United States v. Mancusi, 629

• Citation: 413 F.2d 1012
• Decision Date: 17 July 1969
• Docket Number: Docket 32470.,No. 629,629
• Parties: UNITED STATES of America ex rel. Charles ANDERSON, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden of Attica State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

413 F.2d 1012 (1969)

UNITED STATES of America ex rel. Charles ANDERSON, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden of Attica State Prison, Respondent-Appellee.

No. 629, Docket 32470.

United States Court of Appeals Second Circuit.

Argued June 9, 1969.

Decided July 17, 1969.

Henrietta M. Wolfgang, Buffalo, N. Y. (The Legal Aid Bureau of Buffalo, Inc., Bruce K. Carpenter, Buffalo, N. Y., on the brief), for petitioner-appellant.

Michael Jaffe, Asst. Atty. Gen., State of New York (Louis J. Lefkowitz, Atty. Gen., State of New York, and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellee.

Before MOORE, SMITH and ANDERSON, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

In December, 1964 the petitioner, Charles Anderson, was convicted in Erie County, New York, after a jury trial, of the crime of grand larceny in the second degree, and was sentenced as a second felony offender to a term of from 5 to 10 years. Having exhausted his state remedies, he applied to the United States District Court for the Western District of New York for a writ of habeas corpus on the ground that the identification procedures used by the police were "unnecessarily suggestive" under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Judge Burke denied the writ, and this appeal followed. We affirm.

The petitioner was picked up by Buffalo police in connection with the theft of a purse. The complainant, Mrs. Irene Szuniewicz, testified that she was sitting in a parked car when a man reached through an open window and grabbed her purse. She described him as a colored man with a big mustache, and said he was wearing a red short-sleeved shirt and a small beret. There was a struggle for "maybe half a minute." The man took the purse and ran down Broadway into Blossom Alley, and the complainant gave chase. Two men from a nearby truck observed a man running toward them, and then heard the complainant shout, "Stop him, he has got my purse." They joined in the chase, but the man managed to elude them. Shortly afterwards the police picked up petitioner approximately four blocks from where the incident occurred. He was wearing a red shirt and dark trousers. He had a mustache.

When the complainant arrived at the police station, she was shown where petitioner was sitting and was told, "This is the man we picked up." She positively identified petitioner as the man who took her purse, and her identification was further corroborated by the two men from the truck. One identified petitioner as a result of a "showup" in a cell at the police station, while the other made a positive identification after petitioner was brought to him in a police car. All three identifications were made within approximately one hour of the theft.

In United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court observed that "a major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pre-trial identification," and held that pre-trial identification procedures in the absence of counsel violate the Sixth Amendment. The pre-trial identification rules announced in Wade have not been given retroactive effect, however, Stovall v. Denno, supra, and thus the relevant inquiry in pre-Wade cases, such as this case, is to ask whether the pre-trial confrontation "was so unnecessarily suggestive and conducive to...