Petition for Writ of Certiorari — New Jersey v. Woodard

IN THE JUN 29. asi2

Mates... JR. CLERK

Supreme Court of the Unite

‘

~

Ocroser Term, 1971

No.

STATE OF NEW JERSEY and HOWARD YEAGER,

The Principal Keeper of the State Prison at Trenton,

New Jersey,

Petitioners,

vs.

UNITED STATES OF AMERICA, ez rel.,

FLEMING WOODARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

JosePpH P. Lorp1, é

Essex County Prosecutor, ©

Attorney for Petitioners.

Davi S. Bame,

Assistant Prosecutor,

Counsel for Petitioners,

Essex County Courts, Building,

Newark, New Jersey 07102

TABLE OF CONTENTS

JURISDICTION

Questions PRESENTED

STATEMENT OF THE CASE

Reasons FoR DENYING THE WRIT

Point I—The in-court identifications of defend-

ant by the victims of the robbery were un-

tainted by the out-of-court confrontations ......

Point IJ—This Court should revaluate its hold-

ing in Townsend v. Sain, and restrict the

power of the federal courts in habeas corpus

cases to make fact findings in derogation of

those made by state courts

ee

APPENDIX:

A—Opinion of the United States Court of Ap-

(ERE SERRE ISS sie hea ae

B—Judgment of the United States Court of Ap-

peals

C—Opinion of the Superior Court of New Jer-

sey Appellate Division (102 N. J. Super.

422)

D—Opinion and Order of the United States Dis-

trict Court

DTN MO RS RS LO ee

19

25

la

4a

6a

TABLE OF CONTENTS

PAGE

Cases Cited

Cameron v. Johnson, 391 U. S. 361, 88 S. Ct. 1671,

20 L. Ed. 2d 647 (1968) 15

Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17

L. Ed. 2d 705 (1967) 18

Clemons v. United States, 408 F. 2d 1230 (D. C. Cir.

1968), cert. denied, 394 U. S. 964 (1969).................. 12

Coleman v. Alabama, 399 U. S. 1, 90 S. Ct. 1999, 26

L. Ed. 2d 387 (1970) : 10

Commonwealth v. Robinson, 355 Mass. 620, 246 N. EK.

2d 669 (Mass. Sup. Jud. Ct. 1969) 16,17

Cooper v. Picard, 428 F. 2d 1351 (1st Cir. 1970).......... 15

Davis v. North Carolina, 384 U. S. 737, 86 S. Ct. 1761,

16 L. Ed. 2d 895 (1966) 14

Foster v. California, 394 U. S. 440, 89 S. Ct. 1127,

22 L. Ed. 2d 402 (1969) 10

Frazier v. United States, 419 F. 2d 1161 (D. C. Cir.

1969) 11

Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1961,

18 L. Ed. 2d 1178 (1967)............. 9, 10, 12, 18

Gregory v. United States, 410 F. 2d 1016 (D. C. Cir.

1969) 18

Hawkins v. United States, 420 F. 2d 1805 (D. C. Cir.

1969) 11

Joinder v. State of Maryland, 7 Md. App. 692, 257

A. 2d 444 (Ct. of App. 1969) 16

Mackey v. United States, 401 U. S. 667, -—-, 91

mes 1260, 28 1, Ed. 3a 406 (1971)... 20

TABLE OF CONTENTS

_

Miranda v. Arizona, 348 U. S. 436, 84 S. Ct. 1602,

16 L. Ed. 2d 694 (1966) 5

Simmons v. United States, 390 U. S. 377, 88 S. Ct.

1967, 19 L. Ed. 2d 1247 (1968) 10,17, 18

State v. Funicello, 60 N. J. 60, —— A. 2d ——

(1972) fi 19, 20

State v. Griff, 164 Wash. 78, 450 P. 2d 486 (Sup.

Ct. 1969) ; 18

State v. Woodard, 53 N. J. 84, 247 A. 2d 887 (1968)... 2

State v. Woodard, 102 N. J. Super. 419, 246 A. 2d

130 (App. Div. 1968) 2

Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1602, 18

L. Ed. 2d 1199 (1967) 5, 9, 10, 18

Townsend v. Sain, 372 U. S. 293, 83 S. Ct. 745, 9

L. Ed. 2d 770 (1963) 14, 15, 19

United States v. Broadhead, 413 F. 2d 1351 (7th

Cir. 1969) 16

United States v. De La Cruz Bellinger, 422 F. 2d

723 (9th Cir. 1970) 16

United States v. Terry, 422 F. 2d 704 (D. C. Cir.

1970) 16

United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926,

18 L. Ed. 2d 1149 (1967) 4, 9, 10, 12, 17, 18

Woodard v. New Jersey, 395 U. S. 938 (1969)..............

United States Constitution Cited

Fourteenth Amendment

SEK SPELT TR SRL ELD ETC I tee POS

iv . TABLE OF CONTENTS

PAGE

Statutes Cited

N.J.S. 2A :141-1 2

N.J.S. 2A :151-5 2

28 U.S.C.:

Sec. 1254(1) 2

Rul Cited

New Jersey Rules of Evidence:

4 7

Other Authorities Cited

5 Moore, Federal Practice (2d Ed. 1951):

See. 52.03(1) 14

Note, 76 Harv. Law Rev. (1963):

1234, 1263 14

Wright and Sofaer, “Federal Habeas Corpus for

State Prisons: The allocation of fact-finding re-

sponsibility,” 75 Yale L. J. (1966) :

895, 946 14

—

IN THE

Supreme Court of the United States

Octoser Term, 1971

No.

»™

—

STATE OF NEW JERSEY and HOWARD YEAGER,

The Principal Keeper of the State Prison at Trenton,

New Jersey,

Petitioners,

US.

UNITED STATES OF AMERICA, ez rel.,

FLEMING WOODARD,

Respondent.

S

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Petitioner prays that a writ of certiorari issue to re-

view a judgment of the Court of Appeals for the Third

Cireuit which affirmed an order of the United States Dis-

trict Court for the District of New Jersey granting a writ

of habeas corpus to Fleming Woodard, a State pris-

oner, who was confined pursuant to a conviction of armed

robbery.

Jurisdiction

Defendant was convicted on November 1, 1967 of armed

robbery based upon a two count indictment returned by

the Essex County Grand Jury.' He was then sentenced

to a term of not more than ten nor less than seven years

in State Prison on the count charging him with the crime

of robbery and a consecutive term of imprisonment of not

more than two nor les* than one year for being armed

during its commission.

Defendant thereafter filed a timely notice of appeal in

the Superior Court, Appellate Division, where the conviec-

tion was upheld. State v. Woodard, 102 N. J. Super. 419,

246 A. 2d 130 (App. Div. 1968) (Pb6a). The Supreme

Court of New Jersey then dismissed defendant’s direct

appeal and denied his petition for certification. State y.

Woodard, 53 N. J. 84, 247 A. 2d 887 (1968). On-June 2,--

1969, this Court denied defendant’s petition for a writ of

certiorari. Woodard v. New Jersey, 395 U. S. 938 (1969).

Defendant thereafter filed a petition for a writ of ha-

beas corpus in the United States District Court for the

District of New Jersey. On November 9, 1970, the Dis-

trict Court granted the petition and a writ of habeas cor-

pus was issued (Pb17a). The State appealed as of right

to the Court of Appeals for the Third Cireuit and on

April 6, 1972, the order of the United States District

Court was affirmed in a brief per curiam opinion (Pbla).

This application under 28 U.S.C. §1254(1) followed.

'N.J.S. 2A:141-1 provides “any person who forcibly takes from

the person of another money or personal goods and chattels, of any

value whatever, by violence or putting him in fear, is guilty of a

high misdemeanor and shall be punished by a fine of not more

than $5,000, or by imprisonment for not more than fifteen years,

or both.” N.J.S. 2A:151-5 provides an additional penalty if the

offense is committed while armed.

Questions Presented

1. Whether the identifications of defendant by the viec-

tims of the robbery made at trial were untainted by the

impermissib!’ suggestive pretrial confrontations.

2. Whether the United States District Court accorded

proper deference to the fact findings of the New Jersey

Superior Court, Appellate Division.

Statement of the Case

This is an application for a writ of certiorari to review

a judgment of the Court of Appeals for the Third Cir-

cuit which affirmed an order of the United States District

Court granting a writ of habeas corpus.

