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United States v. Department of Correctional Services of the

decided: May 1, 1972.


Friendly, Chief Judge, Timbers, Circuit Judge, and Jameson, District Judge.*fn*

Author: Timbers

TIMBERS, Circuit Judge:

The only issues raised on this appeal from the denial of a state prisoner's petition for a writ of habeas corpus are whether the accused had a constitutional right to counsel at a post-indictment, pre-trial photographic identification session in the prosecutor's office in the absence of the accused, and whether the photographic identification procedure at that session was impermissibly suggestive.

Frederick Johnson was convicted on March 3, 1969 in the New York Supreme Court, Bronx County, after a jury trial before Justice Murtagh of assault in the first degree and possession of a weapon as a felony in connection with the February 11, 1968 shooting of Ernest Holloway.*fn1 The Appellate Division on May 26, 1970 affirmed without opinion, 34 A.D.2d 893, 311 N.Y.S.2d 814 (1st Dept. 1970), and the New York Court of Appeals denied leave to appeal. Having thus exhausted his state remedies, Johnson filed a petition for a writ of habeas corpus on November 10, 1970 in the District Court for the Southern District of New York. Among his numerous claims,*fn2 Johnson alleged that an in-court identification of him by the victim's wife violated his rights under the Sixth and Fourteenth Amendments, because Johnson had not been represented by counsel at the post-indictment photographic identification session where the witness identified Johnson as the assailant from a photograph, and because the photographic identification procedure was impermissibly suggestive. Judge Tenney on September 24, 1971 denied the petition without a hearing.*fn3 For the reasons stated below, we affirm.


The evidence adduced at Johnson's state court trial established that, shortly before midnight on February 11, 1968, Mr. and Mrs. Holloway were watching television in their apartment when the doorbell rang. Arline Holloway went to the door, looked through the peephole long enough to realize that she did not know the person standing outside the foyer of their apartment and returned to the living room. The doorbell then rang again. This time both Ernest and Arline Holloway went to the door. As Ernest Holloway opened the door, a bullet fired by the person standing outside the foyer struck him in the neck. A second bullet missed Holloway and lodged in the door. The assailant then fled.

While Ernest and Arline Holloway were able to describe the assailant for the police, they both said that they had never seen the assailant prior to the assault. A little more than one month after the shooting, on March 16, 1968, however, Ernest Holloway stated for the first time that petitioner Frederick Johnson was the person who had shot him.*fn4 At the trial Holloway explained that the reason he did not identify Johnson as his assailant until a month after the shooting was that "I wanted to take the law in my hand and deal with him myself personally. . . . But then, a month later, then I revealed to Detective Marschat, because I spoke to a priest in the hospital and my family who persuaded me to tell the truth."

As a result of Holloway's statement, Johnson was indicted on May 2, 1968 for the shooting. On September 13, 1968, Johnson was arraigned and held in custody. Counsel was assigned to represent him on October 10.

It was after these events that the challenged photographic identification occurred. On January 16, 1969, Arline and Ernest Holloway came to the office of Harold Enten, the Assistant District Attorney assigned to prosecute the case against Johnson. At this time Arline Holloway knew that her husband had identified Johnson as the assailant. However, Arline Holloway had never met Johnson (except for her brief glimpse of him on the night of February 11, 1968) and had never seen a photograph of him. In the absence of Johnson's counsel, who had not been notified, Patrolman Marschat and Mr. Enten showed Arline Holloway five photographs, including a photograph of Johnson. She identified the photograph of Johnson as one of the persons whom she had seen through the peephole just before the shooting.

Prior to trial, defense counsel moved to suppress any in-court identification of Johnson by Arline Holloway. After conducting a pre-trial hearing on February 26, 1969, Justice Murtagh ruled that the five photographs used at the January 16, 1969 photographic identification could not be shown at trial and that Arline Holloway could not testify as to her prior identification of Johnson by means of photographs.*fn5 Justice Murtagh, however, denied Johnson's motion to suppress any in-court identification. He held that Johnson did not have a right to counsel at the photographic identification session; that the identification procedure in question was not impermissibly suggestive; and, in any event, that the in-court identification would be based exclusively on the original identification and would not be tainted by the photographic identification.

At trial Arline Holloway identified Johnson as the assailant and adhered to her identification despite some inconsistencies developed by defense counsel.*fn6


Relying on United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), Johnson contends that he had a right to have his counsel present at the post-indictment photographic identification session where Arline Holloway selected his photograph as one of the assailants. In United States v. Bennett, 409 F.2d 888, 898-900 (2 Cir. 1969), cert. denied sub nom. Haywood v. United States, 396 U.S. 852, 24 L. Ed. 2d 101, 90 S. Ct. 113 (1970), a case involving a post-arrest, pre-indictment photographic identification, we rejected appellant's claim that he had a right to have his counsel present. We have consistently adhered to this position and have also followed it with respect to post-indictment photographic identifications such as in the present case. See, e. g., United States v. Fernandez, 456 F.2d 638, 641 n. 1 (2 Cir. 1972); United States v. Mojica, 442 F.2d 920, 921 (2 Cir. 1971); United States v. Fitzpatrick, 437 F.2d 19, 25-26 (2 Cir. 1970). The reasons for not extending Wade to post-arrest photographic identifications were cogently set forth by Chief Judge Friendly in United States v. Bennett, supra, 409 F.2d at 899-900, and apply equally to post-indictment identifications:

"To require that defense counsel be allowed or appointed to attend out- of-court proceedings where the defendant himself is not present would press the Sixth Amendment beyond any previous boundary. None of the classical analyses of the assistance to be given by counsel . . . suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant's absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other ...

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