# Petition — Fogg v. Welcome > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1606%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 432 U.S. 911 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1606%3A1. Public record. Not legal advice.