Opposition Brief — Lombardi v. New York

ere

Supreme Court of the

October Term, 1973

No, 73-1269

C. JAMES LOMBARDI, JR.,

Petitioner,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of the State of New York

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR CERTIORARI

Ricnarp H. Kun

District Attorney

New York County

Attorney for Respondent

155 Leonard Street

New York, New York 10013

(212) 732-7300

MicuHakt R. JuviLer

Antuony J. GmEsE

Assistant District Attorneys

Of Counsel

TABLE OF CONTENTS

The Initial Appeals from Judgment .......................

- SSE AE SE Re eee

Argument

Point I—Petitioner was not deprived of his right

to confront Kristin Diaz when the testimony of

this witness at petitioner’s first trial was read

to the jury at his retrial, because she was too

NS SESE SRE Ce ROT Se are 12

Point Il—Petitioner’s confession was not coerced

by a few police questions about an unrelated

SSRN ALE SOLIDE LGA PEAT OD IRE 17

Point III—No substantial federal issue is presented

by petitioner’s claim of error in the judge’s

I i BN researc cdi cration 20

I!

TABLE OF AUTHORITIES

PAGE

Cases:

Barber v. Page, 390 U.S. 719 (1968) _...........-.-...-.- 14

California v. Green, 399 U.S. 149 (1970) ....... KES Sa 14

Commonwealth v. Johnson, 372 Pa. 266; 93 A.2d 619

(1953), cert. denied 345 U.S. 959 (1954) ................ 19

Fuller v. United States, 407 F.2d 1199 (D.C. Cir.

1968), cert. denied 397 U.S. 1001 (1969) ................ 19

Haynes v. Washington, 373 U.S. 503 (1962) ................ 18

Leyra v. Denno, 347 U.S. 566 (1954)... 18

Lyon v. United States, 513 F.2d 186 (5th Cir. 1969)... 15

Mancusi v. Stubbs, 408 U.S. 204 (1972) ................... 14

People v. Boone, 22 N.Y.2d 476; 239 N.E.2d 885; 293

N.Y.S.2d 287, cert. denied 393 U.S. 991 (1968) ...... 19

People v. Lombardi, 25 A.D.2d 718, remsttitur

amended 25 A.D.2d 824 (1st Dept. 1966) .............. 4,5

People v. Lombardi, 20 N.Y.2d 266; 299 N.E.2d 206;

282 N.V.S.2d 513 (1967) ........--......---c-cec-cececeeeeeeeeeeeee 5, 14

People v. Lombardi, 39 A.D.2d 700; 332 N.Y.S.2d 749

ie a SS eee 2, 11, 21

People v. Lombardi, 33 N.Y.2d 658; 303 N.E.2d 705;

I I I ne ctterserenerce 2, 11, 21

People v. McQueen, 18 N.Y.2d 337; 221 N.E.2d 550;

274 N.Y.S.2d 886 (1968) 2... .cececcceeeceeeeeeeeeeeeees 19

People v. Pereira, 26 N.Y.2d 265; 258 N.E.2d 194; 309

a senieninaonitieess 19

Peterson v. United States, 344 F.2d 419 (5th Cir.1965) 15

Pointer v. Texas, 380 U.S. 400 (1965) 0.0.0... 14

Spano v. New York, 360 U.S. 315 (1965) ...................... 18

a a a

III

PAGE

Thessen v. State, 454 P.2d 341 (Alaska 1969), cert. de-

oe ae oe eee Oe ST .. 19

United States v. Maroney, 275 F. Supp. 435 (W.D.

"eis ie sae 19

United States ex rel. Caminito v. Murphy, 222 F.2d

698 (2d Cir. 1965), cert. denied 350 U.S. 896

SSE er 19

United States ex rel. Everett v. Murphy, 329 F.2d 68

(2d Cir. 1964), cert. denied 377 U.S. 967 (1969) .. 19

Statutes and Constitutional Provisions:

Constitution of the United States:

Amendment VI .............. EA ACE ee ea 11, 15, 16

Amendment XIV ........ Beemer ee 11,15

Former New York Penal Law §242 ......... 2

New York Code of Criminal Procedure §8(3)(d) 10, 12, 14

New York Criminal Procedure Law $670.10 ............... 10, 12

See

Other Authorities:

