Petition — Vincent v. Santiago

Supreme Court, U. T

LED

8 ä n 22 1978

{

Supreme Court of the United K RODAK, JR., CLERK

OCTOBER TERM, 1977

No. 77-1341

Leon Vincent, Superintendent of Green Haven

Correctional Facility,

Petitioner,

against

Errarn Sant1aqo,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Lovis J. Lerxowrrz

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. (212) 488-7657

Sanuk. A. HirsHowrrz

First Assistant Attorney General

ARLENE R. SVRRMAN

Assistant Attorney General

Of Counsel

— — —

TABLE OF CONTENTS

B. The Murder of Manuel Perez, Jr., and the

Arrest of eee

C. Events Prior to Trial and the Trial .......

BD ‘Tae Tbe DN ick c carcuteoccccsccccecs

E. The Federal Application

Reasons FoR GRANTING THE WRIT:

A. The Writ Should Be Granted Because The

Mandate Below Undermines The Rule That

An Applicant Attacking A State Court Con-

viction Must Show Fundamental Unfairness

To Prevail In A Federal Habeas Corpus

ö anbsscivnnseérkdarcdcteweayass.

B. The Court Below Misapplied Davis v. Alaska,

415 U.S. 308 (1974), and undermined the

principle of the finality of criminal judgments

CS A abicch be te ede

JJ.

o So wo 88 ˙—

aon oO Ww

i TABLE OF CONTENTS

TABLE OF CASES

Cupp v. Naughton, 414 US 141 (1973) ...........

Davis v. Alaska, 415 US 308 (1974)7yf

Harris v. United States, 371 F.2d 365 (9th Cir.

ß

Henderson v. Kibbe, 431 US 145 (1977) ..........

Lisenba v. California, 314 US 219 (1941) ........

Matter of Bateman, 145 NY 623, 40 N.E. 10 (1895)

United States v. 110 Bars of Silver, 508 F.2d 799

(5th Cir. 1975), cert. den., 423 US 861 (1975) ..

US ex rel. Stanbridge v. Zelker, 514 F.2d 45 (2d

Cir.), cert, den., 423 US 872 (1975) ..........

Wainwright v. Sykes, 433 US 72 (1977) ..........

OrRER AUTHORITIES

Fisch On New York Evidence, 2d Ed. $16 (1977)

11

Leon Vincent, Superintendent of Green Haven

Correctional Facility,

Petitioner,

against

Errain Santiago,

Respondent.

+.

*

PETITION FOR A WRIT OF CERTIORARI TO uE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner prays for a writ of certiorari to review a deci-

sion of the United States Court of Appeals for the Second

Circuit dated December 19, 1977.

Opinions Bel

On November 30, 1976, the United States District Court

for the Southern District of New York granted respond-

ent’s application for a writ of habeas corpus. The opinion

is reported at 423 F. Supp. 103. It appears as Appendix

A. On February 22, 1977, the United States Court

of Appeals for the Second Circuit affirmed the order of the

District Court on the opinion of the District Court. A

2

copy of this order is appended as Appendix B. On June

6, 1977, the Circuit Court granted the petition for rehear-

ing and remanded for a hearing to the District Court. A

copy of the order is appended as Appendix C. On Septem-

ber 12, 1977 the District Court, after a hearing, again

granted the application. The opinion is unreported and

appears as Appendix D. On December 19, 1977 the Court

of Appeals affirmed the order of the District Court on the

opinions of the District Court. The order is appended as

Appendix E“.

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28 USC

§ 1254(1).

Questions Presented

1. Did the Circuit Court err in reversing a state murder

conviction on the basis of an allegedly erroneous eviden-

tiary ruling during cross-examination of a prosecution wit-

ness where the Court did not evaluate the ruling in the

context of the entire proceeding as required by fundamen-

tal principles of habeas corpus review?

2. Is a state criminal proceeding fundamentally unfair

because a trial court makes evidentiary rulings based on

the trial strategy developed in the trial court and not on a

strategy developed in the appellate court for the first time?

»On January 27, 1978, the Cireuit Court denied petitioner's

petition for reargument. On Feb. 21, 1978, the Cireuit Court

granted petitioner’s application for a stay of the mandate in

accordance with F.R.A.P. 41 (b).

Statement of the Case

A. Introduction

Respondent is serving a state prison term for murder.

The sole claim raised by respondent in his habeas corpus

application was that the trial court’s refusal to permit

questions on cross examination of a prosecution witness,

Mildred Crespo, about her brother’s questioning by the

police with reference to the homicide to show her interest

in the case deprived him of his right of confrontation at

trial.

It is petitioner’s contention that this was not the pur-

pose of the questions put to Mildred Crespo about her

bother, Pee Wee Crespo, and that, in any event, on the

record as a whole, the proceedings against respondent

complied with due process.

B. The Murder of Manuel Perez, Jr.

and the Arrest of Respondent

On December 16, 1971, just before midnight, Manuel

Perez, Jr. was murdered in the hallway, just outside the

third floor apartment, at 327 Melrose Avenue, Bronx, New

York. The entire crime was witnessed first hand by Isabel

Alvarez through the peephole of her apartment door. Mrs.

Alvarez saw the man grab another by the collar while hold-

ing a knife in his right hand. She heard the victim plead

for his life, state that he had only three dollars and saw the

assailant plunge the knife into the man’s left chest area and

throw him on the stairs. (T. 485-489, 503-509, 516-517, 529,

531-532, 607).°

41 Nn

transeript; num preccded er to hearing i

the Distriet Court. 1

4

After witnessing the stabbing, Mrs. Alvarez ran to her

window, shouted to her upstairs neighbors and alerted

them to the occurrence in the hallway. (T. 510)

Upon hearing her screams, Myrna Crespo, a twenty-three

year old college student, went out to the hallway. She saw

the aggressor hold his victim against the wall and then

throw him on the staircase. She heard the victim plead

for mercy as the assailant said, Shut up . . . I am going

to kill you.” (T. 618-624, 630)

Mildred Crespo existed from the apartment as her sister

was returning. Mildred leaned over the railing and ob-

served a man lying on the stairs as another man, holding a

knife, went through his pockets. (T. 706-707A)

When Mrs. Alvarez returned to the peephole, the assail-

ant and his victim were no longer in view. Looking out of

her window, Mrs. Alvarez saw the assailant walk out of

the building and turn the corner. (T. 514-515)

Sometime after the police arrived and the body had been

removed from the building, Mrs. Alvarez went upstairs to

the Crespo apartment. At approximately 1:00 A.M., De-

cember 17, 1971, Detective Hughes, who was in charge of

the investigation, and other police officers arrived, and Mrs.

Alvarez gave them a description of the assailant. She also

told the officers that she had seen the assailant earlier that

same day. Both Mildred and Myrna Crespo were in the

apartment when Mrs. Alvarez spoke and described the at-

tacker to the police (T. 487, 542-552, 594, 598)

Detective Hughes also spoke to Myrna and Mildred

Crespo. Mildred gave him a description of the assailant

either that night or later that morning, after 8:00 A. M.,

when he returned to the scene. (He also spoke to Isabel

Alvarez that day and learned that the assailant’s name was

Frankie. She had described the assailant to her common

law husband, Benjamin Perez, later in the morning, after

the homicide. He recognized the man as a Frankie who he

knew from the neighborhood. (T. 763-776, H. 35-36)

The following morning, December 18, 1971, Saturday,

Detective Hughes again returned to Melrose Avenue. He

spoke to Pee Wee Crespo, the brother of Myrna and Mil-

dred and Benjamin Perez either at Melrose Avenue or the

police station. He was aware that Perez knew Frankie at

this time. He asked their help in locating Frankie

(H. 13-16)

That night, at approximately 11:00 P.M., the Crespo sis-

ters saw the assailant in front of their building. They told

their brother. He contacted the police and Efrain

(“Frankie’’) Santiago, the respondent, was arrested for

murder. (T. 665-678, 732-726, 761-762)

C. Events Prior to Trial and the Trial

Respondent was represented by Howard Getz, Esq.