The State’s proof at trial disclosed that at approxi-

mately 3:00 P.M. on April 27, 1967, an armed robber en-

tered the offices of the Atlantic Manufacturing Company

in Newark, New Jersey, robbed its executive vice-presi-

dent, Joseph Skopaz, and an employee, Minervra Almoda-

var, and escaped with the sum of $716. Mr. Skopaz testi-

fied that on the afternoon in question, he was seated at

his desk when he heard the sound of a male voice emanat-

ing from a room outside his office. Skopaz left his desk

and observed a man, later identified as defendant, descend-

ing the steps of the factory. The witness then returned

to his desk, and approximately one minute thereafter, ob-

served defendant standing in the doorway of his office

holding a revolver with a long barrel. Defendant ordered

Skopaz and Mrs. Almodavar, who was then present, to

hand over all of the cash in their possession. Mrs. Almo-

davar walked to the safe and handed defendant a strong-

box containing $716. At this time, a distance of approxi-

a ——ag

4

mately five to six feet separated Skopaz from defendant

and he was able to observe the cartridges in the cylinder

of Woodard’s revolver.

After receiving the strongbox, defendant asked whether

there was any other money in the office. When Skopaz

responded in the negative, Woodard advised him that if

he were not telling the truth he would be shot. Defendant

then fled from the office.

Skopaz observed defendant and an accomplice ascend

the stairway and run to a light blue Cadillac automobile

which was double-parked in front of the building. He was

able to observe the license plate of the automobile and

Mrs. Almodavar recorded the number on a sheet of paper.

The witness then ran from the office to his own automo-

bile and unsuccessfully gave chase. The police were then

summoned and immediately responded to the scene.

During the course of the trial, Skopaz positively identi-

fie] defendant ag the perpetrator of the crime. He noted

that approximately five minutes had elapsed during the

commission of the robbery and defendant’s face was clear-

ly visible to him during this period of time.

Defense counsel objected to the State’s identification tes-

timony upon the ground that an illegal pretrial confronta-

tion had been conducted in the absence of counsel and was

so unnecessarily suggestive and conducive to irreparable

mistaken identification as to be violative of due process

of law. During the colloquy between court and counsel,

the attorney further indicated that the in-court identifica

tion was tainted by the illegal pretrial confrontations. The

trial judge stated that he would sustain the objections if

not for the fact that the United States Supreme Court's

decision in United States v. Wade, 388 U. S. 218, 87 8. Ct

1926, 18 L. Ed. 2d 1149 (1967) was applicable only with

qo

respect to identifications occurring subsequent to June 12,

1967. Defense counsel then argued that the identification

procedure employed by the police was defective and that

the failure to provide counsel violated the principles set

forth in Miranda y. Arizona, 348 U.S. 436, 84 S. Ct. 1602,

16 L. Ed. 2d 694 (1966). The court stated that it did not

believe that defendant was “a prime suspect” when the

identification took place and therefore denied defense

counsel’s objection. Nevertheless, the court conducted a

hearing out of the presence of the jury and permitted

defense counsel to introduce testimony with regard to the

out-of-court confrontation for the purpose of preserving

such testimony for appellate review.?

Testimony taken at the hearing out of the presence of

the jury disclosed that Skopaz was shown three or four

photographs, none of which were of defendant, on the day

following the rubbery. The witness indicated to the police

that he was unable to recognize any of the persons shown

in the photographs. Prior to the identification of defend-

ant, Skopaz and Mrs. Almodavar were also taken to police

headquarters where they were shown another suspect. The

victims failed to recognize the other man.

That same day, the police paraded two men individu-

ally, about an hour apart, on the sidewalk approximately

seven feet in front of the Atlantic Manufacturing offices

while the victims peered through the slats of venetian

* The Court apparently reached the erroneous conclusion that

the deterdant was not entitled to challenge the out-of-court identi-

fede g sance since # occurred before June 12, 1972. Evidently the trial

4d mt comsider this Court's decision in Stovall v. Denno,

BU OS. 293, #7 S. Ct. 1602, 18 L. Ed. 2d 1199 (1967). More-

wer. trial judge did not fully understand the thrust of defend-

at’. argument ; ic. that the in-court identifications were inadmis-

sible since they were tainted.

=z EST RR

6

blinds. The two men, both Negroes, were brought before

the witness’s office window in precisely the same manner.

Skopaz and Mrs. Almodavar were unable to identify the

first man but immediately recognized the second, Fleming

Woodard, as the perpetrator of the crime. Skopaz did not

remember whether defendant was handeuffed, but he was

certain that no suggestive remarks were made to him by

any of the police officers present during the identification.

Skopaz remembered that defendant was closest to the

window in his direct line of vision and that a police officer

accompanied him for a distance of approximately ten feet.

No police officer was present in Skopaz’s office during the

identification. A detective remained inside Mrs. Almo-

davar’s office which was approximately five feet from

that of Skopaz and separated by a partition. Upon see-

ing defendant, Skopaz noted on a yellow sheet of paper

that he was the robber and gave it to the detective in the

next room.

After the window identification, Skopaz proceeded to

police headquarters where he prepared a written state-

ment. While at the station house, the witness observed

defendant seated in a chair near one of the detective’s

offices.

During the hearing out of the presence of the jury, in

response to a question propounded by defense counsel,

Skopaz testified that his in-court identification was based

“primarily” on his observations of the defendant during

the commission of the crime. He further noted that his

identification at the Atlantic Manufacturing Company as

well as his observation of defendant at police headquar-

ters did not contribute to his in-court ideatification.

Upon the conclusion of the voir dire hearing, the court

recessed for the day. The following morning the trial

judge announced that it would be unnecessary to take fur-

ther testimony out of the presence of the jury with regard

to the pretrial identification. The court ruled that the

probative value of the testimony concerning the pretrial

identification was outweighed by the possible prejudice to

the accused under Rule 4 of the New Jersey Rules of

Evidence, and, therefore, the State was precluded from

introducing further testimony.’ Defense counsel then

stated that he would waive the ruling in order to permit

the evidence to go before the jury to show that the in-

court identification was tainted.

Mrs. Almodavar testified in the presence of the jury

that she was employed by the Atlantic Manufacturing

Company as a clerk typist and was working in the office

on April 27, 1967, when, at approximately 3:00 P.M., she

heard a knock at the door. The witness went to the door

and observed two Negro males through the window, one

of whom she later identified as defendant. Defendant

asked for an application for a job and Mrs. Almodavar

replied that the company was not hiring at that time. As

she was returning to her desk, the witness observed de-

fendant inside the office holding a revolver pointed in her

direction. Defendant instructed the witness not to move

or seream and ordered her to give him all her money.

She then walked to the safe and handed defendant the

petty cash box. After obtaining the strongbox, defend-

ant fled from the scene. The police responded to Mrs.

Almodavar’s telephone call approximately ten minutes

after defendant had left the office.

The judge may in his discretion exclude evidence if he finds

that its probative value is substantially outweighed by the risk that

its admission will either (a) necessitate undue consumption of time

or (b) create substantial danger of undue prejudice or of con-

fusing the issues or of misleading the jury.

—

At approximately 4:00 P.M. on the day following the

robbery, Mrs. Almodavar identified defendant from her

office at the Atlantic Manufacturing Company. At the

same time, Skopaz was in his office which was separated

from that of Mrs. Almodavar and he also identified de-

fendant. Nevertheless, the two victims did not converse

prior to their respective identifications.

During the course of the trial, Mrs. Almodavar identi-

fied defendant as the perpetrator of the robbery. She tes-

tified that defendant was approximately two feet from her

when he asked for an application for a job and that ap-

proximately one to two minutes had elapsed during their

initial conversation. Moreover, only five feet separated

defendant from the witness during the commisison of the

robbery which took approximately two minutes and

Woodard’s face was plainly visible to the witness during

most of this time.

Leonard McGhee, a Newark Police Officer, testified that

he and his partner, Patrolman Sidney Kutakoff, re-

sponded to the scene of the crime pursuant to a police

dispatch. Upon arriving at the offices of the Atlantic

Manufacturing Company, Officer McGhee met Mrs. Almo-

davar who told him that a robbery had occurred. She

described the robber as a Negro male, five feet six inches

tall, approximately 24 years old, and weighing 160

pounds. Based upon additional information supplied to

him, Officer McGhee sent out a teletype describing a light

blue Cadillac automobile bearing registration numbers

IYC 720.

