Petition — Fogg v. Welcome

h

IN THE .

Supreme Court of the Unite

OCTOBER TERM, 1976* an

No. 76-1588

Leon J. Vincent, Superintendent, Green Haven

Correctional Facility,

Petitioner,

against

Ernest WELCOME,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Louis J. Lerxow1tTz

Attorney General of the

State of New York

Attorney for Petitioner

Office & P.O. Address

Two World Trade Center

New York, New York 10047

Tel. No. (212) 488-3385

Samvue. A. HmsHow1rTz

First Assistant Attorney General

JosepH W. HENNEBERRY

Assistant Attorney General

of Counsel

TABLE OF CONTENTS

PAGE

ED ck doen cadens ben Gedeesbecsneueeds 1

er ee ae PO Te 2

ERE TE Re ne 2

di oe ah i de Weeeewend oe 2

se casaeneetanens 3

i id et een dens ee’ « 3

ss cea Jesu Ke ratvees 3

BPE ae eS eee eer ae 4

D. Prior State Proceedings ................... 7

i A nn eel ukaeneseeeaees 8

Reasons for Granting the Petition for Certiorari ... 9

A. The Second Cireuit’s interpretation of Cham-

bers conflicts with that of the Fifth Circuit .. i)

B. The Court of Appeals misinterpreted a state

court’s evidentiary ruling to be a matter of

constitutional dimension .................. 13

RB Ne A SS AN a SR es as PUP pe gh eae 15

DL <pctntnsteeededan th kedibndedeneeneceeus la

Appendix B—Opinion United States District Court 14a

TABLE OF CASES

Buchalter v. New York, 319 U S 427 (1943) ........ 13

Chambers v. Mississipi, 410 U S 284 (1973) . .2, 8,9, 10,

11, 12, 13

ii TABLE OF CONTENTS

Lisenba v. California, 314 U S 219 (1941) ........-. 14

Maness v. Wainwright, 512 F 2d 88 (5th Cir.) reh.

en banc granted 519 F 2d 1085 (5th Cir. 1975),

order for rehearing en banc vacated 528 F 2d

1381 (5th Cir. 1976) cert. granted 50 L Ed 2d 176,

cert. dism. 45 USLW 4331 ..........--2-2eee8- 11,12

Milton v. Wainwright, 407 U.S. 371 (1972) .......-- 14

People v. Huntley, 15 N Y 2d 72, 255 NYS 2d 838

CBBEB) cn cccdccccnccccccccncvcceseseseccesens 7

People v. Welcome, 39 A. D. 2d 841, 331 N.Y.S.

29d 995; 46 A. D. 2d 860, 361 NYS 2d 378

(1st Dept.) ; aff'd 37 NY 2d 811, 375 NYS 2d 573 7, 8

Schaefer v. Leone, 443 F 2d 182 (2d Cir.) cert. den.

404 U & S89 (1971) .....ccecccvcccccccccesees 13, 14

United States ex rel Birch v. Fay, 190 F. Supp. 105

(GB.D.N.Y. 1961) ......ccccccccccrccvccccecves 13

United States ex rel Hardy v. McMann, 292 F. Supp

191 (S.D.N.Y. 1968) ........ cee ee cece eee eeeee 13

United States ex rel Holliday v. Adams, 443 F 2d 7

(2d Cir, 1971) 2... cceecccccccccrcrcvcccccers 13

United States ex rel Sadoway v. Fay, 284 F.2d 426

(2d Cir. 1960) ..... cece cece cec crc ceececeees 13

United States ex rel Santiago v. Follette, 298 F Supp

973 (S.D.N.Y. 1969) teeta ener eer eeee eens ese 13

STATUTES

TEE, GOOD pce skndedinesess - cevcconscecss 2

New York Code of Criminal Procedure, § 8a ....... 2,3

New York Code of Criminal Procedure, § 60.35 ....

New York Crim. Proc. Law § 440.10 ............... 7

mewn oe eee ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No.

+.

4

Leon J. Vincent, Superintendent, Green Haven

Correctional Facility,

Petitioner,

against

Ernest WeELcomME,

Respondent.

,%

.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner Leon J. Vincent, Superintendent of Green

Haven Correctional Facility, Stormville, New York, prays

for a writ of certiorari to review a judgment of the United

States Court of Appeals for the Second Circuit, dated

February 2, 1977, which reversed a judgment of the United

States District Court for the Southern District of New

York (WernreLp, D.J.) dated September 2, 1976 and re-

manded the matter to the District Court with instructions

to issue the writ of habeas corpus unless respondent is

granted a new trial within a reasonable period to be fixed

by the district court.

_ Opinions Below

The opinion of the Court of Appeals is reported at 549

F 2d 853 and is reproduced at Appendix “A” (1la-13a). The

2

opinion of the District Court is reported at 418 F Sup. 1088

and is reproduced as Appendix “B” (14a-25a).

Jurisdiction

The jurisdiction of this Court is invoked pursuant to

298 U.S.C. §1254(1). The judgment ci the Court of Ap-

peals was entered on February 2, 1977.

Question Presented

_ 1. Was the respondent deprived of his due process right

to a fair trial when the trial court refused to permit his

counsel to question a witness who respondent had called

to testify regarding that witness’ confession to the same

crimes for which respondent and his two co-defendants

were on trial?

2. Did the Second Circuit execeed its authority as ap-

pellate court when after reviewing the trial minutes, it

questioned the credibility of certain witnesses for the prose-

cution?

3. Does a conflict exist between the Fifth Cireuit and

the Second Circuit in their interpretations of this Court’s

decision in Chambers v. Mississippi, which should be re-

solved by this Court because of its fundamental importance

to the criminal justice system of the states?

State Statute Involved

New York Code of Criminal Procedure

§8-a “In addition to impeachment in the manner now

permitted by law, any party may introduce proof that

a witness has made a prior statement inconsistent with

his testimony, irrespective of the fact that the party

Cee. * ant

Ne ee ee ee errs

NO hn Nw NIE AO

3

has called the witness or made the witness his own,

provided that such prior inconsistent statement was

made in any writing by him subscribed or was made

under oath.’’*

Statement of the Case

A. Introduction

Petitioner is presently confined pursuant to a judgment

of conviction for the crime of murder rendered on March

10, 1970 by the Supreme Court of the State of New York

Bronx County, after trial by jury. Petitioner was convicted

on four counts of the indictment involving the death of two

individuals and was sentenced to concurrent terms of im-

prisonment of twenty-five years to life.

B. The Crime

The respondent Ernest Welcome, along with co-defend-

ants Winston Holmes and Charles Gale, was indicted for

the murders of Hyman and Seymour Katz. The indictment

charged the respondent with common-law murder and

felony murder “while engaged in the commission of the

crime of robbery”.

On November 2, 1967 at approximately 3:45 p.m., three

men entered the Katz Brothers Real Estate Office at 308

E. 149th Street in the Bronx. They inquired about a listing

describing an apartment. Within minutes shots were fired

and both Seymour and his brother Hyman Katz were dead.

Several employees of the Katz brothers were present and

had ample opportunity to observe the gunmen. During the

course of the investigation these men were identified

through lineups and photo-identifications as the respond-

ent and his two codefendants.

_* Section 8-a has been superseded b

Criminal P on aoe pe y § 60.35 of the New York

C. The Trial

Two witnesses identified the respondent at trial. The

first witness, Janet Laccorn, was an employee of the Katz

brothers. On November 2, 1967 she went to the reception

window in the office in response to a buzzer. She saw a

black male wearing a hat and glasses. Hyman Katz joined

Ms. Laccorn and told her he would handle the matter. She

returned to her desk.

A second buzzer rang and as Ms. Laccorn looked

through the reception window she saw a man leaning

against the door and a third man whose face she could not

observe. At trial, she positively identified the man leaning

against the door as Ernest Welcome. He was wearing a

greyish herringbone or tweed coat. Again, Hyman Katz

told her he would take care of the matter and she returned

to her desk.

A short time later, Hyman Katz was heard yelling to

his brother Seymour for help. Ms. Laccorn observed de-

fendant Gale on the way into the office proper. He had a

gun in his hand and was wearing a dark hat, dark jacket

and glasses with dark rims. She observed Gale and Hyman

Katz struggle. Next, before hiding under a desk, she saw

a second man with a gun enter the office proper. While

under the desk she heard four or five shots and screaming.

After coming out from under the desk, she saw Seymour

Katz bleeding as he lay on the floor and Hyman Katz

staggering off to another office.