Prior to trial, on February 15, 1973, Mr. Getz went to the

Crespo apartment with his secretary, Carmen Simeonides.

He saw Pee Wee, Myrna and Mildred Crespo. He had

been informed prior to this visit, possibly by Isabel

Alvarez, that Pee Wee Crespo had either been arrested,

taken into custody or asked questions about the homicide.

He asked Pee Wee if he had been arrested. He said ‘‘No’’,

but he told Mr. Getz that he was requested to come to the

police station and was asked questions about the homicide

(H. 90-91).

The trial began on February 26, 1973.“ Isabel Alvarez,

Myrna Crespo, Mildred Crespo and Detective Hughes

testified, among others, at respondent’s trial.

Isabel Alvarez was the main witness for the People. She

identified the respondent as the assailant. She had seen

him through the peephole and recognized him as the assail-

ant from seeing him on two other occasions in front of her

* Pretrial hearings began on February 13, 1973.

building. Mr. Getz cross-examined her at length in an ef-

fort to show that she had insufficient opportunity and light-

ing through the peephole to identify the respondent as the

assailant. He did not ask her any questions about Pee

Wee Crespo.

Myrna Crespo also identified the respondent. Mr. Getz

cross-examined her and tried to show that her identifi-

cation of the respondent was based on an insufficient op-

portunity to observe the assailant in the hallway. He did

not ask her any questions about Pee Wee Crespo.

Mildred Crespo was the next witness to testify. She

also identified the respondent. Mr. Getz also attempted to

test her ability to see the assailant after the stabbing and

identify the respondent as that man. He then went on to

ask her the following questions:

„. You have a brother by the name of Pee Wee?

A. Yes.

Q. And did you learn between the time of the night

of the incident and the time you spoke with Detective

Hughes for the first time that Pee Wee had been

arrested for this homicide?

Mr. Gilleece: Oh, I object to this question. I

asked her if she learned it. If she didn’t learn it,

she could say no.

The Court: Did you ever hear that?

The Witness: That he was arrested? No.

Q. Did you learn he was taken to the station house

about this incident?

Mr. Gillece: Hold on. I object to this now.

The Court: Sustained.

Mr. Getz: That’s a term of legal art, Judge.

The Court: No it’s sustained.

Mr. Getz: If the Court please, it’s a term of

legal art.

7

Q. Did your brother ever tell you that he had been

taken to the station house to be questioned with ref-

erence to this homicide?

Mr. Gilleece: Objection.

The Court: Sustained.

Mr. Getz: No further questions.

(T 730-732).”

Detective Hughes was the final witness for the people.

Getz cross-examined him about the various descriptions

he had received of the assailant. He did not ask him any

questions about Pee Wee Crespo.

The jury found the respondent guilty of murder and

possession of a weapon as a misdemeanor. He was sen-

tenced to an indeterminate term of imprisonment for life

with a minimum period of imprisonment of eighteen years

on the murder count and for a one year concurrent sentence

on the possession count.

D. The State Appeal

On appeal, respondent was represented by a new at-

torney, Barry Basis, Esq. So far as the record shows,

Mr. Basis never spoke to or interviewed Mr. Getz or any

of the trial witnesses prior to preparing the brief on

appeal. On the basis of the trial record, respondent ar-

gued in the New York Supreme Court, Appellate Division,

First Department, inter alia, that the trial court’s refusal

to allow defense counsel to attempt to show through cross-

examination of Mildred Crespo that her brother’s arrest

for the murder provided both the witness and her sister,

Myrna, with a motive to falsify their testimony had denied

him his right of confrontation. On June 3, 1975, the Ap-

8

pelate Division affirmed the murder conviction, reversing

the possession conviction. Leave to appeal to the New

York Court of Appeals was denied on May 19, 1975.

E. The Federal Application

In its first opinion, the District Court held that the trial

court’s failure to allow further inquiry on the subject of

Mildred Crespo’s bias stemming from her knowledge Gf

her brother’s arrest deprived respondent of his right of

confrontation. The Court stated there was a good faith

basis for the cross-examination and that the trial court

should have been aware of the basis for the questions merely

because Isabel Alvarez had testified at a pretrial Wade

hearing, ten days earlier, that a Pete or Gustav Crespo,

had been taken to the station house although it was of no

relevance to the identification issue before the trial court

at that time.

Although Mildred Crespo was the third witness to iden-

tify the defendant, the Distriet Court went on to conclude

that her testimony was a ‘‘crucial link’’ in the conviction

of Efrain Santiago and that knowledge of her brother’s

arrest for the offense could have seriously undercut her

credibility as a government witness. The Court ordered

that respondent be discharged from custody unless the

State of New York accord him a new trial within 60 days

of the issuance of the District Court mandate.

On February 22, 1977, the Circuit Court affirmed the

District Court judgment on the opinion of the District

Judge. Petitioner moved for reargument claiming, inter

alia, that the trial record was insufficient to establish any

prejudice to respondent because he was not permitted to

cross-examine Mildred Crespo further. On June 6, 1977,

the Circuit Court granted the petition for rehearing, with-

drew the order affirming the judgment without prejudice

and remanded the case to the District Court for a hearing.

Detective Hughes, Mildred Crespo, Myrna Crespo, Isabel

Alvarez and Benjamin Perez, testified at the hearing.

Detective Hughes stated Pee Wee Crespo was never a

suspect. Mildred and Myrna Crespo testified they were

never told nor did they believe their brother was a suspect.

The District Court, after the hearing, again granted the

writ. The Court characterized the key question requiring

the Court to reopen the application as whether, in fact,

there was any good faith basis for inquiring into Mildred

Crespo’s possible bias or motive to falsify her testimony

because of her thinking that her brother had been arrested

or was a suspect in the investigation of the murder in

question. The District Court did not find that this was,

in fact, the reason for the inquiry. The Court, finding

that there was a good faith basis for the cross-examination

of Mildred Crespo ordered the issuance of a writ of habeas

corpus.

REASONS FOR GRANTING THE WRIT

A. The Writ Should Be Granted Because The Mandate

tacking A State Court Conviction Must Show Funda-

mental Unfairness To Prevail In A Federal Habeas

Corpus Proceeding.

Respondent, a state prisoner, sought to overturn his con-

viction on the claim that he was denied his right of con-

frontation during his state court trial by a ruling of the

trial court which sustained an objection to a question asked

of a prosecution witness. For this purpose, he mounted

a collateral attack on his judgment of conviction by means

of a federal habeas corpus petition in the District Court.

In that application, respondent bore the burden of demon-

strating error of such dimension that the fundamental

fairness of the entire state court proceeding was infected

by the trial court’s ruling. Lisenba v. California, 314 U.S.

219 (1941).