5 Wigmore, Evidence 41237 (3d ed. 1940)...

Se a eee

Rae PSASSe

a Aes

C. James Lomsarpl, JB.,

Petitioner,

agaist

Tue PzorLe or THE State or New York,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of the State of New York

—_— ee ee

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR CERTIORARI

Preliminary Statement

C. James Lombardi, Jr., seeks certiorari to review a

judgment of the Court of Appeals of the State of New York,

rendered October 11, 1973, which unanimously affirmed a

judgment of the Supreme Court of the State of New York,

Appellate Division, First Judicial Department, rendered

May 25, 1972, which affirmed a judgment of the Supreme

Court of the State of New York, New York County, ren-

dered March 10, 1971, convicting him, after a trial by jury,

of two counts of AssauLt ix THE Seconp Decree and one

count of Atremprep Assautt (former N.Y. Penal Law

§242). Lombardi was sentenced to periods of imprison-

ment of from two to five years on each of the assault

convictions, and from one to two years on the attempted

assault, the sentences to run consecutively.

The Opinions Below

The New York Court of Appeals affirmed the peti-

tioner’s conviction without opinion, in a decision reported

at 33 N.Y.2d 658, 303 N.E.2d 705, 348 N.Y.S.2d 980 (1973).

The opinion of the Supreme Court of the State of New

York, Appellate Division, First Judicial Department, ap-

pears at 39 A.D. 2d 700, 332 N.Y.S. 2d 749 (1972). The

Supreme Court of the State of New York, New York

County, convicted petitioner without opinion, and that

judgment is not reported.

Jurisdiction

The petition for certiorari was filed on about February

14, 1974, pursuant to an order of Mr. Justice Marsnatz,

dated January 3, 1974, which extended the time for filing

the petition until February 15, 1974. The petitioner in-

vokes this Court’s jurisdiction on certiorari pursuant to

28 U.S.C. §1257(3).

ie

Questions Presented

1. Was the petitioner deprived of his right to confront

Kristin Diaz when the testimony of this witness at

petitioner’s first trial was read to the jury at his retrial,

because Ms. Diaz was too ill to testify?

2. Did five minutes of police questioning about an unre-

lated crime coerce petitioner into confessing?

3. Does a minor error in the course of a state judge’s

charge to the jury, which was corrected in the bulk of

the charge and which was therefore harmless, provide

sufficient basis for this Court’s exercise of certiorari

jurisdiction?

Statement of the Case

The Crimes and the First Trial

From the fall of 1963 through the summer of 1964, the

petitioner, C. James Lombardi, Jr., a pharmacist and travel

agent on Manhattan’s East Side, lured three young women

into his employ and, by a cunning ruse, induced them into

swallowing a potent combination of barbiturates. Naively

believing that these capsules were a new product which

hardened the fingernails, each young woman was soon in

a drug-induced state of virtual paralysis. The defendant

then drove his hapless passengers to a Queens motel. Two

women were sexually abused by Lombardi throughout the

night; a third later testified that she had no memory of

what transpired after she became unconscious due to the

pills.

SS SRS ET ST ey = SRS

4

Pursuant to complaints by Lombardi’s victims, an in-

vestigation was launched by the police, during the course

of which Lombardi, using the same tactic, gave a young

undercover policewoman a capsule containing the stupefy-

ing ‘‘nail hardener.’’ He was then arrested. Immediately

after being taken into custody, Lombardi confessed to his

craven designs.

Lombardi was subsequently indicted for three counts

of kidnapping, eight counts of assault, and one count of

rape. Before trial, he moved to suppress his confession

and other evidence on the grounds that he was arrested

without probable cause, and had not been informed of the

reason for his arrest or of his right to counsel. A pretrial

hearing before the Supreme Court, New York County, dis-

proved these allegations and the evidence was found to be

admissible.

On April 13, 1965, after a trial by jury, Lombardi was

found guilty of assaulting Dolores Moody, kidnapping and

assaulting Ilse Harder, kidnapping, assaulting, and at-

tempting to rape Kristin Diaz, and attempting to assault

Policewoman Blanche Gibbons.

The Initial Appeals from Judgment

On appeal to the Supreme Court of the State of New

York, Appellate Division, First Judicial Department, Lom-

bardi argued that the verdict was not supported by the

evidence, that the motions to suppress were improperly

denied, and that the prosecutor’s conduct was improper

under applicable state law. The Appellate Division affirmed

the judgment, without opinion. People v. Lombardi, 25 A.D.

