72 Civ. 4569 (WCC).

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

May 7, 1974.

John E. LeMoult, Karpatkin, Ohrenstein & Pollet, New York City, for petitioner.

Louis J. Lefkowitz, Atty. Gen., Albany, N. Y., for respondent.

MEMORANDUM

CONNER, District Judge:

Raymond M. Gilliard, currently incarcerated in the Great Meadow Correctional Institute, Comstock, New York, petitions this Court for a writ of habeas corpus. On June 17, 1968 he was sentenced by Justice John M. Murtagh of the Supreme Court of the State of New York, New York County, to prison terms of 40 to 60 years, after a jury trial in which he was convicted of all 27 counts of an indictment charging him with robbery, larceny, rape, assault, sodomy, burglary and possession of dangerous weapons. On March 1, 1971 the Appellate Division of the New York Supreme Court, First Department, affirmed without opinion. People v. Gilliard, 36 A.D.2d 794, 318 N.Y.S.2d 681 (1971). On May 20, 1971, leave to appeal to the New York Court of Appeals was denied (Burke, J.).

Thus, having exhausted his state remedies, petitioner properly invokes the jurisdiction of this Court.

I.

The two incidents which led to petitioner's prosecution and conviction both occurred within the three-day period August 12-14, 1967. At about 10:00 p. m. on August 12, as Ted Greene, Barbara Keating and Sam Gerber were entering Greene's apartment on East 6th Street in Manhattan, petitioner and three other men forced their way in, announcing "this is a robbery". Once inside, one of the men drew a knife while the others blocked the door by placing the refrigerator in front of it. They then proceeded first to blindfold and gag and then to rob their victims. Shortly thereafter, Miss Keating's blindfold was removed and each of the men raped her. While this was transpiring, Cynthia Brucksch came to the apartment. Miss Keating implored petitioner to leave Miss Brucksch alone because of her heart condition (Tr. 634). But, in spite of her entreaties, petitioner forced Miss Brucksch at knifepoint to disrobe and raped her. (Tr. 679-680). Thereafter, the other men also raped her.

At about five o'clock in the morning, following their use of drugs, the perpetrators became passive and friendly, and allowed Greene out of the apartment ostensibly to take Miss Keating to the hospital. However, after leaving the apartment, Greene and Keating did not go to the hospital because they were afraid the police would learn what had transpired and seek to enter the apartment. Petitioner had threatened them that this would result in Gerber's death. The men finally left the apartment at about 7:30 on the morning of August 13th. The police were notified late that morning.

During the afternoon of August 13, Keating and Greene gave Detective Matarazzo a description of the assailants and looked through the police photograph files, simultaneously identifying petitioner from one photograph (Wade Tr. 32-32-D). Miss Brucksch also gave descriptions and viewed photographs that day and likewise identified petitioner (Wade Tr. 164-66).

On August 21, 1967, Detective Matarazzo called Greene and asked whether he could "come down and look at some people". He went down to the police station and viewed three men, one at a time, through a one-way mirror. One of the men he picked out was petitioner (Wade Tr. 35-36).

On August 25, 1967 Greene, Keating and Brucksch went down to the Criminal Court, Part 1-A and sat in the back of the courtroom. There they promptly identified the defendants walking in the front of the courtroom.

II.

On August 14, 1967, the day after the first incident, Gene Mundie and Karen Trimble drove Pauline Turner home from the airport. When they entered her apartment building on East 11th Street in Manhattan at about 10:00 p. m., four men entered with them and forced their way into her apartment. Mrs. Turner became very upset by their behavior, and when she protested, she was assaulted. Mundie was then blindfolded, gagged and bound with telephone wires removed from the apartment. He was assaulted numerous times and kicked while lying on the floor. Mrs. Turner was blindfolded and then repeatedly raped and sodomized. Eventually, her blindfold was removed and she was attacked with a knife.

Miss Trimble, who was not blindfolded, was beaten until she agreed to remove her clothes, and then raped by all of the men.

The perpetrators left about 12:00 a. m., and the police were summoned.

On August 15, Trimble, Mundie and Turner gave descriptions of the perpetrators and looked through the police photograph file. Trimble and Turner mistakenly identified one John Moses, but Mundie did not agree. Later that night they were called again to headquarters to view Moses at a "show-up" through a one-way mirror. They all identified him as one of their assailants.