The court below, although citing cases that reflect the

appropriate standard, e. g., Cupp v. Naughton, 414 US 141

10

(1973), and US e rel. Stanbridge v. Zelker, 514 F.2d 45

(2d Cir.), cert. den., 423 US 872 (1975), actually looked at

the few questions put to Mildred Crespo near the conclu-

sion of respondent’s tiial in isolation and failed to review

the entire trial record for error of the requisite magnitude

for habeas corpus relief. The District Court stated:

“The fact that other witnesses were not questioned

as to their knowledge of Pete Crespo’s arrest does

not eliminate the constitutional violation of cutting-

off of cross examination of Mildred Crespo.” (A. 9-10)

It appears further that the Court below was substitut-

ing itself for the trial judge whose rulings even on 2

direct federal appeal “will not be disturbed absent a

clear showing of an abuse of discretion.” United States

v. 110 Bars of Silver, 508 F.2d 799, 803 (5th Cir. 1975),

cert. den., 423 US 861 (1975).

Of course, this being a collateral attack, even more

is required:

“The strong interest in preserving the finality of

judgments, . . . as well as the interest in orderly trial

procedure must be overcome before collateral relief

can be justified. For a collateral attack may be made

many years after the trial when it may be impossible,

as a practical matter to conduct a retrial.” Henderson

v. Kibbe, 431 U.S. 145, 154 n. 13 (1977).

The yardstick for measuring the challenge to respondent’s

state conviction is whether the state proceeding observed

“that fundamental fairness essential to the very concept of

justice.” Lisenba v. California, supra at 236.

The record below clearly establishes that the proceedings

against respondent were fair and just and that in no sense

was he denied due process of law. Moreover, not even re-

versible error was committed by the trial court.

11

New York law required petitioner’s question to Mildred

Crespo, having been objected to, to be explained:

“A ruling which sustains an objection to the offer

of a seemingly irrelevant or immaterial proposition

cannot be made the ground for appellate review absent

a statement of the purpose of the offer by the pro-

ponent.” Fisch On New York Evidence, 2d Ed. 8 16

(1977).

See Matter of Bateman, 145 N.Y. 623, 40 N.E. 10 (1895).

This is the same rule of law that applies in the federal

courts. Harris v. United States, 371 F.2d 365, 366 (9th

Cir. 1967).

At bar, the questions asked of Mildred Crespo in the con-

text of respondent’s trial were seemingly irrelevant, and

counsel offered no explanation for the inquiries. Indeed,

the record makes clear that the explanation offered for the

questions by respondent on appeal was never even con-

templated by his trial counsel.

Defense counsel had interviewed Pee Wee, Myrna and

Mildred Crespo well in advance of tria!. He had been ap-

prised of Pee Wee’s meeting with Detective Hughes. Re-

spondent was the only suspect in the homicide as trial

counsel knew, having learned it from Pee Wee Crespo him-

self. When his questions to Mildred Crespo were objected

to, he made no claim that they were designed to show bias

or motive to lie on her part.

Trial counsel had obviously made assessments of the

Crespos’ credibility, and he did not believe a jury would

find that these sisters, of unblemished character, were liars.

He rather adopted a course of showing them mistaken in

their identification of respondent as the assailant. In the

context of the case as it developed, it is apparent that the

questions asked of Mildred Crespo were simply designed to

show that the descriptions of the assailant given to Detec-

tive Hughes were so inconclusive that individuals in addi-

12

tion to respondent had been questioned about the homicide.

The questions called for a hearsay response and were ruled

improper.

In short, the failure of the Court below to evaluate the

contested ruling in the context of the entire trial from a

standpoint of fundamental fairness did a disservice to

the basic principles governing the application of the due

process clause and the tenets underlying habeas corpus

jurisdiction and led to an erroneous result. This decision

should be examined because it establishes bad precedent

for review of challenged evidentiary rulings in federal

habeas corpus.

B. The Court Below Misapplied Davis v. Alaska, 415 U.S.

308 (1974) and undermined the principle of the

finality of criminal judgments.

In addition to applying the wrong standard to respond-

ent’s application, the Court in its opinion below errone-

ously extended the principles of Davis v. Alaska, 415 U.S.

308 (1974).

Petitioner, in Davis, was convicted of grand larceny and

burglary. He was arrested on the strength of his identi-

fication by a Richard Green. Green was the prosecution’s

only identification witness at trial. At the time of the trial,

Green was on probation for burglary by order of a juvenile

court. The trial court was informed by defense counsel

that he intended to bring out Green’s probationary status

to show that Green identified the petitioner out of fear of

possible jeopardy to his probation and that he was a biased

and prejudiced witness. The prosecutor opposed this line

of questioning because of statutes in Alaska which limit

the use of juvenile records. The Court sustained the

objection.

Unlike Davis, at bar, the reason for the questions asked

of Mildred Crespo was never explained to the trial judge.

The Court below passes the burden to the trial court of

13

guessing at the meaning of the questions asked of the wit-

ness. This tactic was specifically rejected by this Court

in Wainwright v. Sykes, 433 U.S. 72 (1977). To extend

Davis this way is to open to challenge any conviction

where some ground to sustain the validity of a question

asked of a prosecution witness on cross-examination can

be suggested on appeal notwithstanding that such basis

for the question was not even contemplated by trial

counsel, let alone advanced as a justification for the

question.

This is counter to this Court’s recent expression of con-

cern in Wainwright v. Sykes, supra at 90, that a defend-

ant’s initital trial ‘‘on the merits be the ‘main event’ so

to speak” and that trial the place where constitutional

claims are aired.

„A defendant has been accused of a serious crime

and this is the time and place set for him to be tried

by a jury of his peers and found either guilty or not

guilty by that jury. To the greatest possible extent

all issues which bear on this charge should be deter-

mined in this proceeding: The accused is in the court-

room, the jury is in the box, the judge is on the bench,

and the witnesses, having been subpoenaed and duly

sworn, await their turn to testify. Society’s resources

have been concentrated at that time and place in

order to decide, within the limits of human fallibility,

the question of guilt or innocence of one of its citi-

zens. Any procedural rule which encourages the result

that those proceedings be as free of error as possible

is throughly desirable. (emphasis supplied).

Finally, the Court below has extended Davis to a wit-

ness who at best, may have thought” her brother was a

suspect“ (A20) and whose testimony was cumulative.

* Petitioner believes this finding to be contrary to undisputed

evidence at the habeas corpus hearing. Mildred testified re-

(footnote continued on following page)

14

Isabel Alvarez viewed the entire murder through a

peephole in her door. She immediately recognized the

aggressor as a man she had seen on two prior occasions

in front of her building. Respondent made no attempt

to conceal his identity. He wore no mask. When ar-

rested by the police, he admitted being at the scene at the

time of the murder.

Myrna Crespo also saw respondent and identified him

at trial. Admittedly, no attempt at trial was ever made

to show bias or motive to lie on her part.

Further, neither Mildred nor Myrna had any reason to

believe their brother was a suspect. They had heard Isabel

Alvarez, the main witness to the stabbing, describe some-

one else as the assailant to the police.

The Court below has unwisely extended this Court’s

holding in Davis. The principles of finality of criminal

litigation require that this extension be examined and dis-

approved.

(footnote continued from preceding page)

peatedly at the habeas corpus hearing that she did not believe

her brother to be a suspect. Detective Hughes confirmed that

he was not. Moreover, Mildred had already given a description

of the respondent to Detective Hughes before the detective even

spoke to her brother.