5

2d 718, remittitur amended 25 A.D. 2d 824 (1st Dept. 1966).

However, this decision was subsequently reversed by the

New York Court of Appeals, which dismissed the kid-

napping charges, holding that although the evidence

proved the crime of kidnapping under a technical reading

of the applicable state statute, that statute was not intended

to cover situations where, as here, the asportation was only

incidental to the commission of another crime. The court

also ordered a new trial on the other charges of attempted

rape, assault, and attempted assault. People v. Lombardi,

20 N.Y. 2d 266; 229 N.E. 2d 206; 282 N.Y.S. 2d 513 (1967).

The Instant Retrial

Prior to appellant’s retrial, the prosecutor informed the

court that one of Lombardi’s victims, Kristin Diaz, was

under a psychiatric infirmity that would prevent her from

testifying. Accordingly, the People moved to have her

sworn testimony from the first trial read to the jury. A

hearing was held on the matter in the Supreme Court of the

State of New York, New York County. At this hearing,

Ms. Diaz’s personal psychiatrist, Dr. Richard Robertiello,

testified that this young woman suffered from a ‘‘masochis-

tic character disorder.’’ In June of 1970, Dr. Robertiello

was contacted by an assistant district attorney about the

possibility of Ms. Diaz testifying at Lombardi’s second

trial. The psychiatrist had been treating Ms. Diaz for about

three years at this time. When he broached the subject

with Ms. Diaz:

‘‘She got enormously upset. She had been doing

quite well for several months and avoiding any kind of

disastrous situations in her personal life and when

le mine nb Meh Me Taare aS ted ar he a ERTS LEED ACRE ONO

mepratty POLAR pt os VER ty cla

4

if

2 i Gh ath ae

6

this came up into the picture she got tremendously up-

set and got anxious, depressed, and was just not her-

self.’’? (H 90)*

A few months later, after the assistant district attorney

had spoken to Ms. Diaz about the new trial, she came to

Dr. Robertiello in an ‘‘enormously distraught’’ condition.

Ms. Diaz told her doctor that the possibility of testifying

had caused her to nearly burn down her apartment, phys-

ically assault her husband, and attempt suicide (H 92-93).

After examining her, Dr. Robertiello advised her ‘‘not to

testify under any circumstances, because I thought it would

really be a danger not only to her mental health but perhaps

even to her life’’ (H 94-95).

At the hearing itself, Dr. Robertiello repeated his diag-

nosis of the severity of Ms. Diaz’s condition, stating that

forcing her to testify might provoke suicide. He also

opined that Ms. Diaz would be unable to rationally testify,

even with the aid of tranquilizers. Dr. Robertiello had

practiced psychiatry for twenty years, and had written

four books and thirty articles on the subject (H 95-96, 116).

Ms. Diaz’s husband, Lawrence Campbell, also testified

at the hearing. Mr. Campbell had known Ms. Diaz for

three years and had been married to her for two. Since he

had known her, she had been under Dr. Robertiello’s care.

Although his wife was normally a rational, intelligent indi-

vidual, when he tried to talk to her about the prior trial she

became ‘‘a totally different person’’ and was ‘‘emotionally

destroyed.’’ Within the six months prior to the hearing,

* Numbered references preceded by the letter “H” are to the pre-

trial hearing.

7

when the possibility of her testifying became apparent, Ms.

Diaz ‘‘lost all judgment,’’ ‘‘broke out in rashes,’’ and phys-

ically attacked Mr. Campbell. She also stated that she

would quit her job and leave the country in order to avoid

testifying at another trial (H 68-77).

After hearing the testimony of Ms. Diaz’s husband and

her psychiatrist, the court granted the motion to perpetuate

the witness's testimony, and Lombardi proceeded to trial.

At the retrial, each of Lombardi’s victims testified that

Lombardi had tricked them into taking barbiturate capsules

for the purpose of rendering them semi-conscious and vul-

nerable to his bizarre sexual advances.* Dolores Moody

testified that she had first met Lombardi during late Octo-

ber or early November of 1963, when this attractive 22-year-

old young woman went to his pharmacy to buy cigarettes

(197, 263).°* Ms. Moody accepted Lombardi’s offer of a

job in his travel agency, which was located in the front of

the store (197, 210).

