Petition — Tamilio v. Fogg

ee

Office Supreme Court, US.

FILED

83 Ss 649 OCT 18 1983

ALEXANDER L STEVAS,

CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

ANTHONY TAMILIO,

Petitioner,

vs.

WALTER FOGG, SUPERINTENDENT, EASTERN CORREC-

TIONAL FACILITY, AND ROBERT ABRAMS, ATTORNEY

GENERAL OF THE STATE OF NEW YORK,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

ALBERT J. BRACKLEY

Attorney for Petitioner

16 Court Street

Brooklyn, N.Y. 11201

(212) 625-5884

Dick Bailey Painters, 203 Richmond Avenue in Staten Island, New York 10302

Tel: (212) 447-5358 — (516) 222-2470 — (914) 682-0848

i

QUESTION PRESENTED

1. Whether the joint trial of petitioner and his two

co-defendants for felony-murders was constitutionally

impermissible under the Sixth Amendment inasmuch

as the co-defendants had pleaded the affirmative

defense to felony-murder under New York Law thus

attributing the actual murders to petitioner and

where the source for the purported “‘interlocking”’ con-

fession ascribed to petitioner was the devoted friend

and cellmate of petitioner’s co-defendant Santanella

and where said statement was denied by petitioner

and the overwhelming weight of the credible evidence

adduced at trial demonstrates that such statement

could not have been made at the time and place sworn

to by said witness?

TABLE OF CONTENTS

Page

ee COO tT Pe oe i

r 2 ˙ waes 1

,,,, 2

r,, ͤ -—TW . ĩ ͤ ee 8

Constitutional And Statutory Provisions Involved. 3

. 5

Reasons for Granting the Writ................. 10

,,,, ¹ʒ ee 19

Appendix A

Decision Dated July 27, 19838383. 1a

Appendix B

Memorandum and Order 8a

Appendix C

Decision Dated April 24, 1978. 35a

TABLE OF CASES

Brown v. United States, 411 U.S. 223 (1973). 12

Bruton v. United States, 391 U.S. 123 (1968). 3, 10

Page

Catanzaro v. Mancusi, 404 F.2d 296, 300 (2d

Cir. 1968) cert. denied 397 U.S. 942(1970)... 10,15

Harrington v. California, 395 U.S. 250 (1969) 12, 16

Metropolis v. Turner, 437 F.2d 207 (10th Cir.

PPC ˙²˙ .] UU. Coes Qe 12

Parker v. Randolph, 442 U.S. 62 (1979) 3

People o. McNeil, 24 N. V. 2d 550, 301

N. V. S. 2d 503, 249 N. E. 2d 383, cert. denied,

,, ̃ ⅛ T. 11

People v. Santaneila, 63 A. D. 2d 744, 405

N. V. S. 2d 284 (1978) 2

People v. Tamilio, 45 N. V. 2d 784 (1978) 2. 10

Schnelle v. Florida, 405 U.S. 427 (1972) 12

Tamilio v. Fogg, 546 F. Supp. 364 (1982). 2,10

Tamilio v. New York, 443 U.S. 912 (1979). 2, 10

United States ex rel. Ortiz v. Fritz, 476 F. 2d

37 (2d Cir. 1973), cert. denied, 414 U.S. 1075

| RE re een Sri eons <8 14

OTHER AUTHORITIES

New York Penal Law, Section 125-25(3)......... 1,4

28 U.S.C. Section 12578) DU UUUUU UO n 2

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

ANTHONY TAMILIO,

Petitioner,

vs.

WALTER FOGG, SUPERINTENDENT, EASTERN

CORRECTIONAL FACILITY, AND ROBERT

ABRAMS, ATTORNEY GENERAL OF THE STATE OF

NEW YORK,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SE-

COND CIRCUIT.

Anthony Tamilio petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Second Circuit entered in this case on July 27, 1983.

_ PROCEEDINGS BELOW

Following a jury trial in the Supreme Court, Kings

County of the State of New York (Rinaldi, J.) petitioner

and two co-defendants were convicted of two counts of

felony murder (New York, Penal Law, Section 125-25(3)).

2

All three were sentenced to serve concurrent terms of

imprisoninent of from 25 years to life.

On appeal to the Appellate Division of the New York

Supreme Court for the Second Judicial Department the

convictions of petitioner's co-defendants were reversed.

Petitioner’s conviction was affirmed. People v. Santanella,

63 A.D.2d 744, 405 N.Y.S. 2d 284 (1978). The opinion is

reproduced in the appendix at 41a-47a. Leave to appeal to

the New York Court of Appeals was denied. People v.

Tamilio, 45 N.Y. 2d 784 (1978). A petition for a writ of cer-

tiorari was denied by this Court (Tamilio v. New York, 443

U.S. 912 (1979)) with Justices Brennan and Marshall

noting that they would grant certiorari.

On August 26, 1982, after more than a three (3) year

analysis of the trial record and arguments of the respective

parties the United Sttes District Court for the Eastern

District of New York (Neaher, J.) granted petitioner’s peti-

tion for a writ of habeas corpus, subject to the State's right

to retry the case within sixty days. Tamilio v. Fogg, 546

F.Supp. 364 (1982). The District Court’s opinion is

reproduced in the appendix at 8a-34a. The opinion of the

United States Court of Appeals for the Second Circuit

reversing the District Court, is not, as yet reported. The

Court of Appeals opinion is reproduced in the appendix at

la-8a.

JURISDICTION

The judgment of the United States Court of Appeals

for the Second Circuit was entered on July 27, 1983. The

jurisdiction of the Court is invoked under 28 U.S.C. Section

1257(3).

3

INTRODUCTION

Petitioner, Anthony Tamilio respectfully presents this

Honorable Court with the issue of profound significance in

the highly-charged Sixth Amendment area of confessions

and joint trials in criminal cases. Parker v. Randolph, 442

U.S. 62 (1979). Petitioner seeks the wisdom of this Court in

the definition and application of standards for testing the

fairness of criminal joint trials for murder where there are

cross-implicating statements and where statutorily an-

tithetical defenses are permitted by the State.

N.Y. Penal Law 125.25(3) (affirmative defense to felony

murder); Bruton v. United States, 391 U.S. 123 (1968);

Parker v. Randolph, supra.

The Sixth Amendment right of an accused to confront

the evidence free of constitutional and statutory

roadblocks is at the heart of the American system of

justice.

The Court of Appeals below in reversing the District

Court and reinstating petitioner’s conviction, wrongfully

placed on petitioner the burden of proving his claim of

Sixth Amendment violation beyond the standards set by

this Court. Fundamental fairness and due process require

the guidance and supervision of this Court for the benefit

of all citizens.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides in pertinent part:

“Tn all criminal prosecutions the accused shall en-

4

joy the right to a speedy and public trial, by an impar-

tial jury of the State and District wherein the crime

shall have been committed, which district shall have

been previously ascertained by law, and to be inform-

ed of the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the assistance of counsel for his defense.

Section I of the Fourteenth Amendment to the United

States Constitution provides in pertinent part:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”’

N.Y. Penal Law Section 125-25(3)

Affirmative defense to felony murder utilized by

the co-defendants in this joint trial for murder after

petitioner’s application for a severance was denied by

the Trial Court provides:

“Except that in any prosecution under this sub-

division, in which the defendant was not the only par-

ticipant in the underlying crime, it is an affirmative

defense that the defendant:

‘(a) Did not commit the homicidal act or in any

way solicit, request, command, importune, cause or

aid the commission thereof; and

5

‘(b) was not armed with a deadly weapon, or any

instrument, article or substance readily capable of

causing death or serious physical injury and of a sort

not ordinarily carried in public places by law-abiding

persons; and

‘(c) Had no reasonable ground to believe that any

other participant was armed with such a weapon, in-

strument, article or substance; and

‘(d) Had no reasonable ground to believe that any

other participant intended to engage in conduct likely

to result in death or serious physical injury.”

STATEMENT

The petitioner, Anthony Tamilio, and his two co-

defendants, John Cappiello and Ralph Santanella,

were tried for the felony murder of Joseph and

Angelina Tucci, in their home during the commission

of a burglary and a robbery. Tamilio’s motion for

severance and a separate trial from the two co

defendants was denied and they were tried together

and convicted. The co-defendants did not testify at

the trial. However, Tamilio did testify, denying his

guilt and offering evidence to establish that, although

he was present at the murder scene with his two co-

defendants, he had a legitimate reason to be there as a

result of a business relationship with the deceased,

and that they were alive after he left them. The pro-

secution contention was that the three defendants, ac-

ting together, killed the deceased during a robbery at-

tempt. The deceased were bound and gagged and

struck repeatedly with a hammer.

Hearsay evidence concerning statements by

Tamilio’s two co-defendants to third persons was ad-

6

mitted during the trial with limiting instructions to

the jury that such statements be considered against

only the defendant who made them. However, the trial

court denied Tamilio’s motion to redact such

statements so as to exclude any references to him.

These hearsay statements of the co-defendants placed

primary responsibility for the crime on Tamilio.

Moreover, the prosecution introduced a statement

made by Tamilio to a police detective in which he ad-

mitted that he went to the home of the deceased in the

company of his two co-defendants on the morning of

August 10, 1976, the date of the killings (Tr. 1388-9).*

In addition, the prosecution introduced a highly in-

culpatory statement allegedly made by the petitioner

to a prisoner, John Washington. Washington testified

that he met the petitioner in a Criminal Court holding

pen on August 18, 1976 and that they had a conversa-

tion that lasted five to seven minutes which was inter-

rupted when other prisoners entered the pen. Peti-

tioner allegedly told Washington that he was in for

homicide but he was not scared because he was not

caught at the scene of the crime. That he with his

friends robbed an elderly couple he knew, ransacked

the place and got a ring and a “few grand.” The

woman started to scream and petitioner hit her with a

gun butt across the forehead. Petitioner also said he

was going to give his co-defendant Cappiello five

grand to put it on his co-defendant Santanella. He

also testified that Tamilio showed him a clipping he

had taken from his boot concerning the murder, trying

to prove that he was on the clipping. Washington did

not read the clipping (Tr. 1321-31).

* Numbers in parentheses refer to the trial record.

7

According to Washington he later became a cell

mate and a good friend of Santanella’s and spoke to

him about the same crime that he allegedly talked to

the petitioner about (Tr. 1331-3). At the trial he

testified to statements made by Santanella to him

placing primary responsibility for the crime on peti-

tioner (Tr. 1331-7).

Washington did not speak to the police about

either conversation until October 31, 1976, some two

months laters (Tr. 1339). He admitted to an extensive

criminal background (Tr. 1343-6) and that he was a

drug user (Tr. 1614). He decided to talk about this

matter to obtain consideration on outstanding arrests

(Tr. 1130).

He was aggressively cross-examined and

numerous inconsistencies and improbabilities were

developed, rendering his testimony highly suspect.

