United States of America Ex Rel. Frederick Johnson,petitioner-appellant, v. Department of Correctional Services of the State of Newyork, Russell G. Oswald, Commissioner, and Newyork State Board of Parole, Paul F.regan, Chairman, Respondents-appellees, 461 F.2d 956 (2d Cir. 1972)

The only issues raised on this appeal from the denial of a state prisoner's petition for a writ of habeas corpus are whether the accused had a constitutional right to counsel at a post-indictment, pre-trial photographic identification session in the prosecutor's office in the absence of the accused, and whether the photographic identification procedure at that session was impermissibly suggestive.

Frederick Johnson was convicted on March 3, 1969 in the New York Supreme Court, Bronx County, after a jury trial before Justice Murtagh of assault in the first degree and possession of a weapon as a felony in connection with the February 11, 1968 shooting of Ernest Holloway.¹  The Appellate Division on May 26, 1970 affirmed without opinion, 34 App.Div.2d 893, 311 N.Y.S.2d 814 (1st Dept. 1970), and the New York Court of Appeals denied leave to appeal. Having thus exhausted his state remedies, Johnson filed a petition for a writ of habeas corpus on November 10, 1970 in the District Court for the Southern District of New York. Among his numerous claims,²  Johnson alleged that an in-court identification of him by the victim's wife violated his rights under the Sixth and Fourteenth Amendments, because Johnson had not been represented by counsel at the post-indictment photographic identification session where the witness identified Johnson as the assailant from a photograph, and because the photographic identification procedure was impermissibly suggestive. Judge Tenney on September 24, 1971 denied the petition without a hearing.³  For the reasons stated below, we affirm.

The evidence adduced at Johnson's state court trial established that, shortly before midnight on February 11, 1968, Mr. and Mrs. Holloway were watching television in their apartment when the doorbell rang. Arline Holloway went to the door, looked through the peephole long enough to realize that she did not know the person standing outside the foyer of their apartment and returned to the living room. The doorbell then rang again. This time both Ernest and Arline Holloway went to the door. As Ernest Holloway opened the door, a bullet fired by the person standing outside the foyer struck him in the neck. A second bullet missed Holloway and lodged in the door. The assailant then fled.

While Ernest and Arline Holloway were able to describe the assailant for the police, they both said that they had never seen the assailant prior to the assault. A little more than one month after the shooting, on March 16, 1968, however, Ernest Holloway stated for the first time that petitioner Frederick Johnson was the person who had shot him.⁴  At the trial Holloway explained that the reason he did not identify Johnson as his assailant until a month after the shooting was that "I wanted to take the law in my hand and deal with him myself personally. . . . But then, a month later, then I revealed to Detective Marschat, because I spoke to a priest in the hospital and my family who persuaded me to tell the truth."

As a result of Holloway's statement, Johnson was indicted on May 2, 1968 for the shooting. On September 13, 1968, Johnson was arraigned and held in custody. Counsel was assigned to represent him on October 10.

It was after these events that the challenged photographic identification occurred. On January 16, 1969, Arline and Ernest Holloway came to the office of Harold Enten, the Assistant District Attorney assigned to prosecute the case against Johnson. At this time Arline Holloway knew that her husband had identified Johnson as the assailant. However, Arline Holloway had never met Johnson (except for her brief glimpse of him on the night of February 11, 1968) and had never seen a photograph of him. In the absence of Johnson's counsel, who had not been notified, Patrolman Marschat and Mr. Enten showed Arline Holloway five photographs, including a photograph of Johnson. She identified the photograph of Johnson as one of the persons whom she had seen through the peephole just before the shooting.

Prior to trial, defense counsel moved to suppress any in-court identification of Johnson by Arline Holloway. After conducting a pre-trial hearing on February 26, 1969, Justice Murtagh ruled that the five photographs used at the January 16, 1969 photographic identification could not be shown at trial and that Arline Holloway could not testify as to her prior identification of Johnson by means of photographs.⁵  Justice Murtagh, however, denied Johnson's motion to suppress any in-court identification. He held that Johnson did not have a right to counsel at the photographic identification session; that the identification procedure in question was not impermissibly suggestive; and, in any event, that the in-court identification would be based exclusively on the original identification and would not be tainted by the photographic identification.

At trial Arline Holloway identified Johnson as the assailant and adhered to her identification despite some inconsistencies developed by defense counsel.⁶ 

Relying on United States v. Wade, 388 U.S. 218 (1967), Johnson contends that he had a right to have his counsel present at the post-indictment photographic identification session where Arline Holloway selected his photograph as one of the assailants. In United States v. Bennett, 409 F.2d 888, 898-900 (2 Cir. 1969), cert. denied sub nom. Haywood v. United States, 396 U.S. 852 (1970), a case involving a post-arrest, pre-indictment photographic identification, we rejected appellant's claim that he had a right to have his counsel present. We have consistently adhered to this position and have also followed it with respect to post-indictment photographic identifications such as in the present case. See, e. g., United States v. Fernandez, 456 F.2d 638, 641 n. 1 (2 Cir. 1972); United States v. Mojica, 442 F.2d 920, 921 (2 Cir. 1971); United States v. Fitzpatrick, 437 F.2d 19, 25-26 (2 Cir. 1970). The reasons for not extending Wade to post-arrest photographic identifications were cogently set forth by Chief Judge Friendly in United States v. Bennett, supra, 409 F.2d at 899-900, and apply equally to post-indictment identifications:

" [T]o require that defense counsel be allowed or appointed to attend out-of-court proceedings where the defendant himself is not present would press the Sixth Amendment beyond any previous boundary. None of the classical analyses of the assistance to be given by counsel . . . suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant's absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution's interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs . . . ."