Soon after she began work, Lombardi asked her to go

with him to a job-related cocktail party on Long Island,

and gave her a bottle of ‘‘ Nail-Tone’’ pills to take, indicat-

ing that this was a new product and she would soon be meet-

ing the manufacturers (216-20). Ms. Moody swallowed the

pills, and got into Lombardi’s car. Soon afterwards, she ’

began feeling dizzy and ‘‘blacked out’’ just after noticing

the cars on a bridge to Queens (222-25). Her next recol-

lection was that of waking up in her apartment, in the dark,

* A complete summary of the extremely lengthy trial testimony is 4

contained in pp. S-4 of respondent’ $ brief 7 in the New York Court of ‘

Appeals, one copy of which is appended to the instant brief.

** Numbered references are to the minutes of trial.

fully clothed. She then went to sleep (226-31). The fol-

lowing day, after going to a hospital because of her still-

unsteady condition, Ms. Moody noticed that her bra had

been turned inside out. This was the same undergarment

she had worn on the following day, when she had put it on

properly. Realizing that she had been sexually attacked,

Ms. Moody went to the police and reported the incident

(231-36, 291-95).

A few months later, in February of 1964, petitioner used

the same tactic on Ise Harder, a 21-year-old model, who

had also stopped in the drug store to buy cigarettes (657-

61). After being hired by Lombardi, she also was offered

the pills before a Long Island cocktail party. On route

to this alleged party, she became dizzy and found that her

sight, speech, and balance were impaired (677-81). In a

state of physical collapse and intermittent unconsciousness,

she was taken to a motel, where Lombardi undressed her

and sexually assaulted her (679-85). She also reported the

incident to the police (687-91).

Lombardi’s next victim was Kristin Diaz, a 25-year-old

college graduate with a master’s degree from Cornell Uni-

versity. Pursuant to the People’s motion, Ms. Diaz’s tes-

timony at the first trial was read at the retrial. She stated

that she had met the defendant on June 11, 1964, and had

accepted the travel agency job. She too took the pills, lost

control of herself on the way to Long Island, and ultimately

found herself in a motel bed in Queens, where Lombardi

removed her clothing and abused her sexually throughout

the night (338-9, 632-33).

RTI S RAGA SESS MSU A Pe eo a

9

Lombardi was arrested on July 1, 1964, after under-

cover Policewoman Blanche Gibbons entered his pharmacy

and was offered the travel agency job. When Lombardi

gave her the nail hardening pills, and mentioned a trip to

LaGuardia airport, Ms. Gibbons ran out of the store and

Lombardi was arrested (796-807 ). Subsequent laboratory

analysis revealed the ‘‘nail hardener’’ to be a high dosage

of an extremely potent combination of barbiturates, easily

capable of rendering a woman incapable of controlling her-

self (1998-99).

The testimony of these witnesses was supplemented and

supported by that of a great number of roommates, neigh-

bors, friends, motel operators, and hospital and police per-

sonnel who were involved in the aftermath and investiga-

tion of each separate sexual attack. This testimony is

much too voluminous to summarize here, and accordingly

this Court is referred to the summary contained in re-

spondent’s brief in the New York Court of Appeals for

further details. However, it should be noted that after

his arrest the petitioner confessed to many of his actions,

basically admitting his strategy of giving drugs to his

victims for the purpose of having sexual intercourse with

them (803-05, 1167-7, 1314-20, 1417-30, 1118).

As to the defense, C. James Lombardi testified in his

own behalf, and denied that he had ever given barbiturate

capsules to, assaulted, or attempted to assault Dolores

Moody, Ilse Harder, Kristin Diaz, or Policewoman Blanche

Gibbons. The jury rejected his testimony and convicted

him of assault in the second degree on Kristin Diaz and

Ilse Harder and attempted assault in the second degree on

ees end oT ee ed Pe Rimny eA RO LEEDS NE ARG I OD eh Sere wt niin

10

Policewoman Gibbons. Lombardi was acquitted of the

attempted rape of Kristin Diaz, and the jury could not

agree concerning the charge that he had assaulted Dolores

Moody. Lombardi was sentenced to two to five years’

imprisonment on each of the assault convictions, and one

to two years’ imprisonment on the attempted assault, the

sentences to run concurrently.

