The opinion of the court was delivered by: COOPER
Petitioner, now serving a sentence of eight and one-third years to twenty years imposed under a judgment of conviction entered in February 1970 for robbery in the first degree
following a jury trial in the Supreme Court of the State of New York, seeks his release upon a writ of habeas corpus. He alleges that the pre-trial identification procedures used by the police at the time of arrest violated his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process of law.
Petitioner's judgment of conviction was affirmed by the Appellate Division, First Department, on February 25, 1971; leave to appeal was denied by the Court of Appeals on April 7, 1971. On December 15, 1971, petitioner's pro se application for a writ of habeas corpus was denied by this Court without a hearing. On January 21, 1972, this Court granted petitioner's application for a certificate of probable cause and for leave to proceed on appeal in forma pauperis, and appointed counsel to represent petitioner on appeal. On September 28, 1972 the Court of Appeals reversed the denial of the application, holding that petitioner was deprived of his Sixth Amendment right to counsel at a show-up conducted on the night of the arrest. United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir. 1972), cert. denied, 411 U.S. 939, 93 S. Ct. 1892, 36 L. Ed. 2d 401 (1973) (hereafter "468 F.2d at [*]"). The matter was remanded for an evidentiary hearing on the question whether ". . . there was an impermissible taint to the in-court identification . . . ." 468 F.2d at 165. This Court held an evidentiary hearing (hereafter "the Hearing") on May 29, 30 and June 11, 19, 20, 21, 1973.
After careful scrutiny of the testimony adduced at the Hearing and the papers submitted in conjunction therewith, we conclude that the application is devoid of merit and must be denied.
The events which grounded the prosecution 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 totalling some $80 from the Manufacturers Hanover Trust Company at 8th Avenue and 44th Street in Manhattan and was returning to his parking lot on West 46th Street when he was shot in the back by an assailant who picked up the bag with the money. At the trial, one eyewitness, an engineer named Schumann observed the assailant hold the gun, grab the bag and run to and enter a small white car. Another passerby, Barcelo then testified he observed a white Mercury Cougar stop at the intersection of 8th Avenue and 46th Street. A "commotion" followed on the street whereupon Barcelo observed a man enter the Cougar which was then stopped on the northeast corner of 8th Avenue across 46th Street. Neither Schumann nor Barcelo identified petitioner at trial. See 468 F.2d at 161.
The only witness who identified petitioner at trial was Patrolman Ferdinand Voltaggio, a police officer assigned to the Parking Enforcement Squad. At the moment of the crime, Voltaggio was in a tow truck stopped at the 46th Street stop light on 8th Avenue in the furthest west traffic lane. Voltaggio testified that when he heard the shot, he looked to his left (Tr. 12)
in the direction from where the sound of the shot came and saw the assailant standing over Greenberg's body. At that moment the assailant was some 50 feet from Voltaggio who was able to look at him full face (Tr. 559). The assailant thereupon picked up the bag and ran to the opposite corner of 46th Street. When he reached that corner, he had traversed a distance of 50 feet and was then within 25 feet of Voltaggio who remained in his tow truck (Tr. 559-561). The assailant was then directly across the street from the truck. Voltaggio's attention thereupon was momentarily distracted by the honking of horns. When Voltaggio refocused upon the assailant, he was still at the opposite corner of 46th Street, some 25 feet from Voltaggio, waiting to cross 8th Avenue (Tr. 559-561; 566). The assailant then traversed another 50 feet as he crossed 8th Avenue; jumped into the Cougar, occupied by two men, and drove north on 8th Avenue.
Voltaggio pursued the Cougar in his tow truck, both vehicles going through red lights at Broadway and 7th Avenue. The Cougar became enmeshed in traffic at 6th Avenue, whereupon the assailant jumped from the car and fled towards 6th Avenue. Voltaggio, whose tow truck was several car lengths behind the Cougar, jumped from his truck and from a distance of 30 to 40 feet (Tr. 573) observed the assailant fleeing. Voltaggio was again able to view the assailant's face as he emerged from the Cougar. He did not pursue the assailant who escaped, but apprehended the two men remaining in the Cougar, the Pyles brothers.
