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BOND v. WALKER

September 27, 1999

ROBERT BOND, PETITIONER,
v.
HANS G. WALKER, RESPONDENT.



The opinion of the court was delivered by: McKENNA, District Judge.

MEMORANDUM AND ORDER

By Report and Recommendation dated August 16, 1999 (the "Report"), Magistrate Judge Peck recommended that the above petition for a writ of habeas corpus be denied. By order dated August 25, 1999, this Court extended petitioner's time to file objections to the Report to September 7, 1999. No objections having been filed, and upon consideration of the Report, this Court accepts the recommendation of the Magistrate Judge.

The writ is denied and the petition is dismissed.

SO ORDERED.

REPORT AND RECOMMENDATION

Petitioner Robert Bond seeks a writ of habeas corpus from his conviction for first degree robbery, for which he was sentenced to twenty years to life imprisonment. (Pet. ¶¶ 3, 4.) Bond's habeas corpus petition raises three grounds: (1) the incourt identification by the victim's mother was done under highly suggestive circumstances (Pet. ¶ 12(A); Bond Br. at 17-20); (2) the line-up at which Bond was identified by the victim was impermissibly suggestive and tainted her in-court identification (Pet. ¶ 12(B); Bond Br. at 12-16); and (3) Bond's guilt was not proved beyond a reasonable doubt (Pet. ¶ 12(C); Bond Br. at 7-11).

Bond never presented his second (victim's identification) and third (sufficiency of the evidence) habeas grounds to any state court. He is procedurally barred from raising those claims now in state court, so they are deemed exhausted, and his procedural default also bars federal habeas review of these claims. The remaining claim, concerning the victim's mother's in-court identification, lacks merit. Accordingly, for the reasons set forth below, the Court should deny Bond's petition.

FACTS

On January 1, 1983, Robert Bond attacked Cynthia Noble and robbed her of a gold chain at knife point. (E.g., Trial Transcript ["Tr."] 39-44, 102-08.)

The Trial Evidence of the Robbery

On December 31, 1982, Cynthia Noble ("Cynthia") left her young son with her mother, Marby Noble ("Mary"), and attended a New Year's Eve party in Mary's building.*fn1 (Tr.32, 161-62.) After the party, Cynthia briefly went back to Mary's apartment, and then left, alone, for her apartment at "around 6:30" in the morning of January 1, 1983. (Tr. 33-34, 38, 104, 162.) Cynthia entered the lobby of her building, heard somebody follow her in, "spun around" to see who it was, and saw "a man standing up against the wall." (Tr. 38-39, 54, 102.) Cynthia tried to leave the building when the man suddenly "knocked [her] from behind and just started choking [her]." (Tr.39-40, 102.) He held a knife to her neck and said "`[a]ll I want is your money.'" (Tr. 40.) He pushed her out of the building at knifepoint, and tried to push her into the next building. (Tr. 41.) Cynthia refused to continue, and "just collapsed on him," that is, "just fell flat down." (Tr.42.)

The man pulled Cynthia by her hair and collar, causing a gold chain around her neck to snap and fall. (Tr. 42-43.) The attacker pocketed the chain, and threatened to "cut [her] open [and] hurt [her]. It doesn't make any difference to me." (Tr.43.) When the attacker bent down to pick up the chain, Cynthia "did get a look at him." (Tr.44, 107-08.) Cynthia identified Bond as the attacker. (Tr.44.)

Bond forced Cynthia at knife point to walk down the block; Cynthia struggled and slipped, and they both "tumbled down into [a] basement." (Tr.46.) Bond pulled her up and he "slammed [her] up against the wall." (Tr. 46, 47.) He dragged Cynthia down the street, holding her by the hair, with a knife held to her side and throat. (Tr. 48-49.) Bond tried forcing her into her own building's basement, but she resisted. (Tr. 49-50.)

At this point, Cynthia's sister and the sister's boyfriend approached them, causing the attacker to run away. (Tr. 50.) Cynthia again got a clear look at him: "[h]e was right in [her] face . . . . maybe seven, eight inches [away]." (Tr. 51-52, 105-07.) Cynthia also described the jacket that her attacker was wearing: "[t]he jacket was like a cream-colored beige knit cuff and waistband." (Tr. 52, 87.)

A short while after Cynthia left Mary's apartment, another of Mary's daughters telephoned from Cynthia's apartment and said that Cynthia had not arrived. (Tr. 163-64.) Mary grew "concerned," and looked out her window for Cynthia. (Tr. 164-65.) Mary observed the crime and the attacker's identity from the window:

  I saw this guy with his arm sort of around [Cynthia's] head and
  her head was kind of bent over and he was bent over her . . . .
  [W]hen she got closer. I noticed that she seemed to be trying
  to come off the curb and this person was holding her . . . and
  then he yanked her.
    So, when he yanked her like hat, I knew he really wasn't a
  friend of hers . . . . So then I got out on the fire

  escape . . . I got out to get closer to try to see who he
  was.