The Appeals After the Retrial

Lombardi appealed his conviction to the Supreme Court

of the State of New York, Appellate Division, First De-

partment, arguing, inter alia, that the reading of the former

trial testimony of Kristin Diaz at his retrial unconstitu-

tionally abridged his right to cross-examine this witness,

and that the judge’s charge to the jury was prejudicial.

The Appellate Division affirmed the conviction, by a divided

court. The majority (Stevens, P.J.; McNauty and Capoz-

zoul, JJ.) held that under applicable New York law, Ms.

Diaz’s prior testimony could be used at the retrial if the

witness was ‘‘unable to attend by reason of his death, in-

sanity, sickness or infirmity’? [New York Code of Criminal

Procedure §8(3) (d)],* and ‘‘it cannot be said on this record

that under no reasonable circumstances could the court

possibly have been satisfied [that] had Kristin Diaz been

required to appear and testify in person her mental and

physical health would have been seriously jeopardized.”

The court also held that although a small portion of the

judge’s charge to the jury, taken out of context, was tech-

nically erroneous, the charge taken as a whole ‘*fairly

stated the law applicable to this case.’’ The dissenters

* Now New York Criminal Procedure Law §670.10.

RE CR OOTP OD

li

(Nuwez and Murpuy, JJ.) disagreed, opining that the sick-

ness or infirmity of Ms. Diaz was not satisfactorily shown,

and that the errors in the judge’s charge warranted re-

versal. People v. Lombardi, 39 A.D. 2d 700; 332 N.Y.S. 2d

749 (1st Dept. 1972).

The petitioner was granted leave to appeal to the New

York Court of Appeals, where he repeated his arguments.

That Court unanimously affirmed the judgment of the Ap-

pellate Division without opinion. People v. Lombardi, 33

N.Y. 2d 638; 348 N.E. 2d 705; 348 N.Y.S. 2d 980 (1973).

Other Appeals

During the last ten years, the petitioner has also filed

numerous collateral attacks on his conviction in nearly

all New York State and federal courts. Although these

proceedings are far too numerous and assorted to catalogue

here, this Court should take judicial notice of its own files

on petitioner for an indication of their scope.

The Instant Petition

In his petition for certiorari, Lombardi advances four

grounds for this Court’s review. First, he argues that the

use at his retrial of Ms. Diaz’s earlier testimony, taken at

a trial where he was also charged with kidnapping, un-

constitutionally deprived him of the right to confront this

witness. Next, he argues that the police unconstitutionally

coerced him into confessing his crimes. Further, he argues

that the judge’s charge contained error of such dimensions

as to warrant this Court’s review. Lastly, he ‘‘adopts the

dissenting opinion of the Appellate Division’’ as another

ground for granting the petition.

SE EES FE PLOT IE OLE IO OO

at aera

12

ARGUMENT

POINT I

Petitioner was not deprived of his right to confront

Kristin Diaz when the testimony of this witness at

petitioner’s first trial was read to the jury at his retrial,

because she was too ill to testify [answering the peti-

tion, Point I, pp. 7-8].

Prior to petitioner’s second trial, a hearing was held to

determine if testimony at the first trial could be read to

the jury. The People contended that Miss Diaz was under

an infirmity that prevented her from testifying, and that

therefore her prior testimony could be read to the jury pur-

suant to the then-existing New York Code of Criminal

Procedure, Section 8(3) (d)*:

‘‘Where the defendant has previously been tried upon

an indictment or information embracing the same

charge, the testimony of any witness who has testified

upon such prior trial may be read in evidence by either

party upon any subsequent trial of the same indictment

or information, upon its being satisfactorily shown to

the court that the witness is unable to attend by reason

of his death, insanity, sickness, or infirmity, or that the

witness cannot with due diligence be found in the

state.’’

A hearing was held or the People’s motion to perpetuate

Ms. Diaz’s testimony, and her husband, Lawrence Campbell,

and her personal psychiatrist, Dr. Richard Robertiello,

were called as witnesses. The testimony of these wit-

* Now N.Y. Criminal Procedure Law §670.10.

as en AAC ie At

13

nesses revealed that Ms. Diaz had developed a ‘‘masochis-

tie character disorder’? which would entail a substantial

risk of suicide if she was forced to testify.* Apparently

at this time Ms. Diaz under normal circumstances was &

rational individual, who was teaching steadily at a local

university. However, when the possibility of again tes-

tifying at trial and revealing the repulsive events of June

16, 1964, was presented to her, she became mentally unable

to cope. As Dr. Robertiello testified :

‘“‘It brought back a whole bunch of feelings of shame,

humiliation, anger that were just too much for her, and

she handled those kinds of feelings by being self-

destructive’’ (H 94).

