United States ex rel. Geralds v. Deegan

• Decision Date: 12 November 1968
• Docket Number: No. 67 Civ. 3198.,67 Civ. 3198.
• Citation: 292 F. Supp. 968
• Parties: UNITED STATES of America ex rel. Melvin GERALDS, Petitioner, v. John T. DEEGAN, Warden, Sing Sing Prison, Ossining, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

292 F. Supp. 968

UNITED STATES of America ex rel. Melvin GERALDS, Petitioner, v. John T. DEEGAN, Warden, Sing Sing Prison, Ossining, New York, Respondent.

No. 67 Civ. 3198.

United States District Court S. D. New York.

November 12, 1968.

Melvin Geralds, pro se.

Louis J. Lefkowitz, Atty. Gen., of the State of New York, Albany, N. Y., for respondent; Michael H. Rauch, Asst. Atty. Gen., New York City, of counsel.

OPINION

MacMAHON, District Judge.

Petitioner, presently confined at Sing Sing Prison, moves for a writ of habeas corpus under 28 U.S.C. § 2254, attacking collaterally a conviction for robbery, grand larceny and assault and the sentence imposed upon him by the Nassau County Court on May 7, 1965 after a jury trial. Allegedly, the conviction was obtained in violation of petitioner's constitutional rights under the fifth, sixth and fourteenth amendments.

Specifically, petitioner claims (1) failure to prove a prima facie case, (2) failure to prove petitioner's guilt beyond a reasonable doubt, (3) double jeopardy, (4) denial of counsel at pre-trial identification and (5) suggestive pre-trial confrontation by the victims which was conducive to mistaken identification.

Claims (1) and (2) fail to raise a federal question.¹ As to claim (3), petitioner argues that dismissal of the complaint by the Nassau County District Court and his subsequent indictment for the same crime violated his constitutional protection against double jeopardy. Petitioner is referring to a preliminary felony examination by that court functioning as a magistrate on the question of probable cause to detain the prisoner pursuant to §§ 186 through 207 of the New York Code of Criminal Procedure. Dismissal of a complaint and discharge of a prisoner for want of probable cause by an examining magistrate or commissioner does not bar subsequent indictment or conviction on the same charge. This is both New York² and federal law.³ Thus, petitioner's claim (3) is without merit.

Claim (4) also must be rejected since petitioner was convicted prior to the decisions holding that pre-trial identification is a "critical stage" of a criminal proceeding actuating the right to counsel.⁴

This leaves for consideration the question of whether petitioner is entitled to relief on claim (5)—that the identification at trial in his case was so infected with an unfair pre-trial confrontation for identification that he was denied due process. This is a recognized ground of attack independent of the claim of right to counsel.⁵

Whether petitioner was denied due process depends on (a) whether, under all the circumstances, the pre-trial confrontation was so unnecessarily suggestive and conducive to mistaken identification⁶ that it offends the fundamental standards of decency, fairness and justice;⁷ (b) whether the identification at trial had an independent origin;⁸ and (c) whether, in any event, the introduction of the evidence was harmless error.⁹

Our inquiry is directed first to whether the conduct of the confrontation was unnecessarily suggestive and conducive to mistaken identification. The answer depends upon the totality of the surrounding circumstances. We look now to those circumstances.

THE CRIME

The owners of the Azzarone Construction Corporation, O'Neil Bouknight and George Bock, were assaulted and robbed of more than $12,000 by two armed Negroes on May 23, 1963, at the office of their company in Mineola, Nassau County, New York, in the evening between 5:30 P.M. and 5:50 P.M. It was daylight, and the office was illuminated with fluorescent lights. Bouknight and Bock were alone, all other employees having left for the day.

Immediately prior to the incident, Bock was in an office called "the estimating room," and Bouknight was in an adjoining toilet. Earlier that day, the office manager had withdrawn money for the firm's payroll, placed it into envelopes, put the envelopes into night deposit bags, and set the bags on a shelf in a closet located in the estimating room. Bock had $100 on his person, and Bouknight had $70.