We are aware that the result reached in Bennett and in the cases that have followed has generated critical comment⁷  and that one other circuit has decided otherwise.⁸  Nevertheless, we continue to believe that Bennett was correctly decided and we adhere to that decision.

Johnson's attempt to distinguish Bennett and its progeny by arguing that the photographic identification here was more critical is unpersuasive. There is nothing in the rationale of Bennett and its successors to suggest that our holding that there is no constitutional right to counsel at photographic identifications turned on whether the subsequent in-court identification was critical to the prosecution's case. Moreover, when the Supreme Court has extended the right to counsel to various pre-trial confrontations between the accused and the state, that right has not been made contingent on a showing that evidence obtained in the absence of counsel added critical weight to the prosecution's case. Rather, the Court has held that when a particular type of confrontation can be deemed a critical stage in the prosecution because counsel's absence would derogate from an accused's right to a fair trial, the right to assistance of counsel has extended to all such confrontations, regardless of whether the confrontation was considered critical in a particular case. See United States v. Wade, supra, 388 U.S. at 228-239; Miranda v. Arizona, 384 U.S. 436, 445 (1966); Hamilton v. Alabama, 368 U.S. 52, 54-55 (1961). In a pre-trial proceeding, therefore, an accused either has a constitutional right to assistance of counsel or he does not. In the case of post-arrest photographic identifications, either before or after indictment, we have held, and we continue to hold, that such a right does not exist. That the in-court identification here may have added critical weight to the state's case has no bearing on our holding that Johnson did not have a constitutional right to assistance of counsel when the photographs were displayed to Arline Holloway.

We likewise find without merit Johnson's claim that the photographic identification procedure was impermissibly suggestive. Cf. Simmons v. United States, 390 U.S. 377, 384 (1968). The circumstances surrounding the displaying of the photographs to Arline Holloway were fully developed at the pre-trial suppression hearing. There was ample evidence to support Justice Murtagh's finding that the manner in which Patrolman Marschat and Assistant District Attorney Enten showed the photographs to Arline Holloway did not violate Johnson's right to due process of law. The witness, while seated alone at a table and without any assistance from Marschat or Enten, selected Johnson's photograph, which was in the middle of an array of five photographs. Moreover, while Johnson suggests on appeal that Ernest Holloway may have described Johnson's features or Johnson's photograph to Arline Holloway, defense counsel was unable at either the hearing or the trial to develop a shred of evidence to support this supposition. To the contrary, Arline Holloway was quite emphatic in denying that her husband had in any way influenced her identification of Johnson by photograph.

Johnson's chief objection to the photographic identification procedure is that his photograph was the only one in the array of five displayed to Arline Holloway showing a man wearing eyeglasses.⁹  In view of all the circumstances surrounding this photographic identification, however, we do not believe that this difference between Johnson's photograph and the others suggested to the witness that Johnson was more likely to be the culprit. While Johnson's photograph did single out a distinguishing personal characteristic of him not possessed by the men in the other photographs, cf. United States v. Abbate, 451 F.2d 990, 992 (2 Cir. 1971), it is clear that Arline Holloway's selection of Johnson's photograph was not influenced by this distinction. Prior to the photographic identification session, Arline Holloway had never said that the man whom she had seen through the peephole on the night of the shooting had been wearing eyeglasses. Furthermore, while there were inconsistencies in her description of the assailant, she never wavered from her insistence that the assailant had not been wearing eyeglasses. Thus, Arline Holloway's description of the assailant indicates that her photographic identification of Johnson was based not on Johnson's wearing eyeglasses in the picture, but on Johnson's facial features which she remembered from her encounter with him on the night of the shooting. Cf. United States v. Fernandez, 456 F.2d 638, 642-643 (2 Cir. 1972).

Since the state trial court afforded Johnson a full and fair evidentiary hearing on his claims regarding the photographic identification, and since the findings of fact of the state trial judge were amply supported by the record, there was no need for the district court to conduct an evidentiary hearing. 28 U.S.C. § 2254(d) (1970). See United States ex rel. Sabella v. Follette, 432 F.2d 572, 574-75 (2 Cir. 1970); United States ex rel. Fein v. Deegan, 410 F.2d 13, 17 (2 Cir.), cert. denied, 395 U.S. 935 (1969).

We express our appreciation to Jerome G. Shapiro, Esq., appellant's court appointed counsel in this Court, for his excellent brief and able oral argument.

Affirmed.