Detective John M. Farley of the Newark Police De-

partment was the last witness for the State. Detective

Farley described the police investigation of the automo-

bile and license number which eventually led to a resi-

dence at 45 Johnson Avenue in the City of Newark. On

+)

the strength of their investigation the officers secured an

arrest warrant for robbery for three unknown men at 45

Johnson Avenue. It was at that address that defendant

Fleming Woodard was arrested and charged with armed

robbery.

Following his conviction, defendant filed a direct ap-

peal in the New Jersey Superior Court, Appellate Divi-

sion. The Appellate Division held that the pretrial con-

frontations were unduly suggestive, but that the identifi-

eation of defendant by Skopaz and Mrs. Almodavar at

trial were not tainted. This factual finding was made

from the record of the trial proceedings. Defendant’s

petition to the Supreme Court of New Jersey was there-

after denied, but the United States District Court, with-

out hearing argument, granted a writ of habeas corpus.

REASONS FOR DENYING THE WRIT

POINT I

The in-court identifications of defendant by the

victims of the robbery were untainted by the out-of-

court confrontations.

In Stovall v. Denno, 388 U. S. 298, 87 S. Ct. (1967), 18

L. Ed. 2d 1199 (1967), this Court held that testimony con-

cerning an out-of-court lineup identification was exclud-

able on the basis of due process of law under the Four-

teenth Amendment if it was obtained by means of an un-

necessarily suggestive identification procedure conducive

to an irreparable misidentification. It was further noted

that United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926,

18 L. Ed. 2d 1149 (1967) and Gilbert v. California, 388

U. S. 263, 87 S. Ct. 1961, 18 L. Ed. 2d 1178 (1967), re-

10

quiring the presence of counsel at postindictment con-

frontations, were not to be applied retroactively to line-

ups occurring prior to June 12, 1967. Stovall v. Denno,

supra, 388 U. S. at 301, 302, 87 Sup. Ct. at 1972, 18 L. Ed.

2d at 1206. See also Coleman v. Alabama, 399 U. S. 1, 90

S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Foster v. California,

394 U. S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969).

And in Simmons v. United States, 390 U. S. 377, 88 S.

Ct. 1967, 19 L. Ed. 2d 1247 (1968), this Court held that its

decision in Stovall, supra, was also applicable to photo-

graphic as well as in-person identifications.

Once it is determined that testimony relating to an

out-of-court confrontation must be excluded due to im-

permissible suggestiveness, then it is incumbent upon a

court to decide whether the in-court identification of the

accused has been tainted thereby. If the evidence intro-

duced at trial clearly and convincingly discloses that the

in-court identification is untainted by the improper pre-

trial confrontation, evidence relating to it is admissible.

United States v. Wade, supra, 388 U. S. at 239-42, 86 S.

Ct. at 1939-40, 18 L. Ed. 2d at 1164-66; Gilbert v. Califor-

nia, supra, 388 U. S. at 272, 86 S. Ct. at 1966, 18 L. Ed. at

1186.

Of paramount importance in making this determina-

tion is the extent to which the procedures employed by the

police have had the effect of leaving an indelible impres-

sion on the victim’s mind so as to preclude a fair and

impartial identification of defendant at a later date. A

marginally defective pretrial confrontation may be so

unfair in due process terms as to prohibit the admission

of testimony relating to it, yet may not be so unduly sug-

gestive as to preclude an independent and impartial iden-

tification at trial. The circumstances surrounding the de-

fective pretrial confrontation clearly bear upon the issue

—

11

of whether the in-court identification was tainted. See

Hawkins v. United States, 420 F. 2d 1306, 1309 (D. C. Cir.

1969); Frazier v. United States, 419 F. 2d 1161, 1169-71

(D. C. Cir. 1969).

The record below reveals that the pretrial confronta-

tions in the instant case were only marginally defective

and did not have the capacity to taint the victims’ identi-

fications at trial. The circumstances surrounding the

identification of defendant at the Atlantic Manufacturing

Company have been set forth in full in the Statement of

the Case, infra, and need not be repeated at length here.

Suffice it to say that the identification procedures em-

ployed by the police, though defective, were not so sug-

gestive as to preclude an impartial and objective identi-

fication at trial.

It is to be noted that the initial unsuccessful attempt

to have the victims of the crime identify another suspect

at police headquarters was clearly more suggestive than

the procedures employed in identifying the defendant at

the Atlantic Manufacturing Company. The second at-

tempt to have Mr. Skopaz and Mrs. Almodavar make an

identification also resulted in failure and the procedures

employed by the police on that occasion were as sugges-

tive as those utilized in the subsequent identification of

defendant. The other suspect, who was handeuffed at the

time, was paraded in front of the Atlantic Manufacturing

Company offices.

It is significant that these instances involved an ap-

proach by the police at least as suggestive as that under

which defendant was subsequently identified. The fact

that two other suspects were individually shown to the

witnesses who failed to recognize them clearly supports

the inference that the subsequent identifications of defend-

aT

12

ant were reliable and were based upon the victims’ ob-

servations during the commission of the robbery.

Undoubtedly, the parading of defendant before the two

victims constituted a confrontation in violation of the

due process clause. Nevertheless, the procedures em-

ployed by the police were not so unreliable as to clearly

convey the suggestion to the witnesses that defendant was

the guilty party. The pretrial identifications were not

so unduly suggestive as to taint the victims’ subsequent

identifications at trial which were based upon their ob-

servations of defendant during the commission of the

robbery.

This Court has contemplated that in-court identifications

may be found capable of standing on their own feet even

though preceded by deficient pretrial confrontations if

they are derived from an independent source. United

States v. Wade, supra; Gilbert v. California, supra. Also

see Clemons v. United States, 408 F. 2d 1230, 1242 (D. C.

Cir. 1968), cert. denied 394 U. S. 964 (1969). In making

this determination, much will depend upon the witness's

initial opportunity and motivation to make accurate ob-

servations of the accused during the commission of the

crime. United States ex rel. Phipps v. Follette, supra,

at 915. The effort must be to determine whether, before

the imprint arising from the unlawful identification pro-

cedure, there was already such a definite image in the

witness’s mind that he is able to rely upon it at trial

without much, if any, assistance from its successor.

Clemons v. United States, swpra, 1237.

The circumstances surrounding the commission of the

robbery in the instant case clearly support the finding of

the Superior Court, Appellate Division, that the identi-

fications at trial were based upon the victims’ observa-

_—_

13

tions of defendant during the crime. Defendant was un-

masked and viewed by both Skopaz and Mrs. Almodavar

for several minutes in a well lighted office. A distance

of approximately five feet separated defendant from

Skopaz and the witness was able to observe the number

of cartridges contained in the cylinder of the revolver

in Woodard’s hand. Moreover, Skopaz carried on a con-

versation with defendant who ordered him to turn over his

money. After obtaining the stronghox, defendant again

confronted Skopaz to ascertain if there was any other

money present in the office. When Woodard left his office,

the witness observed defendant descend the front steps

to the plant and drive off with an accomplice in a blue

1963 Cadillac automobile.

The uncontroverted opportunity of Skopaz to view de-

fendant during the commission of the robbery formed the

basis for his in-court identification. The witness testi-

fied that his positive in-court identification was based upon

having seen defendant at the time of the robbery and

that the pretrial confrontation did not in any way con-

tribute to his testimony at trial.

Mrs. Almodavar’s observation of defendant during the

commission of the robbery was even more extensive than

that of Skopaz. She initially observed defendant through

a glass window in the front door of the plant a few minutes

prior to the robbery. At this time, defendant and Mrs.

Almodavar were separated by a distance of two feet.

Upon returning to her desk, the witness again observed

defendant standing in front of her desk holding a loaded

revolver. While there is some testimony that Mrs. Al-

modavar was instructed to keep her head down, it is also

uncontroverted that defendant was within her vision at

all times and that he accompanied her to the open safe

- igen apatnn ee at YESS EE SEER CRT ee *

ia et ee ee I I ES a i a Saree

cre caneno —

l4

to obtain the petty cash box. The record below thus pro-

vided a sufficient basis for the Appellate Division to con-

clude that the in-court identifications were based upon ob-

servations during the commission of the robbery.

In granting defendant’s petition, the United States Dis.

trict Court agreed with the conclusion of the Appellate

Division that the pretrial confrontations were improper,

but disagreed with its finding that the in-court identi-

fications of defendant were derived from an independent

source. The only question properly before the Court was

whether the State’s factual determinations were fairly

supported by the record as a whole. See Townsend vy.