On August 20, Miss Trimble was called back to the precinct and was brought before the one-way mirror again. This time she picked out the petitioner and told Detective Matarazzo that Moses was the wrong man (Wade Tr. 211, 215).

On August 21, Mundie went down to the precinct and was brought before the one-way mirror again; this time he immediately picked out petitioner, stating that he had been mistaken before (Wade Tr. 244, 257-60, 279-81).

On August 25, Trimble, Turner and Mundie were sitting in the back of the courtroom in the Criminal Court, Part 1-A. When Miss Trimble saw six people, including Moses and petitioner, walk across the front of the court (Wade Tr. 209-11), she again identified petitioner. When Mrs. Turner saw petitioner and Moses standing together in court, she acknowledged her mistake as to Moses (Wade Tr. 314, 326).

Petitioner and William Billups, Ralph Thompson and Cecil Price were subsequently indicted for various acts of robbery, larceny, rape, sodomy, assault and burglary. Prior to the trial, Price pleaded guilty and agreed to testify for the prosecution. During the trial, Thompson withdrew his plea of not guilty and pleaded guilty to all counts of the indictment (Tr. 697-722). Petitioner and Billups were both convicted on all 27 counts of the indictment.

III.

In this Court, petitioner seeks a new trial on the grounds that: 1) he was not informed of the charges against him, and was arrested without probable cause; 2) Detective Matarazzo unlawfully testified in the capacity of an arresting officer; 3) the complaining witness' in-court identifications were tainted by illegal out-of-court identifications; and 4) he was improperly denied the transcript of the pretrial identification hearing.

Petitioner's first claim is in essence a claim of unlawful arrest. This claim is not properly cognizable in a federal habeas corpus proceeding. Hachey v. Maine, 453 F.2d 369 (1st Cir. 1972).

The general rule is that habeas corpus does not lie to set aside a conviction in a case where there was an illegal arrest, unless the arrest in some way deprived the applicant of a fair trial. Edwards v. Swenson, 454 F.2d 1106, 1111 (8th Cir.), cert. denied, 406 U.S. 909, 92 S.Ct. 1619, 31 L.Ed.2d 820 (1972); Brooks v. Smith, 429 F.2d 1281, 1282 (5th Cir. 1970); Boblit v. Warden, Maryland Penitentiary, 350 F.Supp. 768 (D.Md.1972); Edwards v. Beto, 329 F.Supp. 1035, 1036 (N.D.Tex.1970).

The typical example of such a situation is where evidence which is the fruit of an illegal arrest results in conviction. There is no claim here that any evidence was seized from petitioner at the time of his arrest. In fact, there is nothing in the transcript to indicate that the procedure of petitioner's arrest had any effect whatsoever on his trial.

Petitioner's second claim is in effect a reiteration of the unlawful arrest claim, and also a claim for deprivation of rights because of the denial of the pretrial transcript. He contends that the transcript would have enabled him more effectively to cross-examine Detective Matarazzo. Although there are minor inconsistencies in Detective Matarazzo's testimony, it was introduced merely as background and the inconsistencies could in no way have affected the guilt-determining process. Accordingly, this contention is without merit.

Petitioner's third claim is a challenge to the out-of-court identification procedures of August 21 and 25.¹ It is undisputed that no attorney was present at either of these "show-ups" and that petitioner was never advised of his right to have an attorney present.² Consequently, on March 6, 1968, prior to the commencement of trial, petitioner's assigned counsel moved to preclude all identification testimony on the ground that any in-court identification would be impermissibly infected by the illegal out-of-court procedures. The court promptly commenced a Wade hearing which lasted several days. During the course of this hearing six of the victims positively identified the petitioner (Wade Tr. 19-21; 117, 118, 129; 153; 183-84; 239; 306-07). All six of these eye-witnesses had extraordinary opportunity to observe their assailant. They all testified that they were held captive by him for periods ranging from two to seven hours, and viewed him at close range for periods ranging from 20 minutes in one case³ to six hours in two others. Three of the victims testified that they viewed petitioner during the course of being raped by him. Petitioner's counsel vigorously cross-examined each eye-witness.

On March 12, 1968 the Court found that the prosecution had established that the in-court identifications were not tainted by the improper out-of-court identification procedures and accordingly denied the motion⁴ as to such testimony.

The Court stated:

"Based on the time available for observations, the time in which the observations were in fact made and the circumstances under which the observations were made, the Court finds that the in-cou

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