The testimony is in conflict as to the length of the various periods during which Voltaggio viewed the assailant. Voltaggio testified at the State trial that he viewed the assailant's face for about 14 seconds as he ran across 8th Avenue in front of the tow truck. The Court of Appeals reduced this to approximately four seconds, taking judicial notice "that a man running only 10 miles per hour, half the speed of a sprinter, can cover about 15 feet per second." 468 F.2d at 162. See also 468 F.2d at 164. However, the testimony adduced at the Hearing indicates strongly that while Voltaggio did not have as much as 14 seconds to observe the assilant, he did have more than four. He observed the assailant twice traverse a distance of 50 feet; the first time when he ran in front of the tow truck to the opposite corner of 46th Street, at which point Voltaggio's attention was momentarily diverted by the noise of traffic, and then another 50 feet as the assailant crossed 8th Avenue and jumped into the Cougar. Moreover, Voltaggio testified that in the interim between these two distances, the assailant stood still for "a couple of seconds" (Tr. 566), probably waiting for an opportunity to cross the Avenue. Relying upon this testimony and using the method of calculation suggested by the Court of Appeals, it appears that Voltaggio's opportunity to observe the assailant lasted between 7 and 10 seconds, and we so find.
Voltaggio further testified before us that he searched the Cougar and found the blue airline bag carried by Greenberg and a Hertz rental agreement which included a notation that the car had been rented the day before by petitioner and bore his home address.
Voltaggio thereupon brought the Pyles brothers to the 18th Precinct where their arrest was processed by Detective Matthew Horan. Voltaggio gave the Hertz agreement to Horan as well as a description of the escaped assailant. Acting upon that description, Horan sent out a police alarm which described the assailant as an "unknown male Negro, 25 years old, 5'7", 150 lbs, brown complexion, dark shirt and jacket, dark pants" (Tr. 72-76; 188; 310-313). Horan testified at the Hearing that the alarm included everything that Voltaggio gave him regarding the assailant (Tr. 188).
On the night of the crime, Horan, acting upon the name and address contained in the Hertz agreement, went to petitioner's home where he found Odessa Chambers, petitioner's girl friend and later his wife, and brought her to the station house. A hearing on an application for a complaint and warrant was held. There and then Horan, Chambers and Voltaggio testified in the presence of each other (HM 2-15A).
On that occasion Horan testified as to the events surrounding the robbery, that he had a description of the assailant obtained from Voltaggio and that based upon the information then available he concluded that petitioner was the assailant. Chambers testified next, describing petitioner as being 4 or 5 inches taller than her own 5 feet 2 inches, that he was "brown skinned" and when last seen was wearing a black suit with blue tie and light shirt, black shoes and no hat, but that he could have been wearing a "light colored pair of pants, too." See 468 F.2d at 162. Voltaggio then testified as to what he had seen. He described the assailant as a "brown skinned, Negro, he was about 5-7 to 5-8, he had a dark jacket and . . . light pants" and no hat. See 468 F.2d at 162. Upon the strength of that total testimony a complaint and arrest warrant were issued, charging petitioner inter alia with robbery and assault.
On the evening of the day after the crime, Horan arrested petitioner at his home and brought him back to the 18th Precinct in Manhattan where he was booked. Horan summoned Voltaggio to the precinct a few hours later for the purpose of identifying the assailant. Horan met Voltaggio at the entrance to the squad room where petitioner was seated at a desk. A brief conversation ensued wherein Horan asked Voltaggio, "Freddie, is this the perpetrator," to which Voltaggio responded, "Yes, that's him" (Tr. 108; 230; 345).
