Appeal from an order of the United States District Court for the Eastern District of New York, John R. Bartels, Judge. Larry Julius Gibbs appeals from an order denying his application for a writ of habeas corpus to review his conviction of robbery in the first degree in the New York State courts. Opinion below not reported. Affirmed.
Medina, Anderson and Van Graafeiland, Circuit Judges.
This is an appeal from an order of Judge Bartels in the Eastern District of New York denying a habeas corpus application for a new trial because the New York courts that sustained the conviction of Gibbs for robbery in the first degree are claimed to have violated the constitutional rights of Gibbs by receiving in evidence against him the testimony of witnesses based upon an alleged tainted identification procedure. The opinion below is not reported.
The prosecution chose to rely on in-court identification by three witnesses who were in the store at the time of the robbery. While no objection was made at the trial to the admission of the testimony of these witnesses, the due process question was properly raised by a pre-trial motion "for a suppression of the identifications made of the defendant" followed by a suppression hearing in the New York State court on January 29, 1968. The presiding judge said he believed the testimony of Detective Adelson who made the arrest of Gibbs and supervised the challenged show-up, and the motion to suppress was denied. The following brief description of the course of events prior to the suppression hearing and at the trial will serve as a background against which we shall later give our reasons for holding that none of Gibbs' constitutional rights to due process of law were infringed.
On March 8, 1967, a large cleaning establishment known as the Nuclear Drive-In Cleaner on Linden Boulevard in the Saint Albans section of Queens County, New York, was entered at 6:45 P.M. by two blacks who held up the occupants of the store and escaped with five or six hundred dollars in cash. This was prior to June 12, 1967, when the Supreme Court adopted new rules applicable to cases of in-court identifications in United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967); and Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). As the new rules were not made retroactive, this case is governed by the prior rules which in substance required an inquiry into the facts of each case to determine whether the defendant had been deprived of due process of law by the identification procedure followed by the police and by the prosecution. We had occasion to discuss the application of both the new and old rules in United States ex rel. Rutherford v. Deegan, 406 F.2d 217 (2d Cir. 1969). The test we must apply in this case is clearly stated in Deegan to be: Was the line-up or show-up without notice to or the presence of counsel on "the totality of circumstances surrounding" a confrontation "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." This is the only substantial question before us in this case.
Three people were in the cleaning establishment when the two black robbers came in. Sam Bleck the proprietor was packing some shirts in a box on the counter several feet from the cash register. Margaret Perry, an employee, was standing a few feet away tagging clothes. Another employee, David Alston, was in a room, "a big vault" with a "big door," adjacent to the counter where Bleck was working. The testimony is that the stick-up took about a minute, but a lot can happen in a minute as can be attested by anyone keeping track of the time just before the starting gun of a yacht race or watching the closing minute of a football game. The impact on eyewitnesses of an armed robbery depends on what each of the witnesses saw and heard. These are the details that make up "the totality of circumstances" surrounding the challenged identification.
When the robbers came into the store one of them knocked on the counter for attention and asked for change of a ten dollar bill. Bleck said: "I'm sorry, I don't have too many singles, maybe in the drawer." At that one of the robbers, later identified as Gibbs, pulled a gun and said: "This is a stick-up and I want all the money." Bleck replied: "You will get all the money, I don't want anyone to get hurt. You tell me what I should do and I'll do it. I'll take the money out of the register." The robbers proceeded to take the money out of the drawers of the cash register, Bleck having removed the two drawers and placed them on the counter, but in doing so a roll of quarters broke and the quarters spilled over the counter and on to the floor. The robbers scooped up the money and put it in their pockets. Before this, however, Bleck was afraid that Alston would "come out of the vault any second and as he will open the door I was afraid they may start shooting at him." So, Bleck testified to the following conversation between him and Gibbs:
Bleck: I have a man in the vault cleaning up my place, cleaning up the vault. He may come out any second. He works here. Don't harm him.
Gibbs: Okay. Let's have the money, let's have the money.
At the request of the robbers, Bleck took out of his pockets all the money he had, about $120.00 and gave it to the robbers. The robbers also found time to take an additional $54.00 from the petty cash drawer that was half hidden under the counter below the cash register.
While this was going on the store telephone rang and Mrs. Perry answered it. It was her daughter so she said she would call back and hung up. Each of the robbers had a gun in his hand and these guns were pointed at Bleck. As the money was being handed over to the robbers, David Alston came out of the vault. So the entire incident occurred in the full view of Bleck. Mrs. Perry had a good view of the robbers but was not involved to the same extent as Bleck. And David Alston saw the tag end of the robbery with a good view of the robbers as they left the store.
As the robbers went out after the stick-up, a customer was coming in. Mrs. Perry recognized the customer as a Correction Officer whom she knew and she cried out, "Those two fellows just held us up." As the robbers ran up the street the Correction Officer pulled ...