The prosecution also showed that the petitioner

on the afternoon of August 10, 1976, with his cu-

defendant Cappiello, went to a branch of the Dime

Savings Bank and presented the deceased’s passbook,

a withdrawal slip and a note, unsuccessfully attemp-

ting to make a withdrawal from the deceased’s ac-

count.

The petitioner, Tamilio, unlike his co-defendants,

testified in his own behalf and called several witnesses

in his defense.

Tamilio testified that he, Santanella and Cappiello

had gone to the Tucci home on the morning of August

10, 1976. However, he stated that he was doing an er-

rand for his father and denied that the crime was com-

8

mitted at that time. It was his contention that the

Tuccis were alive at the time he left their home. He

called as witnesses neighbors of the Tucci’s who

recalled seeing the Tuccis alive later that afternoon

and so informed the police.

Tamilio’s father testified to sending his son to the

Tucci home on August 10th on an errand.

Tamilio did not recall seeing or speaking with

John Washington, denied making the statements

Washington attributed to him and denied being alone

with anyone in a Criminal Court holding pen on

August 18, 1976 and denied having a newspaper clipp-

ing of the Tuccis’ murders, and further denied any in-

volvement in the crime (Tr. 1967-8).

He testified about the incident at the Dime Sav-

ings Bank, explaining that he met Cappiello at the

Shopping Plaza where the bank is located by accident.

Cappiello asked him to take out some money from his

grandfather’s or uncle’s account saying that he knew

people in the bank and that it would not look good if

he went there. Tamilio attempted to make the

withdrawal as a favor to Cappiello. He did not notice

the name in the passbook and did not read it when it

was given to him. At the time, he knew the deceased

Joseph Tucci only by the name “Joe” and was un-

familiar with his last name.

The defendant called Harold Naber, a Captain in

the New York City Department of Corrections who is

responsible for the movement and control of prisoners

assigned to the Department of Correction. He produc-

ed records of August 18, 1976 indicating that Tamilio

and Washington were held in different detention cells

9

in separate parts of the court on that date. That

Tamilio was detained with Santanella and others in a

cell separate from Washington’s and although it was

possible that Tamilio could have been together with

Washington before leaving the courthouse, they

would not have been alone as stated hy Washington

(Tr. 1822-43).

Detective Kilcullen, a police detective, testified

that there was a thorough search of Tamilio upon his

arrest and no newspaper clipping was found upon him

(Tr. 1456-9).

At the conclusion of the trial the jury convicted

all defendants of two counts of felony murder.

The Court sentenced petitioner to concurrent

terms of twenty-five years to life on the two murder

counts,

On appeal, the Supreme Court of the State of New

York, Appellate Division, Second Judicial Depart-

ment, reversed the convictions of petitioner’s two co-

defendants, but, affirmed petitioner’s conviction,

+ \lding that portion of the courts charge which gave

the jury the option of not considering the affirmative

defense to felony murder, available to a non-killer

defendant under New York law, notwithstanding that

all the elements of the defense had been made out, was

reversible error except as to the petitioner whose

defense hat he was not present at the time the crimes

were committed precluded establishment of the

elements of the affirmative defense as to him.

The Appellate Division further held that peti-

tioner’s alleged confession to Washington made the

— *

pa

= =

10

Bruton rule inapplicable. Thus, a separate trial from

petitioner’s co-defendants was not warranted despite

their respective pleading of the affirmative defense to

felony murder. Appendix infra 41a-47a. Leave to ap-

peal to the New York Court of Appeals was denied.

People v. Tamilio, 45 N.Y.2d 784 (1978). Certiorari

was denied by this Court (Tamilio v. New York, 443

U.S. 912 (1979)) with Justices Brennan and Marshall

noting that they would grant certiorari.

Following a three year analysis of petitioner’s

claim the District Court found a violation of the

Bruton rule and that the error under the peculiar facts

of Tamilio’s case was not harmless beyond a

reasonable doubt. Tamilio v. Fogg, supra.

The United States Court of Appeals for the Se-

cond Circuit on the basis of their holding in U.S. ex rel.

Catanzaro v. Mancusi, 404 F.2d 296, 300 (2d Cir.

1968), cert. denied 397 U.S. 942 (1970) found that peti-

tioner’s alleged statement to Washington interlocked

sufficiently with the confessions of the co-defendants

Cappiello and Santanella and therefore any Bruton er-

ror would be deemed harmless beyond a reasonable

doubt.

REASONS FOR GRANTING THE WRIT

Broadly, this case presents for decision the validi-

ty of the so called Catanzaro-McNeil exception to the

rule of Bruton v. United States, 391 U.S. 123 (1968).

More narrowly, accepting arguendo, the validity of

the exception, the question to be determined is

whether that exception can constitutionally be invok-

ed on the basis of an alleged confession to a fellow

prisoner whose credibility is suspect, which the peti-

tioner denies having made.

11

In Bruton v. United States, 391 U.S. 123 (1968),

this Court held that the admission of a co-defendant’s

out of court confession which implicated the defen-

dant at a joint trial violated the defendant’s Sixth

Amendment right to confront the witnesses against

him and entitled him to a new and separate trial, even

though the jury was clearly instructed to disregard

the confession as to the defendant. The Court reason-

ed:

Here the introduction of (the co-defendant’s) confes-

sion posed a substantial threat to petitioner’s right to

confront the witness against him, and this is a hazard

we cannot ignore. Despite the concededly clear in-

structions to the jury to disregard (the co-defendants)

inadmissible hearsay evidence inculpating petitioner,

in the context of a joint trial we cannot accept limiting

instructions as an adequate substitute for petitioner’s

constitutional right of cross-examination. The effect is

the same as if there had been no instruction at all. Id.

at 137.

However, the New York Court of Appeals has

carved out an exception to Bruton in People v.

McNeil, 24 N.Y.2d 550, 301 N.Y.S.2d 503, 249 N.E.2d

383, cert. denied, 396 U.S. 937 (1969). In that case

each of the defendants had voluntarily made a detail-

ed confession to law enforcement officials implicating

himself as well as each of the other defendants in the

crime charged. The jury had been given clear, forceful _

limiting instructions that each confession should be

considered only against the declarant. Relying heavily

upon U.S. ex rel. Catanzaro v. Mancusi, 404 F.2d 296

(2d Cir. 1968), the court held that the logic of Bruton

is inapplicable” where:

each of the defendants has himself made a full and

12

voluntary confession which is almost identical to the

confessions of his co-defendants.

301 N.Y.S.2d at 504, (emphasis added). Therefore, ac-

cording to McNeil, if Tamilio made a detailed, full and

voluntary confession almost identical to those of his

co-defendants, he is not entitled to a separate trial

under Bruton.

McNeil has been consistently followed by the New

York courts and was relied upon in this case by the

Appellate Division which ruled that:

“the Bruton rule is inapplicable where each of the

defendants has made a confession almost identical to

the confessions of his co-defendants. The critical con-

sideration is whether the confession of the defendant

relying upon Bruton ‘interlocks with and supports’

the confessions of the other defendants. If it does a

separate trial is not required. 405 N.Y.S.2d at 288.

The doctrinal underpinnings of this holding has

never been approved by this court which has instead

applied the harmless error rule to Bruton violations.

See, Harrington v. California, 395 U.S. 250 (1969);

Schnelle v. Florida, 405 U.S. 427 (1972); Brown v.

United States, 411 U.S. 223 (1973).*

The difference in the two approaches has been

noted by courts and commentators.

In Metropolis v. Turner, 437 F.2d 207 (10th Cir.

1971), the court noted:

* The Court below’s finding that the interlocking confession ex-

ception to the Bruton rule has been recognized by this Court in

e

pendix at

13

“It is the position of counsel that because of these

significant factual differences, the instant case is

either ‘outside’ the rule of Bruton, citing United

States ex rel. Catanzaro v. Mancusi..., or, alter-

natively, if it be still technically within the Bruton

rule, the violation is constitutionally harmless beyond

a reasonable doubt, citing Harrington v.

California.. We need not concern ourselves with the

legal nicety as to whether the instant case is ‘without’

the Bruton rule, or is ‘within’ Bruton with the viola-

tion thereof constituting only harmless error. In either

event the judgment of the trial court (granting habeas

corpus) must be reversed.”

In this case, the court explained:

The confessions of Metropolis and Johnson were

paralleling confessions in which the confessing defen-

dant not only spelled out in precise detail what he

himself did in connection with the homicide, but also

described the role played by his co-defendant. And the

statements thus given by Metropolis and Johnson

dovetailed in all important particulars. Id. at 208.

Despite its refusal to decide whether this case was

inside or outside Bruton, the court followed the

harmless error approach, stating:

The rationale of Harrington leads us to conclude that

the trial court erred in granting the writ and discharg-

ing the petitioners. 437 F.2d at 209.

The court noted only that the United States ex rel.

Catanzaro vu. Mancusi, supra, was a case analogous

to the instant one. Id.

In fact, the Second Circuit itself, has voiced

dissatisfaction with the Catanzaro approach in United

14

States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973),

cert. denied, 414 U.S. 1075 (1974). In that case the

defendant argued:

. Bruton applies here because Catanzaro and pro-

geny are really applications of Harrington v. Califor-

nia ... Harrington held that admission of co

defendants’ confessions after Bruton was harmless

constitutional error because a statement by Harr-

ington placed him at the scene of the crime, and other

incriminating evidence was so ‘overwhelming .. that

this violation of Bruton was harmiess beyond a

reasonable doubt....’’ 395 U.S. at 254, 89 S.Ct. at

1728. Appellant argues here that because there was no

such other evidence—though on this score the

Bazooka bubble gum wrappers do constitute indepen-

dent evidence, albeit based on Ortiz’s own confes-

sion—the Bruton violation was certainly not

“harmless beyond a reasonable doubt. 476 F. ad at

39.

The court reluctantly applied the rule of Catan-

zaro, noting that:

... we are somewhat uncomfortable with the implica-

tions of Catanzaro. Yet is it now the law of this

circuit. . If it is to be overruled, it will have to be by

the Supreme Court, absent the requisite en banc vote

which—through prior circulation of this opinion—has

not ensued. 476 F.2d at 40.

Thus, the court which decided the case upon

which McNeil rests appears amenable to a shift to the

harmless error approach. That the difference in ap-

proaches is more than a legal nicety is shown by the

fact that the result in Ortiz would have been different

under the harmless error approach:

—

1

15

This appeal from the denial of a habeas corpus petition

raises a serious question as tc the applicability of

Bruton v. United States.. in the case of “‘interlock-

ing’’ confessions of co-defendants. Only because we

consider ourselves bound by United States ex rel.

Catanzaro v. Mancusi... , and its progeny in this cir-

cuit, do we affirm.

That the harmless error approach is the proper ap-

proach was argued in a law review article, Nelson v.

