The opinion of the court was delivered by: BECKER
This is a habeas corpus case. Relator, Ronald M. Burton, is a state prisoner who is now serving multiple concurrent sentences, one for ten to twenty years, following conviction by a jury in March 1971 in Delaware County, Pennsylvania, on charges of robbery, burglary, and other offenses. Relator's petition is bottomed upon two alleged sixth amendment violations. First, relator complains of the admission at his trial of testimony about out-of-court lineup and photographic identifications at which petitioner was not represented by counsel. Second, relator alleges that his trial counsel rendered ineffective assistance in failing to subpoena as a witness at petitioner's pretrial suppression hearing the attorney whom the Commonwealth had contended represented relator at the lineup because the attorney's testimony, which would have demonstrated that he was unrepresented at the lineup, was crucial to a proper decision on his motion to suppress the out-of-court identifications.
Before discussing the substance of relator's claims, and several underlying issues which appear to be unresolved in this Circuit, we must briefly describe the factual background.
On the evening of September 29, 1970, in Crum Lynn, Pennsylvania, two unmasked black males entered a grocery store owned and operated by Samuel Greenberg. One of the intruders stood guard near the store's entrance while the other proceeded to the rear of the store near the cash register and held Mr. Greenberg at gun point while removing about $250 from the cash register and from Mr. Greenberg's person. During the robbery the perpetrators were observed for varying periods of time (estimated at from three to fifteen minutes) by Mr. Greenberg and three young men, all aged about fourteen years, who were customers at the store.
After the robbers had fled, the Ridley Township Police Department was notified. The police obtained descriptions of the men and distributed these to other police departments including the Chester Pennsylvania Police Department.
The Chester police responded by sending pictures of relator and one Michael Gray, along with seven other photographs, to the Ridley Township police. Both these men were being held on other charges in Chester. On October 5, 1970, Mr. Greenberg positively identified the photographs of both relator and Gray from among the group of photographs. Two days later two of the remaining three eye witnesses did the same, while one of the witnesses did not make a positive identification. Shortly thereafter, on October 8, a warrant for the arrest of relator was issued by District Justice Joseph Dougherty, the judicial officer entrusted with the task of considering warrant requests. The warrant was not thereupon served. In fact it was not until October 27, 1970, that a detainer in connection with the robbery was lodged against relator who was then in custody at the Delaware County Prison.
In the meantime, on October 13, 1970, a lineup was held by the Chester Police with respect to several then recent crimes in Chester. The lineup included relator and Gray as a result of the unrelated charges against them. However, the Ridley Township police, who were in contact with the Chester police and knew of the lineup, arranged to bring to that lineup the witnesses to the Greenberg robbery. This arrangement was plainly for the purpose of giving the four witnesses an opportunity to identify relator and Gray.
The State trial court, in a pre-trial suppression hearing, had found that Earley represented relator at the lineup. In an opinion considering relator's post-trial motion, the Court reaffirmed that finding. In that opinion the Court quoted relator's trial counsel as stating at the hearing that he had spoken to Earley and that Earley reported that he did not represent relator, but then the Court seemingly relied in part upon counsel's failure to call Earley as a witness in deciding the representation issue adversely to petitioner. This state of affairs led ultimately to relator's second claim, that his trial counsel was ineffective because he did not call Earley as a suppression witness to establish that relator was unrepresented at the lineup.
The circumstances just noted raised in our mind a serious question about the completeness of the State Court record and the adequacy of its fact-finding as it related to relator's federal constitutional rights. More specifically, we felt that the State Court record was incomplete and deserved amplification on the question whether Earley represented relator at the October 13 lineup, and that it was unclear and required supplementation in order to develop some of the circumstances relating to the status of the robbery charges against him at the time of the lineup. Our inquiry into the status of the charges against relator at the time of the lineup was necessitated by the importance of the question when the right to counsel attached under Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972) (see infra), a question the state court did not have to reach in view of its representation finding. We therefore held an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963).
Mr. Earley was the first witness at the hearing before us. Based upon his testimony we concluded, see Discussion infra, that relator was unrepresented by counsel at the lineup. That conclusion would have required us to invoke the exclusionary rule of 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. 1951, 18 L. Ed. 2d 1178 (1967) unless, under the principles of Kirby v. Illinois, supra, relator was not entitled to counsel because adversary judicial criminal proceedings had not begun. The Commonwealth contends that, notwithstanding the issuance of the arrest warrant, adversary proceedings had not been initiated.
The application of Kirby to circumstances in which an arrest warrant has been issued for a suspect who is in custody but who has not been indicted or arraigned or had a preliminary hearing on the charges recited in the warrant is heretofore unresolved in this Circuit. As will appear from our discussion, although the question is a close one, we believe that, under the circumstances of this case, relator was entitled to counsel at the lineup, and that the lineup evidence should therefore have been excluded at trial. This conclusion might ordinarily require the granting of habeas relief; however, as will also appear, we believe that its admission was harmless error. We also find that relator was not deprived of the effective assistance of counsel. Accordingly, relief will be denied. In the discussion of relator's legal contentions which now follows, we include the findings of fact necessary for the disposition of his claims.
