Petitioner Gruttola appeals from a judgment of the District Court for the Southern District of New York, Motley, J., denying his petition for a writ of habeas corpus. Judge Motley held that the evidence supporting petitioner's guilt was sufficient to convince a rational jury of guilt beyond a reasonable doubt and that due to petitioner's failure to raise the issue when required by state law, the federal courts could not consider whether witnesses' exposure to prelineup publicity rendered identification testimony so unreliable as to require suppression. Affirmed.
Before Lumbard, Mansfield and Meskill, Circuit Judges.
Petitioner Joseph Gruttola appeals from a judgment of the District Court for the Southern District of New York, Motley, J., denying his petition for a writ of habeas corpus. On September 19, 1973, after a jury trial in New York State Supreme Court for New York County, Gruttola was convicted of first degree robbery, first degree assault, first degree attempted assault, and felonious possession of a weapon.*fn1 The conviction was unanimously affirmed by the Appellate Division, 53 A.D.2d 821, 386 N.Y.S.2d 351 (1976), and was affirmed by a divided Court of Appeals, 43 N.Y.2d 116, 400 N.Y.S.2d 788, 371 N.E.2d 506 (1977). Gruttola then petitioned the district court for a writ of habeas corpus on the grounds that the evidence supporting his conviction was not sufficient to convict him beyond a reasonable doubt and that the exposure of lineup witnesses to prejudicial publicity rendered their identifications inherently unreliable. The district court denied the writ in an unpublished opinion. We now affirm.
According to the State's case, the events leading to Gruttola's arrest began in the early morning hours of December 21, 1972, when plainclothes New York City police officers on routine patrol spotted a man walking to and fro and peering into windows in the vicinity of East 50th Street and Second Avenue. Becoming suspicious of the man, three officers followed him into the bar at O'Lunney's Steak House on Second Avenue. A fourth officer waited in a car outside.
Shortly after the officers followed the man into the bar, he walked to the cash register, drew a gun and announced a holdup. Most of those present rushed to the rear of the premises. One of the patrons of the bar, however, moved toward the gunman, whereupon the gunman shot him. One of the plainclothes policemen then lunged at the gunman, but the gunman stepped back and fired at the officer. The gunman ordered the wounded officer to drag himself to the cash register and empty its contents. The gunman then fled the bar.
Immediately thereafter, the two other officers, joined by the one waiting outside, ran after the fleeing gunman. The man turned the corner of East 50th Street heading toward First Avenue. There was an exchange of gunfire, the officers saw the man throw away his gun and some money, and finally a patrol car radioed by the pursuing officers stopped and, with the aid of the pursuing officers, subdued the fleeing suspect. The man apprehended was petitioner Gruttola, who had been shot in the cheek during the pursuit.
Because Gruttola had no prior convictions, was a family man, and had for some time managed his own business in Queens, he was released on low bail by New York City Criminal Court Judge Bruce Wright. The District Attorney applied to another judge who revoked bail. Judge Wright thereupon reinstated the original bail of $500. Judge Wright's action unleashed a barrage of complaints by local officials, including the Mayor of New York and the Police Commissioner, and the incident received extensive coverage in local newspapers and television news reports. Many of these reports, including a front page story in the New York Daily News, featured pictures of Gruttola along with the details of the robbery and shooting on December 21. The stories, which appeared for about a week, carried expressions of outrage by various officials at the low bail set for a "coldblooded copshooter," who, it was soon found, had previously been arrested, in 1970, for felonious assault and possession of a deadly weapon, although those charges were later dropped.