15

CONCLUSION

The Court should grant the petition for writ of

certiorari and summarily reverse the decision below,

or in the alternative, grant plenary consideration to

the instant appeal.

Dated: New York, New York

March 21, 1978

Respectfully submitted,

Lovis J. Lerxkow1Tz

Attorney General of the

State of New York

Attorney for Petitioner

Sauukl. A. HimsHowrrz

First Assistant Attorney General

ARLENE R. SruveRMAN

Assistant Attorney General

Of Counsel

la

APPENDIX A

Opinion.

UNITED STATES DISTRICT COURT

SovurHern District or New York

75 Civ. 3225

Unrrep States or Amenioa, ex rel. Errarn Santiaco,

Petitioner,

—against—

Lzon Vinoent, Superintendent of Green Haven

Correctional Facility,

Respondent.

APPEARANCES

Wut E. HRLLABSTRIN

WILIA J. GALLAGHER

Attorneys for Petitioner

15 Park Row

New York, New York 10038

Barry Bassis, Esq.

Of Counsel

Lovis J. Larxowrrz

Attorney General of the

State of New York

Attorney for Respondent

Two World Trade Center

New York, New York 10047

Ruonvpa AmKravT Bayer, Esq.

Deputy Assistant Attorney General

Of Counsel

2a

Opinion.

GAdLIARDI, D. J.

This is a petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. The petitioner was convicted after a

jury trial in New York Supreme Court, Bronx County of

common law murder and possession of a weapon. On

April 5, 1973, petitioner was sentenced to an indeterminate

term of imprisonment of 18 years to life on the murder

charge to run concurrently with a one year sentence for

the weapon possession charge. The Appellate Division,

First Department, affirmed the murder conviction and the

sentence therefor, but reversed the conviction for posses-

sion of a weapon and vacated the sentence on that charge.

Appellate Division Order, April 3, 1975. Leave to appeal

was denied by a judge of the Court of Appeals (May 19,

1975). The petitioner is now serving his sentence at the

Green Haven Correctional Facility.

The sole issue in this petition is whether the trial court’s

refusal to allow cross-examination of a prosecution witness

on the subject of her interest in the case deprived peti-

tioner of his right of confrontation guaranteed by the

Sixth and Fourteenth Amendments and thus requires the

reversal of his conviction. This issue was fully briefed and

argued before the Appellate Division and in the petition

for leave to appeal to the Court of Appeals. Petitioner

has exhausted his available state remedies. See Picard

v. Connor, 404 U.S. 270, 275, 278 (1971); Chesney v.

Robinson, 403 F. Supp. 306, 308 (D. Conn. 1975), aff’d

on opinion below, 538 F.2d 308 (2d Cir. 1976).

After thoroughly reviewing the record in this case, for

the reasons stated herein, this court finds petitioner’s con-

frontation rights guaranteed by the Sixth and Fourteenth

Amendments were violated when cross-examination was

limited and, accordingly, grants the writ.

On December 17, 1971 at 12:15 A.M. a New York City

Police patrolman, in response to waves from a crowd

Ja

Opini

and to a police radio communication, entered a building

at 827 Melrose Avenue, Bronx County, New York. This

building is the residence of the three key witnesses in

this case. Between the first and second floor landing of

the building the patrolman saw the victim of the crime

in this case, Manuel Perez, Jr., sitting in a slumped posi-

tion. From the stairway the victim was removed to

Morrisania Hospital. According to the testimony of the

Medical Examiner of the City of New York, the victim

had died shortly after he had sustained multiple stab

wounds.

At the trial the prosecution relied heavily upon the tes-

timony of three witnesses. The first of these witnesses,

Isabel Alvarez, the only eyewitness to the murder, looked

out of the peephole in the door of her epartment and

saw the knife penetrate the victim. Myrna Crespo, who

testified after Isabel Alvarez, stated that she responded

to the cries of Isabel Alvarez, came out into the hallway

of her fourth floor apartment and saw the perpetrator

and the victim on the landing below. She stated that the

perpetrator had a knife and was going through the pockets

of the victim, and that she saw the perpetrator’s face for

a short period of time. The next witness, Myrna’s sister

Mildred Crespo, an occupant of the same fourth floor

apartment, testified that she went out of the apartment

as her sister was returning and also saw the perpetrator

and the victim on the landing below. She too stated that

the perpetrator had a knife and was going through the

victim’s pockets. She also testified that she saw the per-

petrator’s face for a few seconds. The only other wit-

nesses at the trial were the policeman who found the body

and the father of the victim who both testified before Isabel

Alvarez and the medical examiner and the police detective

in charge of the investigation of the murder who testified

after Mildred Crespo.

4a

Opinion.

It was at the end of the eross- examination of Mildred

Crespo that the petitioner alleges the Sixth and Fourteenth

Amendment confrontation violation took place. Petitioner

claims that the cutting-off of cross-examination denied him

the opportunity to establish that Mildred Crespo’s knowl-

edge of her brother’s arrest for the very crime for which

the petitioner was on trial gave her a motive to falsify

her testimony. The sustaining of the prosecutor’s objec-

tions in the following exchange [T. 730.32] petitioner al-

leges, was a constitutional violation requiring reversal of

petitioner’s conviction:

The Court: Anything further?

Q. You have a brother by the name of Peewee?

A. [Mildred Crespo] Yes.

Q. And did you learn between the time of the night

of the incident and the time you spoke with Detective

Hughes for the first time that Peewee had been ar-

rested for this homicide?

Mr. Gilleece: Oh, I object to this question.

Mr. Getz: I asked her if she learned it. If she

didn’t learn it, she could say no.

The Court: Did you ever hear that?

The Witness: That he was arrested? No.

Q. Did you learn he was taken to the station house

about this incident?

Mr. Gilleece: Hold on. I object to this now.

The Court: Sustained.

Mr. Getz: That’s a term of legal art, Judge.

T.] refers to the page in the transcript of the criminal pro-

ceeding against Efrain Santiago. Pages 1-58 refer to the Huntley

hearing, pages 59-359 refer to the Wade hearing and pages 360-

929a refer to the trial.

5a

Ovini

The Court: Not [sic] it’s sustained.

Mr. Getz: If the court pleases, it’s a term of legal

art.

The Court: Now, sir, I don’t know where you

learned English, but I learned it here in the United

States, and it requires me to say certain things and

you to understand them. I have said to you five

times today if I have said it once, I don’t want argu-

ment after I have made a ruling.

Mr. Getz: Well, Judge—

The Court: Is that clear enough?

Mr. Getz: Yes, sir.

The Court: Now, don’t reply to it. Put your next

question.

Mr. Getz: Judge, if the other witness—

The Court: Just put your next question.

Mr. Getz: Obviously, if the other witness had a

problem with English, this witness has a problem

with English.

The Court: Would you be seated now.

The Court: Don’t you hear what I say to you or

are you so anxious to talk?

Mr. Getz: I hear you, sir.

The Court: You heard me say to you to put the

next question. Do you have another question to put,

Counselor?

Mr. Getz: Yes.

By Mr. Getz:

Q. Did your brother ever tell you that he had been

taken to the station house to be questioned with refer-

ence. to this homicide?

Mr. Gilleece: Objection.

The Court: Sustained.

6a

Opinion.

