On 20 September 1960, some seven months after the commission of an armed robbery against a couple in Westchester County, defendant appeared at police headquarters in Cheyenne, Wyoming, requesting a pass, as an indigent, for a free night’s lodging with the Salvation Army. A New York Drug Crime Lawyer said when he made a similar request the next night, the police radio dispatcher became suspicious. In response to an inquiry, defendant admitted that he could be wanted for questioning, thus, he was thereupon arrested by the jailer for vagrancy. Thereafter, a Captain was called, and defendant admitted that he might be wanted for questioning in New York on a robbery charge. The Captain then called in the resident F.B.I. agent. At about 10 o’clock that night, according to the Captain, defendant orally confessed to having committed the robbery, although he refused to sign a statement.
The following day, the Cheyenne authorities advised the Westchester authorities that defendant had been apprehended, and confirmed that defendant had, indeed, been questioned about the robbery. That afternoon he was convicted of vagrancy and sentenced to a $50 fine or 50 days, the sentence to be suspended upon completion of investigation on the New York robbery charge.
The day after the conviction, the interrogation of defendant by the Captain and the FBI Agent continued. A New York Drug Possession Lawyer said both officers testified that during this questioning, defendant confessed to the robbery. Defendant claims that prior to the first interrogation session with the FBI Agent and the Captain, he had requested a lawyer but was told he would have to wait until he got to court; that he was not given a lawyer during the vagrancy proceedings, and, because of the earlier refusals, did not bother asking for one on the second night of interrogation. On the contrary, the Captain claims at the post-trial confession hearing that he had offered to supply defendant with a lawyer but defendant had refused to have one; in contrast to his post-trial testimony, at the trial, the Captain claimed that he had told defendant he could have a lawyer if he paid for one. On the other hand, the FBI Agent testified both on the trial and the post-trial hearing that he, not the Captain, had advised defendant of his rights and that defendant had made no requests for a lawyer.
Defendant’s claim that he requested a lawyer but was refused is consistent with his later futile attempts to secure his rights. Thus, on September 25, defendant drew up a petition for a writ of habeas corpus, alleging that he was being held on a sham vagrancy charge, that he was being deprived of his rights, and demanding an extradition hearing. He also complained of a stomach illness. Defendant requested that the jailer forward his papers to the Federal District Court in Wyoming. However, the papers remained in the custody of the police, who were unable to explain why they never reached the Federal court.
About a week after mailing the petition, defendant sent a letter to the Acting Governor of Wyoming, this time using a fellow inmate, who was being released, to mail it. A Nassau County Drug Possession Lawyer said in this letter he again requested an extradition hearing. He claimed that he had signed an extradition waiver without the benefit of counsel and while under the influence of compazine, a tranquilizer drug which had been prescribed for him at Laramie County Hospital by a doctor, who had diagnosed his continuing stomach ailment as an ulcer. He also asserted that he had been told that the extradition-waiver papers were a release of liability for his medical treatment. A reply by the Acting Governor to his letter was received at the jail addressed to defendant but the letter disavowed any circumstances warranting assistance to defendant. It was, however, never received by him personally but remained in the hands of the police authorities.
Meanwhile, some two weeks after defendant’s arrest for vagrancy, the Westchester police came into the picture. Following the communication received from Cheyenne, the Westchester police had continued their investigation. A Queens Drug Possession Lawyer said on September 29, a detective filed an information against defendant and obtained a warrant for his arrest. The detective and the Assistant District Attorney (ADA) arrived in Cheyenne on October 5 and began questioning defendant shortly before noon on October 6. The detective, who saw defendant alone, testified that at first defendant was very un-co-operative and complained about his stomach ailment and the food he was receiving. Nonetheless, he agreed to talk when the detective promised to get him a roast beef dinner. Defendant then made a full confession to the robbery and told the detective and the ADA where he had hidden the gun and uniform. When defendant asked for a lawyer before the interrogation, the detective answered that he doesn’t know any attorneys in the area and gave him a telephone book instead. This incident was substantially confirmed by the detective and the ADA at the trial and by the ADA at the post-trial confession hearing. Defendant also testified to the incident and explained that he said it was a laugh because he had only five cents and could not hire a lawyer. The detective testified at the post-trial hearing in partial contradiction of his trial testimony that he merely asked defendant if he wanted a lawyer and defendant answered that it was a joke.
On October 9, the detective, the ADA, a Lieutenant McMahon who had flown to Cheyenne the day before and defendant boarded a train for the return trip to New York. On the train defendant confessed two more times, and assisted the detective in drawing a sketch of the scene of the crime and the location of the hidden gun and uniform. The detective testified at the hearing that prior to each interrogation defendant had said he was not interested in having a lawyer.
On October 11 at about 9:00 A.M., when they arrived at Harmon station in Westchester County, defendant was not taken to court because the officers were told there was no Judge available. He was instead driven to various places connected with the robbery, but the officers were unable to find the gun and uniform where defendant had said they had been hidden eight months before. During the drive defendant confessed five more times. He was then arraigned in the White Plains City Court.