Sain, 372 U. S. 293, 313, 83 S. Ct. 745, 9 L. Ed. 2d 770

(1963). Also see Wright and Sofaer, “Federal Habeas

Corpus for State Prisons: The allocation of fact-finding

responsibility,” 75 Yale L. J. 895, 946 (1966), Note 76

Harv. L. Rev. 1234, 1263 (1963). It is submitted that the

District Court improperly substituted its own factual de-

termination for that of the Appellate Division.

Substantial interests of federalism and comity militate

for a narrow scope of review of state fact findings. The

fact-finding role of the state courts in constitutional ad-

judications constitutes one of the last areas in which the

judgment of state judges is generally accepted. See 5

Moore, Federal Practice § 52.03(1) (2d Ed. 1951). The

decision of the District Court substantially dilutes this

important role performed by the state courts. While the

instant case does not involve a fact-finding of a trial

court (see Davis v. North Carolina, 384 U. 8. 737, 741-42,

86 S. Ct. 1761, 1764-65, 16 L. Ed. 2d 895, 898 (1966) ), tra-

ditional principles of comity dictate that the resolution

of factual issues by state appellate courts should be af-

15

forded great deference.* See for example Cameron v.

Johnson, 391 U. 8. 361, 88 S. Ct. 1671, 20 L. Ed. 2d 647

(1968).

The record below clearly supports the finding of the

Appellate Division that the in-court identifications of de-

fendant were not tainted by the pretrial confrontations.

The potential danger of prejudice emanating from the

pretrial identifications in the instant case is clearly not

as great as that presented in United States ex rel Phipps

v. Follette, supra, where the Court of Appeals for the

Second Circuit accepted the findings of the state judge

that the in-court identifications were not tainted. There,

defendant filed a petition for a writ of habeas corpus in

the United States District Court seeking to reverse his

conviction for burglary. The State’s proof disclosed that

the victim of the crime lived in the back room of a serv-

ice station and was awakened on the night in question by

the sound of coins striking the floor. When he opened

_ the door to the sales office, the witness was confronted

by defendant’s co-defendant. A struggle ensued in which

the witness pushed the co-defendant over a snowplow. A

moment later, defendant entered the room and threatened

the victim with a sledgehammer. The victim observed

the defendant for approximately twenty seconds, during

part of which he was struggling with the co-defendant.

An hour later, the witness was summoned to police head-

quarters and shown two men who he identified as the

perpetrators of the crime. Later, he identified the de-

fendant at a preliminary hearing.

*In Cooper v. Picard, 428 F. 2d 1351 (Ist Cir. 1970), the

Court of Appeals for the First Circuit noted that the issue of

whether state appellate findings of fact are sufficient to avoid a

federal hearing in the light of Townsend vy. Sain, supra, has not

been decided.

>>... RRR HORAN AY Ng AREY YET SAINT My

Vo RP MENTS }

am

At trial, the witness testified that he recognized the de-

fendant through three previous encounters—in the serv-

ice station during the commission of the crime, at the

police precinct, and at the preliminary hearing. Le fur.

ther testified that his in-court identification was not “be-

cause” of having seen Phipps at the station house. The

trial court held that the pretrial identifications were in.-

proper but concluded that the in-court identification was

not tainted thereby. The Court of Appeals affirmed the

decision of the District Court denying the defendant’s

petition. The Court stated:

Under these principles, we see no basis for reject-

ing the conclusions of the state judge that Matt.

son, [the victim] was able to identify Phipps

through his encounter at the service station rather

than in the police station. Mattson was a pros-

pective victim of an assault, not a mere bystander.

There was time enough for the second burglar’s

image to become indelibly seared in his memory.

His twenty to thirty second observation was much

more than a fleeting glance, as anyone who watches

a second hand of a clock sweep by for that period

can attest. Mattson never entertained the slightest

doubt about the identification of the second man.

When he saw Phipps only an hour or so after the

burglary, he immediately identified him, as he was

to do on three later occasions. Jd. at 916.

Also see United States v. De. La Cruz Bellinger, 422 F. 2d

723, 727 (9th Cir. 1970); United States v. Terry, 422 F.

2d 704, 709-10 (D. C. Cir. 1970); United States v. Broad-

head, 413 F. 2d 1351, 1359-61 (7th Cir. 1969); Joinder v.

State of Maryland, 7 Md. App. 692, 695, 257 A. 2d 444,

451 (Ct. of App. 1969); Commonwealth vy. Robinson, 355

grit |

a

eR

-

17

Mass. 620, 624, 246 N. KE. 2d 669, 673 (Mass. Sup. Jud.

Ct. 1969).

Similarly, in Simmons v. United States, supra, this

Court affirmed a conviction notwithstanding a less than

ideal pretrial identification of the accused from police

photographs. There, the robbery took place in the after-

noon in a well lighted bank and the robbers wore no

masks. The Court concluded that the pretrial identifica-

tion procedure employed by the police was not unduly

suggestive and that the in-court identification emanted

from the witness’s observations during the commission of

the crime.

The record below presents the testimony of two honest,

credible witnesses who had ample opportunity to observe

defendant during the commission of the robbery. The

record clearly supports the Appellate Division’s finding

that their in-court identifications were not based upon the

improper confrontations. The District Court and the

Court of Appeals would have these laymen perform im-

possible mental gymnastics in order to conform to their

interpretation of the law. The findings of the Appellate

Division were not clearly erroneous and the District

Court’s order granting defendant’s petition for a writ of

habeas corpus should be reversed.

Even assuming that introduction of the victims’ identi-

fications of defendant at trial was error, it was harm-

less beyond a reasonable doubt. The in-court identifica-

tions of defendant by Skopaz ‘and Mrs. Almodavar were

cumulative to each other and the erroneous admission

of one did not contribute or materially affect the verdict

of the jury. Under such circumstances, the failure to

exclude either of the witnesses’ allegedly tainted testimony

constituted harmless error. See United States v. Wade,

supra, 388 U. S. at 242, 87 S. Ct. at 1940, 18 L. Ed. 2d at

— NPT LTA EAL ETE ERRNO REE I RENEE RT

18

1166; Gilbert v. California, supra, 388 U. S. at 272, 87

S. Ct. at 1956, 18 L. Ed. 2d at 1186; Chapman v. California,

386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Also

see State v. Griff, 164 Wash. 78, 450 P. 2d 486 (Sup. Ct.

1969).

One final consideration deserves attention in determin-

ing whether the admission of the identification testimony

constituted reversible error. The United States Supreme

Court’s decisions in Wade, supra, and Gilbert, supra, were

based upon the alleged inability of defense counsel to

accurately evaluate the reliability of an identification made

under controlled circumstances at a time in which he is

not present. The same reasoning presumably justifies the

Supreme Court’s decision in Stovall, supra, concerning the

admission of evidence based upon an unnecessarily sug-

gestive confrontation.

It is obvious that convictions based on misidentification

may be substantially lessened by a course of cross-exam-

ination at trial which exposes to the jury the methods em-

ployed by the police having a potential for error. Simmons

v. United States, supra, 390 U. S. at 384, 88 S. Ct. at 981,

19 L. Ed. 2d at 567 (1968). Also see Gregory v. United

States, 410 F. 2d 1016, 1023, 1024 (D. C. Cir. 1969). That

being so, it is appropriate to consider the ability of the

jury to evaluate the reliability of the identifications in the

case at bar.

Defense counsel, in the instant case, intentionally waived

the trial court’s ruling excluding the State’s evidence re-

lating to the pretrial identifications, because he wanted

the jury to be aware of the unreliability of the out-of-

court confrontations and the manner in which they may

have affected the witnesses’ in-court identifications. Thus,

the defense purposely introduced evidence relating to the

19

pretrial confrontations. The jury was aware of the sug-

gestive procedures utilized by the police leading to the

identification of defendant. Defense counsel placed great

emphasis upon the unreliability of the identifications at

the Atlantic Manufacturing Company. Under these cir-

cumstances, the admission of the in-court identifications of

defendant by Mr. Skopaz and Mrs. Almodavar was harm-

less error.

POINT II

This Court should revaluate its holding in Town-

send v. Sain, and restrict the power of the federal

courts in habeas corpus cases to make fact findings in

derogation of those made by state courts.

The instant case presents the recurring issue of the re-

spective roles of the federal and state court systems. Our

federal system was based upon a widespread distrust of

centralized power. Even today, citizens look first to the

State judiciary for “fair and effective prosecution of vio-

lators of the criminal law.” State v. Funicello, 60 N. J.

