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TOBIAS v. SMITH

April 23, 1979

Archie TOBIAS, Petitioner,
v.
Harold SMITH, Superintendent, Attica Correctional Facility, Respondent



The opinion of the court was delivered by: CURTIN

Archie Tobias has submitted this petition for a writ of habeas corpus on the grounds that his incarceration is in contravention of the sixth and fourteenth amendments to the Constitution of the United States. The petitioner was indicted and charged with burglary in the first, second and third degree, with robbery in the first and third degree, with petit larceny, and with possession of a weapon as a misdemeanor. On January 31, 1975, the petitioner was convicted in County Court, County of Erie, as charged, with the exception of the first degree burglary count, on which he was found guilty of second degree burglary.

On March 10, 1975, the petitioner moved to set aside the verdict on the grounds that the trial court committed reversible error in failing to suppress certain identification testimony or, alternatively, in failing to hold a hearing on the issue of jury prejudice. This motion was denied and on March 11, 1975 petitioner was sentenced.

The Appellate Division of the Supreme Court of New York, Fourth Department, unanimously affirmed petitioner's conviction on January 16, 1976. In its memorandum opinion, the Appellate Division dismissed the petitioner's arguments that he was deprived of his constitutional rights by the trial court's failure to suppress the identification testimony and by its refusal to hold a hearing on the issue of jury prejudice. Leave to appeal to the New York Court of Appeals was denied on April 23, 1976.

 The petition for a writ of habeas corpus seeks the evidentiary hearing on the issue of jury prejudice which was denied in the state courts. Since the petitioner has exhausted the remedies available to him in the state courts, he is properly before this court.

 The petitioner was charged with crimes which occurred on the campus of the State University of New York at Buffalo. Two college students were robbed in their dormitory rooms in separate incidents on March 23 and on March 27, 1974.

 On March 23, 1974, Andrew Simon was robbed at knife point. Mr. Simon was unable, on the night of the incident and again on the following day, to identify his assailant when he viewed a photo book of the Campus Security Force which contained a photograph of the petitioner. Six days after the incident, Mr. Simon again viewed the photo book. He was advised by a campus security officer that they were holding a suspect and that the suspect's picture had been added to the book. Mr. Simon picked out a freshly-taken polaroid photograph of the petitioner. This photograph showed petitioner with a beard, which the robber had. The picture of the petitioner in the photo book, as originally shown to Mr. Simon, showed petitioner to be clean-shaven and two and one-half years younger.

 Frank Szczublewski, a Campus Security officer, apparently observed the person who robbed Simon on the night of the incident. The officer had seen a person leaving the campus dormitory and, after hearing a bulletin with the description of the robber given by Mr. Simon, he realized that the person he had seen could be the perpetrator. On March 29, 1974, the officer went to the Campus Security office. He first viewed the photo book which contained both photographs of the petitioner. He was unable to identify the petitioner from this display. Officer Szczublewski did identify the petitioner as the man he had seen leaving the dormitory, however, when he was taken to observe the petitioner in a room where the petitioner was being held on a trespass charge.

 On March 27, 1974, Nels Larson was robbed in his dormitory room at the campus. Mr. Larson described his assailant as 6'3 or 6'4, husky, black, and as having a beard. During the afternoon following the incident, Larson cooperated with the Amherst Police Department to produce a composite sketch of the robber; at this time no mention was made of a beard and the sketch did not include one. Two days later, Larson identified the petitioner from the contemporary photograph in the photo book of the Campus Security Force. As with Simon, the other student robbed, Larson has failed to identify the petitioner from the earlier photograph of him and Larson was advised beforehand that the police were holding a suspect whose picture had been added to the book.

 A Wade Hearing was conducted at which the trial court judge denied petitioner's motion to suppress the identification testimony of the three witnesses. At trial, Simon, Larson and Szczublewski all identified the petitioner. The petitioner's sole defense was that the witnesses were mistaken in their identification and the jury was charged that the identification of the petitioner was the most important issue in the case.

 Finally, prior to trial petitioner's attorney conducted an extensive voir dire of the prospective jurors. The affidavit of petitioner's trial attorney states that the jurors were questioned about their racial feelings toward black people and toward the petitioner. All jurors who were sworn indicated they had no prejudice toward black people or toward the petitioner. No record, however, was made of the voir dire.

 After trial, but prior to sentencing, the petitioner moved to set aside the verdict, or for a hearing, on the grounds of jury prejudice. This motion was based on the affidavit of one of the jurors. The juror stated that the jury consisted entirely of white people and that it was obvious to her that several members were prejudiced against the petitioner because he was black. She stated specifically:

 
4. That although the issue of identification was argued vigorously, particularly the fact that the witnesses could not identify a photo of the defendant, the jury foreman told everybody that it didn't matter because "You can't tell one black from another. They all look alike".
 
5. That another juror said that we should take the word of two white victims as opposed to this black defendant.

 See Affidavit of Esther Gaglia, attached to Petitioner's Amended Petition for a Writ of Habeas Corpus. As noted above, petitioner's motion for a hearing was denied by the trial ...


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