O' Neil: Severance as a Remedy for Bruton Errors,“ 46

Temple Law Quart. 111, 116 (1972):

In essence, this approach (distinguishing Bruton) sug-

gests that unless the inadmissible evidence is signifi-

cant Bruton does not apply. What these courts are ac-

tually doing, however, is determining at the outset

that there has been no reversible error and then declar-

ing that the case does not involve a Bruton violation.

The admission of any inculpatory statement of a non-

testifying co-defendant, no matter how insignificant

or repetitive, should be recognized as a Bruton viola-

tion.

Going to a case’s facts first in order to determine that

the inadmissible evidence was harmless, is to skip an

important step. Whether the inadmissible evidence is

harmful or harmless should have nothing to do with

error and should be made only after recognition that a

constitutional right has been violated. This formality

of procedure will make no difference in the outcome of

many of the more blatant cases, where the prejudice

was obviously minimal, as where the co-defendant’s

own confession was also in evidence. However, in the

closer cases, it will be a reminder that there has been a

violation of the appellant’s constitutional rights;

perhaps this fact, coupled with the reasonable

possibility that the inadmissible evidence contributed

16

to his conviction, will result in more frequent reversals

and a greater deterrent to prosecutors.

In this case, it appears that the outcome on appeal

would have been different under the harmless error

approach employed by this court in Harrington v.

California, supra, and progeny, thus highlighting the

errors of the Catanzaro-McNeil approach.

Here the defendant testified, denying his guilt,

presenting an innocent explanation for the cir-

cumstantial evidence against him and adducing other

witnesses and evidence in support of his defense. He

denies making the highly incriminating confession to

Washington, upon which the lower courts relied to in-

voke the Catanzaro-McNeil exception and adduced

evidence in support of that denial through the Correc-

tion Department records and the testimony of Cap-

tain Naber and Detective Kilcullen which cast grave

doubt upon Washington’s claim that he had ever been

alone with Tamilio in a holding pen at the Criminal

Court as well as other aspects of his story.

Where, as occurred here, the confession relied

upon to invoke the exception to the Bruton rule is

itself seriously disputed, the risk that a jury may

engage in bootstrapping is evident, despite cau-

tionary instructions to the contrary. The danger is

great that a jury will rely on the co-defendant’s hear-

say statements in arriving at a finding that the defen-

dant made an incriminating statement which he

seriously disputes. In this case, the prosecution was

almost entirely based on petitioner’s disputed state-

ment to Washington, the jury having been given the

usual cautionary instruction that his co-defendant’s

statements were inadmissible as to him, yet the con-

17

clusion is almost inescapable that these hearsay

statements were improperly used to corroborate and

bolster the disputed statement testified to by

Washington.

Washington was Santanella’s devoted friend and

cellmate. Santanella pleaded the New York affir-

mative defense to felony murder. Who shows up at the

trial to support Santanella’s defense attributing the

crime to petitioner, but Santanella’s best friend and

cellmate, Washington.

Under the circumstances it would have been most

„unusual had the statement attributed to petitioner

by Washington did not ‘‘interlock’’ with metaphysical

precision. After all Santanella and his friend

Washington had months to concoct their little

scenario. This is the same source upon which the

Court below now invokes the application of the

Catanzaro- McNeil rule. A source totally lacking in any

indicia of reliability.

Furthermore, the Court below erroneously ascrib-

ed a misreading of the trial record to the District

Court. Appendix 4A. Petitioner had indeed testified

denying the making of the crucial statement to

Washington and anyone else when he testified:

Q. Did you see the witness Washington here?

A. I don’t remember.

Q. Did you see him testify, showing him a

newspaper clipping, you and he were all alone in a cell?

A. Yes.

Q. Were ycu ever alone in a cell with anybody at all,

all the time you had been arrested?

A. No.

18

Q. Now, did you ever take a hammer and beat the

Tuccis to death?

A. No.

Q. Did you tie them with ropes and gags and

everything and ransack their apartment or anything?

A. No.“ (TR. 1967-68)

With all due respect to the learned court below the

conclusion reached ‘‘He never denied making the

statement’ (Appendix 4a) simply will not square with

the rule governing the presumption of innocence.”

By virtue of his plea of not guilty the petitioner denied

every material aspect of the State’s case including the

purported statement to Washington. Hence, the

Court below’s finding in this regard is totally incom-

prehensible. In rushing to reverse the District Court it

would seem that it was the Court below that has

misread the record and erroneously applied the law.

The only way to constitutionally redress this

wrong, is through this Court’s repudiation of the

Catanzaro-McNeil approach, replacing it with the

harmless error approach of Harrington v. California,

supra.

Clearly, the issues raised here are important and

federal courts throughout the nation are divided con-

cerning these resolutions. See, Anno Confrontation

Clause, Bruton Rule, 29 L. Ed. 2d, 931, Section 7, call-

ing for the intervention of this court to properly

resolve the issue. It is this dichotomy which un-

doubtedly prompted Justices Brennan and Marshall’s

dissent from the denial of certiorari when this case

was here during the October 1978 Term of this Court

more than five years ago.

19

CONCLUSION

For the foregoing reasons this petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

ALBERT J. BRACKLEY

Attorney for Petitioner

16 Court Street

Brooklyn, New York 11307

(212) 625-5884

la

APPENDIX “A”

DECISION DATED JULY 27, 1983

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Cal. No.: 775 August Term, 1982

(Argued January 25, 1983 Decided July 27, 1983)

Docket No. 82-2272

ANTHONY TAMILIO,

Petitioner-Appellee,

v.

WALTER FOGG, Superintendent, Eastern Correc-

tional Facility, and ROBEK:T ABRAMS, Attorney

General of New York,

Respondents-Appellants.

BEFORE VAN GRAAFEILAND, PIERCE and

WINTER, Circuit Judges

Appeal from a judgment of the United States

District Court for the Eastern District of New York,

Neaher, J., which granted appellee’s petition for a writ

of habeas corpus on the ground that the introduction

of evidence regarding out-of-court statements made

by appellee’s co-defendants violated appellee’s con-

stitutional right to confront witnesses. Reversed.

2a

ALBERT J. BRACKLEY,

Brooklyn, N.Y.,

for Petitioner-Appellee

MICHAEL GORE, Ass't District

Att’y, Brooklyn, N.Y.

(Elizabeth Holtzman, District Att’y

Kings County, and Barbara D.

Underwood, Ass’t District Att’y,

Brooklyn, N.Y., on the brief), for

Respondents-Appellants.

VAN GRAAFEILAND, Circuit Judge:

In 1977, appellee Anthony Tamilio and two co-

defendants were convicted in New York State

Supreme Court of two counts of felony murder, N.Y.

Penal Law §125.25(3) (McKinney 1975). Appellee’s

conviction was affirmed by the Appellate Division, 63

A.D.2d 744 (1978), and leave to appeal was denied by

the New York Court of Appeals, 45 N. v. 2d 784 (1978).

The United States Supreme Court denied certiorari.

443 U.S. 912 (1979). On August 26, 1982, the United

States District Court for the Eastern District of New

York, Neaher, J., granted appellee’s petition for a writ

of habeas corpus, subject to the State’s right to retry

the case within sixty days. 546 F. Supp. 364. We

reverse.

Appellee, John Cappiello, and Ralph Santanella

were charged by the State of New York with the

felony murders of an elderly couple, Joseph and

Angelina Tucci. According to the prosecution's

theory, the murders occurred in the couple’s home in

Brooklyn on August 10, 1976, during the course of a

burglary and robbery by the three co-defendants. The

3a

deaths resulted from head injuries caused by blows

from a blunt object. The victims’ bodies, ties and gag-

ged, were found in their home on August 12.

On the morning of August 10, Appeliee and San-

tanella were seen emerging from an alley which ran

alongside the Tucci home. Several hours later, ap-

pellee attempted unsuccessfully to withdraw $2,500

from the Dime Savings Bank with the use of Mr. Tuc-

ci’s bank book. Appellee admitted that he was at the

Tucci home with his co-defendants on August 10, but

contends that he was there on an errand for his father

and that Mr. and Mrs. Tucci were alive when he and

his co-defendants left. He testified that, through pure

happenstance, he met Cappiello later in front of the

Dime Savings Bank and was asked by him to attempt

the $2,500 withdrawal, posing as Tucci’s nephew. Ap-

pellee’s testimony as to the chance meeting was con-

tradicted by that of Santanella’s mother, who swore

that she drove the three defendants from her home to

the plaza where the Bank was located. Appellee also

testified incredibly that, although he had known Mr.

Tucci for six years and had been in his home at least

fifty times, he did not know that his name was Tucci.

The State introduced evidence that each of the

three defendants had admitted or confessed his par-

ticipation in the crime and had implicated his co-

defendants. Each time a witness testified concerning a

statement by one of the defendants, the trial court in-

structed the jury that the statement was to be con*

sidered only against the defendant who had made it,

and the court repeated these instructions in his

charge. Appellee s statement allegedly was made to a

fellow prisoner, John Washington, in the holding pen

at criminal court.

4a

Washington testified that he and appellee had

been alone together in the pen for five to seven

minutes, at which time appellee talked to Washington

about the crime. Washington testified that appellee

told him he and a couple of buddies were in for

homicide, but that appellee was not worried because

he had not been found at the scene of the crime. Accor-

ding to Washington, appellee said that he and his ac-

complices had gotten a ring and a few grand, and ap-

pellee showed him a newspaper clipping about the

crime. Appellee purportedly told Washington that he

knew the victims, how to get into their house, and

where the money was. Appellee further stated, accor-

ding to Washington, that he and Cappiello went in

and ransacked the place. Appellee told him,

Washington said, that when the lady screamed ap-

pellee started hitting her across the forehead with the

butt of a gun while Cappiello held her. When the lady

wouldn't be quiet, appellee Just kept on hitting her.

The district court stated that appellee ‘‘denied

ever seeing or speaking with John Washington,” 546

F. Supp. 368, and denied making the statements

Washington attributed to him,” id. at 367. This was a

misreading of appellee's testimony. What appellee ac-

tually said was that he didn’t remember whether he

saw Washington in the bull pen and that he was never

alone in a cell with anyone. He never denied making

the statement. The district court then proceeded to

compare the statements of the three defendants and

wound up taking two mutually inconsistent positions.

It held, first, that appellee’s admissions to

Washington interlocked with those of his co

defendants only to the extent that all statements iden-

tified appellee as a participant in the underlying

felony of robbery upon which the murder charge was

5a

based. Jd. at 372-73. The district court then reversed

its field, stating that appellee's co-defendants had

named him the killer ‘‘in apparent confirmation of

everything Washington told [the jury] petitioner had

told him.“ Id. at 375. The district court’s second posi-

tion was correct; the statements of the three defen-

dants interlock on all essential points, particularly on

the point which the district court found to be critical,

i.e., that it was appellee who bludgeoned Mrs. Tucci.