60, 70, —— A. 2d —— (1972), concurring opinion of Chief

Justice Weintraub. And primary among the responsibili-

ties of the State is the protection of its citizens from

criminal attack.

Nevertheless, no one can seriously dispute the fact that

power has shifted from the state to the federal courts.

Issues once thought to be merely evidentiary in nature

now fall within the purview of constitutional questions.

The instant case clearly dramatizes the recurrent utiliza-

tion of federal habeas corpus as merely another step in

the appellate process. Five years after the defendant’s

conviction, it is now learned that error of constitutional

SEE RAMEE LES LIE TOE IE PEON TET Pn OO

20

dimension was committed. The significance of this fact

should not escape judicial attention for, upon the supposi-

tion that the United States District Court Judge was cor-

rect, the defendant has been unlawfully incarcerated

during this time.

The public is understandably confused. Respect for

the law is thereby diminished. Constitutional adjudication

often requires judicial determination of a ‘actual ques-

tion rather than “an evident application of a precise rule

of law.” State v. Funicello, supra, 60 N. J. at 72. That

being the case, federal trial judges are thus given the re-

sponsibility to review the factual determinations of state

courts “by no more than a substitution of their factual

evaluations for those” of the state judges. Ibid.

Certainty and finality in factual adjudications are high

among present priorities. No one is “benefited by a judg-

ment providing a man shall tentatively go to jail today,

but tomorrow and every day thereafter his continued in-

carceration shal] be subject to fresh litigation on issues

already resolved.” See dissent of Justice Harlan in

Mackey v. United States, 401 U. S. 667, , 91 1160,

28 L. Ed. 2d 404 (1971). The routine utilization of habeas

corpus after an unhappy state appellate experience con-

stitutes a perversion of the writ.

The State of New Jersey, therefore, submits that it is

incumbent upon this Court to revaluate its prior decision

which, in effect, has made the United States District

Courts appellate tribunals of greater dignity than the

states’ highest courts. Federal court review of state fac-

tual determinations should be restricted so as to achieve

a proper balance of judicial power and authority.

21

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be granted.

Respectfully submitted,

JosePpx P. Lorpr

Essex County Prosecutor

Davp S. Bame

Assistant Prosecutor

Counsel for Petitioners

—

APPENDIX A

Opinion of the United States Court of Appeals

(Filed—April 6, 1972)

UNITED STATES COURT OF APPEALS

For tHe Turrp Circurr

No. 71-1147

»~

a

Unirep States or America, ex rel.

FLemine Wooparp,

Appellee,

Vv.

State or New Jersey and Howarp Yeacer, The Principal

Keeper of the State Prison at Trenton, New Jersey,

State or New Jersey,

Appellant.

a

~

APPEAL FROM THE Unirep States District Court

FOR THE District or New JERSEY

Argued January 4, 1972

Before Hastiz and M. Rosenn, Circuit Judges, and

McCung, District Judge

[la]

a a a a a

—

2a

Appendia A

Per Curiam:

This is an appeal by the State of New Jersey from an

order of the District Court for the District of New Jersey

granting a writ of habeas corpus to Fleming Woodard, a

state prisoner who is confined pursuant to a conviction

of armed robbery.

An in court identification of the accused by Mrs.

Almodovar, the victim of the robbery, was a major part of

the prosecution’s case against Woodard. The evidence

showed that after Woodard had been arrested, he was

paraded in handcuffs outside Mrs. Almodovar’s window

for her observation and identification. Woodard did not

have counsel at the time of this viewing. At the trial, which

occurred after the decisions in United States v. Wade,

1967, 388 U. S. 218 and Gilbert v. California, 1967, 388

U. S. 263, Mrs. Almodovar admitted on cross-examination

that her in court identification was based in part upon her

recollection of the hold-up and in part upon “seeing him

for a much longer period of time the next day when he

was paraded in front of .. . [her] building.” In the light

of this admission the district court properly concluded

that the in court identification was not independent of the

uncounseled exhibition of the accused and, therefore, that

under the rule of Wade and Gilbert the conviction to

which that identification led could not stand. This reason-

ing is elaborated in the opinion of the district court and

to us it is persuasive.

The district court also discussed the possibility that

in court identification by Skopaz, a second eyewitness,

may also have been influenced by the uncounseled exhi-

bition of the accused. However, the district court did not

decide this question, and neither do we. Accordingly, the

3a

Appendix A

parties will be free to raise and explore this issue before

or during a new trial, if the state shall undertake to try

the accused again.

The judgment will be affirmed.

A True Copy:

Teste:

Tuomas P. Quinn

Clerk of the United States Court

of Appeals for the Third Circuit

a cape RTE

4a

APPENDIX B

Judgment of the United States Court of Appeals

UNITED STATES COURT OF APPEALS

For tHe Turrp Circuit

No. 71-1147

Ss

—_—

Unitep States or America, ex rel.

FLeminc Wooparb,

Appellee,

v.

State or New Jersey and Howarp Yeacer, The Principal

Keeper of the State Prison at Trenton, New Jersey,

State or New JERSEY,

Appellant.

>

~

(D. C. Civil Action No. 586-70)

On APPEAL FROM THE UnitTep States Districr Court

FOR THE District or NEw JERSEY

Present:

Hastrz, and Rosenn, Circuit Judges and McCvune,

District Judge

_—

5a

Appendix B

This cause came on to be heard on the record from the

United States District Court for the District of New Jer-

sey and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court, filed November 9, 1970, be, and the same is

hereby affirmed, with costs taxed against appellant.

ATTEST:

THomas P. Quinn

Clerk

April 6, 1972

6a

APPENDIX C

Opinion of the Superior Court of New Jersey Appellate

Division (102 N. J. Super. 422)

State oF New JERsEY, etc.,

Plaintiff-Respondent,

Vv.

FLeminc Wooparp,

Defendant-Appellant.

»~

~

Hawpern, A.J.S.C. (temporarily assigned). Defendant

appeals from a judgment of conviction for armed robbery.

He bases his appeal on four grounds: (1) the court erred

in allowing testimony by the State’s witnesses identifying

defendant before and at trial, the circumstances attending

the out-of-court identification being such as to deprive him

of a fair trial and a denial of due process; (2) the court

erred in refusing to permit defendant to call an alibi wit-

ness; (3) the court erred in its supplementary instructions

to the jury, and (4) his assigned counsel (not the present

counsel on appeal) was so incompetent as to deprive him

of the effective assistance of counsel.

The State’s proofs indicate that about 3 p.m. on April

27, 1967 an armed robber entered the offices of the Atlan-

tic Manufacturing Company in Newark, New Jersey, held

up and robbed its executive vice-president, Joseph Skopaz,

—

and an employee, Minerva Almodovar, and escaped with

the sum of $716. The robber was not masked and stood

five or six feet from the victims. Skopaz testified he was

close enough to the robber so that he could count the bul-

lets in the gun. In addition there was a short exchange

of conversation between the victims and the robber. The

victims furnished the police with the license number and

make of the get-away car and a description of the robber.

7a

Appendix C

Identification of Defendant

{1] The day following the robbery the police showed the

victims four photographs of different persons, but they

were unable to identify the robber. That same day, the po-

lice paraded two men about an hour apart, on the sidewalk

some seven feet in front of the Atlantic offices, while the

victims peered through the slats of venetian blinds. They

were unable to identify the first man. They did immedi-

ately identify defendant as the second man. Mrs. Almo-

dovar said defendant was handeuffed to a policeman. Sko-

paz did not remember whether he was handcuffed. A

detective testified he thought the defendant was hand-

cuffed but not to another policeman, and that the hand-

cufing was concealed. For purposes of this opinion we

assume defendant was handeuffed in a manner apparent

to the identifying witnesses.

Both victims made positive identifications of the defend-

ant at the trial. Skopaz further testified that his identifi-

cation was based on what he remembered from the rob-

bery and was not influenced by the out-of-court identifi-

cation.

Defendant objected to the State’s identification testi-

mony on the ground that the circumstances attending the

8a

Appendix C

out-of-court identification were such as to violate his right

to counsel, both under the rule of Miranda v. State of Ari-

zona, 384 U. S. 486, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966), and that of Wade v. United States, 388 U. S. 218,

87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). In the course

of the colloquy between court and counsel it was clear de-

fendant had in mind, in addition to the absence of coun-

sel at the time of the identification, that the circumstances

surrounding the identification were so unfair as to taint

the in-court identification. This was based on the rea-

soning in Wade, supra, that an out-of-court identification

made under circumstances suggestive to the witnesses of

the belief of the police that the suspect being exhibited

is the guilty party has a tendency to cause the witnesses

to rely upon that identification rather than the observa-

tion made at the time of the criminal occurrence, when

identifying the defendant in court (388 U. S., at pp. 232-

237, 87 S. Ct. 1926).

