United States ex rel. Robinson v. Zelker

• Decision Date: 28 September 1972
• Docket Number: Docket 72-1224.,No. 814,814
• Citation: 468 F.2d 159
• Parties: UNITED STATES ex rel. Carl M. ROBINSON, Petitioner-Appellant, v. John L. ZELKER, Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

468 F.2d 159 (1972)

UNITED STATES ex rel. Carl M. ROBINSON, Petitioner-Appellant, v. John L. ZELKER, Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent-Appellee.

No. 814, Docket 72-1224.

United States Court of Appeals, Second Circuit.

Argued June 16, 1972.

Decided September 28, 1972.

Stephen A. Marshall, New York City, for petitioner-appellant.

Maryellen Weinberg, Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., for respondent-appellee.

Before KAUFMAN, HAYS and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This is another in a series of recent cases in this circuit¹ involving an in-court identification claimed to have been tainted by suggestive procedures used. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The case is different from some in that the identification witness was himself a police officer. Since Wade and Gilbert have been held by Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), to give a right to counsel ". . . only at or after the time that adversary judicial proceedings have been initiated . . .," this case presents the nice question whether the issuance of a warrant of arrest under former section 144 of the New York Code of Criminal Procedure² amounts to such an initiation. The court below denied without a hearing a pro se application for a writ of habeas corpus under 28 U.S.C. § 2241. Appellant had been convicted in the state court of robbery in the first degree, grand larceny in the third degree, possession of a weapon and assault in the first degree.³

A recital of the facts indicates that there is a modicum of doubt whether, without the damaging identification, appellant would have been found guilty. The crime took place in broad daylight in Manhattan at 11:30 a. m. on May 3, 1968. Daniel Greenberg had just obtained a blue airline bag of coins and coin-rolls totalling some $80 from the Manufacturers Hanover Trust Company at 8th Avenue and 44th Street to take to his parking lot on West 46th Street. While walking back to the lot, on the south side of 46th Street, west of 8th Avenue, he was viciously shot in the back by an assailant who picked up the bag with the money. One eyewitness, an engineer named Schumann, saw the assailant hold the gun (which Schumann correctly recognized as a small calibre pistol), grab the bag and run to and enter a white car. Another passerby, Barcelo, observed a white Mercury Cougar stop on a green light at the intersection of 8th Avenue and 46th Street. The usual city horn blowing and "a commotion" on the street followed, and Barcelo then saw a man entering the Cougar, which at that time was stopped on the northeast corner of 8th Avenue across 46th Street. Neither Schumann nor Barcelo identified appellant at the trial.

The witness who did identify appellant was Patrolman Ferdinand Voltaggio. He was an officer assigned to the Parking Enforcement Squad, and at the moment of the crime happened to be located in a tow truck stopped at the 46th Street stop light on 8th Avenue, in the furthest west traffic lane. Voltaggio heard the shot and saw the assailant, then standing over Greenberg's body some 50 feet away, pick up the bag, put the gun in his belt and run toward the tow truck. The assailant ran about 20 feet in front of Voltaggio across 8th Avenue, jumped into the white Cougar, with two men in it, and drove north on 8th Avenue. Voltaggio gave pursuit, the vehicles going through red lights at Broadway and then 7th Avenue after the Cougar turned right on 48th Street. The Cougar became stuck at 6th Avenue in typical mid-day, mid-town, cross-town traffic, and Voltaggio jumped from his truck and started after the assailant who had jumped out of the car. The assailant escaped, but Voltaggio apprehended the two men in the car, the Pyle brothers.

Patrolman Voltaggio testified at trial that he had seen the assailant's face "about 14 seconds" when he was running across 8th Avenue in front of the tow truck (although it should be noted that a man running only 10 miles per hour, half the speed of a sprinter, can run about 15 feet per second), and that he also saw the assailant get out of the Cougar at the 6th Avenue traffic jam, look at the officer and run back down 48th Street toward 8th Avenue.

The car turned out to be a rented Mercury and the airline bag with the money was in it. The glove compartment contained a box of .22 shells and, highly incriminating, a Hertz rental agreement under which the car had been leased to appellant the evening before. Appellant, however, subsequently took the stand on his own behalf to testify that he had signed the rental agreement on behalf of a North Carolina schoolmate and friend of his, one J. B. Ray, at White Plains, with the Pyle brothers present, using Ray's money as a deposit. The purpose of the rental was to enable Ray to travel south, appellant claimed, and after the evening of the rental he had not seen Ray, the Pyle brothers or the white Cougar again.