A. Was Relator Represented by Counsel at the Lineup?
Based upon the uncontradicted testimony of Mr. Earley that he did not undertake to represent relator at the October 13 lineup, we find that relator was without counsel at that lineup. Our finding is unaffected by the facts that in general terms the lineup appeared to be a fair, i.e., unsuggestive one, and that nothing is known to have been said by the police officers to any of the victims or witnesses as they viewed the lineup which could be construed as suggestive;
it is also unaffected by the fact that Mr. Earley's presence may well have contributed to a prophylactic atmosphere. We do not agree with, nor have we been cited precedent for, the proposition that Mr. Earley's presence on behalf of Gray in connection with an unrelated charge constructively satisfied the asserted requirement that relator be represented. Although the Wade Court left open the question "whether the presence of substitute counsel might not suffice where notification and presence of the suspect's own counsel would result in prejudicial delay," 388 U.S. at 237 (emphasis supplied),
that issue is not fairly raised in the present context where the police knew that relator was in custody more than a week before the lineup (and that he would remain so), had already obtained a warrant for his arrest, and had obtained three positive photographic identifications from the four existing witnesses almost a full week before the lineup.
No prejudicial delay would have resulted in the police investigation by advising relator of the impending lineup so that he could engage counsel.
Furthermore, although Mr. Earley's presence doubtless helped to assure a fair composition to the lineup, he was not even aware of any charges relating to the Greenberg robbery. He therefore would not be attuned to any communication between the police and the witnesses to the Greenberg robbery (one of whom was a victim, see Wade, supra, 388 U.S. at 230). Moreover, he could not focus on the lineup as it related specifically to the Greenberg robbery
and therefore would have been hard pressed to evaluate "recognition by viewers, and . . . manifestation by the viewers of the identification or lack of identification." United States v. Daniels, 506 F.2d 791, 795 (3d Cir. 1974) (Adams, J., concurring), cert. denied, 421 U.S. 967, 95 S. Ct. 1957, 44 L. Ed. 2d 454 (1975). See Wade, supra, 388 U.S. at 228-35, 87 S. Ct. 1933-36.
We thus conclude that, if Wade and Gilbert are otherwise applicable to this case, Mr. Earley's presence did not amount to sufficient compliance with its mandate.
B. The Right to Counsel at the Lineup Identification -- An Application of Kirby
With the decisions in 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. 1951, 18 L. Ed. 2d 1178 (1967), the Supreme Court sought to provide some assurance that a defendant in a criminal case would not be convicted as a result of a critical out-of-court identification procedure which was or might have been unnecessarily suggestive of his guilt. The corrective measure which the Supreme Court applied was to require, under the Sixth Amendment's guarantee of the right to counsel, that a defendant placed in a lineup be given the opportunity to have representation by counsel. By this means the Court introduced into identification procedures an observer who could: (1) take steps to make certain that a lineup was not suggestive; or (2) at least note the ways in which a lineup was likely to lead to misidentification, for purposes of later suppression motions or for cross-examination of witnesses testifying to positive in-court or out-of-court identifications. To enforce its requirement, the Court announced a per se exclusionary rule for evidence of out-of-court identifications at which counsel was not present and not intelligently waived. Gilbert, 388 U.S. at 272-273. The question whether in-court identifications were then admissible would depend on whether the government could show by clear and convincing evidence that the in-court identification arose from an independent source and therefore was not tainted by the prior illegality. Wade, 388 U.S. at 240.
In 1972, however, the Supreme Court sought to define explicitly the stage at which the right to counsel arose and thus the stage at which the Wade-Gilbert exclusionary rule was triggered. In Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972), the Court announced that the right to counsel, which was the basis for the exclusionary rule, arose only "at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." 406 U.S. at 689.
The question of exactly when a prosecution has been initiated was not put to rest by the Kirby pronouncement. In determining when adversary judicial proceedings are in fact initiated the cases have reached varying results depending not only on the facts of the given case, but also upon the law of the jurisdiction in which the facts arose. The question is a difficult one in the general context involved here, i.e., where the person asserting a Wade-Gilbert claim is under arrest or is somehow restrained of his liberty but has not been indicted or arraigned or had a preliminary hearing. More specifically, it is not always clear whether or when the issuance of an arrest warrant (based upon a neutral judicial finding of probable cause) or the event of an actual arrest, with or without a warrant, constitutes the initiation of adversary criminal judicial proceedings.