The trial court apparently did not recognize the thrust

of the latter feature of the defendant’s objections. It did

not rule on it. It did rule that the Miranda objection was

not applicable because the focus of the investigation had

not yet sufficiently concentrated on defendant (defendant

has not relied upon Miranda on this appeal and we do

not discuss the point any further). It further held that

the right of a defendant to counsel at a lineup was not

applicable in this case because the out-of-court identifica-

tion had occurred prior to the decision of the Wade case

on June 12, 1967. See Stovall v. Denno, 388 U. S. 293,

87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). However, it

did rule that there was sufficient identification of possible

unfairness in the circumstances surrounding the out-of-

court identification as to warrant the excluding of the out-

. a

Ya

Appendix C

of-court identification on the basis of Rule 4 of the Rules

of Evidence (1957) (prejudicial danger outweighing value

of the evidence from a probative standpoint). Defendant

declined to accept this offer, feeling that he ought to have

the evidence of the out-of-court identification in the rec-

ord in order to attempt to convince the jury that the cir-

cumstances attending it were such as to taint the reliabil-

ity of the in-court identification.

Notwithstanding the waiver of the court's offer, afore-

mentioned, defendant never abandoned his position that

the in-court identification by the victims should be barred

because tainted by the circumstances surrounding the out-

of-court identification. As already noted, this particular

objection was never ruled upon by the trial judge. We

construe Wade to hold that in such a situation the trial

judge should make his own determination as to whether,

given an unfair prior confrontation for identification, the

State can “establish by clear and convincing evidence that

the in-court identifications were based upon observations

of the suspect other than the [out-of-court] identification”

(388 U. S., at p. 240, 87 S. Ct., at p. 1939); People v. Bal-

lott, 20 N. Y. 2d 600, 286 N. Y. S. 2d 1, 233 N. E. 2d 103

(Ct. App. 1967).

[2] Undoubtedly the parading of defendant before the

two victims, whether handcuffed to a detective or hand-

cuffed and accompanied by a detective, constituted a con-

frontation violative of elementary principles of fairness in

out-of court identification. See Wade, supra, 388 U. S., at

page 234, 87 S. Ct., at page 1936, referring to the method

of identification employed in Stovall v. Denno. supra,

where the suspect was presented to the witness alone,

handeuffed to police officers, as representing “a situation

aia a 5 Were ee ees

10a

Appendix C

* * * clearly conveying the suggestion to the witness that

the one presented is believed guilty by the police.”

[3] In these circumstances we would ordinarily be in-

clined to remand the matter to the trial judge for a deter-

mination of the issue as to whether the totality of the cir-

cumstances establishes clearly and convincingly that the in-

court identification was the independent product of the ob-

servation of defendant by the witnesses at the time of the

robbery and not substantially contributed to by the cir-

cumstances of the out-of-court identification. In the pres-

ent instance, however, the trial judge has passed away,

and there is no opportunity to do this. Under the cir-

cumstances, we think it entirely consonant with the inter-

ests of justice for this court to consider whether the proof

of record is sufficiently clear to enable us to make that fact

determination, and we have decided that it is.

[4] The closeness of the robber to the victim witnesses

at the time of the robbery, and the added opportunity for

carefulness of identification by the circumstance of some

conversation between the robber and the witnesses, plus

the positiveness with which Skopaz testified at the trial on

cross-examination that the out-of-court identification did

not contribute to his in-court identification but that the

latter was derived entirely from his observations at the

time of the robbery, satisfy us that it is clearly and con-

vincingly established that the in-court identifications are

not tainted by the circumstances of the out-of-court con-

frontation and identification. See also State v. Matlack,

49 N. J. 491 (1967) and Simmons v. United States, 3%

U. S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), where

the United States Supreme Court was satisfied that not-_

withstanding a less than ideal pretrial identification of

defendant from various photographs, the identification of

lla

Appendiz C

defendant by the witnesses at the trial was such as to

warrant a conclusion that there was no taint from the

prior out-of-court identifications. The court stated that

the in-court identification would be set aside only if the

improper out-of-court identification was “so impermissibly

suggestive as to give rise to a very substantial likelihood

of irreparable misidentification.” The court further con-

cluded that in the circumstances of the case before it there

was little chance that the procedure utilized led to mis-

identification of defendant. The court noted that the rob-

bery took place in the afternoon in a well-lighted bank

and that the robbers wore no masks. This is closely com-

parable to the present facts.

The fact that the victims were shown four photographs

with negative results and that prior to their out-of-court

identification of defendant another individual was shown

to them does not bear particularly on the issue we have to

decide here one way or the other.

We thus conclude that on the record before us we are

justified in finding as a fact that defendant was not preju-

diced by being permitted to be identified in court by the

victims of this robbery.

The Alibi Witness

Defendant contends the court erred in not permitting

him to call an alibi witness, thereby depriving him of due

process of law. The issue arose thusly: During the cross-

examination of the State’s last witness counsel conferred

with the court out of the jury’s presence. The discussion

dealt with whether defendant would testify in his own de-

fense in view of his prior criminal record. Defense coun-

12a

Appendia C

sel at that point, for the first time, indicated that if de.

fendant decided to testify he wanted to call an alibi wit-

ness, even though defendant had failed to comply with

R.R. 3:5-9 in not furnishing the data called for in the rule.

Ultimately, defendant decided not to testify, so that his

conditional request to offer an alibi witness was inferen-

tially withdrawn.

[5, 6] In any event, R.R. 3:5-9 makes it discretionary

with the court as to whether a noncompliance with its pro-

visions will be waived. Considering the lateness of the ap-

plication, the failure of defendant to indicate who the al-

leged alibi witness was or that he was even available, the

court’s refusal to waive the provisions of the rule was a

sound exercise of his discretion. To have waived the pro-

visions of the rule, at that point in the trial, would have

been highly unfair and prejudicial to the State—and an

adjournment to allow the State to investigate the wit-

ness, and the information furnished, would not have cured

this eleventh hour application. State v. Baldwin, 47 N. J.

379 (1966) ; State v. Garvin, 44 N. J. 268 (1965).

Supplementary Instructions to Jury

Defendant urges two issues of alleged error which oe-

eurred after the jury had retired to consider its verdict.

They will be dealt with separately.

[7] About an hour after the jury retired it asked to see

the notes used by Detective Farley to refresh his recollee-

tion. The court denied the request telling the jury the

notes had not been marked in evidence but only for iden-

tification, and therefore the jury could not have them. De-

fendant objected to this supplemental charge. He con-

l3a

Appendiz C

tends it may have misled the jurors to disregard any is-

erepancies they may have found to exist between the rotes

and Farley’s testimony. This is a very nebulous 0?J¢¢-

tion and presupposes that the jury, when it made its Te-

quest, had decided there was or might be some discT€P-

ancy. We should not be called upon to speculate. The

supplemental instruction given was legally correct and,

when considered in the light of the original charge ™-

formed the jurors that they were the sole judges of the

facts, and that “any views of mine are totally irrelevant,

and it is your recollection of the evidence and your 4e-

termination of the issues of the facts which will cont*ol.”

Reading the original and supplemental charges as a whole.

the jury could not have been misled. If it was error 20t

to charge as requested by defendant, it was harm‘less

error.

The jury returned a second time and posed the follow-

ing question:

“Agreement has been reached that a witness WS

100 percent sure in his/her own mind when identi-

fying a defendant. Does it follow that the juToTrs

are bound to accept the identification as correct?”

The court immediately gave the following supplemental

charge to the jury:

“Now, the court cannot specifically help you in the

determination of who to believe and where the

truth lies. It is up to you to decide that.

If a witness testifies that he or she made this

identification, it is up to you to decide whether OT

not to believe that witness and whether that is

enough evidence to convict or acquit this defend-

l4a

Appendix C

ant—I should say not acquit, but convict. You

must decide after weighing the evidence, after

weighing the credibility of each witness, whether or

not you feel that the State has sustained its bur-

den of proving this defendant guilty beyond a rea-

sonable doubt.

In the search for the truth, you will consider

what the witnesses said on the stand, and the im-

pression they made upon you in the giving of their

testimony as to truthfulness. You will consider the

interest that they may have in the outcome of the

case, and, in general, use your good common sense

and experience in reaching a conclusion as to where

the truth lies in this prosecution.