Petitioner's version of what happened in the squad room differs significantly from that offered by Voltaggio and Horan. Petitioner claims that he was twice displayed before a one-way mirror by the police in a room other than the squad room (Tr. 412-423) and that only thereafter did Voltaggio enter the squad room and speak to Horan (Tr. 424-426). Petitioner claims that his version is corroborated by the fact that he was able to draw a diagram of the mirror room which he prepared prior to the Hearing in the presence of his counsel (Tr. 412-413; 430-434) and which by Horan's own admission was an accurate description of the room in which the one-way mirror was located in May, 1968 (Tr. 267-269). Petitioner contends that had he not been brought into the mirror room, he would have been unable to draw an accurate diagram of that room. Moreover, as the Court of Appeals noted, use of a mirror suggests a degree of uncertainty about Voltaggio's identification; this would be consistent with the fact that Horan showed Voltaggio a photograph of petitioner at his arraignment, the necessity for which does not otherwise appear (STM. 198-199).
See 468 F.2d at 164, 163 n. 7.
After careful scrutiny of the testimony relevant to this issue, we conclude that petitioner's version of the show-up must be rejected. Whether or not a mirror was used is a fact of paramount significance, particularly in light of the extensive use thereof suggested by petitioner, one which no knowledgeable participant would be likely to forget. Horan and Voltaggio are of one mind that no mirror was used during the show-up and that Voltaggio's identification of petitioner was immediate and without any uncertainty. As to these issues, there is neither contradiction nor hesitancy. Though there are inconsistencies in Voltaggio's testimony regarding other details of the pre-trial procedure, they are typical of human frailties consistent with an honest witness whose candor and effort at recollection were clear and undeniable. From our vantage point, this witness scored high.
Moreover the Hearing was held some five years after petitioner's arrest and even the State trial did not commence until more than 21 months after the shooting. Testimonial inconsistencies regarding these events are inevitable after such a lapse of time and they cannot be relied upon to challenge the testimony of Voltaggio and Horan regarding use of a mirror, as to which, we emphasize, there was neither uncertainty nor contradiction. Whereas neither Voltaggio nor Horan had any motive to falsify regarding use of a mirror, petitioner must have been aware that if he could establish its use at the show-up, his case would be greatly strengthened. As to his knowledge of the layout of the so-called mirror room, it could as easily have been derived from his passing through the room or even his being seated therein at a time other than that during which he was identified by Voltaggio. There is nothing before us to the contrary. Accordingly, we find no persuasive reason to accept the diagram as proof that Voltaggio observed petitioner through a mirror before identifying him as the assailant.
Petitioner's testimonial expression was in marked contrast to that of Voltaggio; a certain shrewdness and cunning substituted for candor. His demeanor as a witness was suggestive of meticulous preparation and rehearsal prior to trial6a and his testimony smacked too much of a prepared and expected call of triumph, "Now I got you!" In the main, it is clear that petitioner took great liberties with the truth; he was not convincing and we find ourselves duty bound to reject his testimony.
In the last analysis, in the pursuit of truth we are confronted here with a frequent setting - written or documentary proof totally absent, we are compelled to extract and weigh, from the totality of oral proof, the fragments as well as large segments of evidence bearing upon the factual issues for resolution, and to employ, among other factors, a discerning eye in "sizing up" each witness. We strictly apply to ourselves the same criteria and cautions about the testimony of witnesses that we include in our charge to juries:
The greatest challenge to you is your evaluation of the testimony as it came from the lips of witnesses and your estimate of the exhibits and the stipulations. It is your total evaluation of the testimony given by the witnesses, and each of them, that is controlling, not that advanced by the attorneys or suggested by anybody. You are the sole judges of the facts and you have no greater burden than the accurate recognition of what really counts in the totality of that testimony.
In examining the witnesses who took the stand, in sizing them up, in your search for the truth, you should be guided by your plain every day common sense. You saw each witness, you observed the manner of his giving testimony. What degree of credit you should give a witness' testimony should be determined by his conduct, his manner of testifying, his relation to the controversy, his bias or impartiality, and the reasonableness of his statements. In other words, what you try to do, to use the vernacular, is to size up a person, just as ...