The Third Circuit has considered this area of the law on two occasions, but neither case is dispositive here. In United States v. Coades, 468 F.2d 1061 (3d Cir. 1972), the Court held that two defendants who had been arrested for a bank robbery and were in custody but had not yet had preliminary hearings were not entitled under Kirby to counsel at their (several) lineups. And in Government of the Virgin Islands v. Navarro, 513 F.2d 11, 18 (3d Cir.), cert. denied, 422 U.S. 1045, 45 L. Ed. 2d 698, 95 S. Ct. 2662 (1975), after upholding a District Court finding that a suspect who was subjected to a "showup" in a police station was not under arrest, the Court added by way of dictum that even if the showup had followed an arrest the failure to provide counsel would not have tainted the identification. The Court stated that "the presence of counsel is not constitutionally required at a confrontation held after arrest but before the initiation of 'judicial criminal proceedings.'" 513 F.2d at 18.
However, neither Coades nor Navarro required the Third Circuit to adjudicate or consider the question of the right to lineup counsel after the issuance of a formal arrest warrant, as opposed to a warrantless arrest. Moreover, where we are dealing with the importance of the issuance of a state arrest warrant for Kirby purposes, we must still consider the impact of state law on the point. In this case the state law is expressed in Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1976).
We will also consider in this regard two Second Circuit cases in which the effect of the issuance of an arrest warrant is discussed.
We turn first to the case of United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir. 1972), cert. denied, 411 U.S. 939, 36 L. Ed. 2d 401, 93 S. Ct. 1892 (1973), on which the Pennsylvania Supreme Court relied in Richman. In that case, a police officer was on the scene of an armed robbery and shooting and gave chase to the escaping felons, first by car and then on foot through mid-town Manhattan. He apprehended two occupants of the get-away car, but lost the foot race to the third. Based in part on the officer's description, a judge "directed that a complaint issue charging appellant (Robinson) with the crimes of robbery in the first degree, assault in the first degree and possession of a weapon as a felony." Id. at 162. Thereafter Robinson was apprehended and identified by the eyewitness police officer at an uncounseled showup.
In holding that the arrest warrant initiated the prosecution for Kirby purposes,
the Court relied in part upon the applicable provision (§ 144) of the New York Code of Criminal Procedure, which by its own terms (apparently with the statute of limitations in mind) stated: "A prosecution is commenced . . . when an information is laid before a magistrate charging the commission of a crime and a warrant of arrest is issued by him. . . ." Id. at 160 n.2. In the same footnote the Court noted that the issuance of an arrest warrant was the equivalent of the filing of an indictment under § 144. The Court concluded:
Here the arrest warrant itself commanded that appellant be brought forthwith before the Criminal Court "to answer the said charge, and to be dealt with according to law." These were formal criminal proceedings, for the warrant had been signed by a judge based on an "information upon oath" that appellant did commit the crimes of assault, robbery and possession of a dangerous weapon. This being true, Wade required counsel at the show-up . . . . Time was not of the essence, a lineup could have been arranged and there appeared to be no "substantial countervailing policy considerations" against requiring the presence of counsel as suggested in Wade. [ Id. at 163 (citation omitted).]
the approval by a magistrate of a written complaint is at least as significant as the indictment in determining the commencement of adversary proceedings and the strength of the governments commitment to prosecute [citing Robinson ]. . . . In Pennsylvania, magisterial approval of a complaint occurs either at the issuance of an arrest warrant, or, for warrantless arrests, at the preliminary arraignment. [ Richman, 458 Pa. at 172, 320 A.2d at 353.]
The federal constitutional underpinnings of Robinson have been questioned, if by inference. United States v. Duvall, 537 F.2d 15 (2d Cir. 1976) (Friendly, J.), dealt with a situation in which Federal agents had obtained and executed an arrest warrant. Duvall contended that, because a complaint under Rule 3, Fed.R.Crim.P., had been filed before his arrest his criminal prosecution had begun and any interrogation without the presence of counsel violated his Sixth Amendment rights under Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). The Court, while apparently not disturbing the Robinson holding with reference to New York law, stated:
We see no reason in principle why the filing of a complaint should be deemed to give rise to a right to counsel immediately upon arrest pursuant to warrant. . .. Furthermore to hold that the accrual of the right to counsel is accelerated by use of the warrant procedure would tend to discourage this whereas the policy should be to encourage it. Id. at 22.
Notwithstanding Duvall, we are of the view that for Kirby purposes the prosecution of relator was initiated prior to the October 13 lineup. Our conclusion follows from two factors. The first is the issuance of a warrant of arrest, with the attendant (Pennsylvania law) gloss under Richman. Second, consistent with the focus of Kirby on the initiation of a prosecution, we take into account the other circumstances prior to the lineup which suggest that the true reason for holding the lineup was to enhance the prosecution's evidence, and that no investigative purpose would have been impeded by insuring that relator had an opportunity to have counsel present. As Officer Joseph Dougherty,
the Ridley Township police officer in charge of the case, testified at our hearing (and as we so find),12a he brought the robbery witnesses to the lineup specifically because he knew well in advance that relator would be in it. Moreover, the lineup followed not only the arrest warrant, but also three positive photographic identifications (out of an array of nine photographs not here assailed as suggestive, see n.3, supra) by three witnesses who ...