Ms. Laccorn had identified both Gale and Welcome in

separate lineups. The lineup with respondent was con-

ducted in November or December, 1967. At a pre-trial

identification hearing, the Court determined that the lineup

at which Ms. Laccorn identified respondent was conducted

fairly and in no way tainted the in-court identification.

She had testified that she observed respondent for approxi-

mately thirty seconds and described him as a black male

of average height wearing a herringbone or checkered coat.

Be, cer 2 2 Os

5

Four other employees who were present testified at

trial. Of these four, two identified defendant Holmes and

three identified defendant Gale. Both these defendants

were observed carrying guns.

The second witness to identify the respondent, Delores

Marcell, was employed by a firm located on the floor below

the Katz Brothers’ office. Ms. Marcell heard screaming

coming from the Katz Brothers’ office. She left her office

and walked into three men. One of these men she identi-

fied as the respondent. She recalled that he was wearing

a dark coat and hat. Ms. Marcell had identified respondent

in a lineup held on December 12, 1967. At the pre-trial

hearing, Ms. Mareell’s identification was determined to be

based on observations of the respondent other than those

at the lineup so that an in-court identification would be ad-

missible.

The last witness against the respondent was Vincent

Turner who stated that he knew the respondent and that

on November 19, or 20, 1967 he saw Ernest Welcome in a

pool room on Eighth Avenue and 131st Street. Welcome

told Turner about “that thing in the Bronx”, “them two

studs I burnt”. Turner asked respondent if he was re-

ferring to the “real estate thing” and respondent said

“yeah”. Turner also told the jury that he was awaiting

sentence on five armed robbery charges.*

Respondent Welcome presented three alibi witnesses.

He also called one Albert Cunningham, a man initially

indicted for the Katz brothers murders. This indictment

had subsequently been dismissed.

* Respondent Welcome had argued to the District Court and

the Court of Appeals that he was entitled to the writ of habeas

corpus because Turner had subsequently recanted his trial testi-

mony. It was conceded, however, that if Turner did commit

perjury, the prosecution did not have knowledge that the testi-

mony was perjured. Rather, this perjury was supposedly at the

urging of one of respondent’s eodefendants. The District Court

dismissed this argument and the Court of Appeals did not find it

necessary to reach it.

6

Cunningham was apparently called as a defense witness

with the hope of eliciting from him the fact that he had

confessed to the crimes. On direct examination, Cunning-

ham stated that he had been indicted and charged with the

Katz murders and that he had had conversations with

detectives and an assistant district attorney.* Respond-

ent’s counsel attempted to ask Cunningham what he had

told these people but the assistant district attorney ob-

jected and the trial court sustained the objection, The

Court instructed counsel to inquire only as to the witness’

status as a participant or eyewitness to the crime. The

judge went on to say that if it appeared that Cunningham

was a hostile witness, that is, implicated Welcome or his

codefendants, then cross-examination of Cunningham woul:

be permitted as to prior inconsistent statements to the

assistant district attorney or others even though these

statements were not in writing.

Direct testimony of Cunningham continued and the wit-

ness stated that he drove to the Bronx with Branch and

Green and that they were armed. He testified that they

robbed the real estate office but that he did not know if a

shooting occurred.

On cross-examination by the assistant district attorney,

Cunningham retracted this testimony. He volunteered,

not in response to the district attorney’s questions, that he

thought Welcome’s counsel’s questions referred to his

confession. Cunningham then denied any participation in

the robbery or knowing anything about the crimes.

On redirect, defense counsel argued that the statement

concerning the “confession” opened the door, and he again

* Cunningham’s statement to the assistant district attorney had

been reduced to writing but was neither signed nor sworn to. The

essence of the statement is that in November 1967, Cunningham,

one “Branch”, Thomas Green, and another were armed and drove

to a business building in the Bronx. Cunningham waited out-

side while the others went upstairs. Cunningham heard a shot

and ran away.

ee ee ST

eee

7

sought to question Cunningham concerning the prior state-

ments to show that they were inconsistent with answers

given on cross-examination. The trial court would not

permit this since Cunningham’s testimony had not in-

culpated the respondent and the oral statements concerned

were inadmissible hearsay.

Cunningham had been indicted and brought to trial for

the Katz brothers’ murders before respondent’s trial.

Prior to Cunningham’s first trial, which ended in a mis-

trial, a Huntley hearing concerning the voluntariness of

his statements was held. (People v. Huntley, 15 N Y 2d

72, 255 NYS 2d 838 [1965]). The statements were ruled

to be admissible. During the course of Cunningham’s

testimony at respondent’s trial, the Bronx District At-

torney appeared in court to explain why the indictment

against Cunningham had been subsequently dismissed.

Police investigation revealed that Branch and Green, the

two participants in the murder named by Cunningham in

his statement, could not have participated in the crime

since one was out of state and the other was in jail at the

time. Cunningham also was given a polygraph test which

indicated his innocence. It also appeared that Cunningham

was a narcotics addict undergoing withdrawal at the time

and would have admitted to anything. These were com-

pelling reasons for dismissing the indictment against

Cunningham.

D. Prior State Proceedings

Respondents conviction was affirmed without opinion by

the Appellate Division, First Department. 39 A. D. 2d

841, 331 N.Y.S. 2d 995 (1972). Leave to appeal to the

New York Court of Appeals had been denied by one judge

of that Court but subsequently granted by another judge.

Respondent had also filed a motion for a new trial pur-

suant to the N.Y. Crim. Proce. Law § 440.10 on the basis of

witness Turner’s recantation. This motion was denied by

8

the Supreme Court and the denial affirmed by the Appel-

late Division, First Department, with one justice dissent-

ing. 46 A. D. 2d 860, 361 N.Y.S. 2d 378 (1974). Respond-

ent appealed to the Court of Appeals.

The Court of Appeals consolidated both appeals, dis-

missed the direct appeal and affirmed the denial of the

motion for new trial. 37 N Y 2d 811, 375 N.Y.S. 2d 573

(1975).

E. Federal Proceedings

Petitioner’s habeas corpus application to the United

States District Court for the Southern District of New

York was denied on September 2, 1976. Respondent had

argued that he was denied his due process right to a fair

trial by the limitation of his cross-examination of Cunning-

ham and by the perjury of Turner. As to the perjury

claim, respondent conceded that the prosecution was with-

out knowledge of the perjury when it was used. Judge

Weinfeld held that respondent had to make a showing in

this respect of prosecutorial misconduct, whether by design

or negligence. This respondent failed to do (22a-25a).

As to the Cunningham argument, the respondent claimed

that this Court’s decision in Chambers vy. Mississippi, 410

U.S. 284 (1973), dictated a finding of denial of due process.

Judge Weinfeld, a most distinguished District Judge, held

that the rejected evidence considered in Chambers bore

persuasive assurances of trustworthiness. In the instant

matter, he found that the indicia that Cunningham’s con-

fession was unreliable far more compelling. The state

trial court’s refusal to allow examination of Cunningham’s

alleged complicity in the murders did not impair respond-

ent’s defense to the extent of denying him a fair trial (19a-

22a).

On February 2, 1977, the Court of Appeals reversed and

remanded the matter to the District Court with instructions

to grant the writ of habeas corpus unless respondent is re-

9

tried within a reasonable time to be set by the District

Court (la-13a). The decision for the Court of Appeals by

Judge Oakes did not find it necessary to reach the perjury

issue but reversed on the limitation of examination of

Cunningham as violative of respondent’s due process right

to a fair trial. Judge Oakes lost sight of the fact that he

was not a supervisor. His decision singularly casts doubt

upon the credibility of Ms. Laccorn and Ms. Marcell, a

most surprising statement not only because of the factual

strength of their testimony, but also because it was not the

Court’s function. That Court apparently found it relevent

that Ms. Laccorn’s identification at the lineup was not until

some five weeks after the incident (6a). It also found

relevant the fact that Ms. Marcell when asked at trial to

identify respondent, at first pointed to a codefendant then

stated she had made a mistake. Ms. Marcell also had been

unable to identify a photograph of the respondent prior

to the lineup. The Court also noted the contradiction be-

tween these two witnesses as to the description of the coat

respondent was wearing on the day of the crime (6a).

Centering on the Cunningham issue, Judge Oakes

recognized that the question for the Court to decide was

whether the limitation of the desired cross-examination

was erroneous only in the sense that it deprived respond-

ent of a fundamentally fair trial (8a). Judge Oakes held

that since Chambers was limited to the ‘‘facts and circum-

stances” of that case, it was not directly controlling here.