We disagree with the district court’s assertion that

appellee’s admission that he just kept on hitting“

the eighty-two-year-old Mrs. Tucci on the head when

she wouldn't keep quiet described a less brutal“ of-

fense (id. at 373) than the statements of his co-

defendants that appellee killed Mrs. Tucci by hitting

her on the head.

The interlocking confession exception to the

Bruton rule, Bruton v. United States, 391 U.S. 123

(1968), to which this Court long has been committed,

see United States ex rel. Catanzaro v. Mancusi, 404

F.2d 296, 300 (2d Cir. 1968), cert. denied, 397 U.S. 942

(1970), has also been recognized by the Supreme

Court, Parker v. Randolph, 442 U.S. 62 (1979). This

doctrine does not require identity in statements.

United States ex rel. Ortiz v. Fritz, 476 F.2d 37, 39 (2d

Cir.), cert. denied, 414 U.S. 1075 (1973). It is sufficient

if the confessions are ‘‘substantially the same and con-

sistent on the major elements of the crime involved.

United States ex rel. Stanhridge v. Zelker, 514 F.2d

45, 49 (2d Cir.), cert. denied, 423 U.S. 872 (1975).

Essentially, to be interlocking, the statements must

describe the same crime. United States v. Fleming,

594 F.2d 598, 604 (7th Cir.), cert. denied, 442 U.S. 931

(1979). The fact that a defendant takes the stand and

denies his guilt, thus implicitly repudiating his in-

6a

culpatory admissions, does not preclude application of

the doctrine. United States ex rel. Dukes v. Wallack,

414 F.2d 246, 247 (2d Cir. 1969); Felton v. Harris, 482

F. Supp. 448, 454-56 (S.D.N.Y. 1979); People v. Wood-

ward, 50 N.Y.2d 922 (1980).

Assuming for the argument only that the

statements in the instant case did not interlock on the

issue of who did the actual killing, resolution of that

issue was not essential to the State’s case. Appellee

was convicted of felony murder, a killing by one of the

three participants in the Tucci robbery. New York

Penal Law § 125.25(3). Since appellee never sought the

benefit of the non- killer affirmative defense provid-

ed for in the New York statute, it made no difference

in his case which of the three defendants killed the

Tuccis. Proof of appellee’s participation in the robbery

which culminated in the two killings established his

guilt.

The interlocking confession doctrine is closely

related to the doctrine of harmless error. We are con-

vinced that, regardless of whether the statements of

Santanella and Cappiello qualified as interlocking con-

fessions, their admission constituted harmless error.

Our conviction is based on our own reading of the

record and what seems to us to have been the probable

impact of the [co-defendants’] confessions on the

minds of an average jury. Harrington v. California,

395 U.S. 250, 254 (1969). It is undisputed that the

deceased, Joseph Tucci, seventy-eight years old, four

feet, eleven inches tall, and weighing one hundred

fourteen pounds, would not open his door to anyone he

didn’t know. It is also undisputed that appellee was

the only defendant whom Mr. Tucci knew. It is also

undisputed that the three defendants were in the Tuc-

ci home on the morning of August 10, 1976. It is also

7a

undisputed that several hours later appellee attemp-

ted to withdraw $2,500 from the Dime Savings Bank,

using Mr. Tucci’s bank book and posing as his

nephew. It is also undisputed that appellee. did not

return to the Tucci home during the two days before

the bodies were discovered to complete the unfinished

“errand”’ which, he claims, took him there on the day

of the killing.

These undisputed facts form the solid foundation

upon which appellee’s admissions to John

Washington rest. The statements of appellee’s co-

defendants added such little to what already was in

the case that, even if the jury failed to follow the trial

court’s limiting instructions which accompanied the

admission of each statement, this would not have had

a devastating affect on appellee’s defense. United

States ex rel. Stanbridge v. Zelker, supra, 514 F.2d at

48-49. In short, we conclude that the ‘minds of an

average jury’ would not have found the State’s case

significantly less persuasive had the testimony as to

[the co-defendants’] admissions been excluded.

Sthneble v. Florida, 405 U.S. 427, 432 (1972). See

Brown v. United States, 411 U.S. 223, 230-32 (1973);

United States ex rel. Nelson v. Follette, 430 F.2d 1055,

1058-59 (2d Cir. 1979), cert. denied, 401 U.S. 917

(1971).

The judgment of the district court is reversed.

8a

APPENDIX “B”

MEMORANDUM AND ORDER

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ANTHONY TAMILIO,

Petitioner,

-against-

WALTER FOGG, Superintendent, Eastern Correc-

tional Institution, ROBERT ABRAMS, Attorney

General of the State of New York,

Respondents.

4

APPEARANCES:

ALBERT J. BRACKLEY, ESQ.

Brooklyn, New York

Attorney for Petitioner

DISTRICT ATTORNEY, KINGS COUNTY

Brooklyn, New York

Attorney for Respondents

By LAURIE S. HERSHEY, ESQ.

MICHAEL GORE, ESQ.

Assistant District Attorneys

NEAHER, District Judge.

Petitioner, a State prisoner serving concurrent

terms of imprisonment of 25 years to life imposed

9a

following his conviction on two counts of felony

murder, has applied for a writ of habeas corpus pur-

suant to 28 U.S.C. §2254. His conviction was affirmed

by the Appellate Division, Second Department, with

an opinion, People v. Santanella, 405 N.Y.S.2d 284 (2d

Dept. 1978), and leave to appeal to the Court of Ap-

peals of the State of New York was denied. A petition

for a writ of certiorari in the United States Supreme

Court was also denied, 443 U.S. 912 (1979), with

Justices Brennan and Marshall noting that they

would grant certiorari. Petitioner has exhausted all

available State court remedies.

The sole claim raised is that petitioner’s convic-

tion was obtained in violation of his Sixth Amend-

ment right to be confronted with the witnesses

against him as established in Bruton v. United States,

391 U.S. 123 (1968). Petitioner and two co-defendants,

John Cappiello and Ralph Santanella, were tried

jointly—petitioner’s several motions for a severance

having been denied—for the felony murder of an elder-

ly couple, Joseph and Angelina Tucci, which occurred

during a burglary and robbery in their home on

August 10, 1976. Petitioner was 15 years old at the

time of the crime. Although petitioner’s co-defendants

did not testify at trial, he did so, denying guilt and of-

fering evidence in an attempt to establish that, while

he was at the Tucci home with his co-defendants on

the morning of August 10, 1976, he was there on an er-

rand for his father and the Tuccis were alive when he

left.

Petitioner asserts he was deprived of his right of

confrontation by the admission into evidence of the

unredacted confessions or statements of his co

defendants, which placed primary responsibility for

10

the murders on him. The trial court's rulings denying

him a separate trial were based on the interlocking

confession exception to the rule of Bruton v. United

States, 391 U.S. 123 (1968), see Parker v. Randolph,

442 U.S. 62 (1979); United States ex rel. Catanzaro v.

Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397

U.S. 942 (1970); People v. McNeil, 24 N.Y.2d 550, cert.

denied, 396 U.S. 937 (1969), despite the fact that peti-

tioner denied before the jury making «he ‘‘confession”’

relied upon to invoke the doctrine and offered cor-

roboration in support of his denial. He claims it was

prejudicial error to deny him the right to cross-

examine his co-defendants concerning their confes-

sions or statements which implicated him as a partici-

pant in the crime.

Although the jury convicted all the defendants of

felony murder, the Appellate Division granted new

trials to petitioner’s two co-defendants on the ground

that the trial judge’s improper instructions had

denied them the benefit of the ‘‘non-killer’’ affirmative

defense applicable in felony murder cases. The court

said this error was not relevant to petitioner, however,

because he ‘‘did not rely upon, and the evidence as

against him did not suggest the availability of, the af-

firmative defense. 405 N.Y.S.2d at 288.

More significantly, petitioner was denied a new

trial on the Bruton point urged here, even though the

Appellate Division observed that Tamilio’s own

statement does not clearly implicate himself as the ac-

tual murderer . . . [and] to that extent, . . . does not in-

terlock with and support those of his codefendants,

405 N.Y.S.2d at 288, who repeatedly had asserted it

was petitioner who did the killing. Reasoning that to

convict petitioner on the charge of felony murder re-

lla

quired the prosecution to show only that he par-

ticipated in the underlying felony, not that he commit-

ted the murders, and that to that extent”

petitioner’s statement had interlocked with and sup-

ported those of his co-defendants, the court held that:

o much of the statements of Santanella and Capiello

as characterized Tamilio as the actual murderer was

extraneous to the question of Tamilio’s guilt or in-

nocence of felony murder. Therefore, those portions of

the codefendants’ statements could not have been pre-

judicial to Tamilio, and it was unnecessary that such

portions of those statements interlock with and be

supported by a statement by him.“ 405 N.Y.S.2d at

288.

The evidence on which the defendants were con-

victed for the felony murders of the Tuccis is sum-

marized below. Considering the record and arguments

of counsel, the Court is of opinion that unless peti-

tioner is granted a new trial within 60 days, the writ

must be granted.

The prosecution’s theory of the case was that the

defendants acted together and killed the Tuccis dur-

ing the course of a burglary and robbery. In its direct

case, the prosecution introduced by petitioner’s count

no fewer than nine out-of-court statements made by

his co-defendants to third persons placing primary

responsibility for the murders on petitioner. Although

the statements were admitted with limiting instruc-

tions to the jury that they could only be considered

against the person who made them, the court denied

petitioner’s motion to redact the statements so as to

exclude any references to him. The prosecution alsc in-

troduced two statements allegedly made by peti-

tioner, one of which served as the basis for application

of the interlocking confession doctrine.

N

W 12a

Following the introduction of evidence that the

victims were found on August 12, 1976, and had died

of multiple blunt force injuries to the head, Lorraine

Frasca, a neighbor, testified that on August 10, 1976,

at approximately 11:00 a. m., she observed a single car

parked on the wrong side of the street near the Tuc-

cis’ house and saw two boys coming from an alleyway

alongside the house. She identified petitioner and San-

tanella as the boys she observed and noted that a

third boy remained in the back seat of a green station

wagon parked nearby, license number 729 KUE,

which she remembered because her son’s birthday was

July 29, She also testified to a prior lineup identifica-

tion in which she picked petitioner from six in-

dividuals.

Several tellers at the Dime Savings Bank

testified. Timothy O’Neill said he was presented a

bankbook in the names of Joseph and Angelina Tucci

on August 10, 1976. He saw petitioner at the bank and

later identified him at a lineup. Maria Pimenta also

testified she saw petitioner at the Dime Savings Bank

on August 10. Finally, Virginia Dunphy stated peti-

tioner presented a bankbook in the name of Tucci on

August 10, 1976, and that she also picked petitioner

out of a six man lineup. An expert in fingerprint iden-

tification testified that a photograph of a fingerprint

found on the bankbook compared closely with the

fingerprint chart of petitioner.