After the arrest, five witnesses of the O'Lunney's robbery attended a lineup which included Gruttola. Three of the five who had been present at O'Lunney's identified Gruttola. Gruttola's counsel attended the lineup and made a number of requests regarding lineup procedures, most of which were refused. Before trial, a "Wade hearing"*fn2 was held to determine Gruttola's motion to suppress the identification testimony. Gruttola's counsel argued that the identification testimony of the three witnesses who picked Gruttola out of the lineup should be suppressed because of the refusal to grant his requests regarding the procedures employed at the lineup. Specifically, counsel objected to the State's refusal to allow him to have a photographer or public stenographer present, to the State's failure to give him the names of those who viewed the lineup, and to the State's placing Gruttola with men counsel did not believe were of similar size or build as Gruttola. The judge held that there was no impropriety in the procedures employed, and therefore the identification testimony could be introduced at trial. He also held that the names of all those who viewed the lineup should be given to the defense, and they were eventually turned over during the trial.
At the trial, the prosecution called all of the police officers involved in the incident at O'Lunney's. The three officers who originally followed Gruttola into O'Lunney's all identified him as the man who entered the bar, robbed the cash register, shot a patron and an officer, and fled. The officer who remained outside during the holdup identified Gruttola as the man who entered O'Lunney's and as the man who was pursued by himself and the other officers. The three civilian witnesses who picked out Gruttola in the lineup also identified him as the gunman. The three were Eamonn Doran, the bartender at O'Lunney's, Shaun Flynn, a customer of the bar, and Edward Blagden, the patron who was shot by the gunman. Although both Doran and Blagden testified that they had seen pictures of Gruttola in the papers following the incident, they asserted that their identifications were based upon what they had seen on the night in question. Also introduced into evidence were a hat retrieved on East 50th Street, and a coat found on Gruttola when arrested. They were both identified by various witnesses as those worn by the gunman. The gun recovered on East 50th Street was introduced and was identified by all of the police and civilian witnesses as the one used or as similar to the one used by the holdup man in O'Lunney's.
The defense asserted that this was a case of mistaken identity. They argued that the pursuing officers were in O'Lunney's drinking while on duty when they were startled by the holdup. They chased the robber, but lost sight of him as he rounded East 50th Street. They came upon Gruttola, who was in the area by chance, chased after him, and beat him severely when apprehended. To cover up their drinking on duty and their mistreatment of Gruttola, they made up the story of following him into the bar and other details of the chase. The publicity generated by the events surrounding Gruttola's release on bail forced them to stick to their story to avoid embarrassment to the police department.
In support of its theory, the defense attempted to develop inconsistencies in the testimony of the police officers. It introduced pictures showing bruises on Gruttola's body after his arrest. There was also proof that the gun, an eight-cartridge automatic, had been recovered with six live rounds of ammunition, despite prosecution testimony that three shots were fired. The defense sought to discredit the testimony of the civilian witnesses by asking questions concerning the amount of their drinking on the night in question and the dim lighting in the bar at the time of the holdup, and by drawing the jury's attention to the witnesses' exposure to the publicity surrounding events following Gruttola's arrest. The defense also called to the stand one of the eyewitnesses who had failed to identify Gruttola at the lineup, although, after some prodding by the judge, he too identified Gruttola as the O'Lunney's gunman.
Gruttola himself took the stand and gave his version of the events on the night in question. He testified that he finished work in his Queens office at about 10:00 p. m. that night. After his wife declined to join him, he drove into Manhattan to see a movie and have dinner. When he returned to his car, he found it had a flat tire. He called his wife to tell her he'd be home late, fixed the flat, and headed home. At around 3:00 a. m., at the corner of 50th Street and Second Avenue, he spotted a lamp in an antique store, and got out of his car to see it. While Gruttola was looking at the lamp, a man ran by him and down 50th Street. Gruttola then heard shots and headed to his car, but after being shot at himself, he ran toward First Avenue where he saw a police car, but was overtaken and then severely beaten. Gruttola testified that while in police custody he was given a paraffin test to determine if he had recently fired a gun. He further testified that he never wore a hat and did not own a gun.
Gruttola's wife testified that she had received a call from him telling her of the flat tire. Perhaps the most impressive testimony on Gruttola's behalf was given by a number of character witnesses who uniformly commented upon Gruttola's even-tempered manner and his reputation for honesty. The character witnesses also noted that Gruttola, unlike the O'Lunney's holdup man, never swore and never wore a hat. The defense suggested that ...