Also, it was not decided in Chambers whether a significant

restriction on a defendant’s examination of a witness who

has confessed to the crime is alone enough to deny the

defendant a fair trial (9a). Judge Oakes stated that this

Court indicated such a restriction was error (9a).

The Court of Appeals expressed considerable doubt as

to the relative unreliability of Cunningham’s confession and

held that restricting examination of such a witness with

respect to his prior confession was enough by itself to deny

the defendant a fair trial where the confession, though re-

10

tracted, has some semblance of reliability, a test more than

met by Cunninghant’s statement. This is the height of

absurdity.*

Reasons for Granting the Petition for Certiorari

A. The Second Circuit’s interpretation of Chambers con-

flicts with that of the Fifth Circuit.

Chambers v. Mississippi, supra, held that a state trial

court’s rigid application of its voucher and hearsay evi-

dentiary rules had resulted in denial of due process. This

holding was limited to the “facts and circumstances of this

case” (410 U.S. at 303), and we find nothing by this Court

which permits expansion of Chambers to the murder con-

viction in this case. Chambers was convicted of killing a

policeman in a barroom brawl. After Chambers’ arrest,

one MacDonald gave a written, sworn confession to the

police. Chambers called MacDonald as his witness and

introduced the confession into evidence. One cross-

examination by the state MacDonald repudiated the con-

fession. The trial court held that MacDonald could not

be examined on +he repudiation by Chambers’ attorney

because of the state’s voucher rule. Chambers also offered

three witnesses who would have testified that MacDonald,

had made oral confessions to them. These witnesses were

not permitted to testify since their testimony would be

hearsay and there was no exception in that state for ad-

missions against penal interest.

It should be noted that in Chambers, there was little

hard evidence that the defendant had shot the policeman.

The hearsay statements excluded at trial “provided con-

* It should be noted that even if respondent’s counsel had been

permitted to treat Cunningham as an adverse witness and examine

him on prior inconsistant statements, the only effect this examina-

tion would have would be on the credibility of Cunningham not on

the issue of respondent’s guilt or innocence.

inn

11

siderable assurance of their reliability.” Chambers, supra

at 300. The cumulative effect of the trial court’s rulings

made Chambers defense “far less persuasive”. The ex-

cluded evidence strongly pointed the finger of guilt at

MacDonald while the evidence against Chambers was

minimal, There was independent corroboration of Mac-

Donald’s admission. The Chambers Court emphasized

(supra at 302) that the holding was in no way diminishing

the traditional respect accorded to the States in establish-

ing and implementing their own criminal trial rules and

procedures, an attitude wholly missing in the opinion of

Judge Oakes.

In Maness v. Wainwright, 512 F.2d 88 (1975), the Court

of Appeals for the Fifth Cireuit considered the question of

whether or not a state defendant was denied due process

solely by the state trial court’s application of the voucher

rule in preventing cross-examination of a witness called by

him and excluding evidence impeaching that witness.

Maness was convicted of manslaughter in the death of

his infant daughter. At trial, he called his wife as his wit-

ness and sought to treat her like an adverse witness and to

impeach her. The trial court held that she was not an ad-

verse witness and that petitioner could not impeach her.

Maness sought to introduce exculpatory letters written by

his wife in which she allegedly stated that she knew peti-

tioner did not kill their daughter: Maness also sought to

call as witnesses two relatives to whom his wife made state-

ments that would exculpate Maness and cast doubt on his

wife’s credibility. Petitioner had testified at trial that he

confessed to the crime only to keep his wife from going to

jail and that he did not know how his daughter received

her injuries. He repudiated his confession. The trial court

would not admit the letters nor permit petitioner’s two wit-

nesses to testify.

The Fifth Cireuit found that the state’s application of its

voucher rule worked to Maness’ detriment in that some evi-

12

dence which suggested his innocence was excluded. The

issue then became a question of degree. Whether Maness’

defense was ‘‘less persuasive’ to such a degree that his

right to a fair trial had been violated? The Court decided

that excluded hearsay evidence did not have the same de-

gree of trustworthiness and reliability as the excluded evi-

dence in Chambers. Maness argued that the letters and the

proffered testimony cross-corroborated each other. The

Court rejected this argument and found that the net effect

of the excluded testimony, petitioner’s testimony, his wife’s

testimony and the excluded letters was that neither peti-

tioner nor his wife knew what caused their daughter’s

death. Since there was not positive indicia of reliability,

the Fifth Circuit found that the state court’s application of

the voucher rule did not deprive Maness of a trial in accord-

ance with motions of fundamental fairness (supra at 92).

Although a writ of certiorari to the Fifth Circuit was

originally granted in Maness, this Court subsequently de-

cided the writ had been improvidently granted (45

U.S.L.W. 4331, March 29, 1977).

“It is respectfully submitted to this Court that the deci-

sion of Judge Oakes in the instant matter, holding that

respondent was denied a fair trial solely on the basis of

the restriction of redirect-examination* concerning his wit-

ness’s prior confession, went far beyond what this Court

held or implied in Chambers. The Second Circuit’s test

that the confession must have “some semblance of reliabil-

itv” was incorrect (13a).

Respondent’s defense was not impeded to the same de-

gree as in Maness. Indeed it was not impeded at all. Re-

spondent’s defense was alibi. Since neither the alibi

defense nor whatever Cunningham might have said on

* Although the opinion of the Cireuit Court refers to cross-

examination of Cunningham by respondent’s counsel, the record

shows that the examination referred to was redirect-examination.

ee

13

cross-examination would have shed any light on who killed

the Katz brothers, it cannot be said that the limitation of

the redirect-examination interfered with respondent’s right

to a fair trial. The degree to which respondent’s defense

was “less persuasive’’ does not rise to a due process viola-

tion. The Second Circuit should have applied the standard

of trustworthiness and corroboration stated in Chambers

to the excluded examination. There was no corroboration

of Cunningham’s statements and the record shows there is

doubtful reliability to the confession.

B. The Court of Appeals misinterpreted a state court’s

evidentiary ruling to be a matter of constitutional

dimension.

The trial court’s limitation of redirect-examination of

a witness is a “state court’s evidentiary ruling and not

grounds for federal habeas relief.’’ United States ex rel.

Hardy v. McMann, 292 F. Supp. 191, 192 (S.D.N.Y. 1968).

As in United States ex rel. Sadowy v. Fay, 284 F. 2d 426,

427 (2d Cir. 1960), ‘‘the trial court was merely applying

a rule of evidence in accordance with its interpretation

of New York law. This raises no federal question.” See

also Buchalter v. New York, 319 U.S. 427 (1943); United

States ex rel. Holliday v. Adams, 443 F. 2d 7 (2d Cir.

1971); Schaefer v. Leone, 443 F. 2d 182 (2d Cir.), cert.

den. 404 U.S. 939 (1971); United States ex rel. Santiago v.

Follette, 298 F. Supp. 973 (S.D.N.Y. 1969); and United

States ex rel. Birch v. Fay, 190 F. Supp. 105 (S.D.N.Y.

1961).

The trial court correctly excluded redirect-examination

regarding Cunningham’s written statement since it did

not comply with the statute’s requirement that the state-

ment be signed or sworn to. Exclusion of examination of

other statements Cunningham had made was proper since

Cunningham’s testimony did not inculpate the respondent.

The confession of MacDonald in Chambers was signed

and sworn to. There was inherent reliability in Mac-

14

Donald’s confession as well as corroboration. There was

neither in Cunningham’s statement.

It is submitted that the Second Circuit improperly ques-

tioned the prosecution’s case by its inquiry into the

credibility of Ms. Laccorn and Ms. Marcell as to their

identification of respondent to shore up its disagreement

with Judge Weinfeld and the state court judges. The jury

had been faced with the discrepancies in testimony and as

trier of fact resolved these discrepancies. It is a firm

principle lost sight of sometimes that federal habeas courts

review only for violation of federal constitutional standards

and may not retry cases de novo. Milton v. Wainwright,

407 U.S. 371, 377 (1972); Schaefer v. Leone, supra at 182.

The instant matter is not one where there was a ‘‘failure

to observe that fundamental fairness essential to the very

concept of justice.’ Lisenba v. California, 314 U.S. 219,

236 (1941). This Court is under a duty, it appears to us,

to insist that Federal habeas corpus not be used to tamper

with state court convictions simply because of dis-

agreements about evidentiary rulings especially where the

proof of the participation in the crime is so definite as

here.

