United States v. Denno

• Citation: 355 F.2d 731
• Decision Date: 31 January 1966
• Docket Number: No. 307,Docket 29208.,307
• Parties: UNITED STATES ex rel. Theodore R. STOVALL, Appellant, v. Honorable Wilfred DENNO, as Warden of Sing Sing Prison, Ossining, New York, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

355 F.2d 731 (1966)

UNITED STATES ex rel. Theodore R. STOVALL, Appellant, v. Honorable Wilfred DENNO, as Warden of Sing Sing Prison, Ossining, New York, Appellee.

No. 307, Docket 29208.

United States Court of Appeals Second Circuit.

Submitted May 26, 1965.

Argued January 21, 1965.

Decided January 31, 1966.

COPYRIGHT MATERIAL OMITTED

Leon B. Polsky, New York City (Anthony F. Marra, The Legal Aid Society, New York City), for appellant.

Henry P. DeVine, Asst. Dist. Atty. (William Cahn, Dist. Atty., Nassau County, State of New York), for appellee.

Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and ANDERSON, Circuit Judges.

Submitted en banc to this Court on May 26, 1965.

MOORE, Circuit Judge (with whom Judges KAUFMAN, HAYS and ANDERSON concur; Judge LUMBARD concurs in a separate opinion with which Judge KAUFMAN also concurs; Judge FRIENDLY dissents in a separate opinion with which Judge WATERMAN concurs; and Judge J. JOSEPH SMITH dissents in a separate opinion):

Theodore Roosevelt Stovall appeals from an order dismissing a writ of habeas corpus. The appeal was argued originally before a panel of this Court (Moore, Friendly and Marshall, C.JJ.), and an opinion was filed on March 31, 1965, reversing the order of the District Court, Moore, C.J., dissenting. Thereafter, this Court sua sponte on May 26, 1965, ordered en banc consideration of this case and six other cases. Upon such consideration, the order appealed from is affirmed.

Late on the night of August 23-24, 1961, Dr. Paul Behrendt was stabbed to death in the kitchen of his home in Garden City, Long Island. His wife, Dr. Frances Behrendt, vainly coming to his assistance, was grievously wounded. The police, who quickly arrived on the scene as the result of a telephone call for medical aid which Mrs. Behrendt had managed to make, found many pieces of telltale evidence. They discovered a key chain with three keys, one of which was to Stovall's locker in a Brooklyn store where he worked. They also found a bloody shirt with the identification tag of a laundry used by Stovall. Further investigation in the morning of August 24th led the police to a bar which Stovall had visited the previous night. This, in turn, brought them to a man whom Stovall had called by telephone from the bar; he supplied Stovall's name and the address of Stovall's sister in Hempstead, Long Island. Proceeding to this address around 4:00 P.M., the police found Stovall and also Dr. Behrendt's blood-stained white coat. They arrested him and seized the coat, a pair of trousers owned by Stovall which were stained with blood of Mrs. Behrendt's blood type, and his pork-pie hat. The shirt left in the Behrendt kitchen was similarly stained, but a piece torn from it, found under Dr. Behrendt's armpit, was colored with blood of the Doctor's type. At the trial, Stovall's sister and a male friend of the sister testified that when Stovall came to her room in Hempstead at about 12:30 A.M., August 24th, he was not wearing the white shirt he had on earlier but instead appeared with the white jacket, bloody pants and a smear of blood on his forehead.

On the evening of August 24th, Stovall was questioned by the prosecutor at police headquarters; the statement was almost wholly exculpatory. The next morning he was arraigned, on a detective's charge of first degree murder, before a state district court judge. The judge informed Stovall, as required by § 188 of the New York Code of Criminal Procedure, "You have the right to the aid of a lawyer or counsel in every stage of the proceedings and before any further proceedings are had"; he then asked, "Do you want to get a lawyer?"; and said, "If you do, I'll give you time to get one before we proceed at this particular time." Stovall answered that he did, and on the Judge's further inquiry, "you're getting your own lawyer; is that right?", responded in the affirmative. The Judge then announced that he would "put it over to August 31st, next Thursday, for the purpose of getting an attorney," and directed that Stovall be "remanded pending further pleading."