Defendant now appeals from a conviction for robbery in the second degree and related crimes and a sentence to State prison for 15 to 20 years. Following a post-trial hearing on the voluntariness of his confessions, obtained in a proceeding brought by defendant in the nature of a writ of error Coram nobis, the trial court held that the statements were voluntary.
The Appellate Division affirmed the conviction and the denial of Coram nobis relief holding that while most of the statements were made in the absence of counsel, defendant had waived his right to counsel.
Thus, defendant appeals from the aforesaid judgment and contends that there was error in the admission of some 11 inculpatory statements and that there was further error in the admission upon the trial of testimony by a police officer that the complaining witness had previously identified defendant.
The court finds that the admissibility of the earlier statements, especially of the last three, made by defendant to the Wyoming authorities is gravely doubtful. There can be no question that the vagrancy arrest and conviction were a manipulated pretext, not a sham, to enable custodial interrogation of defendant concerning the New York robbery charge. Indeed, the punishment given defendant was to be suspended upon completion of the investigation of the New York robbery charge. Thus, the vagrancy arraignment was in effect the commencement of criminal proceedings on the robbery charge and no questioning could be conducted concerning the robbery in the absence of counsel, unless waived.
Here, the eight statements made to the New York officers are inadmissible since they were obtained in the absence of counsel after an information was filed in New York and an arrest warrant was obtained there, unless it can be said that defendant waived his right. As the court has ruled, if a case merely contained an inculpatory statement made in the absence of counsel after an information had been filed, the court would be compelled to hold that the statement is inadmissible, because no valid distinction may be made between a post-indictment and a post-information statement.
It must be noted that defendant was arrested in Cheyenne on 21 September 1961, and the New York robbery warrant was issued on 29 September 1961. Hence, there is no issue of retroactivity. In the case of People v. Bodie, characterized as an extension of the Di Biasi rule, was decided after the arrest, but is hardly more than an application of the principle already settled, and involved neither an extension of the reasoning nor of the principle. For that matter, the court had, in People v. Meyer, excluded a post-arraignment, pre-indictment statement on the basis of the principle in the Di Biasi case, on the ground that an arraignment after arrest must be deemed the first stage of a criminal proceeding. Hence, the Meyer case, decided 5 April 1962, involving inevitably the application of the Di Biasi rule to a pre-indictment statement, was handed down long before the statements of the defendant were used upon his trial which began in September of 1962. It, therefore, controls and the issue of retroactivity is obviated on this ground.
On the issue of waiver of the right to counsel, the defendant’s right to counsel was questioned after the information and warrant proceedings but before arraignment. As a rule, the right to counsel is not waived where the indigent defendant, an adjudicated vagrant, has only the alternative of proceeding without counsel or retaining a lawyer from a telephone book in a strange city. The fact that defendant attempted, during his imprisonment in Cheyenne, to obtain assistance from the Federal District Court and the Governor of Wyoming undermines completely a finding that he willingly waived his right to counsel. Before the New York authorities arrived and questioned defendant, and thereafter, according to their testimony as well as his, he asked repeatedly for a lawyer, the defendant’s waiver was, therefore, nonexistent. Hence, the eight later statements obtained by the Westchester authorities were inadmissible.
On the issue of identification, the court finds that there was also an error occasioned by the police officer’s testimony that defendant had previously been identified by the complainant. Such bolstering testimony is not prejudicial only where the evidence of identity is so strong there is no substantial issue on the point or where the identification has been attacked as a recent fabrication.
In the instant case, the robbery followed the taking on of a hitchhiker by the victim husband. On a foggy, rainy night, at 11:30, the victim husband stopped his automobile to give a ride to man standing in the road. The man was wearing an Air Force cap pulled low over his face and his Air Force uniform collar was turned up. The man approached the car from the rear and entered the back seat, so that the victim husband obtained only a glimpse of him. During the robbery the victim husband’s back was turned to the robber in the back seat. After the robbery, when the man left the car, the victim husband had only a second fleeting glimpse of the side of the man’s face. His identification of defendant was, therefore, based on momentary and partial views of the robber. Thereafter, the identification in issue was made seven months later and, concededly, defendant’s Boston accent was a persuasive factor in the identification by the victim. What is more, the victim husband admitted at trial that he was not sure defendant was the man who robbed him. There was no attempt to attack the victim husband’s identification as a recent fabrication. Thus, the improper admission of the officer’s testimony also requires a reversal of the conviction. Moreover, if the inculpatory statements are excluded, as they should be, the identification issue becomes crucial, and the erroneous admission highly prejudicial.
All told, the findings that defendant did not ask for a lawyer or that he waived his right to a lawyer are not supported by the testimony in which defendant and the authorities largely agreed. Clearly, there was gross and prejudicial error in the admission of the identification testimony. Therefore, as a matter of law, a reversal of the conviction is warranted.
Accordingly, the judgment of conviction and the order entered in the Coram nobis proceeding is reversed and a new trial ordered.
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