Russell Cunningham testified that he was a friend

of Cappiello, that Cappiello told him that he, San-

tanella, and petitioner went to the Tucci house to

search for money; that Cappiello had run out of the

house in shock after he saw petitioner hitting the

“old people with a hammer or something: and that

134

petitioner told Cappiello to finish off one of the old

people but Cappiello refused.

Frank Serpico then testified to a conversation he

had with Santanella on August 12, 1976, during which

Santanella said he had participated in a robbery in

which two people were killed; that Santanella told him

he went to the Tucci house with Cappiello and peti-

tioner, using his mother’s car, and that, once at the

house, they tied up the two old people, searched the

house and petitioner killed the old lady.

The next prosecution witness, Glen Reinhold,

testified to a conversation he had with Cappiello on

August 12th or 13th. He said Cappiello told him he

came into the house after the people had been killed;

that Santanella and petitioner went into the house

first and killed the old woman and petitioner told San-

tanella to finish off the man.

Michael Nogaro testified he was in a car with Cap-

piello and Cunningham on August 10, 1976, when

Cappiello recounted the story of the murders. He also

testified that Cappiello went out of the house after

petitioner struck the old lady with a tool or a ham-

mer.

John Washington, a fellow pris oner of petitioner’s

in a Criminal Court Building holdin g pen, testified to a

statement made to him by petitioner—and the critical

one for purposes of his claim—on August 18, 1976.

Washington stated he was alone with petitioner in the

holding pen for a few minutes when he asked peti-

tioner what he was in for and petitioner replied that he

and two buddies were in for homicide but that he

was not caught at the scene of the crime and therefore

Best Copy A .

l4a

he was not scared. He said the robbery netted à ring

and a few grand. Washington further testified that

petitioner also told him they ransacked the house and

that when the old lady began to scream he hit her

with a gun butt: and that petitioner said he was go-

ing to give Cappiello five grand”’ to put it on San-

tanella.

Washington acknowledged that he was a friend

and cellmate of Santanella and also testified to

statements made by Santanella that placed primary

responsibility for the crimes on petitioner.

Washington’s cooperation with the police concerning

the Tucci murders did not begin until October 31,

1976, approximately two and a half months later.

Petitioner later denied making the statements

Washington attributed to him.

Finally, the prosecution called Detective

Kilcullen, who testified as to the scene of the crime,

the lineups and identifications made, and oral

statements made by Cappiello and petitioner. He

stated he visited petitioner’s father’s garden and

nursery on August 14, 1976, and petitioner informed

him that he had last seen Santanella on August 10,

1976, when he, Santanella and Cappiello had been

driving in Santanella’s mother’s car. Kilcullen also

testified to statements Cappiello gave him, after being

advised of his rights, and subsequently gave to an

Assistant District Attorney on the evening of August

14, 1976. The statements were detailed and a complete

account of Cappiello’s version of the murders and

directly implicated petitioner in the crime. Cappiello

admitted seeing petitioner strike the lady, stated they

“did it“ and took a bankbook and a ring. He also ad-

mitted that he and petitioner took the bankbook to

15a

the Dime Savings Bank, Kings Plaza, but threw the

book away when the teller refused to give them any

money.

The defense case consisted of the testimony of a

number of witnesses called to demonstrate that the

Tuccis were alive at some time later in the day on

August 10, 1976, although they failed to establish

that the Tuccis were alive at any specific time on that

date. A Department of Corrections captain produced

records of August 18, 1976, which indicated that peti-

tioner and Washington could have been together on

that date, but that it was unlikely they could have

been alone, as Washington testified. Petitioner's

father next testified that he had bought cement pots

from Joseph Tucci for his nursery and that his son had

offered to pick them up in a friend’s station wagon on

the morning of August 10, 1976. He testified that he

did not see his son between 10:00 a.m. and noon on

that date but did so about 2:30 to 3:00 p.m., when peti-

tioner told him the pots were not ready. Finally, peti-

tioner testified in his own behalf.

Petitioner stated he went to the Tuccis on the

10th in Santanella’s mother’s station wagon to pick

up cement pots for his father and that Cappiello

stayed in the car when they went inside. The pots were

allegedly too heavy for the car and they left. Peti-

tioner further testified he went to Kings Plaza in the

afternoon and happened to meet Cappiello there, who

asked him to help take money out of the bank for him.

Petitioner said he presented a note to a teller stating

he was related to the person named on the bankbook

but testified he did not know the name on the book.

The teller refused to give him the money. Petitioner

denied ever seeing or speaking with John Washington

and denied any involvement in the crime.

164

On cross-examination, petitioner responded that

he was quite surprised to meet Cappiello at Kings

Plaza on August 10th and denied having been driven

to Kings Plaza by Mrs. Santanella. This latter

testimony was in flat contradiction to Mrs. San-

tanella’s testimony on the prosecution’s direct case,

when she stated that petitioner came to her house at

approximately 9:30 a.m. on the 10th and that she

drove her son to a dentist’s appointment at 11:15 a.m.,

and also drove petitioner and Cappiello from her house

to Kings Plaza, where she left them. After her son's

appointment, she left Santanella near Kings Plaza.

In seeking to overturn his State conviction peti-

tioner relies on the federal constitutional arguments

he previously raised on his State appeal. In addition,

relying on the subsequently decided case of Parker v.

Randolph, supra, petitioner raises the novel legal con-

tention, to which the Court turns first, that the in-

terlocking confession exception to Bruton which the

State court invoked to justify admission of the

statements made by non-testifying co-defendants is

inapplicable in cases where, es here, the incriminated

defendant challenges the making of his confession

before the jury. In Parker, the State urged the

Supreme Court to follow the reasoning of the Court of

Appeals for the Second Circuit in United States ex rel.

Catanzaro v. Mancusi, supra, 404 F.2d 296, 300, which

held the Bruton rule inapplicable “‘[w]here the jury has

heard the defendant’s own [interlocking] confession.”

This rule is also followed by New York State courts.

See, e.g., People v. Safian, 46 N.Y. 2d 181 (1978); Peo-

ple v. McNeil supra. In a plurality opinion, the

Supreme Court agreed in Parker that admission of the

interlocking confessions at the joint trial did not

infringe respondents’ right of confrontation but pur-

174

ported to cast the issue in a slightly broader form

than that posed by [the State].’’ 442 U.S. at 72.

Petitioner here concedes that the Court’s plurality

opinion, while not definitively settling the issue,

leaves the interlocking confession doctrine of the Se-

cond Circuit and State of New York intact. He con-

tends, however, that the Parker plurality limited its

application to cases where the incriminated defendant

has made an extra- judicial admission of guilt’’ which

stands before the jury unchallenged. Parker v. Ran-

dolph, supra, 442 U.S. at 73 (Rehnquist, J.). Applying

this limitation, petitioner argues that the trial court

committed prejudicial error in denying his motions for

a severance and redaction of any reference to him in

the co-defendants’ statements, since he denied before

the jury making the confession to Washington, upon

which the court relied in invoking the interlocking

confession rule, and undermined Washington's

testimony with evidence that, he claims, cast doubt on

that portion of his testimony which placed him alone

with petitioner in a criminal court pen on August 18,

1976.

Confronting petitioner's arguments on the merits,

respondents contend that petitioner has misap-

prehended the language of the Parker v. Randolph opi-

nion and the plurality’s holding. Petitioner bases his

contention on the following:

“The right protected by Bruton—the ‘constitutional

right of cross-examination,’ id., at 137, 88 S. Ct., at

1628—has far less practical value to a defendant who

has confessed to a crime than to one who has con-

sistently maintained his innocence. Successfully im-

peaching a co-defendant’s confession on cross-

examination would likely yield small advantage to the

18a

defendant whose own admission of guilt stands before

the jury unchallenged.’ 442 U.S. at 73.

Respondents point out that these observations, which

form part of the plurality’s review of the Bruton rule

and its foundation in the sixth amendment right of

confrontation, precede the passage which actually

states the plurality’s holding:

When, as in Bruton, the confessing co-defendant

has chosen not to take the stand and the implicated

defendant hat made no extrajudicial admission of

guilt, limiting instructions cannot be accepted as ade-

quate to safeguard the defendant's rights under the

Confrontation Clause. Under such circumstances, the

‘practical and human limitations of the jury system,’

Bruton v. United States, supra, at 135, override the

theoretically sound premise that a jury will follow the

trial court's instructions. But when the defendant's

own confession is properly before the jury, we believe

that the constitutional scales tip the other way. The

possible prejudice resulting from the failure of the

jury to follow the trial court's instructions is not o

‘devastating’ or ‘vital’ to the confessing defendant to

require departure from the general rule allowing ad-

mission of evidence with limiting instructions. We

therefore hold that admission of interlocking confes-

sions with proper limiting instructions conforms to

the requirements of the Sixth and Fourteenth Amend-

ments to the United States Constitution.” 442 U.S. at

74-75.

The parties have closely debated what the

reference to an admission of guilt standing before the

jury unchallenged' signifies. Respondent suggests it

means only legal“ challenges, for example, on

grounds of voluntariness or violations of rights under

Miranda v. Arizona, 384 U.S. 136 (1966). Petitioner

194

disputes that interpretation, contending it renders il-

logical the earlier allusion to ‘‘one who has consistent-

ly maintained his innocence,” since “‘legal’’ challenges

are typically made without reference to the question

of guilt or innocence. He urges the Court to construe

the Parker piurality opinion as limiting the interlock-

ing confession doctrine to defendants who have in fact

confessed, thus excluding cases such as his where a

„factual' challenge is launched to the actual making

of the confession. He finds support for his interpreta-

tion in Justice Stevens’ dissent, which charges the

plurality with creating an exception to Bruton

whenever there is evidence that the defendant has

also made inculpatory statements which he does not

repudiate at trial. 99 S. Ct. at 2144 & n.2 (emphasis

supplied).

Although petitioner’s arguments have appeal at

first blush, they must be rejected. His position would

permit any defendant whose statements or confes-

sions had been placed before the jury to obtain a

severance or reversal on appeal, in cases in whicli co-

defendants’ statements have been admitted on an in-

terlocking’’ confession theory, simply by disclaiming

his own confession. Such a result, of course, is

untenable.’

Moreover, the plurality opinion in Parker cannot

be construed as creating the limitation on the in-

terlocking' confession doctrine petitioner urges. As

the State points out, the actual holding of the case is

that admission of interlocking confessions with pro-

per limiting instructions conforms to the re

quirements of the sixth and fourteenth Amendments.

Certainly the plurality could not have intended the

broad limitation petitioner perceives in other

20a

language in the opinion. As a practical matter, the

limitation could easily swallow the exception to the

Bruton rule that petitioner concedes remains the law

in this circuit.