On the night of the crime, City Detective Horan went to the appellant's house and brought Odessa Chambers, the woman with whom appellant was living and subsequently married, to the station house. There, at a hearing in chambers on an application for a complaint and warrant, Horan, Miss Chambers, and Officer Voltaggio all testified, in the presence of each other.⁴

Detective Horan testified at the arrest hearing as to the events surrounding the robbery and shooting of Greenberg, that he had a description obtained from Patrolman Voltaggio, and that the Pyle brothers who had been apprehended claimed that they rented the car with appellant but did not implicate him in the robbery.⁵ Odessa Chambers testified that she had seen the Pyles with appellant the day before, and that he had left the house about 6:30 in the morning.⁶ She gave a description of him as being 4 or 5 inches taller than her own 5 feet 2 inches, stating that he was "brown skinned" and when last seen was wearing a black suit with a blue tie and light shirt, black shoes, no hat, but that he could have been wearing a "light colored pair of pants, too." Patrolman Voltaggio then testified about what he had seen and regarding the chase. He gave a description of the robber as "brown skinned, Negro, he was about 5-7 or 5-8, he had a dark jacket and, I believe, he had on light pants" and no hat. Upon the strength of the foregoing Judge Bloom directed that a complaint issue charging appellant with the crimes of robbery in the first degree, assault in the first degree and possession of a weapon as a felony.

The evening of the day after the crime Detective Horan went to Port Chester, arrested appellant, and brought him back to the 18th Precinct in Manhattan where he was booked. A few hours later Voltaggio was called to go to the "18th Squad Room." He there found Detective Horan and appellant as the only people in the room, conversed with Horan briefly and then told Horan, "Yeh, that's the fellow that did the shooting." No lineup was conducted, nor was any attorney for appellant present at this time.⁷

The first question we have is whether "adversary judicial proceedings" had been "initiated" within Kirby v. Illinois, supra, so as to entitle appellant to counsel under United States v. Wade, supra, and Gilbert v. California, supra, at the "show-up" or confrontation by Officer Voltaggio the night of appellant's arrest. Mr. Justice Stewart, speaking for a plurality of four Justices in Kirby, made it clear that the right to counsel accrues ". . . at or after the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." 406 U.S. at 689, 92 S.Ct. at 1882. The Chief Justice, concurring both in the plurality opinion and separately, agreed "that the right to counsel attaches as soon as criminal charges are formally made against an accused and he becomes the subject of a `criminal prosecution.'" 406 U.S. at 691, 92 S.Ct. at 1883.

Here the arrest warrant itself commanded that appellant be brought forthwith before the Criminal Court "to answer the said charge, and to be dealt with according to law." These were formal criminal proceedings, for the warrant had been signed by a judge based on an "information upon oath" that appellant did commit the crimes of assault, robbery and possession of a dangerous weapon. This being true, Wade required counsel at the show-up, for we see no distinction based on the chance fact that the identifying witness was also a police officer. Time was not of the essence, a lineup could have been arranged and there appeared to be no "substantial countervailing policy considerations" against requiring the presence of counsel as suggested in Wade. 388 U.S. at 237, 87 S.Ct. 1926; see United States ex rel. Cummings v. Zelker, 455 F.2d 714, 716 (2d Cir. 1972). Advice to appellant about his rights at the time of his arrest does not suffice. United States v. Ayers, 426 F.2d 524, 527 (2d Cir.), cert. denied, 400 U.S. 842, 91 S.Ct. 85, 27 L.Ed.2d 78 (1970). Moreover, there is a question whether the show-up was "unnecessarily suggestive and conducive to irreparable mistaken identification" within Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); see United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970). But see United States ex rel. Anderson v. Mancusi, 413 F.2d 1012 (2d Cir. 1969) (one man show-up not per se impermissible). In view of the Wade violation, however, we need not pass upon this question here.⁸

The principal question then is whether Officer Voltaggio's identification had an independent source, that is, was based upon ". . . observations of the suspect other than the...