The Court of Appeals here assumed the role of trial court

and jury to test the credibility of witnesses whose demeanor

could not be judged by them and whose testimony had

already been found believable by the jury, in order to

bolster its conclusion that respondent was denied a fair

trial. This the Court cannot do.

The record in this matter has been reviewed numerous

times by the state appellate courts and by Judge Weinfeld

in the District Court. The conviction should not be re-

versed because a federal Court of Appeals has now read the

record in a different light.

ee TSR VT _____ ARR enn

15

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted and summarily re-

versed or plenary argument directed.

Dated: New York, New York, May 3, 1977.

Respectfully submitted,

Louis J. Lerxowirz

Attorney General of the

State of New York

Attorney for Petitioner

Samue. A, Hirsuowirz

First Assistant Attorney General

JosePH W. HENNEBERRY

Assistant Attorney General

of Counsel

la

APPENDIX A

Opinion.

UNITED STATES COURT OF APPEALS

For tHe Seconp Circurr

No. 519—September Term, 1976.

(Argued December 7, 1976 Decided February 2, 1977.)

Docket No. 76-2126

-

— >

Ernest WELCOME,

Petitioner-Appellant,

v.

Leon J. Vincent,

Superintendent, Greenhaven Correctional Facility,

Respondent- Appellee.

+

_ 4

Kaurman, Chief Judge,

Frienpiy and Oakes, Circuit Judges.

Before:

,*

vv

Appeal from dismissal of petition for writ of habeas

corpus in the United States District Co rt for the Southern

District of New York, Edward Weinfeld, Judge, on ground

that petitioner was not denied a fair trial either by state

trial court’s refusal to allow him to question a witness as

to a past confession to the same crimes or by implicit

inducement to recanting prosecution witness to perjure

himself in hope of receiving a lenient sentence.

Reversed on basis of trial court’s restriction on scope of

defense questioning of witness. Remanded with instruc-

tions to issue the writ of habeas corpus unless the People

2a

Appendix A.

grant appellant a new trial within a reasonable period to

be fixed by the district court.

-

og

Juuia P. Herr, New York, N.Y., for Petitioner-

Appellant.

Josepo W. Henneperry, Assistant Attorney

General (Louis J. Lefkowitz, Attorney

General of the State of New York, of

counsel), for Respondent-Appellee.

a.

a4

Oaxes, Circuit Judge:

This appeal presents the question whether appellant

was deprived of his due process right to a fair trial when

the trial court refused to permit his counsel to question

a defense witness regarding his confession to the same

crimes for which appellant and his two codefendants were

on trial. We answer the question in the affirmative and re-

verse the judgment of the United States District Court for

the Southern District of New York, Edward Weinfeld,

Judge, dismissing appellant’s petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254.

Facts

On March 10, 1970, appellant was convicted in the New

York Supreme Court, Bronx County, on two counts of

murder, for which he was sentenced to concurrent terms

of 25 years to life imprisonment. The convictions were

affirmed without opinion by the Appellate Division. 39

App. Div. 2d 841, 331 N.Y.S.2d 995 (1972) (mem.). Leave

& to appeal to the New York Court of Appeals was originally

denied by that court’s Judge Burke but was later granted

by Chief Judge Breitel.

3a

Appendiz A.

While his application was pending in the Court of Ap-

peals, appellant moved in the Supreme Court, Bronx

County, for a new trial and vacatur of his conviction, pur-

suant to N.Y. Crim. Proc. Law §§ 440.10(1)(g), (h) (Me.

Kinney 1971), on the ground that a prosecution witness

had recanted his trial testimony and admitted perjuring

himself. The motion was denied by the Supreme Court

without an evidentiary hearing, and this denial was af-

firmed without opinion by the Appellate Division, with one

justice dissenting, 46 App. Div. 2d 860, 361 N.Y.S.2d 378

(1974) (mem.). The Court of Appeals, consolidating the

direct appeal and the appeal from the denial of the new

trial motion, dismissed the direct appeal, on the ground

that Chief Judge Breitel had no authority to grant leave

to appeal after it had been denied by Judge Burke, and

affirmed the Appellate Division’s denial! of a new trial.

37 N.Y.2d 811, 338 N.E.2d 828, 375 N.Y.S.2d 573 (1975)

(per curiam). Appellant then commenced the federal

habeas corpus proceedings that have led to this appeal.

The murders for which appellant and two codefendants

were indicted occurred on November 2, 1967, at the office

of Katz Brothers Realty in the Bronx. Three armed men

entered the office and shortly thereafter shot and killed the

two Katz brothers. Prior to appellant’s indictment for

these crimes, the State indicted one Cunningham, who had

confessed participation in the murders. Cunningham later

repudiated this confession, claiming it was elicited through

police brutality, but New York Supreme Court Justice

Murtagh held, after an evidentiary “Huntley” hearing, see

People v. Huntley, 15 N.Y.2d 72, 204 N.E.2d 179, 255

N.Y.S.2d 838 (1965), that Cunningham’s statements to the

police “were made freely and voluntarily and were in no

wise the product of coercion of any nature whatsoever.”

Accordingly, Cunningham was tried for the Katz murders,

and his statements to the police were admitted against him.

4a

Appendia A.

In those statements Cunningham said that on the after-

oon of November 2 he and three others, one Green, one

Branch and a third fellow that he did not know, went to 308

East 149th Street in the Bronx, the address of the Katz

realty office, and that he went up to the first floor landing,

remaining in the hallway while the other three went into the

office. After several minutes he heard some shots, became

excited, ran down the stairs and out onto East 149th Street,

then ran to Cortlandt Avenue, and then over to 145th Street

and Third Avenue, at which point he hailed a cab and re-

turned to Manhattan.

At Cunningham’s trial, Detective Edward Farreil ex-

plained the circumstances surrounding this confession and

told of other inculpatory statements and actions by Cun-

ningham while in police custody. Farrell testified that, with

the assistance of two other detectives, he went to Cunning-

ham’s apartment in Manhattan on November 9, 1967, took

Cunningham back to the 40th Detective Squad clerical room

in the Bronx, explained to him his Miranda rights, and

heard Cunningham make certain admissions. Farrell testi-

fied that the detectives then took Cunningham in an auto-

mobile to 145th Street, which Cunningham said was famil-

iar to him, and past the 149th Street bridge, which

Cunningham said he and the others had driven across on

the day of the shooting, and that Cunningham pointed out

where they had parked the car at Morris Avenue, told the

detectives, “Hold it,” when they got about 75 feet past the

Katz Brothers office, and said, “Back up, I believe you

passed it, this looks like the place.” He said, according to

Farrell, “I think I was standing up in the middle of the

stairs someplace. I ran in that direction,” indicating Cort-

landt Avenue. He also said, “This looks like the spot. I

almost got hit over there by acar. I was running.” Cun-

ningham was subsequently questioned by an assistant dis-

trict attorney, and then, according to Farrell, he and

5a

Appendia A.

another detective took Cunningham for a second ride, dur-

ing which he essentially confirmed his previous story as to

what he had done and where he had been. Farrell further

testified that Cunningham had said that Branch and Green

had small revolvers and that the third fellow had a shotgun

in a paper bag and was wearing a hat similar to the hat

that was found in the Katz Brothers office as well as

glasses, a pair of which had also been found in the office.

One of the other detectives corroborated Detective Farrell’s

testimony.

Despite this incriminating evidence, the charges against

Cunningham were dropped in the middle of his trial. Sub-

sequently, at appellant Welcome’s trial, the Bronx District

Attorney appeared personally and stated that Cunningham

was an addict suffering from the symptoms of withdrawal

and “would have admitted anything,” that he had been

given a lie detector test which showed he had nothing to

do with the particular case, and that a police investigation

revealed that Branch and Green, the two persons whom

Cunningham named as committing the robbery with him,

could not have done so since one was out of state and the

other was in jail at the time. It was left unexplained how

such an unreliable person could have provided so many

details (date and time of the robbery, exact location of the

Katz office, number of men entering the office) regarding a

robbery with which he supposedly had no connection, in

the absence of police prompting, which was not suggested

by the Bronx District Attorney or by any party to these

proceedings. It was also left unexplained why the District

Attorney’s office originally had enough faith in Cunning-

ham’s confession to indict him, to argue for admission of

the confession at the Huntley hearing, and to bring Cun-

ningham twice to trial (the first trial ended in a mistrial).

Appellant Welcome was then brought to trial with two

codefendants, Gale and Holmes. Janet Lacorn, a Katz

6a

Appendia A.