Although petitioner must fail in his effort to nar-

row the plurality holding in Parker v. Randolph, and

with it this circuit’s rule developed in United States ex

rel. Catanzaro v. Mancusi, supra, he has raised a far

more troubling and substantial issue by renewing a

contention from his State appeal. He points out that

his disputed statement to Washington and those

made by his co-defendants were not enough alike for

the State courts to hold that they truly ‘‘interlocked”’

and thus were outside the protective scope of Bruton,

and within the general rule that jury instructions will

suffice to avert any prejudice without need for severed

trials or redacted statements. What is most troubling

about the case is that throughout the trial, by reason

of the admission of the unredacted statements of peti-

tioner’s co-defendants, the jury was repeatedly

reminded of the baneful fact that two of the three

defendants on trial before them for murder named the

third, petitioner, as the killer without petitioner hav-

ing the opportunity to test the truth of the assertions

by cross-examination. Concededly, the statements

partially “‘interlocked”’ as to petitioner’s participation

in the underlying felony. Nevertheless the Court can-

not ignore the clear possibility that the substantial

prejudice which must be recognized to have accrued to

petitioner from the plain Bruton error committed with

respect to his guilt or innocence as a killer partici-

pant“ under the trial judge’s instructions, spilled over

to the jury’s consideration of the alternative ground

of petitioner’s mere participation’’ in the underlying

felony. Thus, although petitioner’s confession to

21.

Washington interlocked' with his co-defendants’

statements as to petitioner having played at least this

lesser role, the improper singling out of petitioner as

the killer presented the jury with such clearly damn-

ing information that the Bruton error must be held to

have permeated the jury’s consideration of

petitioner’s guilt or innocence as a mere participant

in the felony as well, despite the trial judge’s limiting

instructions.

The interlocking confession cases in this circuit,

where the doctrine developed, provide only a general

guide to decision in this case. Indeed, they only con-

firm how far from ordinary the facts of this case have

marked it and, consequently, why error under Bruton

that was not harmless beyond a reasonable doubt

must be held to have occurred.

Jetermining whether confessions or statements

interlock' is inherently a largely factual process, the

object of which has been well explained in terms of the

doctrine’s rationale. Under Bruton,

“error of constitutional dimensions does not in-

evitably occur if the questioned confession is admitted

under proper instructions from the court concerning

its limited use and purpose. The likelihood of error

must be measured against the prejudicial conse-

quences of the failure to follow the court’s instruc-

tions, i. e., the ‘devastating’ effect of the incrimina-

tions contained in the codefendants’ admissions. [See

Bruton, at 136]. Where the confession adds nothing to

what is otherwise clearly and properly in the case, it

can have little ‘devastating’ effect.

“This situation would clearly obtain were the defen-

dants to voluntarily sign identical confessions.

22a

However, since confessions are rarely maternal twins,

the court must look to their substance to see whether

they interlock sufficiently on vital points to indicate a

common genesis. If they do, ‘devastating’ effects do

not follow from their admission.

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

45, 48-49 (2d Cir.), cert. denied, 423 U.S. 872 (1975).

Accord, Parker v. Randolph, supra, 442 U.S. at 72-75

(plurality).

Contentions that a defendant’s confession or

statement does not interlock with and support that of

a nontestifying co-defendant have rarely succeeded.

An exception is United States v. Castello, 426 F.2d

905, 907 (2d Cir. 1970), where the denial of a motion to

vacate a conviction under Bruton was reversed

because the defendant's bare statement testified to

at trial by another was that he had planned a robbery

of the bank that was robbed, while the co-defendants’

interlocking' confessions had detailed efforts of the

[defendant] after the crime was consummated.”

More usual are cases like United States ex rel.

Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), and

United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir.

1973). In Duff, the defendant’s confession differed in

that he stated he had walked from the car the other

way from the liquor store he was charged with rob-

bing, while his co-defendants had stated that he walk-

ed from the car to the store with the two who perform-

ed the robbery. In other statements, however, the

defendant had acknowledged to detectives that he had

agreed to participate in the robbery and act as

lookout. Considering the defendant to have confessed

“to essentially the same facts’’ as the co-defendants

the court held that in light of the defendant’s un-

23

disputed presence at the robbery, the co-defendant’s

statements placing him with the robbers themselves

were not a ‘vitally important’ part of the prosecu-

tion’s case against him. 452 F.2d at 1010 (citation

omitted).

In Ortiz, the court rejected a contention that con-

fessions by the habeas petitioner and his co-

defendants, his brother Alfredo and one Valencia,

were not interlocking because that of Alfredo did not

cover the slaying itself and Valencia’s put the crime

nine hours later than the other two. These differences

did not detract from the significant, interlocking

aspects of the confessions. ‘‘As to motive, plot and ex-

ecution of the crime they are essentially the same.

476 F.2d at 39. Significantly, however, the court em-

phasized that there is no content of the codefen-

dants’ confessions that implicates [defendant] in the

commission of the crime more than does his own con-

fession—in fact, of the three his own is the most

significant.’’ See also United States ex rel. Smith v.

Montanye, 505 F.2d 1355, 1359-60 (2d Cir. 1974) (ad-

mission of statements by co-defendant describing

defendant’s meeting with two others, at which defen-

dant acknowledged having stabbed the victim, held

not in violation of Bruton where the two others

testified as to the meeting and the defendant’s

statements; the content of [the co-defendant’s]

statements is substantially identical to that of two

other testifying witnesses and does not implicate peti-

tioner any more in the commission of the crime than

does their independent testimony which was subject

to full cross-examination’’).

This theme was developed further in United

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

24a

The Court of appeals there reversed the district

court’s grant of habeas corpus relief and overturning

of a State manslaughter conviction on the ground that

Bruton had been violated because there were ‘‘signifi-

cant differences’’ between the confessions of the

habeas petitioner and his co-defendant. These related

to the petitioner’s knowledge that his co-defendant,

who did the killing, possessed or intended to use a

dangerous weapon. Citing Ortiz, supra, the court said

the asserted differences were irrelevant tu any of the

elements of the crime of manslaughter of which peti-

tioner was convicted... There was nothing in [the co-

defendant’s] confession that implicated petitioner any

more in the commission of the crime than did his own

confession. 514 F. ad at 49-50. Significantly, the trial

judge’s instructions did not require the jury to find

the defendant knew the co-defendant had a shotgun in

order to convict but only that he participated in a con-

spiracy in the furtherance of which the shooting occur-

red. As to that, the defendant’s statements standing

alone were sufficient to sustain the conviction. 514

F.2d at 50.

The foregoing cases hold essentially that there is

no error under Bruton where the content of the co-

defendants’ statements adds nothing significant to

the statements made by the defendant. In none of

them, however, was there presented the problem that

makes this case troubl ome. The statements here in-

terlock only in part, and the point on which they

diverge, and where Bruton error is plain, is on the

enormously potent issue of petitioner’s role as the

killer.

Confronted with petitioner’s arguments on the

point, the Appellate Division clearly recognized the

existence of potential Bruton error by ruling that peti-

25a

tioner’s statement to Washington did not completely

interlock' with those made by his co-defendants

because the statements conflicted as to petitioner’s

role as the killer. The statements of Cappiello and San-

tanella implied and asserted that Tamilio killed the

Tuccis but Tamilio's own statement [did] not clearly

implicate himself as the actual murderer.’’ 405

N.Y.S.2d at 288.

On federal habeas review of a State court convic-

tion, factual determinations of the State courts are

presumed correct, even when made by an appellate

court. See Sumner v. Mata, 449 U.S. 539 (1981); 28

U.S.C. §2254(d). This Court cannot say that the record

does not fairly support the Appellate Division’s deter-

mination as to how far confessions' of petitioner and

his co-defendants interlock. Certainly the record does

not provide convincing evidence that this factual

determination is in error.“

Nevertheless, the Appellate Division held that

reversal and a new trial were not required. It said that

it was unnecessary that the portions of the co-

defendants’ statements incriminating petitioner as

the killer completely ‘interlock with’’ and be sup-

ported by petitioner’s confession, since in its view

those portions could not have been prejudicial to

him. 405 N.Y.S.2d at 288. The court reasoned that

the characterizations of petitioner as the killer con-

tained in those statements were extraneous to the

question of [petitioner’s] guilt or innocence”’ of felony

murder. Jd. Under the cases, the court implicitly ac-

cepted that the portions of the description petitioner

allegedly gave Washington about striking Mrs. Tucci

during the robbery to silence her, and the supposed

take, which interlocked with and supported other

26a

portions of the statements of the co-defendants, were

equally damaging to petitioner under the trial court’s

instructions as the co-defendants’ description of him

as the killer participant, notwithstanding that peti-

tioner denied having made the statement and

plausibly explained his presence at the Tucci home

and presentation of the passbook at the Dime Savings

Bank.‘

The content of the incriminating statements made

by petitioner’s co-defendants, however, stands in the

way of such an easy solution. First, the identification

of petitioner as the murderer was never wholly ‘‘ex-

traneous to petitioner’s guilt or innocence of felony

murder. Of course, it was not necessary for the pro-

secution to show petitioner was the murderer. Yet

that was the conclusion the prosecution clearly in-

vited the jury to draw about petitioner from Cap-

piello’s statements.’ In addition the trial judge’s in-

structions focused the jury’s attention as much on the

theory that a defendant would be guilty of felony

murder as the killer participant as on the theory

that any defendant could be convicted of felony

murder for merely participating in the underlying

felony without having committed the actual murders.‘

The importance of determining whether any of the

defendants was in fact a killer participant“ was fur-

ther brought home by the trial judge’s instructions as

to the availability of the non-killer defense to felony

murder.’

Clearly, to the extent the jury understood that

petitioner could be found guilty if it determined

beyond a reasonable doubt that he was a killer par-

ticipant, the Bruton rule was violated. The

statements of the nontestifying co-defendants im-

plicated petitioner on a salient point of the crime

27

charged in the instructions more than his own

disputed statement did. If Bruton was violated by the

jury’s consideration of whether petitioner was the

“killer participant depicted by his co-defendants,

because the statements did not interlock on this point,

there arises the substantial risk, which Bruton

recognized, that the jury did not follow the court’s

limiting instructions but weighed the ‘‘devastating”’

implications of the untested incriminating statements

in deciding that petitioner was a killer participant.

It strains any common-sense view of the ‘probable

impact, Harrington v. California, 395 U.S. 250, 254

(1969), on the minds of a jury in a murder trial, of an

identification of a defendant as the murderer by his

co-defendants, to hypothesize that the jury could ig-

nore the picture of petitioner as the killer put im-

mediately before them by the co-defendants’

statements, and instead rest their conviction upon the

less brutal (though legally equally culpable) facts that

he participated in the robbery and hit Mrs. Tucci.

The problem is clearly one of prejudicial spill-over

of a Bruton violation. The prejudicial consequence of

the jury’s failure to follow the court’s instructions is

that they would consider petitioner was the killer

participant“ depicted by his co-defendants. With that

picture fixed in their minds they could not fairly have

considered petitioner’s guilt based on his mere par-

ticipation in the underlying felony.

