Appeal from order entered in the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, denying writ of habeas corpus. Affirmed.
Kaufman, Chief Judge, and Hays and Oakes, Circuit Judges. Oakes, Circuit Judge (dissenting).
Appellant commenced this action for a writ of habeas corpus alleging that an impermissibly suggestive pre-trial identification and certain errors in the state court trial at which he was convicted deprived him of various constitutional rights. The district court found no deprivation of constitutional rights and denied the writ. 365 F. Supp. 1290 (E.D.N.Y. 1973). We affirm.
On the evening of April 23, 1964, three men gained entry to the apartment of Carl and Almeta Gardner by giving a false name. They proceeded to rob the Gardners of $140.00. In the course of the robbery Mr. Gardner was struck with a gun and had to be hospitalized.
Appellant, Edward Polhill and Norman Adderley were arrested and charged with the crimes. Shortly before trial Adderley pleaded guilty to a charge which was reduced in return for his promise to testify. Appellant was tried with Polhill before a jury and convicted in the Supreme Court, Kings County, New York. On October 15, 1968, the Supreme Court, Kings County, denied coram nobis relief. The Appellate Division affirmed on a consolidated direct appeal and coram nobis appeal. 33 A.D.2d 994, 308 N.Y.S.2d 299 (2d Dep't 1970). The New York Court of Appeals affirmed, 28 N.Y.2d 761, 269 N.E.2d 914, 321 N.Y.S.2d 371 (1971), rehearing denied, 29 N.Y.2d 549, 272 N.E.2d 583, 324 N.Y.S.2d 95 (1971). The United States Supreme Court denied certiorari. 404 U.S. 994, 92 S. Ct. 542, 30 L. Ed. 2d 547 (1971). Appellant then commenced this action for a federal writ of habeas corpus, which the district court denied.
Appellant claims the state trial court deprived him of a fair trial by denying a continuance to locate a material witness and to obtain psychiatric records for purposes of cross-examining a prosecution witness.
After the robbery Mrs. Gardner identified Polhill and Adderley as two of the robbers. After some hesitation she identified one Ulysses Bryant as the third robber. Shortly, thereafter, however, she was shown Lucas. She immediately stated that she had been mistaken in her earlier identification and that Lucas was actually the third robber. Defense counsel did not learn of Mrs. Gardner's earlier identification of Bryant until a year later on May 21, 1965, the second day of the trial.*fn1 During the next four days the defense tried but failed to locate Bryant. On May 25, the last day of the trial, the defense moved for a continuance, which the trial judge denied.
In Ungar v. Sarafite, 376 U.S. 575, 589, 11 L. Ed. 2d 921, 84 S. Ct. 841 (1964), the Supreme Court said:
"The matter of continuance is traditionally within the discretion of the trial judge. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied."
Under the circumstances of this case the trial judge did not abuse his discretion in denying a continuance. It was not crucial that Bryant appear as a witness. The defense did not want him primarily to testify -- the jury already knew that Mrs. Gardner had originally identified another as the third robber. The defense wanted Bryant primarily to show the jury how different his appearance was from Lucas's. But this could have been accomplished with photographs or by examination of other witnesses.
More important, the defense did not show that a reasonable continuance would enable it to locate Bryant. The probability of locating the witness must be considered in the light of "the reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite, supra, at 589. See also United States v. Ellenbogen, 365 F.2d 982, 986 (2d Cir. 1966), cert. denied, 386 U.S. 923, 17 L. Ed. 2d 795, 87 S. Ct. 892 (1967); Neufield v. United States, 73 App. D.C. 174, 118 F.2d 375, 380 (1941), cert. denied, 315 U.S. 798, 62 S. Ct. 580, 86 L. Ed. 1199 (1942). The defense here did not even indicate what steps had been taken or would be taken to locate Bryant.
The denial of a continuance to secure psychiatric records of Adderley was also within the area of the trial court's discretion. The defense hoped to attack Adderley's credibility by showing that his mental state was poor. The defense claims that it first learned of Adderley's psychiatric history at the trial. The judge signed a subpoena for the records on the second day of the trial. Four days later the records still had not been produced. In seeking a continuance the defense did not indicate, and before this court still does not indicate, what measures it took to secure ...