Brothers employee, identified appellant at trial; her identi-

fication had first occurred in a lineup some five weeks after

the murders. Her testimony was cast in doubt by the fact

that she said she had never seen appellant with a gun in

his hand, although she had testified at the Cunningham

trial that the second man to come into the office (identified

as appellant) had a gun. Dolores Marcell, not an eyewit-

ness to the crime, testified that at the time of the murders

she had bumped into appellant on the street in front of the

building that housed both the office where she worked and

the Katz office. She, too, had identified appellant in a line-

up, but, when asked in court to point to the man she had

bumped into on the street, she first pointed to a codefendant,

not Welcome, then claimed that she had been mistaken.

Moreover, when shown photographs of appellant prior to

the lineup, Mrs. Marcell had not been able to identify him.

The testimony of these two key witnesses was contradictory

on a crucial point: Mrs. Lacorn was quite positive that on

the date of the murder appellant had been wearing a check-

ered coat and no hat; Mrs. Marcell was equally positive

that appellant had been wearing a dark, solid color coat

and a hat.

Other than police officers testifying about their investi-

gation,’ the only prosecution witness besides the two women

was Vincent Turner, an acquaintance of appellant’s. Some

two weeks after the murders, according to Turner’s testi-

mony, appellant mentioned to him in a poolroom that he

had “burnt” two men in the Bronx, “them two studs.” At

the time he testified, Turner, who had four previous convic-

tions, was incarcerated awaiting sentencing on five felony

* The police work in this case was singularly inept: no photo-

graphs were taken of the lineups; lineup forms were lost, so that

no one knew the date of the Lacorn lineup; Detective Farrell's

notebook on the investigation was “misplaced”; and appellant

was permitted to leave the police station after Mrs. Lacorn had

identified him.

7a

Appendiz A.

indictments to which he had pleaded guilty a year earlier.

Some two and one-half years after appellant’s conviction,

Turner recanted his trial testimony in a statement to

appellant’s counsel, a recantation upon which, as noted

above, appellant based his unsuccessful new trial motion in

the state courts.

Appellant presented an alibi defense at trial. His girl-

friend stated that she was with him on the afternoon of

the crime at his mother’s house. Two friends of his mother

testified that they saw him at his mother’s house on the

afternoon in question; one corroborated the girlfriend’s

testimony that appellant was washing the walls of the

house in preparation for a party planned by his mother.

After appellant presented his alibi witnesses, he called

the man previously tried for the crime, Cunningham, who

testified, rather remarkably, that on November 2, 1967, he

had driven to the Bronx with Branch and Green, that the

three of them, with shotguns and pistols, entered the hall-

way at 308 East 149th Street in the Bronx and robbed the

Katz office. The court refused to permit counsel to inquire

on direct examination into any statements made by Cun-

ningham to the detectives or the district attorney. On

cross-examination by the State, Cunningham denied rob-

bing the Katz office, stating that he did not at first under-

stand the questions put to him by appellant’s attorney,

thinking that the attorney was talking about his “confes-

sion,” a term used for the first time in appellant’s trial by

Cunningham himself. On redirect, counsel sought to ques-

tion Cunningham regarding the confession, stating that he

wished to use the prior inconsistent statements to impeach

the witness’s credibility. The court, however, refused to

permit such questioning, on the ground that Cunningham,

having been called by the defense and not having incul-

pated any of the defendants, could not be considered a

hostile witness. At this point, the Bronx District Attorney

8a

Appendia A.

appeared at appellant’s trial and, as noted above, explained

why the charges against Cunningham had been dropped.

He conceded that appellant had continually asserted his

innocence and had requested a polygraph test, but said that

the request had been denied because witnesses had identi-

fied appellant and because the test was “unreliable,” al-

though apparently not unreliable enough to prevent ad-

ministration of it to Cunningham prior to the charges

against him being dropped.

Discussion

Appellant presents two independent grounds upon which,

he argues, his habeas corpus petition should have been

granted. We need not consider the second of these, relat-

ing to Turner’s recantation, because we find that the first,

relating to the refusal of the trial court to permit cross-

examination of Cunningham as to his confession, requires

reversal. Our question, of course, is not whether the refusal

to permit the desired cross-examination was erroneous as

an evidentiary matter, but whether it deprived appellant

of a fundamentally fair trial in violation of the due process

clause of the Fourteenth Amendment. See Buchalter v.

New York, 319 U.S. 427, 431 (1943); United States ex rel.

Sadowy v. Fay, 284 F.2d 426, 427 (2d Cir. 1960) (Swan, J.),

cert. denied, 365 U.S. 850 (1961); United States ex rel.

Corby v. Conboy, 337 F. Supp. 517, 519 (S.D.N.Y. 1971).

In resolving the fair trial issue, our starting point must

be the Supreme Court’s decision in Chambers v. Missis-

sippt, +10 U.S. 284 (1973). The defendant in that case, like

appellant here, sought to examine at trial another person

who had confessed to the crime. In Chambers, that other

person, one McDonald, had made a sworn, out-of-court con-

fession, which the defendant Chambers introduced into ev-

9a

Appendia A.

idence after calling McDonald to the witness stand. Then

McDonald, on examination by the State, said that he had

previously repudiated his confession. Following this ex-

amination, Chambers sought to cross-examine McDonald

as an adverse witness, but the trial court refused to permit

the desired questioning, on the ground that, since McDon-

ald had not inculpated Chambers, he was not technically -

adverse. Chambers then sought to introduce the testimony

of three persons to whom McDonald had admitted the

crime, This testimony was excluded as violative of the

hearsay rule. Jd. at 291-92. The Supreme Court concluded

that the combination of the hearsay exclusion and the re-

striction on Chambers’ examination of McDonald denied

Chambers “a trial in accord with traditional and funda-

mental standards of due process.” Jd. at 302. Its holding

was limited to “the facts and circumstances of this case.”

Td. at 303.

Because of this latter limitation, Chambers is not directly

controlling here. Its value in the instant case is further

diluted by the fact that, by virtue of the hearsay testimony

excluded there, the Supreme Court did not have to decide,

see td. at 298, as we must, whether a significant restriction

on a defendant’s examination of a witness who has con-

fessed to the crime is alone enough to deny the defendant

a fair trial. The Supreme Court did indicate, however, that

such a restriction constituted “error,’’ td., and it further

stated that the criminal defendant’s right of cross-examina-

tion is of vital importance:

The right of cross-examination is more than a desir-

able rule of trial procedure. It is implicit in the con-

stitutional right of confrontation, and helps assure the

“accuracy of the truth-determining process.” Dutton

v. Evans, 400 U.S. 74, 89 (1970); Bruton v. United

States, 391 U.S. 123, 135-137 (1968). It is, indeed, ‘‘an

essential and fundamental requirement for the kind of

10a

Appendiz A.

fair trial which is this country’s constitutional goal.”

Pointer v. Texas, 380 U.S. 400, 405 (1965).

Id. at 295.

The restriction on appellant’s questioning in the instant

case left the jury with Cunningham’s initial admission on

direct that he participated in the crime, followed (on ques-

tioning by the State) by his denial of involvement and his

mention of a “confession” about which the jury was given

no further information. Appellant’s efforts to bring the

confession itself before the jury, either through its intro-

duction or through questioning of Cunningham, were halted

by the trial court. Thus the jury did not receive informa-

tion bearing directly on a key decision that it faced—

whether to believe Cunningham’s initial admission of guilt,

which, if true, would have exonerated appellant. The

prejudice to appellant’s defense is manifest. The situation

here closely resembles that in Chambers, where “all that

remained from McDonald’s own testimony was a single

written confession countered by an arguably acceptable

renunciation. Chambers’ defense was far less persuasive

than it might have been had he been given an opportunity

to subject MeDonald’s statements to cross-examination

. .” Id. at 294.?

The reason given by the state trial court in appellant’s

ease for restricting questioning of Cunningham was the

same as that given by the state courts in Chambers: since

the witness called by the defendant had not incriminated

*It is true that Cunningham in his direct testimony had ad-

mitted his participation in the crime, though he claimed it was a

misunderstanding, while in Chambers McDonald’s confession was

before the jury. But in Chambers the opportunity to cross-

examine McDonald was limited as was the opportunity to examine

(with the use of the confession) Cunningham here. In each case

the defense was prevented from a searching probe on the witness

stand of another who had confessed to the very crime for which

the defendant was on trial.

lla

Appendix A.

the defendant, he could not be considered an adverse

witness subject to impeachment by the party who called

him. Chambers unequivocally rejected this line of reason-

ing as applied in a criminal trial: “The availability of the

right to confront and to cross-examine those who give

damaging testimony against the accused has never been

held to depend on whether the witness was initially put on

the stand by the accused or by the State. We reject the no-

tion that a right of such substance in the criminal process

may be governed by that technicality ....” Jd. at 297-98.

