# Petition for Writ of Certiorari — New Jersey v. Woodard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1087%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 409 U.S. 886 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1087%3A1. Public record. Not legal advice.