Dr. Robertiello also stated that in his opinion, forcing

Ms. Diaz to testify could lead to her attempting suicide,

and that even if she took the witness stand, she would be-

come so hystericai that.‘‘you would have to carry her out’’

and she would be unable to rationally testify even with the

aid of tranquilizers (H 92-96). This medical opinion was

supported by the testimony of Ms. Diaz’s husband, Law-

rence Campbell, who stated that possibility of testifying

again caused Ms. Diaz to attack him physically, break out

in a skin rash, and undergo periods of hysteria. She also

threatened to quit her job and leave the country rather

than testify. She had never acted in such a manner before

(H 68-77).

After hearing this evidence, the trial court granted the

People’s motion to perpetuate Ms. Diaz’s testimony, which

was accordingly read to the jury at petitioner’s second

trial. Defense counsel was offered an opportunity to sim-

* A fuller summary of the testimony at this hearing is contained

at pp. 5-7, supra,

SR i ke

Sea eas

i ee

14

ilarly read either Ms. Diaz’s entire lengthy cross-examina-

tion or any portion thereof which he deemed relevant.

Counsel, however, declined to do so.

In the instant petition, Lombardi argues that the read-

ing of Ms. Diaz’s testimony deprived him of his right to

confront this witness, as guaranteed by the Sixth and Four-

teenth Amendments to the Federal Constitution. Lombardi

does not attack the constitutional validity of New York

CCP §8(3)(d) on its face. Neither does he contend that

the testimony of an unavailable witness at a former trial

cannot constitutionally be used at a subsequent proceeding,

for this Court’s decisions have made it clear that such use

is proper under appropriate circumstances. California v.

Green, 399 U.S. 149 (1970) ; Mancusi v. Stubbs, 408 U.S. 204

(1972); see also Pointer v. Texas, 380 U.S. 400 (1965);

Barber v. Page, 390 U.S. 719 (1968). However, he argues

that the application of the statute to the instant facts was

unconstitutional, because the testimony in question was

taken at a trial where the crimes at issue were different.

At his first trial, petitioner was charged with kidnapping,

assault, attempted assault, and rape, and was convicted of

kidnapping, assault, attempted assault, and attempted rape.

The kidnapping charge was then dismissed by the New

York Court of Appeals, which held that although Lombar-

di’s actions could technically be viewed as kidnapping, the

applicable state statute had not been intended to cover

situations where the asportation was merely incidental to

the commission of another crime. People v. Lombardi, 20

N.Y. 2d 266, 229 N.E. 2d 206, 282 N.Y.S. 2d 513 (1967).

Thus, when Lombardi was retried, he was charged with

assault, attempted assault, and attempted rape. The jury

15

convicted him of the assault and the attempted assault, and

acquitted him of the attempted rape.

Petitioner’s argument, which has been rejected on its

merits in two New York appellate courts, does not present

a constitutional issue of sufficient novelty and magnitude

to warrant this Court’s exercise of certiorari jurisdiction.

It is settled law that the perpetuation of former testimony

at a subsequent proceeding requires that ‘‘the isswe on the

occasion when the former testimony or deposition was

given must have been substantially the same, for otherwise

it cannot be supposed that the former statement was suffi-

ciently tested by cross-examination upon the point now in

issue. Conversely, it is sufficient if the issue was the same,

or substantially so for the purpose.’’ 5 Wigmore, Evi-

dence, §1387 (3d ed. 1940). Indeed, the very words of the

instant New York statute, which is limited in its applica-

tion to subsequent trials of ‘‘the same indictment or in-

formation’’ represents a recognition of this principle. See

Lyon v. United States, 513 F.2d 186 (5th Cir. 1969) (tes-

timony of an unavailable witness at a former trial may be

read at a retrial where the indictment, although contain-

ing some ‘‘new matter,’’ presented substantially the same

issues). And, in Peterson v. United States, 344 F. 2d 419,

423-24 (5th Cir. 1965), the United States Court of Appeals

ruled that it was impermissible to admit into evidence at

a second trial testimony from a former trial, where a to-

tally new charge had been added at the second trial.