Chambers makes clear that appellant did not give up his

due process right to examine Cunningham thoroughly

merely by calling Cunningham to the witness stand.*

The district judge denied the writ on a ground different

from that relied upon by the state trial court for restricting

the questioning of Cunningham. In his view, Chambers

found a denial of due process because the confession and

related hearsay statements there bore “persuasive indica-

tions” of reliability and “trustworthiness,” whereas in the

instant case there were substantial! “indicia that [Cunning-

ham’s] confession was unreliable.” No. 76 Civ. 1562 (S.D.

N.Y. Sept. 2, 1976), slip op. at 11, 12. We have considerable

doubt about the relative unreliability of Cunningham’s

confession.‘ More importantly, we think that Chambers

* Although the trial court here made its ruling long before

Chambers was decided, there is no question that the trial court’s

decision was erroneous as a matter of federal constitutional law at

the time it was made. Chambers “establish[ed] no new principles

of constitutional law,” but rather was decided “in accord with

traditional and fundamental standards of due process.” 410 U.S.

at 302. See also Gates v. Henderson, No. 76-2065 (2d Cir. Jan. 12,

1977), slip op. 1345, 1349 n.2 (distinguishing, for retroactivity

purposes, between “decisions that clarify or extend” and those that

“overrule or sharply change” existing law).

‘Other than the reasons given by the Bronx District Attorney

for dropping Cunningham’s prosecution (the two alleged cocon-

(footnote continued on following page)

12a

Appendix A.

does not require that the confession be so reliable as to

support a convietion or even to warrant trial of the con-

fessor. The assessment of trustworthiness in Chambers

appeared only in the context of the Supreme Court’s dis-

cussion of the hearsay testimony that the defendant there

sought to introduce, in which three persons would have

testified that they heard McDonald admit commission of

the crimes. See 410 U.S. at 300-02. The Chambers Court

did not consider the issue of trustworthiness at all in rela-

tion to the restricted questioning of McDonald.

Our holding is narrowly confined to rare situations of

this sort, where another person, present on the witness

stand, has previously confessed that he, rather than the

defendant on trial, has perpetrated the crime. We hold

that to restrict examination of such a witness, so that his

(footnote continued from preceding page)

spirators could not have participated; a polygraph test indicated

Cunningham’s innocence; Cunningham was a narcotics addict

undergoing withdrawal and hence unreliable), reasons that left

many questions open, as discussed supra, Judge Weinfeld relied

on the fact that Cunningham’s statement to an assistant district

attorney failed to identify the building where the crime occurred,

the date of the crime, and the fourth person involved in the crime,

and was not against his penal interest, since it did not state

Cunningham was present at the shooting or committed a robbery.

Slip op. at 12-13. But this statement of Cunningham’s was only

one of several made to investigating officials, and appellant and his

eodefendants sought to question Cunningham about all of them.

According to the police detectives, Cunningham twice directed

them to the scene of the crime, he indicated to them that he knew

the date or approximate date on which the crime occurred, and he

knew the number of armed men who had entered the Katz office.

He identified a hat and a pair of glasses, found at the scene of the

crime, as belonging to the unknown fourth robber. Finally,

Cunningham’s statements were plainly against his penal interest—

he admitted helping to plan and to execute an armed robbery that

resulted in two deaths. His statements survived a Huntley hear-

ing and established a case prima facie of felony murder against

him, as is evidenced by the fact that the State twice brought him

to trial for murder.

Sa ee

13a

Appendiz A.

prior confession may not be proven, is to deny the defend-

ant a fair trial, at least when the confession, though re-

tracted, has some semblance of reliability, a test more

than met by Cunningham’s statements here, see note 4

supra, We disavow any attempt to ‘‘constitutionalize” the

law of evidence pertaining to the use of prior statements of

a witness, except to the extent of answering the narrow

question left open in part by the nature of the holding in

Chambers.

Because the restriction on appellant’s questioning of

Cunningham denied him a fundamentally fair trial, we

reverse the judgment of the district court and remand to

that court with instructions to issue the writ of habeas

corpus unless the People grant Welcome a new trial within

a reasonable period to be fixed by the district court.

Reversed and remanded.

l4a

APPENDIX B

Opinion.

UNITED STATES DISTRICT COURT

SouTHerN Disrraict or New York

76 Civil 1562

y%

—

Ernest WELCOME,

Petitioner,

—-against—

Leon J. Vincent, Superintendent,

Green Haven Correctional Facility,

Respondent.

dp.

ww

Juuia P. Herr

142 East 16th Street

New York, New York

Attorney for Petitioner

Hon. Louis J. LerKxowirz

Attorney General of the State of New York

Two World Trade Center

New York, New York

Attorney for Respondent

JosEPH W. HENNEBERRY

Assistant Attorney General

Of Counsel

U.S. Districr Court

FILED

Sep 02 1976

S.D.OFN.Y.

15a

Appendix B.

Epwarp WeE1INnFELD, D.J.

Petitioner, now serving a sentence of twenty-five years

to life imprisonment in Green Haven Correctional Facility

in Stormville, New York, seeks his release on a federal

writ of habeas corpus. He claims he was denied his right

to a fair trial under the Fourteenth Amendment by the re-

fusal of the trial judge to allow him to examine a defense

witness as to a confession previously made by that witness,

and by the alleged perjury of another witness.

Petitioner and two co-defendants were convicted of two

counts of murder on March 10, 1970, after a jury trial in

the Supreme Court of the State of New York. His conviec-

tion was affirmed without opinion by the Appellate Divi-

sion, First Department on May 2, 1972,’ and leave to ap-

peal, although initially denied by Judge Burke of the Court

of Appeals, was granted by Chief Judge Breitel on March

7, 1974.

In the interim petitioner moved, on May 21, 1973, for a

new trial and vacatur of the judgment of conviction,’ based

upon the post-trial recantation of a prosecution witness.

The motion was denied by the Supreme Court without an

evidentiary hearing on November 7, 1973. The Appellate

Division affirmed the denial of petitioner’s motion on

December 5, 1974, with one judge dissenting and granting

permission to appeal to the Court of Appeals.’ The direct

appeal from the judgment of conviction and the appeal

from the denial of petitioner’s motion for a new trial were

consolidated in the Court of Appeals, which dismissed the

direct appeal and affirmed the denial of the motion for a

139 App. Div. 2d 841, 331 N.Y.S.2d 995.

2 See N.Y.C.P.L. §§ 440.10(1) (g) and (h).

°46 App. Div. 2d 860, 361 N.Y.S.2d 378 (1st Dept.).

l6a

Appendix B.

new trial on September 24, 1975.‘ It is not disputed that

petitioner has exhausted his available state remedies.

The crime of which petitioner was convicted was the

murder, on November 2, 1967, of Hyman and Seymour

Katz, during a robbery at their real estate office in the

Bronx by three men.’ Petitioner and his co-defendants

proceeded to trial under an indictment which charged them

and a fourth unnamed person in two counts with common

law murder and in two counts with felony murder. The

case against petitioner was based on the testimony of three

witnesses. Janet Lacecorn, an employee of the Katz

brothers, was present when the robbery and shooting oc-

eurred. She identified one of the robbers, whom she had

observed for about thirty seconds, as petitioner. Dolores

Marcell, who worked in a store on the street floor of the

same building, testified that she came outside when she

heard screaming from the Katz brothers’ office. She

identified petitioner as one of three men she encountered

on the street as they were leaving the building from the

entrance to the Katz brothers’ office. Both witnesses identi-

fied petitioner in line-ups and, although Marcell initially

pointed to one of petitioner’s co-defendants instead of peti-

tioner, in court as well.

Vincent Turner testified that about three weeks after

the robbery he was approached in a pool room by peti-

* 37 N.Y.2d 811, 375 N.Y.S.2d 573, 338 N.E.2d 828. The Court

of Appeals dismissed petitioner’s direct appeal on the ground that

Chief Judge Breitel had no authority to grant leave to appeal

after Judge Burke had denied it, and that therefore the case was

not properly before the court.