Mr. Getz: No further questions.

Mr. Gilleece: I have no further questions.

The Court: Step down.

Federal court review of state criminal proceedings under

28 U.S.C. § 2254 is limited to errors of constitutional mag-

nitude. Cupp v. Naughton, 414 US. 141, 146 (1973);

United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50

(2d Cir.), cert. denied, 423 US. 872 (1975). Furthermore,

in order to grant petitioner’s habeas corpus petition and

reverse his conviction, this court must find that the cutting-

off of cross-examination, even if of constitutional dimen-

sion, was not harmless error beyond a reasonable doubt.

Chapman v. California, 386 U.S. 18 (1967); United States

v. Duhart, 511 F.2d 7, 10 (6th Cir.), cert. denied, 421 U.S.

1006 (1975).

It is well established that the scope and extent of cross-

examination is within the sound discretion of the trial

court. Smith v. Illinois, 390 U.S. 129 (1968); Pointer v.

Texas, 380 U.S. 400 (1965). However, it is equally well

established that the right of cross-examination is a funda-

mental one grounded in the Sixth Amendment right of an

accused to confront the witnesses against him. Davis v.

Alaska, 415 U.S. 308 (1974) ; Chambers v. Mississippi, 410

U.S. 284, 294-95 (1973); Pointer v. Texas, supra. This

fundamental right is made obligatory on the states by the

due process guarantees of the Fourteenth Amendment.

Pointer v. Texas, supra at 403.

When a government witness in a criminal case is being

questioned as to his possible motives for testifying falsely,

wide latitude should be allowed in cross-examination.

United States v. Masino, 275 F.2d 129, 132 (2d Cir. 1960).

Indeed, “[c]ross-examination is the principal means by

which the believability of a witness and the truth of his

testimony are tested. Davis v. Alaska, supra at 316;

7a

Opinion.

United States v. Harris, 501 F.2d 1, 8 (9th Cir. 1974).

Cross-examination is proper when its purpose is to reveal

bias or interest on the part of the witness being examined.

See Greene v. McElroy, 360 U.S. 474, 496 (1959); United

States v. Lester, 248 F. 2d 329, 334-35 (2d Cir. 1957). Thus,

while the trial judge has wide latitude in the control of

cross-examination, ‘‘this principle cannot be expanded to

justify a curtailment which keeps from the jury relevant

and important facts bearing on the trustworthiness of cru-

cial testimony.’’ United States v. Harris, swpra at 8, quot-

ing Gordon v. United States, 344 U.S. 414, 423 (1953).

A careful review of the over 900 page record in this case

establishes that petitioner was denied his Sixth and Four-

teenth Amendment rights to adequate cross-examination

at his trial. In the cross-examination at issue, Mildred

Crespo did answer, over the prosecutor’s objection, that

she did not know her brother had been arrested [T. 730].

However, this single denial was not enough to allow the

court to deny further cross-examination intended to dis-

credit the testimony of a prosecution witness. Throughout

the trial the court recognized that all three key witnesses,

questioned and testifying through an interpreter, had

trouble understanding and answering questions [T. 189, 239,

535, 604]. Additionally, even the prosecutor, at an earlier

point in the proceeding, recognized that the term ‘‘arrest’’

is a legal term subject to misunderstanding.’ The trial

court had to allow further inquiry on the critical subject of

Mildred Crespo’s bias stemming from her knowledge of her

brother’s arrest unless that line of questioning had no rea-

sonable basis in fact. See United States v. James, 510 F.2d

546, 551 (5th Cir. 1975), cert. denied, 423 U.S. 855 (1976) ;

M. Gueece [Prosecutor]: Objecting at this point, because

counsel has been objecting to conclusions—arrest is a conclusion.

It has a constitutional meaning, it has a statutory meaning and

it has a civilian meaning. [T. 41-42]

8a

Opinion.

United States v. Rich, 262 F.2d 415, 418 (2d Cir. 1959)

United States v. Bender, 218 F.2d 869, 874 (7th Cir.), cert.

denied, 349 U.S. 920 (1955).

The good faith basis for the questioning of Mildred

Crespo came from the cross-examination of Isabel Alvarez

at the Wade hearing in the case which took place two weeks

prior to the trial. The trial judge also presided at the

Wade hearing:

Q. And after that, or before that, did Benjamin

Perez [Isabel Alvarez’s common-law husband] tell you

that he had been brought to the 42nd Precinct with

reference to questioning on this particular homicide?

The Interpreter: Can you simplify that?

Mr. Getz: All right.

Q. Before he told you the man’s name was Frankie,

or after he told you the name was Frankie,—

Mr. Getz: Let me finish the question I haven’t

finished the question.

The Interpreter: I know. I’m waiting.

Q. Either before or after, did Benjamin Perez tell

you that he had been taken to the 42nd Precinct with

reference to questioning on this particular homicide?

A. [Isabel Alvarez] I don’t know, I know that after

he was arrested, they came to look for me, It was

after two o’clock in the morning.

Q. After your husband was arrested?

A. After they arrested my husband’s friend.

The Court: Who is your husband’s friend?

The Witness: Pete Crespo, Gustav Crespo [Pee-

wee]. He is brother to the other witness who will

appear here.

Q. He is the brother to the other witness. And did

Benjamin Perez tell you that he was also taken to the

9a

Opini

— house with reference to this particular homi-

cide?

A. They were going to take him to the station house

but then they took this Crespo.

Q. So far as you know your husband was never taken

to the station house?

A. No.

[T. 180-81]

While defense counsel never approached the bench to as-

sert this good faith basis by means of a formal offer of

proof during the trial, the testimony of Isabel Alvarez at

the Wade hearing, supra; the proximity in time of the

Wade hearing to the trial; and the fact that the same judge

presided at both constituted sufficient notice to the trial

judge of the circumstances underlying defense counsel’s

proffered questioning of Mildred Crespo at the trial. This

combination of circumstances provided an effective offer

of proof. Additionally, while the record does not evidence

a clear intent by defense counsel to make an offer of proof

at trial, the abrupt manner in which the trial court cut-off

any attempted explanation by counsel at the trial precluded

the possibility of a formal offer of proof to establish a good

faith basis for the questioning. See United States v. James,

supra. The fact that other witnesses were not questioned

as to their knowledge of Pete Crespo’s arrest“ does not

* Because of the decision herein, the court need not decide

whether the failure of the defense attorney to question other

prosecution witnesses on their bias with respect to this issue con-

stituted a denial of the effective assistance of counsel. See United

States v. Moore, 529 F.2d 355 (D.C. Cir. 1976). For example,

— fact that Isabel Alvarez thought her common-law husband was

ing to be arrested but they arrested his friend Pete Crespo

instead [T. 180-81] gave her a possible motive to falsify her tes-

— However, a failure to explore this motive at trial does

ect the unconstitutionality of the denial of eross- examination

of Mildred Crespo on the issue of her bias in testifying.

10a

Ovini

eliminate the constitutional violation of cutting-off of cross-

examination of Mildred Crespo. As a result, the trial

judge’s actions denied petitioner his Sixth and Four-

teenth Amendment constitutional rights. See Davis v.

Alaska, supra.