Since Stovall had to remain in police custody pending further proceedings on the adjourned date, he was taken for identification purposes to Mrs. Behrendt's hospital room where Mrs. Behrendt identified Stovall as her attacker. Thereafter he was lodged in jail. Stovall was convicted by the jury of murder in the first degree. The jury did not recommend leniency. Stovall was, therefore, sentenced to death.

The principal point now urged on appeal is the claim (not even presented to the court below) that the taking of Stovall to Mrs. Behrendt's hospital room for possible identification violated his Fifth, Sixth and Fourteenth Amendment rights. No claim is made — nor could any be sustained by the proof — that Stovall's arrest was without probable cause or that there was any delay in his arraignment which occurred the morning following his arrest.

Nor is any claim made that Stovall at any time made a confession or gave any statements which were obtained by coercion, trickery or subterfuge — in fact there were no statements or confessions whatsoever. Thus, the only issue upon this appeal is: can the police, following an arraignment at which the person arraigned advised the court that he was going to get his own lawyer, continue their identification efforts by taking such person to the hospital room of the victim to ascertain whether or not she recognized him as her attacker? Obviously the victim of the crime, if he or she has had an opportunity to see the attacker at the time of the attack, is the person most likely to be able to confirm or refute the identity of the person arrested. Freedom or further detention may well come from a "yes" or "no" to the simple question: is this the man who attacked you?

Fifth Amendment

(Self-Incrimination)

Appellant challenges the admissibility in evidence of Mrs. Behrendt's hospital room identification. However, under section 393-b, New York Code of Criminal Procedure, "a witness who has on a previous occasion identified such person may testify to such previous identification."

What was Stovall's status at the time he was taken to Mrs. Behrendt's hospital room? Because of appellant's present argument, the spotlight of inquiry must be focused sharply upon this single period of time. Stovall had just been arraigned and had advised the court that he wished to obtain his own counsel rather than accept court-appointed counsel. To give him adequate opportunity to do so, the court adjourned "any further proceedings" for six days for that purpose. No plea was entered, no motions had to be made or waived, no rights were jeopardized. In the meantime Stovall had to remain in the custody of the police. This was lawful custody. To fulfill properly their duty to make sure that they had the right man, it was incumbent upon the police to have the victim of the assault view the suspected attacker to identify or disavow him as the culprit.

Had Mrs. Behrendt not been so seriously injured and hospitalized, Stovall would have been lodged in the local jail and Mrs. Behrendt could have viewed him in a line-up or looked at him through the door or gate of his cell. A photograph of Stovall might have been taken and exhibited to her. However, the police have to deal with situations as they find them and act expeditiously in the light of emergencies which confront them. Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, "He is not the man" could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room.¹ Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question.

The hospital room identification² was not prejudicial to Stovall because Mrs. Behrendt, after she recovered, made positive identification in the courtroom. There is no evidence that her hospital room identification on August 25, 1961, affected or influenced in any way her courtroom identification on May 23, 1962. Any previous identification was but duplicative. She was the only living person who had seen her attacker. Stovall's counsel used his right of cross-examination to the fullest extent in questioning the identification and dwelt upon it in summation. Since the law requires the defendant to be present upon his trial and to exhibit his face for identification purposes, it was for the jury to weigh the accuracy of Mrs. Behrendt's identification.

As a matter of law, the method of identification inside or outside the courtroom would go to the weight to be attributed to the identification; not to the admissibility or constitutionality of testimony relating thereto, People v. Partram, 60 Cal.2d 378, 384 P.2d 1001 (1963), cert. denied, 377 U.S. 945, 84 S. Ct. 1353, 12 L.Ed.2d 308 (1964), (defendant forced to try on hat and coat which did not fit others in line-up); People v. Clark, 28 Ill.2d 423, 192 N.E.2d 851 (1963), (witness saw one of suspects in police station before line-up); People v. Boney, 28 Ill.2d 505, 192 N.E.2d 920 (1963), (wife raped; husband knew four of five in line-up were from State's Attorney office); State v. Hill, 193 Kan. 512, 394 P.2d 106 (1964); Redmon v. Commonwealth, 321 S.W.2d 397 (Ky. 1959), (claim that police pointed out suspect before line-up); Commonwealth v. Downer, 159 Pa.Super. 626, 49 A.2d 516 (1946), (defendant alone shown to witness), although there are some decisions to the contrary, People v. Conley, 275 App.Div. 743, 87 N.Y.S.2d 745 (1949), (defendant appeared alone and was forced to wear clothing...