* Since there is no dispute as to the essential facts of the case,

no evidentiary hearing need be held. United States ex rel. Rice

v. Vineent, 491 F.2d 1326, 1331 n.3 (2d Cir.), cert. denied, 419

U.S. 880 (1974); United States ex rel. Randazzo v. Follette, 282

F.Supp. 2, 8 (S.D.N.Y. 1968), remanded on other grounds, 444

F.2d 625 (2d Cir.), cert. denied, 404 U.S. 916 anata see

Procunier v. Atchley, 400 U.S. 446, ‘451 (1971).

17a

Appendix B.

tioner, who asked Turner if he had heard what had hap-

pened in the Bronx, and referred to ‘‘[t}hem two studs

that I burnt.” On cross-examination it was brought out

that Turner previously had been convicted four times, and

that he was then in jail awaiting sentence for five rob-

beries, each of which could lead to imprisonment for up

to twenty-five years. Turner testified that although no

promise had been made by the state, he did expect some

consideration in his sentencing as a result of his testimony.

Petitioner’s defense was an alibi, based on the testimony

of his girl friend and two friends of his mother that peti-

tioner was at his mother’s house at the time the crime

occurred, helping prepare for a party the next day. He

also called Albert Cunningham as a defense witness. Dur-

ing the investigation of the murders, Cunningham had

been questioned by an Assistant District Attorney in the

presence of two detectives, and had stated that he par-

ticipated in the robbery with two persons named Branch

and Green and a fourth whom he could not identify. Cun-

ningham told the investigators that while the others went

upstairs in the building he remained on the staircase; that

when he heard a shot he ran from the building and left

the area in a cab; and that he later met Branch who gave

him $200 which he guessed “was for that.” Cunningham’s

oral answers, although reduced to writing, were neither

signed nor sworn to by him. He was indicted for the mur-

ders and brought to trial alone. The confession was ruled

admissible against him after a Huntley hearing.’ How-

ever, a mistrial was declared and the charges were dropped

when the prosecutor decided that the alleged confession

was unreliable and that the wrong man was on trial.

Against that background, Cunningham was called as a

defense witness. On direct examination by petitioner’s

* People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204

N.E.2d 179 (1965).

18a

Appendiz B.

counsel, Cunningham testified that he had been indicted

and charged with the Katz murders and that before his

arrest and indictment he had had conversations with the

Assistant District Attorney and the detectives (T. 1194

95).’ When petitioner’s counsel sought to ask Cunning-

ham what he had said at that time, the court sustained

the prosecutor’s objection. After sidebar discussion the

trial judge indicated that he would permit defense counsel

to interrogate Cunningham as to any part he or anybody

else played in the murders, but not as to what Cunning-

ham told others. The judge further ruled that if it ap-

peared Cunningham was a hostile witness, that is, impli-

cated Welcome or his co-defendants, cross-examination of

Cunningham would be permitted as to his prior inconsistent

statements to the Assistant District Attorney and others,

even though such prior statements were not in writing

(T. 1216-18).

Upon continued direct examination, Cunningham testified

that he drove to the Bronx with Branch and Green and

that they were armed with a shotgun and pistols. He tes-

tified that they robbed the Katz brothers’ real estate office

but that he did not know if during the course of the holdup

a shooting occurred (T. 1223-24). On cross-examination

by the prosecutor, Cunningham retracted his prior testi-

mony, stating that he misunderstood defense counsel and

thought his questions referred to the confession—a term,

incidentally, volunteered by Cunningham.’ He then ecate-

gorically denied committing the robbery, knowing anything

" References are to pages of the trial transcript as printed in

the record of petitioner’s direct appeal to the Appellate Division.

*The prosecutor, during extensive sidebar discussion, em-

phasized that he had never referred to or mentioned the word

“confession,” and the court observed that had the prosecutor

moved to strike Cunningham's volunteered reference to it, he

would have granted the motion (T. 1235).

~r

19a

Appendix B.

about the crimes or even knowing the location of the Katz

brothers’ realty office (T. 1225-28). On redirect, defense

counsel, contending among other matters that Cunningham

“said there was a confession” and therefore “opened the

door” (T. 1229-30), sought to question him about his oral

statements to the Assistant District Attorney and the

detectives, to establish that these were inconsistent with the

answers given on cross-examinaion. The court refused to

allow the inquiry on the ground that Cunningham’s testi-

mony had not inculpated Welcome or his co-defendants

and that his oral statements were inadmissible hearsay.

Petitioner’s first claim is that the trial court’s refusal to

allow him to question Cunningham about the alleged con-

fession deprived him of a fundamentally fair trial in viola-

tion of his right to due process of law. He gives three

reasons why it was error to exclude Cunningham’s state-

ment: (1) because the prosecutor “opened the door” dur-

ing cross-examination of Cunningham by asking a question

which elicited a response referring to the confession; (2)

because once Cunningham retracted the testimony he gave

on direct examination, the defendant was entitled to im-

peach him despite the provisions of section 8-a of the

former Code of Criminal Procedure, permitting the use

of prior inconsistent statements to impeach a party’s own

witness only when such statements were made under oath

or were in writing subscribed by the witness;* and (3)

because the confession was a declaration against Cunning-

ham’s penal interest. Assuming that petitioner is correct

in those contentions, it does not follow that a writ of

habeas corpus must be granted. The question presented on

°“In addition to impeachment in the manner now permitted

by law, any party may introduce proof that a witness has made

a prior statement inconsistent with his testimony, irrespective of

the fact that the party has called the witness or made the witness

his own, provided that such prior inconsistent statement was made

in any writing by him subscribed or was made under oath.” See-

tion 8-a has been superseded by N.Y.C.P.L. § 60.35.

20a

Appendiz B.

this application is not one of the law of evidence but one

of constitutional dimensions, to be tested under the due

process clause of the Fourteenth Amendmeut. Thus, at

issue is not whether it was evidential error to foreclose

petitioner from questioning Cunningham about his out-of-

court statements, but whether that ruling deprived peti-

tioner of his right to a fundamentally fair trial.”

Petitioner claims that Chambers v. Mississippi," dictates

a finding that he was denied due process. In Chambers

the defendant, accused of murdering a police officer, at-

tempted to prove that the crime had been committed by

a man named MacDonald. MacDonald had given a sworn

statement to Chambers’ attorneys stating that he and not

Chambers had killed the policeman, but retracted the con-

fession before Chambers’ trial. At his trial, Chambers

was allowed to introduce testimony from eye-witnesses

linking MacDonald to the shooting, and to have Mac-

Donald’s sworn confession read to the jury. However,

when MacDonald, who was called as a defense witness,

repudiated his confession upon cross-examination, the

court did not allow Chambers’ attorney to cross-examine

MacDonald as a hostile witness. The court further re-

fused, on the grounds of hearsay, to allow Chambers to

present testimony from three witnesses of other out-of-

court confessions by MacDonald. The Supreme Court re-

versed Chambers’ conviction.

Chambers did not establish a per se rule that failure to

permit cross-examination of a witness about prior state-

*° United States ex rel. Holliday v. Adams, 443 F.2d 7, 8 n.1

(2d Cir. 1971); United States ex rel. Sadowy v. Fay, 284 F.2d

426, 427 (2d Cir. 1960), cert. denied, 365 U.S. 850 (1961); United

States ex rel. Corby v. Conroy, 337 F.Supp. 517, 519 (S.D.N.Y.

1971); United States ex rel. Birch vy. Fay, 190 F.Supp. 105, 107

(S.D.N.Y. 1961) ;*see also Chambers v. Mississippi, 410 U.S. 284

302-03 (1973); Dutton v. Evans, 400 U.S. 74, 80-83 (1970).

11 410 U.S. 284 (1973).

21a

Appendix B.

ments which, by inculpating the witness, allegedly ex-

culpate the defendant, invariably denies due process. The

Court held only that upon the particular “facts and cir-

cumstances of this case,” the combined effect of all of the

trial court’s rulings was to deny Chambers “a trial in

accord with traditional and fundamental standards of due

process,” because those rulings made Chambers’ defense

“far less persuasive” than it would have been had his

opportunity to present evidence not been restricted.”

Crucial to the Court’s finding that Chambers was denied

due process were the persuasive indications that the hear-

say statements offered were reliable. The confessions

were volunteered spontaneously to friends within twenty-

four hours of the crime; they were corroborated by eye-

witness testimony, physical evidence and MacDonald’s own

sworn confession; they were clearly and devastatingly

against MacDonald’s penal interest; and MacDonald was

present in court for cross-examination concerning the state-

ments. In sum, the rejected evidence “bore persuasive

assurances of trustworthiness.”™

Petitioner claims that his inability to present Cunning-

ham’s confession to the jury similarly deprived him of a

fair trial. He argues that the reliability of Cunningham’s

confession is shown in several ways. First, as in Chambers,

Cunningham’s statement was against his penal interest.