So, therefore to specifically answer this question,

you are not bound to accept the testimony of any-

body if you don’t want to; but, if you are satisfied

that they are telling the truth, and after weighing

it and deciding that they are telling the truth and

you are satisfied that the State has proven the de-

fendant guilty beyond a reasonable doubt, then you

must, of course, convict.

On the other hand, if after you have heard the

testimony, and even though there is this 100 per-

cent identification as is characterized by you in this

note, you still feel this man is not guilty beyond a

reasonable doubt, then you must acquit him.

Now, you may return to your deliberations.”

No objection was made by defendant to this supplemen-

tal charge. He now contends it was inadequate in that the

jurors “might have retired with the impression that if

15a

Appendiaz C

they believed the witness was telling the truth as he or

she knew it that they were bound to accept the testi-

mony.”

[8,9] We are again asked to speculate on what the jury

might have done. Considering the original charge and this

supplemental charge made in response to the last question,

it is highly improbable that the jury retired under the im-

pression that it necessarily had to believe a witness who

was “100 percent sure” of the identification made. Counsel

for defendant must have come to the same conclusion

since he did not object to the supplemental charge. Hav-

ing failed to object, we should not reverse unless we find

plain error to exist. State v. Hipplewith, 33 N. J. 300, 315

(1960). No such plain error exists here.

Ineffective Assistance of Counsel

Defendant contends he was ineffectively represented in

that trial counsel did not move, before trial, to suppress

evidence of the out-of-court identification; failed to prop-

erly argue the law on the admissibility of the identifica-

tion testimony; failed to adequately explain to defendant

the consequences of his waiving the court’s contemplated

ruling on the exclusion of the out-of-court identification,

and failed to supply the State with the data called for un-

der the alibi rule, all to defendant’s prejudice.

{10, 11] A conviction, otherwise valid, will be reversed

on appeal because of the ineffectiveness or inadequacy of

counsel only if what he did, or failed to do, is of such

magnitude as to thwart the fundamental guaranty of a

fair trial. State v. Dennis, 43 N. J. 418 (1964). Putting

it another way, to warrant reversal, defense counsel must

l6a

Appendiz C

have been so incompetent as to make the trial a farce

or mockery of justice. Rivera v. United States, 318 F. 24

606 (9 Cir. 1963); State v. Bentley, 46 N. J. Super. 193

(App. Div. 1957).

[12, 13] We have examined and considered the entire

record and find no justification or basis for the charges of

ineffective representation. Defense counsel has been an

active practitioner for about 40 years and his efforts on

behalf of defendant indicate good trial preparation and

technique. When experienced trial counsel adopts certain

strategy in the trial of a case, and it turns out to be fruit.

less, such cannot be the basis for a reversal. State y.

Williams, 39 N. J. 471, 489 (1963).

The conviction is affirmed.

17a

APPENDIX D

Opinion and Order of the United States District Court

(Filed—November 10, 1970)

UNITED STATES DISTRICT COURT

District or New JERSEY

Civil No. 586-70

»s

—>

Unrrep States or America, ex rel. FLEmMinG Wooparp,

Petitioner,

vs.

Tue State or New Jersey and Howarp Yeracer, the Prin-

cipal Keeper of the State Prison at Trenton, New

Jersey,

Respondent.

Wuiprrte, District Judge.

The petitioner, Fleming Woodard, seeks the issuance

of a writ of habeas corpus pursuant to 28 U.S.C. §2241.

On November 1, 1967, Woodard was convicted by a jury in

Essex County for the armed robbery of Mrs. Minerva

Almodovar, an employee of the Atlantic Manufacturing

Company (Atlantic), located in Newark, New Jersey, and

was sentenced to consecutive prison terms of 7-10 and 1-2

years. N. J. Stat. §§2A:141-1, 151-5. The Superior Court

- ay

18a

Appendiaz D

affirmed his conviction, State v. Woodard, 102 N. J. Super.

419 (App. Div. 1968), and the Supreme Court of New

Jersey denied his petition for certification and dismissed

his notice of appeal. State v. Woodard, 53 N. J. 64 (1968),

cert. denied, 395 U. S. 938 (1969). Woodard filed this

petition on May 7, 1970, and on May 19th, the Essex

County Prosecutor filed an answer.

Petitioner alleges in this court, as he had in the State

courts, that his conviction was obtained in violation of the

14th Amendment. He maintains that the trial court com.

mitted constitutional error by admiting into evidence two

in-court identifications tainted by out-of-court identifica.

tions conducted under circumstances “so unfair and sug-

gestive as to be violative of due process of law.”

In light of the arguments set forth by both petitioner

and the State, a factual summary of the circumstances

surrounding petitioner’s conviction is warranted. Mrs.

Almodovar, employed by Atlantic as a clerk-typist, testi-

fied that on April 27, 1967, at approximately 3:00 p.m.,

she went to the door of her office in response to a knock.

She shared this office with Mr. Joseph Skopaz, an execu-

tive vice-president of the company. When she arrived

at the door she saw two men through a “little window.”

One of these men requested a job application, and she

informed him that Atlantic was not hiring. Approximate-

ly 2 minutes after returning to her desk, she looked up

and saw the man who had requested the job application

standing inside the office holding a gun. The man said:

“Don’t move. Don’t scream. Give me your money.” Mrs.

Almodovar further testified that, when the man said,

“Don’t move,” she put her head down and said. “Who,

me?” The man said, “Yes, you,” and she gave him some

19a

Appendiz D

money from a safe. When she handed him the money,

someone said, “Is that all?”, but Mrs. Almodovar could

not recall whether this was said by the robber or by Mr.

Skopaz who was also present in the office.

A somewhat different version of the conversation that

took place during the robbery was provided by Skopaz,

the only other eye-witness to the holdup. He testified that

the first words spoken by the robber were, “Give me your

money,” and that he, Skopaz, said to Mrs. Almodovar,

“Give him the petty cash box.” According to Skopaz,

when the robber took the money from Mrs. Almodovar

he said, “Is that all?” Skopaz said, “Yes,” and the robber

said, “Are you sure? I will shoot.” Skopaz then watched

from an office window as the robber and a companion

fled in a waiting car apparently driven by a third person.

He called out the license plate number to Mrs. Almodovar

and called the police. Skopaz estimated that the robber

remained in the office from 4-5 minutes; Mrs. Almodovar

approximated the time at 2 minutes.

On April 28th, the day after the robbery, Detective

Farley of the Newark Police Department arrived at the

scene of the crime. He obtained a description of the hold-

up man as being 5’ 6” or 5’ 7” and of slender build. He

showed four photographs to Mr. Skopaz and Mrs. Al-

modovar, none of which were of the petitioner. Neither

eye-witness was able to make an identification. They

were then taken to police headquarters where they were

unable to identify a suspect shown to them.

Later the same day, the police brought a second suspect

to Atlantic. This procedure was utilized because the eye-

witnesses were “too busy” to return to police headquarters.

Like the petitioner, this man was a Negro, but he was

20a

Appendix D

5’ 11” and weighed 180 lbs. The suspect, handcuffed

to a uniformed patrolman, was walked back and forth on

the sidewalk in front of a window of the office where

the robbery took place. Farley testified that the suspect

was not brought into the office because Mrs. Almodovar

was “extremely nervous.” Viewing the man from the

office window, neither Mrs. Almodovar nor Skopaz were

able to make an identification.

Still later that same day, another man was brought to

Atlantic by the police. Mrs. Almodovar testified that she

saw a detective’s car pull up and a man in handeuffs get

out accompanied by a detective. Mr. Skopaz could not

recall if the man was handcuffed. This man was also

walked back and forth on the sidewalk outside the At-

lantic Office. According to Mrs. Almodovar this pro-

cedure lasted from 5-10 minutes. On this occasion both

eye-witnesses identified the suspect, who was the a

tioner, as the holdup man.

During the course of the trial, first Skopaz and then

Mrs. Almodovar identified Woodard as the robber. Fol-

lowing the initial cross examination of Skopaz, conducted

outside the presence of the jury, defense counsel moved

to have the indictment dismissed on the grounds that the

out-of-court identification procedure violated petitioner's

constitutional rights. This motion was denied, but the

trial judge did rule that all testimony concerning the out-

of-court identifications would be excluded as unduly prej-

udicial under Rule 4 of the New Jersey Rules of Evidence.