However, the instant case presented a situation which

is the reverse of that in Peterson. C. James Lombardi, at

his second trial, faced the same charges of assault and

attempted assault which were at issue at his prior trial.

¥

:

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i. PE Hea RE IRON RESIN? SP san Ray Nose

16

He also faced a charge of attempted rape, the same crime

the jury had convicted him of at the first trial, where he

had been charged with a completed rape. Thus, the only

difference was that the defendant was not charged with

the additional crime of kidnapping. Accordingly, counsel

at the first trial had every opportunity to cross-examine

Ms. Diaz about all of the charges which petitioner was

facing at his retrial when her testimony was read to the

jury, and the issues at the two proceedings were thus ‘‘sub-

stantially the same’’ for Sixth Amendment purposes.

Moreover, a review of Ms. Diaz’s cross-examination

at the first trial refutes petitioner’s implied claim that it

was oriented exclusively towards the kidnapping charge.

At this proceeding, petitioner’s counsel simply chose to

generally attack Ms. Diaz’s credibility in order to discredit

her entire story. In fact, in the first one hundred pages of

cross-examination, he did not even delve into that portion

of her story which dealt with her taking the ‘‘nail hard-

ener’’ capsule and the subsequent trip to the motel. In-

stead, he questioned Ms. Diaz about the various places

where she had lived, her allergies, and her job resumé. He

also tried to show that the night of June 16 was not, as Ms.

Diaz claimed, the first night she had worked for the defend-

ant. And, when he questioned her about the incidents of the

night of the 16th, counsel merely attempted to generally

discredit her story. Thus, his entire cross-examination

would have been just as relevant at the retrial as it was at

the first trial.

It should also be noted that even if counsel had ques-

tioned Ms. Diaz specifically about her transportation to a

Queens motel room, where the sexual assault took place,

17

this testimony would also have been relevant at the retrial,

for it established the necessary background for the charged

crimes of assault and attempted rape. Thus, the mere fact

that this testimony was not now technically sufficient, under

applicable state law, to make out the additional crime of

kidnapping would not in any way render any question

aimed at discrediting this portion of the witness’s story

irrelevant at the second trial.

POINT II

Petitioner’s confession was not coerced by a few

police questions about an unrelated crime [answering

the petition, Point II, pp. 8-9].

Petitioner was arrested on July 10, 1964. Although his

crime had occurred in New York’s 19th police precinct, the

officers of which were investigating the affair, he was taken

to the nearby 22nd police precinct station house, because

at the time a large number of newsmen were present at the

19th precinct to cover another case. Lombardi and the

arresting officers arrived at the 22nd precinet station house

at about 4:00 p.m. In order to kill time until the proper

police official—Lieutenant Ward of the 19th precinct—

could arrive and question Lombardi about his actions,

Detective Sgt. Robert Maas asked the petitioner a few

questions about a Professor Gallagher and a Mr. Krebs,

two men who were murdered shortly before Lombardi’s

arrest. This was also done as a matter of routine proce-

dure, since these murders were then the topic of an intense

investigation by the 19th precinct. These questions lasted

about five minutes, and terminated when Lombardi stated

that he would not be able to identify pictures of Krebs and

r TE, PONE Re Ere Pee ROI vanreS

18

Gallagher. Detective Maas did not then persist in this in-

quiry, but instead began to take Lombardi’s pedigree.

Lieutenant Ward arrived at the precinct at 4:30, and told

Lombardi that he did not have to tell the police anything,

and that he should get a lawyer and tell the lawyer the

truth. Lombardi thereupon ‘‘put his head down,’’ stated

that he wanted to ‘‘clear the air,’’ and proceeded to give

a detailed confession of his misdeeds. This confession

came less than one hour after Lombardi was taken into

custody (1155-7, 1309-56).

The petitioner, apparently incorporating the arguments

contained in his brief in the New York Court of Appeals,

seems to argue that his relief when Ward arrived and

revealed that he was being arrested only for the kidnapping

and rape of various young women caused him to make his

subsequent confession. The petitioner therefore concludes

that his confession was involuntary, because it was pri-

marily a product of police deception. This argument has

already been rejected by the trial court, which, after a pre-

trial hearing, found that the confession was voluntary.

This finding was affirmed by two New York appellate

courts.

Petitioner’s contention is without merit. The use of

fraud, artifice or deception will render a confession invol-

untary only when such practices are aimed directly at

obtaining a confession and when, considered with the total-

ity of all the other circumstances, it is apparent that the

confessor’s will was overborne. Leyra v. Denno, 347 U.S.