The restriction placed upon the right to cross-examine

Mildred Crespo was not harmless error beyond a reason-

able doubt. See United States v. Harris, supra at 9. This

court is not required to find that the trial would have had

a different result had the petitioner been allowed to carry

out his cross-examination. Chesney v. Robinson, supra at

310. As Chief Justice Burger stated for the Court in

Davis v. Alaska, swpra at 317:

We cannot speculate as to whether the jury, as sole

judge of the credibility of a witness, would have ac-

cepted this line of reasoning had counsel been per-

mitted to fully present it. But we do conclude that

the jurors were entitled to have the benefit of the

defense theory before them so that they could make

an informed judgment as to the weight to place on

Green’s testimony which provided “a crucial link in

the proof . . . of petitioner's act.” Douglas v. Ala-

bama, 380 U.S., at 419. (emphasis added).

There can be no doubt that the testimony of Mildred

Crespo was “a crucial link” in the conviction of Efrain

Santiago and that presentation to the jury of her knowl-

edge of her brother’s arrest for the offense for which San-

tiago was being tried could have seriously undercut her

credibility as a government witness.“ While Mildred Crespo

was not an eyewitness to the actual stabbing the court

This does not even take into account how the testimony may

have inferentially affected the jury’s judgment on the credibility

of Myrna Crespo. Myrna Crespo had the same interest as Mildred

in exculpating her brother.

lla

Opinion.

specifically provided a supplemental circumstantial evi-

dence charge so that in the event the jury did not find

Isabel Alvarez’s testimony credible it could still convict

Efrain Santiago for murder [T. 915-22]. The prosecutor’s

summation is an indication of how important Mildred

Crespo’s testimony was for the State. Conceding to the

jury that Isabel Alvarez was uneducated, inarticulate and

may have been a drug dealer [T. 852],° and that Myrna

Crespo had identified photographs of two different sus-

pects as the assailant she saw on the night of the crime

[T. 838], the prosecutor relied on Mildred Crespo “who

counsel [for the defense] could not even touch, no way

to impeach her, no way at all.” [T. 852]. Mildred Crespo

was the only witness who allegedly saw Santiago both be-

fore and after the killing [T. 850]. The prosecutor specifi-

cally emphasized in summation, “You saw Mildred Crespo

here. Did she have a reason to lie?” [T. 847].

Mildred Crespo’s knowledge of the arrest of her brother

could certainly have been a reason for her to lie.“ Mildred

Crespo and her sister did not tell the police detective in

charge of the investigation who came to their apartment

in the early morning, a few hours after the murder, to

interview Isabel Alvarez that they too had seen the assail-

ant. [T. 209, 267, 656, 728]." Only that afternoon, twelve

5In addition it was established earlier in the trial that Isabel

Alvarez had once stabbed a man allegdly in self-defsense [T. 569].

* Whether Pete Crespo was in fact arrested is irrelevant. It is

the subjective knowledge of Mildred Crespo that is relevant in

determining bias or prejudice.

12a

Opinion.

hours later, did they give their stories to the detective

[T. 659, 236]. In the interim, according to the testimony

of Isabel Alvarez at the Wade hearing, Pete Crespo had

been taken to the station house with reference to this

particular homicide [T. 181].

On these facts, defense counsel should have been per-

mitted to expose to the jury, as the sole triers of fact and

credibility, whatever knowledge Mildred Crespo in fact

had about her brother’s arrest so the jury could appropri-

ately draw inferences relating to the reliability of the wit-

ness. Davis v. Alaska, swpra at 318. On the basis of the

trial court’s abrupt cutting-off of cross-examination, “the

jury might well have thought that defense counsel was

engaged in a speculative and baseless line of attack on the

credibility of an apparently blameless witness.“ Id.

It is the conclusion of this court that petitioner, in his

trial, was denied the right to an effective cross-examination

which “ ‘would be constitutional error of the first magni-

tude and no amount of showing of want of prejudice would

cure it.’ Brookhart v. Jonis, 384 US. 1, 3 [1966].’’ Smith

v. Illinois, supra at 131, quoted in Davis v. Alaska, supra

at 318; see Chesney v. Robinson, supra at 311. As a result,

petitioner’s conviction cannot stand. Petitioner is there-

fore presently in custody in violation of the Constitution

of the United States. 28 U.S.C. § 2254.

It is ordered that a writ of habeas corpus should issue

out of this court discharging the petitioner, Efrain San-

tiago, from custody unless the State of New York vacates

The prosecution’s presentation of Mildred Crespo as a “blame-

less witness” was reinforced by the trial court’s charge to the

jury, “As a matter of law here there are no witnesses who can

be said as a matter of law to be interest [sic] witnesses.” [T. 860]

13a

Ovini

the judgment of conviction and accords him a new trial

within 60 days of the issuance of the mandate herein.“

/s/ Lee P. GagiiaRpi

US.D.J.

Dated: New York, New York

November 30, 1976.

14

APPENDIX B

Opini

UNITED STATES COURT OF APPEALS

FOR THE

Seconp Cmcœurr

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the 22nd day of Febru-

ary, one thousand nine hundred and seventy-seven.

Present:

HonoraBie WILFRED FEINBERG

HoNORABLR Murray I. GurFern

HonoraBie THOMAS J. MESKILL

Circuit Judges.

76-2172

4

*

Unrrep States or AMERICA

Errain SANnTIAGo,

Petitioner-Appellee,

—against—

Lzon Vincent, Superintendent of Green Haven

Correctional Facility,

Respondent-Appellant.

A.

*

Appeal from the United States Distriet Court for the

Southern District of New York.

15a

Opinion.

This cause came on to be heard on the transcript of rec-

ord from the United States District Court for the Southern

District of New York, and was argued by counsel.

Own CONSIDERATION WHEREOF, it is now hereby ordered, ad-

judged and decreed that the judgment of said District

Court be it hereby is affirmed on the opinion of Judge Lee

P. Gagliardi dated November 30, 1976.

Wilfred Feinberg

Wirrep FEINBERG

Murray I. Gurfein

Murray I. GurFEIN

Thomas J. Meskill

Tuomas J. MreskILi

Cireuit Judges

16a

APPENDIX C

Opinion.

UNITED STATES COURT OF APPEALS

Szconp Crrcvuir

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the 6th day of

June, one thousand nine hundred and seventy-seven.

Present:

HonoraBLE WILFRED FEINBERG

HonoraBce Murray I. Gurren

HONORABLR THomas J. MESKILL

Circuit Judges.

76-2172

Untrep States or AMERIOA

Erkalx SANTIAGO,

Petitioner-A ppellee,

—against—

Lon VINCENT, Superintendent of Green Haven

Correctional Facility,

Respondent-A ppellant.

*

9

Upon appellant's motion, dated March 24, 1977, for an

extension of time to file a petition for rehearing, and its

petition for rehearing, dated March 24, 1977, and letter

dated April 25, 1977, and upon appellee’s reply affirmation,

dated March 30, 1977, and letter dated May 5, 1977, and

upon the briefs heretofore filed in this appeal and the

17a

Opinion.

court’s orders dated February 22, 1977 and April 14, 1977,

it is ordered that:

1. Appellant’s petition for rehearing is granted;

2. The order dated February 22, 1977, which affirmed

the judgment of the district court, is withdrawn without

prejudice to the appeal;

3. The case is remanded immediately to the district

court on the conditions set forth below;

4. Within ten days from the date of this order, appellant

shall move in the District Court for the Southern District

of New York to reopen the habeas corpus hearing for the

purpose of presenting additional evidence;

5. Within fifteen days thereafter, appellant shall be

prepared to present to the District Court the evidence it

desires to place into the record;

6. In the event that the District Court adheres to its

decision to grant the writ of habeas corpus, appellant shall

file within one week thereafter (a) its notice of appeal to

this court, and (b) a motion in this court to expedite its

appeal. All proceedings in any such appeal shall be re-

ferred to the undersigned panel, if practical.