Defense counsel, however, waived this ruling and ques-

tioned both eye-witnesses about their post-arrest iden-

tifications of Woodard, attempting thereby to convince the

jury that their in-court-identifications were based upon

_

2la

Appendiz D

what they saw on April 28th, the day of the out-of-court

identifications.

As stated above, Mr. Skopaz was initially cross-ex-

amined outside the presence of the jury. At that point he

testified that it “would be a lie” to say his out-of-court

identification had “nothing to do” with his trial identi-

fication of petitioner. In the presence of the jury, how-

ever, he subsequently testified that his out-of-court identi-

fication did not contribute to his identification at trial.

The cross-examination of Mrs. Almodovar produced the

following question and answer:

“Q. And your identification of [petitioner] in

court was based on not only what you saw when he

committed the holdup, but also your seeing him for

a much longer period of time the next day when he

was paraded in front of your building, is that

right?

A. Yes, sir.”

The Appellate Division affirmed petitioner’s conviction

even though it believed “the parading of defendant before

the two victims, whether handeuffed to a detective or

handeuffed and accompanied by a detective, constituted a

confrontation violative of elementary principles of fair-

ness in out-of-court identification.” State v. Woodard,

supra, 102 N. J. Super. at page 424. The court stated that

the matter would normally be remanded to the trial judge

to determine whether “the totality of the circumstances

establishes clearly and convincingly that the in-court iden-

tification was the independent product of the observation

of defendant by the witnesses at the time of the robbery

and not substantially contributed to by the circumstances

22a

Appendia D

of the out-of-court identification.” Id. at 425. Because of

the intervening death of the trial judge, however, the

court decided to make its own factual determination from

the record. The court held that the closeness of the vic.

tims to the robber at the time of the offense and the posi-

tiveness of Mr. Skopaz that his out-of-court identification

did not contribute to his trial identification were sufficient

to establish “clearly and convincingly” that the in-court

identifications were not tainted. Jd.

The problems and constitutional questions involved in

post-arrest out-of-court identifications of suspects have

been the subject of important recent Supreme Court deci-

sions, beginning with United States v. Wade, 388 U. S. 218

(1967), and Gilbert v. California, 388 U. S. 263 (1967). In

these cases, the Court held that a post indictment lineup

was a critical stage in a criminal prosecution requiring

the presence of counsel and that the admissibility of in-

court identifications in cases where counsel was not pres-

ent at the lineup required a determination “that the in-

court identifications had an independent source, or that

their introduction in evidence was in any event harmless

error.” Gilbert, supra, at 272.

In Stovall v. Denno, 388 U. S. 293, 300 (1967), however,

the Court held that the constitutional rules announced in

Wade and Gilbert would not be applied to pretrial iden-

tifications made before June 12, 1967. Because the out-of-

court identifications in the instant case occurred on April

28, 1967, petitioner cannot and does not allege a violation

of his Sixth Amendment right to counsel. Rather, he

maintains that his post-arrest identification was conducted

under circumstances which made his conviction violative

of due process of law.

_—

The validity of such a claim depends upon the “totality

of the circumstances” surrounding the out-of-court identi-

fication. Stovall, supra, at 302. The test to be applied is

whether the in-court identifications “stem from an identi-

fication procedure * * * ‘so impermissibly suggestive as

to give rise to a very substantial likelihood of irreparable

misidentification.’” Coleman y. Alabama, 399 U. 8. 1, 5

(1970), quoting Simmons vy. United States, 390 U. 8. 377,

384 (1968).

The State argues that his court should not disturb the

findings of the Appellate Division that the closeness of

the eye-witnesses to the robber and the positiveness with

which Skopaz testified that his post-arrest identification

did not contribute to his trial identification warrant a

finding unfavorable to the petitioner. Additionally, this

Court notes that this case is not one where misidentifica-

tion can arise because the out-of-court identification and

the criminal act were separated by a long period of time.

See Peetros v. Yeager, Civil No. 498-68 (D. N. J. Aug. 2,

1968).

Nevertheless, this Court has concluded that the post-

arrest identification procedure of the petitioner violated

his right to a trial with due process of law. Although a

pretrial identification of a defendant without the benefit

of a lineup has not been so prejudicial absent other fac-

tors to warrant a reversal of conviction, United States v.

Shannon, 424 F. 2d 476, 477 (3d Cir. 1970), the Supreme

Court has recognized that “showing suspects singly to

persons for the purpose of identification, and not as part

of a lineup, has been widely condemned.” Stovall, supra,

at 802. In Stovall the Court upheld a conviction of mur-

der based upon the following pretrial identification: Two

23a

Appendiz D

24a

Appendiz D

days after the crime, a suspect was brought to a hospital

room where the only eye-witness lay near death. The sus-

pect was the only Negro in the room and was handcuffed

to police officers when the witness identified him. The

Court rejected the claimed violation of due process solely

because the “immediate hospital confrontation was impera-

tive.” Id.

The case before this Court is clearly distinguishable.

There was no justification for showing petitioner singly

to the eye-witnesses merely because they were “too busy”

to return to police headquarters. The procedure of walk-

ing the petitioner in handcuffs back and forth on the side-

walk compounded the unfairness of the situation.

Other factors contributed to the suggestiveness of the

procedure employed. Although Detective Farley received

a description of the robber as being 5’ 7” and slender, the

first suspect brought to the witnesses was 5’ 11” and

weighed 180 Ibs, in contrast to petitioner who apparently

matched the description given to Farley. Moreover, the

viewing of the petitioner by the witnesses on April 24th

for a “much longer” period of time than that of the rob-

bery substantially increased the likelihood of taint. Fur-

thermore, this Court notes that the police made no at-

tempt to obtain a voice identification from either of the

witnesses.

Considering the “totality of the circumstances” this

Court holds that the pretrial identification of petitioner

was “impermissibly suggestive” within the meaning of

Coleman, supra, and Simmons, supra, and that the in-

court identifications should have been excluded from the

jury’s consideration. This holding is greatly prompted by

the actual testimony in the trial record that the in-court

25a

Appendiz D

identifications of petitioner were tainted. Mrs. Almodovar

testified that her out-of-court identification did contribute

to her trial identification. In Coleman, supra, at 5-6, the

Supreme Court held: [T]he court could find on the evi-

dence adduced at the suppression hearing that [the] iden-

tifications were entirely based upon observations at the

time of the assault and not at all induced by the conduct

of the lineup.” In the present case, Mrs. Almodovar’s tes-

timony compels a contrary conclusion.

The State argues that Mrs. Almodovar’s trial identifica-

tion is not crucial since it is “cumulative” to the identifi-

cation of Mr. Skopaz. In order to sustain the State’s con-

tention, however, this court must find that her in-court

identification was harmless error beyond a_ reasonable

doubt. Chapman y. California, 386 U. S. 18, 24 (1967),

which I cannot do in light of the record. Mrs. Almodovar

was one of only two witnesses to the crime; she was also

the only person named as a victim in the indictment.

Both factors indicate that the jury gave substantial weight

to her testimony.

Neither is this court persuaded by the positiveness of

Mr. Skopaz’s in-court identification. “[P]ositiveness is

irrelevant to the issue whether, consciously or subcon-

sciously, that very in-court confidence in identification had

been built up by the prior suggestive confrontation.”

United States v. Zeiler, 427 F. 2d 1305, 1308 (3d Cir.

1970).

Finally, the State contends that defense counsel waived

his objection to the admission of the in-court identifiea-

tions when he chose to cross-examine the witnesses about

their out-of-court identifications. This argument is with-

out merit. When the trial judge denied defense counsel’s

26a

Appendiaz D

motion to dismiss the indictment, the only tactical course

left open to the petitioner was to explore, in detail, the

out-of-court identifications in order to reveal their unfair-

ness to the jury. Under these circumstances defense coun-

sel cannot be said to have voluntarily waived his objection

to the in-court identifications. See Wade, supra, 388 U. S.

at 240-41.

For the reasons stated herein, it is on this 9th day of

November, 1970, Orperep that the application of peti-

tioner be and is hereby granted and that a writ of habeas

corpus shall issue. Execution of the writ should be stayed

for a period of 30 days in order to permit the State the

opportunity to take an appeal. If the decision of this

court becomes final by reason of failure of the State to

take an appeal, the indictment will then remain open and

subject to retrial with the usual incident of bail to be

fixed in the amount and form as shall be deemed reason-

able by a state court pending retrial.

Lawrence A. WHIPPLE

United States District Judge