Petitioner argued, in the alternative, that the gun was seized incident to an unlawful arrest. There are three somewhat varying accounts of these events.
Mr. Brown testified that when the officers asked Broome whether they could search him, he responded, "'No problem. I have nothing to hide.'" (Trial Transcript at 56). Brown further testified that Officer John Barnum "pat[ted] him down and search[ed] him . . . . But [petitioner] started -- he tried to get away and tried to run." ( Id. at 56-57) At that point Barnum wrestled Broome to the ground and "as he was lifting him up, something fell from . . . [petitioner's] coat area" ( id. at 57), which Brown testified was a gun. ( Id. at 58).
Officer Barnum testified that, during the pat down of Broome, "as soon as I started to reach for the front part of his waist he started to turn on me . . . like he was trying to knock me off balance and get away." ( Id. at 77) He testified further, "I brought [his arms] up behind him, to try to take control of him, so he couldn't reach for anything. . . . And as I did this, I could see a gun drop to the ground. ( Id. at 78)
Lieutenant Paul Rowland testified that during Officer Barnum's pat down of Broome, Barnum "told me that he felt something hard in defendant's clothing . . . [and] I told Officer Barnum to bring the defendant to the ground, so we could check to see what that was." (Id. at 102) "As we were doing so a weapon fell out of the man's clothing." (Id. at 103)
Fourth Amendment jurisprudence recognizes the right of law enforcement officers to use some degree of physical coercion when conducting a Terry stop, at least when a suspect attempts to flee. Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989); see Terry v. Ohio, 392 U.S. at 22-27. The Supreme Court held in Sibron v. State of New York, 392 U.S. 40, 66, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968), that "deliberately furtive actions and flight at the approach . . . of law officers are strong indicia of mens rea." Based on this principle, courts have held that flight or attempted flight during a Terry stop transforms an officer's reasonable suspicion into probable cause. United States v. Martinez-Gonzalez, 686 F.2d 93, 100 (2d Cir. 1982); Tom v. Voida, 963 F.2d 952, 960 (7th Cir. 1992); see also Kolender v. Lawson, 461 U.S. 352, 366, n.4, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983) (Brennan, J., concurring opinion).
In the version of events testified to by Mr. Brown and Officer Barnum, the officers conducted a lawful Terry stop and used permissible force to detain petitioner when he attempted to flee. The attempted flight gave the officers probable cause to arrest.
Based on Lieutenant Rowland's view of the evidence, Officer Barnum, who already had been told that petitioner had a gun, felt "something hard" in the petitioner's clothing while conducting the pat down. The discovery of what appeared in the circumstances to be a the weapon gave the officers sufficient grounds to "bring the [petitioner] to the ground."
While there no doubt are nice questions here as to exactly when the Terry stop became an arrest, and as to when the gun came into view in relation to the start of the arrest, we need not resolve them. On any view of the evidence, the seizure was lawful. The weapon either was in plain view or was seized incident to a lawful arrest.
Petitioner's first ground for habeas relief does not meet the Coleman test, and federal habeas review on this ground therefore is barred.
Petitioner seeks relief as well on the grounds that the grand jury was constructed in violation of his constitutional rights and that the evidence before the grand jury was insufficient to support the indictment.
These grounds are not cognizable for habeas review in light of United States v. Mechanik, 475 U.S. 66, 71-73, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986), which holds that a petit jury's guilty verdict cures error in the earlier grand jury proceedings. See also Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989).
Petitioner raises, as the eighth ground for habeas relief, impropriety in the charge given to the jury on reasonable doubt. We find the charge to be proper and petitioner's argument to be meritless.
Second Felony Offender Hearing
Petitioner alleges violation of his due process and equal protection rights based on the trial court's failure to conduct a hearing before sentencing petitioner as a second felony offender.
The Court finds that petitioner waived any right to a hearing. After a lengthy discussion about petitioner's prior conviction, the trial court clearly informed him, "if you would want some hearing and I will give it to you, because I have got time for it and you're going to have time to think about it when I get done." (Motion and Sentence Transcript, July 29, 1991 at 17) The trial court said further, "I am going to ask you again, do you wish to contest the constitutionality of that conviction, at this time?" (Id.) Defendant replied, "I am a bit confused, Your Honor, so I would rather that we just progress," (Id.), at which point the trial court advised petitioner, who was proceeding pro se, "there is a lawyer standing right there to answer your question," (id.), referring to Mr. Angelo Rinaldi, petitioner's legal adviser. Mr. Rinaldi responded, "I know that defendant is ready to proceed, I think he's just making the court aware of the fact that he's intending to appeal and he still has an appeal pending on the prior felony conviction." (Id. at 17-18)
We conclude that petitioner effectively waived any hearing on this issue.
We have considered the remaining grounds raised by petitioner and find them to be without merit. The writ is denied and the petition dismissed.
Dated: New York, New York
December 15, 1994
Lewis A. Kaplan
United States District Judge