The incident happened as Bock was at a desk talking on the telephone. A Negro man with a gun approached the desk and told Bock to hang up and get down on the floor.¹⁰ Bock then noticed a second Negro man, armed with a knife, enter the doorway and, hearing a flush, went to the toilet door. As Bouknight opened the toilet door, the man with the knife, standing five or six feet away, said: "This is a stickup. Get in the other room on the floor." The man then grabbed Bouknight by the shoulder, stepped behind him, and shoved him into an adjoining room where the other man pushed him to the floor. When Bock and Bouknight were facedown on the floor, the man with the knife tied their hands behind their backs, taped their mouths, and tied their feet. The man with the knife asked, "Where's the money?," went into a back room, and kept repeating "Where's the money?" Bouknight tried to tell him, but when he moved to do so was slapped on his face. The man with the gun then took the wallets from the back pockets of both victims. He then walked into the front room, said to the man with the knife, "Come on, I have it," and then both left. The victims freed themselves, and Bouknight telephoned the police. The entire incident lasted from five to seven minutes.

DESCRIPTION OF THE ROBBERS

Within five minutes after the occurrence, police officers came to the premises. The victims gave detailed descriptions of the robbers which were written down by the police. According to the victims, the man with the knife was a very light complexioned Negro, with a round shaped face and brown eyes "wide open." He was about six feet tall and weighed about 170 pounds. He wore a beige knit shirt with a dark collar, dark grey or dark brown trousers, and a pork pie hat.

Later that same evening, at about 9:00 o'clock, the victims went to the police station where they remained until about 2:30 A.M. They spoke to several detectives, looked at photographs, and repeated detailed descriptions of the men to the police artist. They remained with the artist for two or three hours while he made notes and, with the guidance of the victims, drew a composite picture of the man with the knife.¹¹ Photographs were made of the picture.

CONFRONTATION FOR IDENTIFICATION

Twenty days later, on the afternoon of June 12, 1963, at the request of the police, the victims went to the Third Precinct station house in Mineola. They spoke to several detectives and police officers who said they had a suspect and would like them to observe him. The record is unclear whether petitioner then had counsel, but in any event none was present. There was no lineup. Instead, the victims looked through a one-sided mirror located in a door and saw a white man bring a Negro into an adjoining room. The victims viewed the Negro for about five minutes. At their request, relayed through a detective, he put on a pork pie hat and, with the door ajar, said: "Where's the money?" Nothing else was said. Both victims heard and recognized the voice as the voice of the man who at the time of the robbery kept asking "Where's the money?" Nonetheless, Bouknight was "not absolutely certain" that the Negro was "the man with the knife," but was "almost 100% positive that's the man," while Bock was "relatively sure, not positive."

The victims saw petitioner for a second time the next day, when they were called to the Nassau County police headquarters in Mineola. Again, there was no lineup. Rather, the victims viewed petitioner for two or three minutes, and there was a conflict in their testimony as to whether he was alone or with a white detective.

The victims saw petitioner for a third time for about half an hour on June 17, 1963 at a felony examination held in the Nassau County District Court in Mineola.

IDENTIFICATION UPON THE TRIAL

The prosecution did not offer the prior identification into evidence upon the trial but relied upon an identification of the petitioner by the victims in open court. The earlier pre-trial identification was elicited by defense counsel upon cross-examination, and some inconsistencies in minor details were developed between the victims' testimony and earlier descriptions given by them. Bouknight testified that, when he first observed petitioner at the precinct station house, he was reasonably sure, but not absolutely certain, that petitioner was the man who held the knife. Nor was he "100% positive" that the man he identified in court was the man who held the knife at the time of the crime. Bock testified that he was relatively sure that petitioner was the man who held the knife. The victims' testimony concerning the identification of petitioner at police facilities was basically corroborated by the sole defense witness, detective James Moran.

On redirect examination, the descriptions given and the artist's sketch, drawn on the night of the robbery, were received in evidence, and both victims testified that they recognized petitioner's voice at the first confrontation as that of the man who had held the knife and asked "Where's the money?" during the robbery.

Defense counsel, in his summation, emphasized that the question of identity was the "sole" issue for the jury. He stressed the victims' doubts, implied police pressure from two confrontations, deplored the lack of a lineup, highlighted discrepancies in the victims' stories, and questioned their observational abilities while under the fear and excitement of the robbery. He left nothing unsaid in his condemnation of the pre-trial confrontation as unfair, suggestive and conducive to irreparable mistaken identification. He argued that it was so contaminated with suggestion that the victims' identification at trial was merely a replay of a solidified mistake, riddled with doubt and totally unreliable.

The prosecution's summation also focused on the question of identity, arguing that the victims' very unwillingness to be absolutely sure certified...