Wilfred Feinberg

WIRE D FIN RRR

Murray I. Gurfein

Munnax I. Gurren

Thomas J. Meskill

Tuomas J. MxsRII.

Cireuit Judges

18a

APPENDIX D

Opinion.

UNITED STATES DISTRICT COURT

SoutrHerNn District or New York

75 Civ. 3225

eo

—

Tue Unrrep States or AMERICA ex rel.

Ernalx SAN rlado,

Petitioner,

against

Leon Vincent, Superintendent of Green Haven

Correctional Facility,

Respondent.

7%

9

APPEARANCES :

Wa J. Gauttacuer, Esq.

TRR LAL Am Society

Attorney for Petitioner

FreperaL Derenver Services Unit

509 United States Courthouse

New York, New York 10007

Barry Bassis, Esq.

Of Counsel

Lovis J. LxrROwrrz

Attorney General of the

State of New York

Attorney for Respondent

Two World Trade Center

New York, New York 10047

ArteNE R. Sriverman, Esq.

Assistant Attorney General

Of Counsel

19a

Ovini

Gacuiarnt, D. J.

This is a petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. This court rendered a decision on

November 30, 1976 directing the issuance of a writ of

habeas corpus unless the petitioner were retried within

sixty days. United States ex rel. Suntiago v. Vincent,

423 F. Supp. 103 (S.D.N.Y. 1976). The Second Circuit

Court of Appeals affirmed on the decision below on Feb-

ruary 22, 1977. Upon the State’s petition for a rehearing,

the Court of Appeals, in an order dated June 6, 1977,

withdrew its affirmance without prejudice and remanded

the matter to the district court to reopen the habeas corpus

hearing upon the application of the State for the purpose

of presenting additional evidence.

Pursuant to the State’s application following the Court

of Appeals remand, this court held an evidentiary hearing

on June 23, 1977 to consider the State’s offer of additional

evidence. The State called Detective Neil Hughes and

Mildred and Myrna Crespo as witnesses. The petitioner

called Howard Getz, the attorney representing Santiago

at his state trial and Carmen Simeonides, Mr. Goetz’s

secretary, as rebuttal witnesses. Pursuant to the sugges-

tion of the court, the hearing was reopened on June 29,

1977 for the State to present the testimony of Isabel Al-

varez. Thereafter, at petitioner’s request, the hearing was

again reopened on July 6, 1977 to present the testimony

of Benjamin Perez, Isabel Alvarez’s common law husband.

The court, having heard the testimony of these witnesses

at the hearings as mandated by the Court of Appeals, re-

affirms its original decision.

The sole issue in this petition is whether the trial court’s

refusal to allow cross-examination of Mildred Crespo, a

* Mildred Crespo, Isabel Alvarez and Benjamin Perez were

questioned and testified through an interpreter.

20a

Opinion.

key prosecution witness, on the subject of her interest

in the case deprived petitioner of his right of confronta-

tion guaranteed by the Sixth and Fourteenth Amendments.

Davis v. Alaska, 415 U.S. 308 (1974). As a result, the

key question requiring this court to reopen the hearing is

whether in fact there was any good faith basis for in-

quiring into Mildred Crespo’s possible bias or motive

to falsify her testimony because of her thinking that her

brother had been arrested or was a suspect in the investi-

gation of the murder in question.’

The testimony at the state court trial and the hearing

before this court (‘‘the habeas corpus hearing’’),’ while

not always consistent, sufficiently establishes that there was

a good faith basis for believing, first, that Mildred Crespo

may have thought that her brother had been arrested or

was a suspect in the murder investigation and, second, that

this belief existed at the time she first came forward and

told the police that she could identify the assailant as a

Whether Mildred’s brother, Peewee Crespo, had ever actually

been arrested for the murder is not the issue in this case. Rather,

it is Mildred’s state of mind and her belief, whether or not true,

that her brother had been arrested or was a suspect that would

have been the basis for her bias and motive to testify falsely.

Since Detective Hughes’ testimony that to his knowledge Peewee

was never arrested and was never a suspect and the testimony of

Mr. Getz, Santiago’s attorney, that he never found out if Santiago

was actually arrested, does not affect Mildred Crespo’s state of

mind, such testimony is not evidence in favor of precluding

inquiry into Mildred’s possible bias. As in Davis v. Alaska, supra

at 311, where the crucial prosecution witness may have had a

belief that he was a suspect or that his probation might be revoked,

the fact that those beliefs might have been erroneous did not

diminish his possible bias or prejudice. See also Azbill v. Pogue,

534 3 195, 196 n. 2 (9th Cir.), cert. denied, 429 U.S. 895

(1976).

[T.] refers to the page of the transcript of the state criminal

proceeding against Santiago. [H] refers to the page in the tran-

script of the habeas corpus hearing in this court.

21a

Opinion.

man who at a later photo identification she claimed was

Santiago. The timing and circumstances of these events

establish a possible motive for Mildred Crespo to falsify

the identification she gave to the police to exculpate her

brother.

The court’s determination as to Mildred Crespo’s pos-

sible state of mind is based primarily on her testimony

and the testimony of Isabel Alvarez and Benjamin Perez

at the habeas corpus hearing. Mildred’s own testimony at

the habeas corpus hearing was that she never thought her

brother was a suspect in the case and had never discussed

with anyone or was told of his involvement in the murder

[H. 74-78]. However, her testimony throughout the hear-

ing was contradictory and unconvincing. She did indi-

cate concern about her brother’s possible involvement when

she testified that she knew her brother had spoken with

Detective Hughes but did not know what they had dis-

cussed [H. 75], and when in response to a question about

whether her brother ever talked to her about his going

down to the stationhouse, she answered, ‘‘No, he would

never talk to me about his problems.“ [H. 111].

The habeas corpus hearing testimony of Isabel Alvarez,

whose testimony at the Wade hearing established the good

faith basis for the cross-examination of Mildred Crespo

at trial, more firmly establishes Mildred’s possible belief

that the police thought her brother was involved in the

murder. Alvarez at the habeas corpus hearing confirmed

her Wade hearing testimony by again testfying that Pee-

wee Crespo had been arrested for the murder in the early

morning of December 17th [H. 122-124]. She further

* Cross-Examination by Mr. Bassis [Attorney for Santiago]:

Q. Some time after you spoke to the police the first time

your husband came home at 4:00 a.m., correct?

A. [Isabel Alvarez] Yes.

(footnote continued on following page)

22a

Opinion.

stated that she told Mildred Crespo that day that her

brother had been arrested and they talked about his arrest.

The credibility of Alvarez’s testimony was supported by

(footnote continued from preceding page)

Q. Who came home with him at that time?

A. Crespo.

Q. What was his whole name, Custodio?

A. Custodio [Peewee] Crespo.

Q. Did they tell you that they had been arrested by the

police Moa the murder?

A. Yes.

Q. They told you that the police thought they had com-

mitted the murder?

Ms. Silverman [Assistant Attorney General]: Objection.

The Court: Overruled.