The observations of Justice Blackmun, concurring

in the result in Parker v. Randolph, supra, bear direct-

ly on the kind of spill- over prejudice that occurred

in this case. It was Justice Blackmun’s view, joined in

by the three dissenting justices, see 442 U.S. at 81,

not to

—

28a

“depart from the harmless error approach in interlock-

ing confession cases. The fact that confessions may in-

terlock to some degree does not ensure, as a per se

matter, that their admission will not prejudice a defen-

dant so substantially that a limiting instruction will

not be curative. The two confessions may interlock in

part only. Or they may cover only a portion of the

events in issue at the trial. Although two interlocking

confessions may not be internally inconsistent, one

may go far beyond the other in implicating the con-

fessor’s codefendant. In such circumstances, the ad-

mission of the confession of the codefendant who does

not take the stand could very well serve to prejudice

the defendant who is incriminated by the confession,

notwithstanding that the defendant’s own confession

is, to an extent, interlocking. I fully recognize that in

most interlocking confession cases, any error in admit-

ting the confession of a nontestifying codefendant will

be harmless beyond a reasonable doubt. Even so, I

would not adopt a rigid per se rule that forecloses a

court from weighing all the circumstances in order to

determine whether the defendant in fact was unfiarly

prejudiced by the admission of even an interlocking

confession. Where he was unfairly prejudiced, the

mere fact that prejudice was caused by an interlock-

ing confession ought not to override the important in-

terests that the Confrontation Clause protects. 442

U.S. at 79.

Recently, this circuit seems also to have

acknowledged the possibility that application of the

interlocking confession doctrine may itself be cause

for prejudice. In holding that the prosecution neither

sought to argue [one defendant’s] guilt from [the

codefendant’s] confession nor created any substantial

risk that the limiting instruction would be ignored,”

Kirksey v. Jones, 673 F.2d 58, 61 (2d Cir. 1982), the

court carefully noted that application of the interlock-

29a

ing confession rule would have created a greater risk

of prejudice if independent evidence had not link-

ed the petitioner to the scene of one of the crimes and

if the co-defendant’s confession ‘‘had incriminated

[petitioner] as to a salient point not set forth in [his]

own confession.’’ 673 F.2d at 60 n.2.

Unlike Kirksey v. Jones, where apparently no

good explanations for the independent evidence of the

defendant’s role in the crimes was offered, the in-

dependent evidence in this case identifying petitioner

in the Tucci driveway and with the Tucci bankbook

was met by petitioner’s admission that he had been at

the Tucci home to pick up cement pots for his father,

and had tried to do his friend Cappiello a favor. On the

other hand, petitioner was never directly identified as

the murderer, even by his own confession. The: efore

the incriminating nature of his co-defendants’

statements that this was so could only have prejudic-

ed him in the jury’s consideration of his guilt or in-

nocence as a participant in the underlying felony. In

effect, his role had already been settled.

Since there was error under Bruton in admitting

the confessions of petitioner's co-defendants at their

joint trial, the question next arises whether this con-

stitutional error was harmless beyond a reasonable

doubt. See Hendrix v. Smith, 639 F.2d 113 (2d Cir.

1981). In that case the Court of Appeals drew from

Schneble v. Florida, 405 U.S. 427 (1972), and Chap-

man v. California, 368 U.S. 18 (1967), the following

definitions of harmless error in a Bruton situation:

There is little, if any, difference between our

statement in Fahy v. Connecticut [375 U.S. 85, 84

S.Ct. 229, 11 L.Ed.2d 171] about whether there is a

reasonable possibility that the evidence complained of

30

might have contributed to the conviction” and requir-

ing the beneficiary of a constitutional error to prove

beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained. We,

therefore, do no more than adhere to the meaning of

our Fahy case when we hold, as we now do, that before

a federal constitutional error can be held harmless, the

court must be able to declare a belief that it was

harmless beyond a reasonable doubt.’ ([Chapman v.

California] 368 U.S. at 24... .)

Thus, unless there is a reasonable possibility that

the improperly admitted evidence contributed to the

conviction, reversal is not required. See Chapman v.

California, 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17

L.Ed.2d 705] (1967). In this case, we conclude that the

minds of an average jury would not have found the

State’s case significantly less persuasive had the

testimony as to Snell’s admissions been excluded. The

admission into evidence of these statements,

therefore, was at most harmless error.’ [Schneble v.

Florida] 405 U.S. at 432.“ 639 F.2d at 115.

The significant vice of the admission of the co-

defendants’ statements in this case is that their con-

tent unfairly refuted petitioner’s defense by offering

apparently conclusive, yet unexamined corroboration

of what Washington testified petitioner had confessed

(however improper it was to consider it).* By itself,

Washington’s testimony providing the confession was

open to suspicion. A corrections official provided

reliable testimony that the conversation could not

have occurred in the private manner Washington said,

Further, his sharing of a cell with petitioner’s co-

defendant Santanella and professed friendship for

Ralphie provided obvious motivations for his

testimony. Indeed, Santanella himself could have

31a

been the source of Washington's information which

the latter supposedly waited almost three months to

bring to the prosecution's attention. On the other

hand, petitioner denied on the stand that he ever con-

fessed to Washington, and offered plausible explana-

tions for the other independent evidence closely link -

ing him to the crime, Mrs. Frasca’s identification of

him in the Tucci driveway and the bank teller’s iden-

tification of him with the bankbook. Without peti-

tioner’s purported confession, these witnesses provid-

ed the prosecution with a probably sufficient but

hardly overwhelming circumstantial case against peti-

tioner.

Clearly it was important to the prosecution that

the jury accept petitioner’s ‘‘confession’’ to

Washington as proof of what happened. Essentially,

however, the jury had been improperly informed that

petitioner’s co-defendants had named him the killer, in

apparent confirmation of everything Washington told

them petitioner had told him. In those circumstances

they could not fairly consider petitioner’s denial that

he ever confessed to having participated in the

crimes. Since it cannot be said now how the jury

might have viewed petitioner’s ‘“‘confession’’ to

Washington, i.e., whether or not they would believe he

made it, and since that confession obviously was

critical to the prosecution, it cannot be said that the

Bruton error in this case was harmless beyond a

reasonable doubt.

Accordingly, the petition for a writ of habeas cor-

pus will be granted unless petitioner is granted a new

trial within sixty (60) days of the date of this Order.

32a

SO ORDERED.

The Clerk of Court is directed to forward copies of

this Memorandum and Order to counsel for the par-

ties.

s/Edward R. Neaher

U.S.D.J.

Dated: Brooklyn, New York

August 26, 1982

FOOTNOTES

1. The witnesses Cunningham, Serpico and

Nogaro also testified that they were told a ring was

taken from the house.

2. Cf. Felton v. Harris, 482 F. Supp. 448, 456

(S.D.N.Y. 1979), decided after Parker v. Randolph, in

which Judge Weinfeld held there was no Bruton viola-

tion in admitting the confession of a nontestifying co-

defendant under the interlocking confession doctrine

where the defendant unsuccessfully testified to vitiate

the force of his own incriminating statements by de-

nying their truth.

3. Although the present argument was not as fully

developed in petitioner’s State appeal brief, the Ap-

pellate Division’s treatment of the ‘“‘interlocking”’

aspect of the case amply satisfies any doubts regar-

ding exhaustion of remedies. Cf. Mitchell v. Smith,

633 F.2d 1009, 1011 (2d Cir. 1980), cert. denied, 449

U.S. 1088 (1981) (comity does not require that federal

335.

court give greater deference to State procedural rules

than State courts do themselves).

4. The court stated that “‘[slince the indictment

charged Tamilio with felony murder, his conviction on

those counts flowed automatically from the prosecu-

tion’s showing that he participated in the underlying

felony, during the course of which one of the defen-

dants caused the deaths of the Tuccis. People v. San-

tanella, 63 A.D.2d 744, 405 N.Y.S.2d 284, 288 (2d

Dept. 1978). It is unclear from this statement whether

the court held there was no Bruton error at all, as the

reasoning of MacNeil, supra, in following the Second

Circuit Catanzaro decision, would indicate, or whether

any Bruton error was harmless beyond a reasonable

doubt.

To the extent that the court first looked to other

evidence besides petitioner’s confession to gauge the

effect of the claimed wrongful admission of the co-

defendants’ confessions, it would have adopted a

harmless error approach seemingly inconsistent with

the Parker v. Randolph plurality and case law in this

circuit and New York State. The point, however, is not

critical.

5. See Tr. at 2271-75.

6. See Tr. at 2307-98, 2311-12.

7. See Tr. at 2323-26.

8. On summation, the prosecutor sought to

bolster Washington's version of Tamilio’s ‘‘confes-

sion“ by openly inviting the jury to view the co-

defendants’ statements as corroboration:

344

And. you see, if all you had in this case was John

Washington, you might say to yourselves, what's go-

ing on here, but John Washington is corroborated con-

stantly throughout this case. He is corroborated by

Lorraine Frasca. He is corroborated by the bank peo-

ple. He is corroborated by the defendant Cappiello's

confession. He is corroborated by what Ralph tells

him. See, he's corroborated all along the line. Tr. at

2284 (Emphasis added).

35a

APPENDIX “C”

DECISION DATED APRIL 24, 1978

THE PEOPLE, etc.,

Respondent,

v.

RALPH SANTANELLA, JOHN CAPPIELLO

and ANTHONY TAMILIO,

Appellants.

Harry H. Levine, Brooklyn, N.Y., for appellant

Santanella.

Jacob Evseroff, Brooklyn, N.Y. (Bennett M. Eps-

tein of counsel for appellant Cappiello).

Albert J. Brackley, Brooklyn, N.Y., for appellant

Tamilio.

Eugene Gold, District Attorney, Brooklyn, N.Y.

(Michael Gore of counsel), for respondent.

Appeals by defendants from three judgments of

the Supreme Court, Kings County (RINALDI, J.), one

as to each of them, all rendered June 24, 1977, convic-

ting each of them of two counts of murder in the se-

cond degree, upon a jury verdict, and imposing

sentence.

362

Judgment as to defendant Tamilio affirmed.

Judgments as to defendants Santanella and Cap-

piello reversed, on the law, and new trial ordered as to

them.

Defendants were each charged, inter alia, with

two counts of murder in the second degree. The indict-

ment alleged that on or about August 10, 1976 defen-

dants, having attempted to commit and committed

the crimes of robbery and burglary, and in the course

of and in furtherance of such crimejs] and of im-

mediate flight therefrom,’’ caused the deaths of

Joseph and Angelina Tucci by means of a blunt instru-

ment.

Each of the defendants employed a distinct

strategy on his defense. Defendant Santanella did not

testify in his own behalf. Upon summation

Santanella’s counsel conceded that his client had

driven defendants Cappiello and Tamilio to the Tucci

home on the morning of August 10, 1976. Santanella

was, in fact, identified by a neighbor of the Tuccis as

one of those who was seen emerging from the alleyway

of the Tucci home on the morning in question. Tamilio

was also so identified. However, Santanella’s counsel

sought to portray his client as a patsy in this case.