He was trying to push her toward the basement, their basement.

Q Who was trying to push her towards the basement?

A This guy over here.

Q Do you recognize this as the same man that you saw?

A He doesn't have the hair but his face is the same.

  He shoved Cynthia down the stairs into the basement and in
  shoving Cynthia, he fell. So, the two of them tumbled down.
  . . . [A]nd then he pushed up with his hands and when he was
  laying there, that's when I saw what he looked like.
  Q Can you tell whether you see in court today the person you
  have been describing?

A Yes. He is sitting over there.

[PROSECUTOR]: Indicating for the record, the defendant.

  THE WITNESS: His hair is not the same, but his face is the
  same.

(Tr.165-66, 168-71.)

Mary's description of the perpetrator's jacket was consistent with Cynthia's: "beige, sort of a beige — I thought at the time it was a little creamy beige and it — the cuffs, knitted cuffs and the waist was knitted and also in the front it had like this knit, same knit, but it was like darker." (Tr.172.)

A neighbor, Frank Drew, found a jacket in the building's lobby on the morning of the robbery. (Tr. 229-35.) He gave it to Mary, who recognized it as "identical to the jacket that we had seen the guy wearing." (Tr. 179, 233-34.) Cynthia also identified the jacket as belonging to her attacker. (Tr. 85-86.) Mary, Cynthia, and Drew testified that they found Bond's social security card and other papers bearing Bond's name in the jacket's pocket. (Tr. 87-90, 180-82, 233.) Cynthia called the police and gave them the jacket. (Tr. 70-91.) A police detective testified at trial that the number on the card was identical to the social security number that Bond gave the police when he was arrested. (Tr. 210-11, 215-16.)

On January 13, 1983, twelve days after the crime, Cynthia identified Bond as her attacker from a police lineup of six men, despite the fact that he had changed his hairstyle from "an uncombed Afro" to "corn braids." (Tr. 92, 95, 106, 111-13.)

Mary Noble's Trial Identification of Bonds

In anticipation of the prosecution' calling Mary Noble, defense counsel argued, on the first day of trial, that any in-court identifications would occur under highly suggestive circumstances. (Tr. 118-31.) Bond's counsel noted that Mary had not seen the attacker for the ten months between the crime and trial, and seeing someone in the defendant's seat obviously would be suggestive. (E.g., Tr. 118-19, 123.) Defense counsel analogized to a one-person showup by the police in which the police said, "`We arrested this guy and charged him with the crime, is this the guy who committed the crime?,'" which would be a tainted identification. (Tr. 119.) Bond's counsel suggested that a lineup be held:

    THE COURT: It is your position that the law is that for every
  witness to a crime, that witness must first view a line-up
  before he could be permitted to testify at trial?

[DEFENSE COUNSEL]: Absolutely.

(Tr. 120.) The prosecutor responded that "it is daily routine to have witnesses take the stand who haven't been subject to a pre-trial identification procedure and then to ask them whether they see the defendant in Court," and any suggestiveness arguments are for the jury to determine. (Tr. 123-24.) The trial judge raised the possibility of seating Bond in the spectator section of the courtroom (Tr. 125-26), but the prosecutor and Bond himself objected. (Tr. 127-28, 133.) The trial judge took the issue under advisement, and gave the parties a day off to brief it. (Tr. 130-31.)

When counsel returned to court, defense counsel argued that even if Bond were allowed to sit in the spectator section, he would be alone and so the in-court identification would be unfairly suggestive. (Tr. 135-37.) The prosecutor again responded that in-court identifications happen every day in New York courts. (Tr. 137.) The prosecutor also informed the court that he had instructed Cynthia not to talk to the other witnesses, and he had cautioned the other witnesses about the need to be certain of any identification. (Tr. 138-39.)

The trial court ruled that "there is no such right to have a procedure of this type [i.e., a lineup type procedure] at a trial stage." (Tr. 144.) The trial court further held that it would not be improper to have the defendant sit in the spectator section, "but it is certainly not required," and since there were no other spectators, such a procedure would be "academic" and serve no useful purpose. (Tr. 144.) The trial judge held that defense counsel would "have an opportunity now to cross-examine [the] witness, to be able to show ability or lack of ability to make a proper identification, and [defense] Counsel will have a further opportunity in summation to argue to the jury," but that "there is no additional steps that need be taken by this Court to assure the fairness to this Defendant." (Tr. 145.) Bond's counsel excepted to the ruling. (Tr. 145.)

Mary Noble's testimony identifying Bond as the attacker is described at ...


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