The opinion of the court was delivered by: COHEN
Petitioner, Joseph Hickman, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. He is currently incarcerated in the New Jersey State Prison, where he is serving an aggregate sentence of thirty-seven to forty-three years
upon convictions for kidnapping (N.J.S.A. 2A:118-1); assault with a dangerous weapon (N.J.S.A. 2A:90-3); and larceny of an auto (N.J.S.A. 2A:119-2). Sentence was imposed on October 24, 1969, following conviction by jury in the Camden County Court.
On appeal, the Superior Court of New Jersey, Appellate Division, affirmed per curiam, State v. Hickman, No. A-544-69 (App. Div. 1971). The Supreme Court of New Jersey denied certification, State v. Hickman, 59 N.J. 295, 281 A. 2d 809 (1971).
After a thorough consideration of the state court proceedings, we find no need for an evidentiary hearing inasmuch as the record is factually complete regarding the issue raised by the petitioner. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).
In Simmons, the Supreme Court dictated the controlling standard of an incourt identification which was the product of a pretrial photographic identification. Speaking for the Court, Justice Harlan stated that
each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (390 U.S. at 384, 88 S. Ct. at 971) (emphasis added).
In application of the above mandate, it is necessary to consider the circumstances surrounding the challenged photographic identification in the instant case.
At trial, the State's principal witness was the alleged victim, Judith Ann Clark. She testified that on the morning of November 15, 1968, she parked her car at the Cherry Hill Mall, Cherry Hill, New Jersey. The witness further related that upon the completion of her shopping, she returned to her car, partially entered on the driver's side when "a man forced his way through the open door and forced me to the other side of the car" (T. 15); "told me that he had been stabbed in the stomach [by a member of the Henchman Motorcycle Club] and had to get to a special doctor in Camden"; and "[that] he had wondered [sic] the night half conscious . . . [and] that he needed a ride" (T. 16). Her abductor took her car keys. He had a hunting knife, with a six inch blade which he pushed into her side (T. 17). He then drove her car to a back road and when he had to stop at a traffic light in Harrison Township, Camden County, she jumped out of the car and escaped. During the ride he held her hand, pinched her cheeks and rubbed her leg. Upon her escape, she immediately contacted her employer who, upon arrival, accompanied her to the police authorities both in Harrison Township and Cherry Hill to each of which she gave a complete description of her assailant, her car and the details of her harrowing experience. At this point in her testimony, when mention was made of the display of photographs to her by the police, defense counsel requested a side bar conference. The jury was excused and before any identification testimony was offered, the court very properly conducted an out-of-the-presence-of-the-jury hearing to determine the validity of the challenged photographic identification.
The Trial Judge determined that the photographic viewings were not "impermissibly suggestive," were untainted and conducted fairly and justly. He permitted the in-court and pretrial identifications to be testified to as part of the State's case. We agree with his determination.
In a trilogy of cases
dealing with lineups, the United States Supreme Court recognized that an accused has the right to have counsel present at a pretrial, post-indictment lineup. The Court grounded its decision on the principle that an accused is entitled, under the sixth amendment, to be represented by counsel at any "critical stage" of the criminal process. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). "Critical stage" was defined by the Court as "any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." Id. at 226, 87 S. Ct. at 1932. See also Coleman v. Alabama, 399 U.S. 1, 7, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1969).
Our own Third Circuit Court of Appeals, in United States v. Zeiler, 427 F.2d 1305 (3 Cir. 1970) [hereinafter cited as Zeiler I ],
extended the Wade principle to pretrial photographic identification. Id. at 1307.
It should be noted, however, that in Zeiler I, the accused was already in custody at the time the police conducted the photographic identification. Consequently, since the investigation "focused" on a particular individual "in custody" it was clear that a critical stage of the proceedings had been reached. Cf. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); and Nelson v. Peyton, 415 F.2d 1154 (4 Cir. 1969), cert. denied, Cox v. Nelson, 397 U.S. 1007, 90 S. Ct. 1235, 25 L. Ed. 2d 420 (1970). To the contrary, in the instant case, the photographic viewing occurred during the investigatory stage of the case, when the petitioner was not in custody. Therefore, this is not a case like Zeiler I, where the postcustody photographic identification could ...