He contended that Santanella had no idea where he

was taking Cappiello and Tamilio, that once at the

Tucci home he took no part in the crime and that he

had received no part of the proceeds therefrom. To the

contrary, an acquaintance of Santanella testified at

the trial that Santanella had admitted to him that he

had participated in a robbery in which two people had

been killed. However, Santanella disclaimed respon-

sibility for the actual murders.

37a

Defendant Cappiello made several statements to

the police, the Assistant District Attorney and

friends, which were admitted into evidence at the

trial. Those statements clearly implicated Cappiello in

the alleged robbery and burglary. Cappiello did not

testify in his own behalf. Upon summation, his

counsel conceded that Cappiello was guilty of the

underlying felony. He, too, denied that his client had

any knowledge that a murder would be committed and

denied that his client had in any way participated in

the murders.

Defendant Tamilio, who had also been identified

as one of those who emerged from the alleyway of the

Tucci home on the morning of August 10, 1976, knew

Joseph Tucci. Tamilo’s father and Mr. Tucci were

business associates. Tamilio, testifying in his own

behalf at the trial, conceded that he, Santanella and

Cappiello had gone to the Tucci home on the morning

of August 10. However, he stated that he was doing

an errand for his father and denied that the crime was

committed at that time. It was his contention that the

Tuccis were alive at the time he was seen emerging

from the alleyway and he presented several witnesses

in an attempt to establish that claim. Upon summa-

tion, Tamilio’s counsel argued that some time subse-

quent to the time his client left the Tucci home that

morning, someone entered and committed the crimes

for which defendants were indicted.

At the conclusion of the summations, the court

charged the jury. As a part thereof, the court charged

the affirmative defense to felony murder. The crime of

felony murder is defined by subdivision 3 of section

125.25 of the Penal Law. After the definition the affir-

mative defense is set forth as follows:

38a

“except that in any prosecution under this subdivi-

sion, in which the defendant was not the only partici-

pant in the underlying crime, it is an affirmative

defense that the defendant:

‘‘(a) Did not commit the homicidal act or in any

way solicit, request, command, importune, cause

or aid the commission thereof; and

b) Was not armed with a deadly weapon, or

any instrument, article or substance readily

capable of causing death or serious physical in-

jury and of a sort not ordinarily carried in public

places by law-abiding persons; and

e) Had no reasonable ground to believe that

any other participant was armed with such a

weapon, instrument, article or substance; and

d) Had no reasonable ground to believe that

any other participant intended to engage in con-

duct likely to result in death or serious physical

injury.

The court’s charge on this issue, was, in pertinent

part, as follows:

We have another portion of our law that is peculiar

to felony murder cases, and I have had your attention

and I would like to keep it. So, please listen. This is

called an affirmative defense. We call it affirmative

defense of non-killer. The law is as follows: On proof of

certain mitigating circumstances the law allows a jury

to find a defendant not guilty of felony murder who,

although a participant in the underlying felony was

not himself the person who caused the death of the

decedent. I emphasize, however, that you are not to

consider this defense unless the evidence satisfies you

beyond a reasonable doubt that such defendant has

been proven guilty of felony murder. It is only

available to a non-killer defendant, and only after you,

the jury, are satisfied of the guilt of such defendant

beyond a reasonable doubt as to the felony murder.

39a

Only then may the jury turn to a consideration of the

mitigating factors of his defense, that he was a non-

killer.

R * **

Before you may find a non- killer defendant not

guilty of felony murder by reason of the foregoing af-

firmative defense, you must be satisfied that all of

these mitigating factors have been proved when all of

these mitigating factors have been proved to exist the

law then allows the jury to extend mercy to such non-

killer by finding him not guilty of the felony murder,

but guilty instead of the robbery or the burglary in

which he participated.

E * *

“If from the evidence adduced at this trial you are

satisfied beyond a reasonable doubt that a defendant

has been proven guilty of felony murder, it is only

then that you may turn to a consideration of the

mitigating factors of his defense that he was not the

killer. If you decide to consider this, you must be

satisfied that all of the mitigating factors have been

proved to exist under the instructions I have given to

you. If you are satisfied that all the mitigating factors

have been proved to exist as to a non- killer defendant,

you may, if you so decide, extend mercy to such non-

killer defendant by finding him not guilty of felony

murder, but guilty instead of [the] robbery or burglary

in which he participated, in the degree that has been

proven beyond a reasonable doubt.”

All of the defendants now claim that that portion

of the charge is reversible error. There can be no ques-

tion that that portion of the charge was improper. By

it, the court gave the jury the option of (1) not con-

sidering the affirmative defense, even if it were

satisfied that one or more of the defendants was other-

wise guilty of felony murder or (2) finding one or more

of the defendants guilty of felony murder, not-

40a

withstanding the fact that all of the elements of the

defense had been made out, because it felt that the ex-

tension of mercy was inappropriate under the cir-

cumstances of the case. There is no authority for the

proposition that a jury may be given untrammeled

discretion as to the application of an affirmative

defense. If the jury had found any or all of the defen-

dants guilty of felony murder beyond a reasonable

doubt, it was bound to consider whether such defen-

dant or defendants had established the elements of

the affirmative defense by a fair preponderance of the

evidence. If the jury had then found those elements to

have been properly established, it would then have

been bound to enter a verdict of not guilty of felony

murder. While the affirmative defense is a clemency

statute in the sense that it requires the jury to con-

sider, in its deliberations, certain circumstances in

mitigation of the acts alleged, such mercy' arises

automatically upon satisfaction of the statutory re-

quirements. There is no option.

We hold that that portion of the charge was clear-

ly prejudicial as to defendants Santanella and Cap-

piello. The evidence presented at the trial would clear-

ly have permitted the jury to find that one or both of

those defendants had participated in the underlying

robbery and burglary and, consequently, without

more, were guilty of felony murder. At the same time,

however, the jury could also have properly found that

the evidence showed that one or both of them had

satisfied all of the elements required to acquit them of

felony murder by reason of the affirmative defense. It

is of no moment that neither defendant testified in his

own behalf at the trial. The jury could have found the

defense to have been established by the prosecution’s

own evirience, particularly by the statements made by

each of those defendants.

4la

It is not apparent from the general verdict

whether the jury refused to give any consideration to

the defense, or considered the defense but found the

elements not to have been established by a fair

preponderance of the evidence, or considered the

defense and found the elements to have been properly

established, but refused to find in favor of Santanella

and/or Cappiello because it felt them to be unworthy

of mercy. All these were possibilities under the court’s

charge. Accordingly, the said defendants are entitled

to a new trial.

The situation is different as to defendant Tamilio.

As indicated, his defense was that he was not present

at the time the crimes were committed. The prosecu-

tion’s evidence, if believed, would tend to establish

that Tamilio was in fact present at the time the rob-

bery and burglary had been committed, that he par-

ticipated in those crimes and, consequently, that he

was guilty of felony murder. Conversely, there is no

evidence in the record tending to support a theory

that Tamilio was a nonparticipating bystander to the

murders. Under these circumstances, the jury, as to

Tamilio, could not properly have returned a verdict of

not guilty of felony murder based upon the establish-

ment of the affirmative defense. Thus, the court’s im-

proper charge was not prejudicial as to him and he is

not entitled to a new trial on that basis.

We have considered defendant Santanella’s claim

that the court erroneously denied his motion to sup-

press certain identification evidence and defendant

Cappiello’s argument that the court erroneously

denied his motion to suppress certain statements

made by him to the police and the Assistant District

Attorney. We find both of those arguments to be

42a

without merit. Accordingly, upon the remand, the

court need not conduct a new Wade or Huntley hear-

ing.

Upon this disposition of the appeals of defendants

Santanella and Cappiello, we need not reach the re-

maining arguments raised by them, and we do not do

so.

We do find it necessary, however, to dispose of

one further argument raised by defendant Tamilio. At

the trial, Tamilio made several motions for a

severance based upon Bruton v. United States (391

US 123), contending that the statements of his

codefendants which were introduced at the trial, par-

ticularly those of Cappiello, inculpated him in the

crimes charged and, accordingly, heightened the risk

that the jury would use them to find him guilty. The

court denied each of the motions. Tamilio now cites

the failure to grant him a separate trial as reversible

error. We find no merit to that contention.

In People v. McNeil (24 NY2d 550), the Court of

Appeals adopted the holding of other State and

Federal cases to the effect that the Bruton rule was in-

applicable where each of the defendants has made a

confession almost identical to the confessions of his

codefendants. The critical consideration is whether

the confession of the defendant relying upon Bruton

‘interlocks with and supports”’ the confessions of the

other defendants (People v McNeil, 24 NY2d at p.

553). If it does, a separate trial is not required.

In this case, defendants Santanella and Cappiello

each made a statement or statements implicating

themselves and Tamilio in the robbery and burglary.

43a

Tamilio himself made a statement in which, at the

least, he admitted participation in the underlying

crimes. Thus, to that extent, Tamilio’s statement in-

terlocks with and supports those of his codefendants.

Certain of the statements of Santanella and Cap-

piello also either implied or asserted that it was

Tamilio who actually committed the murders of the

Tuccis. Tamilio’s own statement does not clearly im-

plicate himself as the actual murderer. Thus, to that

extent, Tamilio’s statement does not interlock with

and support those of his codefendants. However,

under the circumstances of this case, such failure is

not prejudicial and does not prevent application of the

McNeil rule.

Since the indictment charged Tamilio with felony

murder, his conviction on those counts flowed

automatically from the prosecution’s showing that he

participated in the underlying felony, during the

course of which one of the defendants caused the

deaths of the Tuccis. It was unnecessary for the pro-

secution to prove that Tamilio actually committed the

murders. Accordingly, so much of the statements of

Santanella and Cappiello as characterized Tamilio as

the actual murderer was extraneous to the question of

Tamilio’s guilt or innocence of felony murder.

Therefore, those portions of the codefendants’

statements could not have been prejudicial to Tamilio,

and it was unnecessary that such portions of those

statements interlock with and be supported by a

statement by him.

We note that the discrepancy between Tamilio’s

statement and those of his codefendants regarding

Tamilio’s role as the murderer might have been rele-

44a

vant to the establishment of the affirmative defense

to felony murder, since a defendant is required to

establish, as part of that defense, that he did not com-

mit the homicidal acts. However, as noted, Tamilio

did not rely upon, and the evidence as against him did

not suggest the availability of, the affirmative

defense.

Accordingly, since Tamilio’s own statement in-

terlocked with and supported those of his codefen-

dants on the issue of his participation in the underly-

ing felony, the standard enunciated in People v.

McNeil (supra) was satisfied and there was no error in

the court’s refusal to grant Tamilio a separate trial.

SHAPIRO, J. P., COHALAN, MARGETT and

O‘CONNOR, JJ., concur.