Appeal from a judgment entered September 25, 1986 in the Eastern District of New York, Thomas C. Platt, District Judge, denying a state petitioner's petition for a writ of habeas corpus. Affirmed.
Before: TIMBERS, PIERCE and ALTIMARI, Circuit Judges.
Quentin Meadows ("appellant"), a state prisoner, appeals from a judgment entered September 25, 1986 in the Eastern District of New York, Thomas C. Platt, District Judge, denying his petition for a writ of habeas corpus. 644 F. Supp. 757 (E.D.N.Y. 1986). The court held that the error, if any, in the admission in evidence of an identification, made during a lineup after the right to counsel had attached but when defense counsel was not present, was harmless. The court also held that, because appellant's Sixth Amendment right to counsel had not attached at the time appellant made certain incriminating statements, such statements were properly admitted for impeachment purposes.
On appeal, appellant argues, first, that the admission in evidence of the identification made at the lineup when defense counsel was not present violated his right to counsel and that the error was not harmless beyond a reasonable doubt; and, second, that appellant was improperly impeached by the use of his incriminating statements, since the statements were taken in violation of his right to counsel after the right had attached.
We hold that any error in the admission of the lineup identification was harmless beyond a reasonable doubt, in view of the overwhelming evidence of appellant's guilt. We also hold that, although appellant's Sixth Amendment right to counsel had attached at the time he made the incriminating statements and the use of those statements for impeachment purposes was error, such error was harmless beyond a reasonable doubt.
We affirm the judgment denying the petition for a writ of habeas corpus, but we do so on grounds other than those set forth in the district court opinion.
We summarize only those facts believed necessary to an understanding of the issues raised on appeal.
On the evening of October 21, 1980 three individuals were present at a gas station in Elmont, Long Island. Two of the individuals, John Taylor and Paul Cufalo, were attendants at the station. The third, James Alviti, was Taylor's cousin; he came to visit the attendants at approximately 9:15 P.M. Shortly after Alviti's arrival, appellant entered the gas station, displayed the butt of a gun to Taylor and Alviti, and ordered them into the back room where Cufalo was on the telephone. Forcing the three men to lie, or crouch, on the floor, appellant demanded money from them. Alviti had no money with him. After Taylor and Cufalo gave appellant their money, he fled, after having instructed the three victims to stay in the back room for fifteen minutes.
Taylor called the police and reported the robbery. When the police arrived, Taylor and Alviti gave detailed descriptions of the robber. Cufalo was unable to do so.
The next day Taylor and Alviti went to police headquarters to view some photographs and slides in an attempt to identify the robber. A slide presentation of individuals who fitted the general description, consisting of approximately sixteen slides, was made. Taylor and Alviti viewed the slide presentation together. When appellant's slide was shown, they simultaneously identified it as portraying the robber. A photographic array, consisting of approximately six photographs, was shown separately to Taylor and Alviti. Each of them again identified appellant and each gave statements to that effect.
On October 29, 1980 - eight days after the first robbery - Taylor again was at work at the gas station. His co-attendant that evening was Vincent Rizzuto. At approximately 9:15 P.M., while Taylor was at the gasoline pumps servicing a car, Taylor observed appellant enter the gas station. He asked the customer to call the police. The customer declined to do so. Taylor then entered the station where he found appellant holding Rizzuto at gun point. Appellant, addressing Taylor by his first name, ordered Taylor and Rizzuto into the back room where he robbed them. Appellant fled, again having instructed his victims to remain in the back room.
Taylor immediately called the police and reported that the same person who had robbed him the week before had robbed him again. Police officers arrived at the gas station soon after Taylor's call. The officers took a description of the robber. Taylor reiterated that it was appellant who again had robbed him. Detective Byron Bartlett arrived with the photographic array assembled by him the week before and ...