Second, the state believed in the reliability of the confes-

sion enough to bring Cunningham to trial. Third, the

confession was ruled admissible against Cunningham in

the Huntley hearing.

12410 U.S. at 294, 302-03. See Maness v. Wainwright, 512

F.2d 88, 90-91 (5th Cir.), reh. en banc granted, 519 F.2d 1085

(5th Cir. 1975), order for rehearing en banc vacated, 528 F.2d

1381 (5th Cir. 1976); cf. United States v. Jenkins, 496 F.2d 57,

69-70 (2d Cir. 1974), cert. denied, 420 U.S. 925 (1975).

8410 U.S. at 300-02.

22a

Appendiaz B.

However, the indicia that the confession was unreliable

are far more compelling. Not only was Cunningham’s

unsworn confession uncorroborated by any other evidence,

but a mistrial was declared and the prosecution against

him was dropped for substantial and compelling reasons.

As explained to the trial court by the District Attorney

of Bronx County (T. 1244-46), police investigation re-

vealed that Branch and Green, the two persons whom

Cunningham named as committing the robbery with him,

could not have done so since one was out of state and the

other in jail at the time. Cunningham was given a poly-

graph test which indicated he had nothing to do with the

robbery. In addition, when he made the statement, accord-

ing to the District Attorney, Cunningham was a narcotics

addict undergoing “the pangs of withdrawal” and “would

have admitted anything” (T. 1245-46).

The statement itself was vague and confused. Cunning-

ham did not identify the building where the robbery took

place, except to say that it was a “business type building”

in the Bronx. Nor could he state on what day the robbery

occurred. Shown a hat and a pair of glasses apparently

found by police at the scene of the murders, Cunningham

stated that they belonged to the fourth person, whose name

he did not know. Finally, instead of being clearly against

Cunningham’s penal interest, the alleged confession con-

tains no statement that he was present at or saw the shoot-

ing or that he actually committed a robbery. Unlike the

statement in Chambers, therefore, Cunningham’s state-

ment does not persuasively appear to be trustworthy.

Under these circumstances the court’s refusal to allow

examination of Cunningham as to his alleged complicity

in the homicides did not impair petitioner’s defense to such

an extent as to deny him a fundamentally fair trial.

Petitioner’s second claim rests on the recantation of

Vincent Turner. Over two years after the trial Turner

23a

Appendiz B.

gave an oral statement to petitioner’s attorney, which was

recorded and transcribed, and signed an affidavit. In those

statements Turner said that his testimony relating his con-

versation with petitioner about “them two studs” that peti-

tioner “burnt’’ was perjured, given at the behest of one

of petitioner’s co-defendants who feared that petitioner

would testify against him and hoped that strong evidence

against petitioner would induce him not to do so.

While the fact that Turner has recanted does not estab-

lish that he actually committed perjury at the first trial,

since such recantations are justly regarded with great

suspicion,"* the court will assume that Turner did commit

perjury. However, that fact by itself does not require

that the instant application be granted. Petitioner is en-

titled to a federal writ of habeas corpus voiding the state

court judgment of conviction only upon a showing that the

state contrived to deprive him of his right to a fair trial,

protected under the due process clause. The deprivation

of that right is not established by a mere showing that

petitioner’s conviction may have been the result in part

of perjury by a prosecution witness, unknown to the

prosecutor. It is the deliberate, knowing, or even negli-

gent use of false testimony by the prosecution, or the

suppression of evidence favorable to the defendant, which

so offends the “rudimentary demands of justice” that it

deprives an accused of his right to a fair trial and taints

his conviction.” Accordingly, to establish his claim that

* United States ex rel. Rice v. Vincent, 491 F.2d 1326, 1332

(2d Cir.), cert. denied, 419 U.S. 880 (1974); United States v.

Troche, 213 F.2d 401, 403 (2d Cir. 1954); see also Rhinehart v.

Rhay, 440 F.2d 718, 721-23 (9th Cir.), cert. denied, 404 U.S. 825

(1971).

15 Giglio v. United States, 405 U.S. 150, 153-54 (1972); Brady

v. Maryland, 373 U.S. 83, 86-87 (1963); Napue v. Illinois, 360

U.S. 264, 269 (1959); Mooney v. Holahan, 294 U.S. 103, 112-13

(1935).

24a

Appendix B.

Turner’s alleged perjury deprived him of a fair trial, peti-

tioner must show that prosecutorial misconduct, whether

by design or negligence, was implicated.

Petitioner concedes that the prosecution had no knowl-

edge of Turner’s alleged perjury. However, he claims

Turner was “induced to perjure himself and testify favor-

ably for the Prosecution because of the expectation of

leniency from the People in his own pending robbery

cases,” and that “since it was the bargaining practices of

the People that induced Turner to perjure himself, the

Prosecution, albeit lacking direct knowledge of the perjury,

must still be held accountable.”

This claim is without merit. To accept it would be effec-

tively to foreclose the use of the testimony of informers,

confederates or accomplices who are awaiting sentence or

facing possible criminal charges. From time immemorial

such testimony has been recognized as necessary to secure

** Burks v. Egeler, 512 F.2d 221, 223-26 (6th Cir.), cert.

dented, 423 U.S. 937 (1975); Elliott v. Beto, 474 F.2d 856, 857

(5th Cir.), cert. denied, 411 U.S. 985 (1973); United States ez rel.

Cantanzaro v. Mancusi, 404 F.2d 296, 300 (2d Cir. 1968), cert.

denied, 397 U.S. 942 (1970); Luna v. Beto, 395 F.2d 35, 41 (5th

Cir. 1968), cert. denied, 394 U.S. 966 (1969) (Brown, J., ‘con-

eurring); Johnson v. Bennett, 386 F.2d 677, 679-80 (8th Cir.

1967), vacated on other grounds, 393 U.S. 253 (1968); see also

United States ex rel. Birch v. Fay, 190 F.Supp. 105, 107

(S.D.N.Y. 1961). Under certain circumstances, which may vary

from case to case, however, newly discovered evidence that a

judgment of conviction is based in part upon material perjured

testimony may warrant the granting of a motion for a new trial

even when the prosecution was unaware of the perjury. See

United States v. Rosner, 516 F.2d 269, 272 (2d Cir. 1975), cert.

denied, 44 U.S.L.W. 3756 (U.S. June 30, 1976) (No. 75-492);

United States v. DeSapio, 435 F.2d 272, 286 n.14 (2d Cir. 1970),

cert. denied, 402 U.S. 999, 406 U.S. 933 (1971); United States v.

Marquez, 363 F.Supp. 802, 805-06 (S.D.N.Y. 1973), aff'd without

opinion, 490 F.2d 1383 (2d Cir.), cert. denied, 419 U.S. 826

(1974).

25a

Appendix B.

the enforcement of criminal laws.’ It is one thing to say

that a defendant is entitled to all information relating to

the credibility of a witness and every opportunity to chal-

lenge his reliability." But it is quite another matter to

suggest a virtual blackout of such evidence and to prevent

its use by the prosecution. As long as the defense is

afforded a full and fair opportunity to expose flaws in a

witness’ testimony, the motives he may have to testify

falsely, and the other factors which touch upon his credi-

bility, the requirement of due process of law is met. In

this case, Turner’s motives for fabrication were exposed

to the jury and argued at length by counsel.” Petitioner

has failed to show that knowing use of perjured testimony

which constitutes a denial of due process.

The petition for a writ of habeas corpus is dismissed

upon the merits.

Dated: New York, N.Y.

September 2, 1976

Epwarp WEINFELD

United States District Judge

17 See Hoffa v. United States, 385 U.S. 293, 311 (1966); United

States v. Dennis, 183 F.2d 201, 224 (2d Cir. 1950), aff'd, 341 US.

494 (1951); Handschu v. Special Services Division, 349 F.Supp.

766, 769 (S.D.N.Y. 1972).

18 See Giglio v. United States, 405 U.S. 150 (1972); Brady v.

Maryland, 373 U.S. 83 (1963).

19JIn addition, it should be noted that Turner’s recantation

statement belies the factual basis for petitioner's argument.

Turner stated that he perjured himself, not in the hope of getting

a lighter sentence, but at the request of petitioner's co-defendant.