A. Yes.

Q. Where did Peewee go after he left your apartment?

Ms. Silverman: Objection. There is no testimony he

was in her apartment.

Mr. Bassis: She said they came home together.

The Court: Ask the question.

1 was it that your husband and Custodio Crespo saw

vou

The Witness: In my apartment.

Q. And that was at 4:00 a. m.?

A. Ves, when my husband returned.

Q. And do you know where Peewee Crespo went when he

left your apartment?

A. He went to his sisters’ house.

Q. Did you talk to his sisters later that day?

A. Yes, we talked every day. I knew them.

Q. Did they know about the arrest of their brother?

The Court: Did you talk to them about the arrest of

their brother?

The Witness: Yes, we talked.

The Court: Did you tell Mildred that her brother had

been arrested?

The Witnes: Yes.

Q. Did Mildred tell you how the police treated her brother?

A. Yes, they had beaten him. They had beaten them both.

23a

Opinion.

the testimony of Benjamin Perez at the hearing. Perez

testified that Peewee had been arrested that morning be-

cause of the death in the building. He also testified that

he spoke to Mildred Crespo on the morning of Deeember

17th, and she told him that the police had arrested Peewee

and beaten him [Hearing of Perez, July 6, 1977 at 3-4].

Although Alvarez later indicated that the arrest of Peewee

took place two days later, her testimony and that of all the

witnesses at the hearing along with the trial tesimony in-

dicates a sufficient likelihood that Mildred Crespo believed

in the early morning of December 17th that her brother

was arrested or was a suspect in the murder.

Mildred Crespo’s belief then, that her brother was a sus-

pect, preceded the time she first told the police that she

could identify the assailant. The testimony establishes

that Mildred Crespo did not tell the detectives who came

to her apartment a few hours after the 12:15 a.m. murder

on December 17, 1971° to interview Isabel Alvarez that she

too had seen the assailant. Instead, according to her trial

testimony [T. 209, 236, 726-28], she waited until the after-

noon of December 17th to describe the assailant to the

police and tell what she saw of the murder.“ At the habeas

corpus hearing, on direct examination, she testified that she

told the detective what she had seen when he first came to

her apartment [H. 58], but on cross-examination she stated

that she could not remember when she told this to the police

. testim reflects some confusion about the timing of

. — th murder occurred shortly after midnight,

several of the witnesses when they identified an event as occurring

on the day after the murder appeared to be talking about the same

day, December 17th.

i s sister, M „also in the apartment the

Gin a visited ey — png murder, similarly did not

tell her story until later that day. Myrna had the same motive

as Mildred in exculpating her brother.

24a

Opinion.

LH. 63-65.“ Deteetive Hughes’ testimony on this point is

contradictory.’ At the Wade hearing he said he spoke to

both Crespo sisters when he first visited their apartment a

few hours after the murder [T. 94-95, 113], but at the trial

he could not recall if they were in their apartment when he

first visited it [T. 763-64]. Furthermore, at the habeas

corpus hearing he stated that that morning only one sister,

without identifying which one, had said she had seen the

murder and could identify the assailant [H. 13].

Taking all this evidence into consideration, the court con-

cludes that beeause of Mildred’s possible state of mind at

the time she first told the police that she had seen the

murderer, petitioner has a good faith basis for carrying

out extensive cross-examination on the issue of her bias

or motive to testify falsely.“

Myrna Crespo’s testimony at the trial and the hearing on

this point is consistent. She did not tell the police that she saw

the murder when they came to her apartment that night but

instead gave a description later that day or the next day [T. 267,

655-56; H. 84-85].

* Deteetive Hughes testified that the case folder along with his

detective’s notebook on the case was missing from the police

department’s files. His own testimony on many of the issues raised

at the trial and at the hearing, without notes to identify meetings

and what was said, was often unclear or contradictory.

The testimony indicated another theory to show that Mildred

Crespo, prior to her talking to the police about the murder, may

have had a reason to believe that her brother was a suspect or

had been arrested for the murder. The hearing testimony of

Detective Hughes, while contradictory, indicated that Benjamin

Perez and Peewee Crespo came down or were brought down to the

stationhouse at about 11:00 a.m. on December 17th [H. 16, 33-34].

Detective Hughes testified that this was for routine questioning,

and even if this were true, there is no indication that Mildred

Crespo knew it was routine. In fact, her state of mind, as al-

ready indicated supra, may have been to the contrary when she

associated Peewee’s going down to the stationhouse with “his

problems.” If Mildred thought that her brother, because he was

at the stationhouse, had been arrested or was a suspect, she would

have had a motive to falsify the description of the murder that

she gave to the police on the afternoon of December 17th.

25a

Onin

The Supreme Court in Davis v. Alaska, supra, 316-17,

citing Greene v. McElroy, 360 U.S. 474, 496 (1959), recog-

nized that ‘‘the exposure of a witness’ motivation in tes-

tifying is a proper and important function of the constitu-

tionally protected right of cross-examination.” The Court

discussed the strategy of a general attack on the credibility

of a witness by evidence of prior criminal convictions and

then stated:

A more particular attack on the witness’ credibility

is effected by means of cross-examination directed to-

ward revealing possible biases, prejudices, or ulterior

motives of the witness as they may relate directly to

issues or personalities in the case at hand. Davis v.

Alaska, supra, at 316.

In this case a probing and thorough cross-examination of

Mildred Crespo should have been permitted to fully develop

her possible bias, because this was an example of a more

particular attack relating directly to issues and personali-

ties in the case at hand. Accord, United States y. Garrett,

542 F. 2d 23, 26-27 (6th Cir. 1976).

The court, finding that there was a good faith basis for

the searching cross-examination of Mildred Crespo and

that her cross-examination was unconstitutionally re-

stricted, orders the issuance of a writ of habeas corpus

under the terms of its prior decision.”

So Ordered.

/8/

U.S. D. J.

Dated: New York, New York

September 12, 1977.

10 The court notes that despite the state’s concern as essed

to the Court of Appeals a new trial of Efrain Santiago is cer-

tainly a possibility, the state having located Mildred and Myrna

Crespo and Isabel Alvarez, the three key witnesses in the original

prosecution.

26a

APPENDIX E

Ovini

UNITED STATES COURT OF APPEALS

FOR THE

Seconp Circuit

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the 19th day of December,

one thousand nine hundred and seventy-seven.

Present:

HonoraBLe WILFRED FEINBERG

HonoraBLe Murray I. Gurren

HoxORABLR THomas J. MESKILL

Circuit Judges,

76-2172

*

2

UNrrRD Srates or AMERICA ex rel.

Ernalx Santiago,

Petitioner-Appellee,

against

Lrox Vincent, Superintendent, Green Haven

Correctional Facility,

Respondent-Appellant.

y

»

Appeal from the United States District Court for the

Southern District of New York.

27a

Opinion.

This cause came on to be heard on the transcript of rec-

ord from the United States District Court for the Southern

District of New York, and was argued by counsel.

Ox CONSIDERATION WHEREOF, it is now hereby ordered, ad-

judged, and decreed that the judgment of said District

Court be and it hereby is affirmed on the opinions of Judge

— 0 Gagliardi, dated September 12, 1977 and November

„1976. ä

Wilfred Feinberg

Wi -rrep FEIN RR

Munnkar I. Gurrem

Murray I. Gurren

Thomas J. Meskill

TROMAS J. Meskrii

Circuit Judges