566 (1954); Spano v. New York, 360 U.S. 315 (1959);

Haynes v. Washington, 373 U.S. 503 (1962); Fuller v.

19

United States, 407 F. 2d 1199 (D.C. Cir. 1968), cert. denied

397 U.S. 1001 (1969) ; U.S. ex rel. Everett v. Murphy, 329

F. 2d 68 (2nd Cir. 1964), cert. denied 377 U.S. 967 (1969) ;

United States ex rel. Caminito v. Murphy, 222 F. 2d 698 (2d

Cir. 1965), cert. denied 350 U.S. 896 (1966). However, the

mere presence of some degree of misrepresentation, even if

it is deliberately aimed at eliciting a confession, is not suffi-

cient by itself to lead to the conclusion that the confession

is involuntary. Commonwealth v. Johnson, 372 Pa. 266, 93

A. 2d 691 (1953), cert. denied 345 U.S. 959 (1954); Thessen

v. State, 454 P. 2d 341 (Alaska 1969), cert. denied 396 U.S.

1029 (1970) ; United States v. Maroney, 275 F. Supp. 435

(W.D. Penn. 1967). New York also recognizes the principle

that the mere showing of deception is not sufficient to prove

involuntariness. People v. McQueen, 18 N.Y. 2d 387, 221

N.E. 2d 550, 274 N.Y.S. 2d 886 (1966) ; People v. Boone, 22

N.Y. 2d 476, 239 N.E. 2d 885, 293 N.Y.S. 2d 287, cert. denied

393 U.S. 991 (1968) ; People v. Pereira, 26 N.Y. 2d 265, 258

N.E. 2d 194, 309 N.Y.S. 2d 901 (1970).

Thus, the key question is whether the deception involved,

together with all other circumstances, could have overborne

the will of the defendant and induced him to confess. In

the instant case, it is patent that this could not have oc-

curred. First, the questions about Krebs and Gallagher

were very brief, lasting only about five minutes, and this

line of questions terminated immediately when Lombardi

indicated that he would not be able to identify pictures of

the murder victims. Moreover, these questions were not

aimed at inducing Lombardi to confess to his crimes, but

were at the most a time-wasting attempt to buy the ques-

tioners a few minutes, until a senior police official could

be brought to the scene. Additionally, it was then a normal

Hi

:

RE CRETE —

20

police procedure to ask neighborhood figures about these

murders, which were at this time the subject of an inten-

sive police investigation in the 19th precinct, so the police

had at least a rational basis in attempting this ‘‘shot in the

dark.’’

Lastly, it should be remembered that C. James Lom-

bardi was an intelligent professional pharmacist and for-

mer football player who claimed to mingle in “‘high so-

ciety.’’ Before his confession, he was told of the reason

for his arrest, that he could keep silent, and that he should

obtain a lawyer. Thus, it is hard to believe that five min-

utes of questioning about an unrelated crime could possibly

have coerced him into confessing anything, particularly in

view of the fact that less than one hour elapsed from the

time of Lombardi’s arrest to the time of his confession.

In short, Lombardi’s prompt confession was clearly shown

to be voluntary, and, as such, was properly admitted into

evidence against him.

POINT III

No substantial federal issue is presented by peti-

tioner’s claim of error in the judge’s charge to the jury

[answering the petition, Points III and IV, pp. 9-10].

Petitioner claims that the trial judge improperly told

the jury that it should acquit only if an element of certain

crimes was missing beyond a reasonable doubt. This is a

reference to a single portion of the charge, taken out of

context. However, the Appellate Division of the Supreme

Court of the State of New York specifically reviewed the

propriety of this language and of the entire charge and,

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21

although finding some minor error, concluded that ‘‘the

charge must be read as a whole, and the context in which

the quoted portion appears much be evaluated against

the total charge. So considered, we find that the error

did not prejudice the rights of the defendant. The charge,

taken as a whole, fairly stated the law applicable to the

ease.”’ People v. Lombardi, 39 A.D. 2d 700, 701, 332

N.Y.S. 2d 749 (1st Dept. 1972). The New York Court of

Appeals affirmed this conclusion. People v. Lombardi, 33

N.Y. 2d 658, 303 N.E.2d 705, 348 N.Y.S.2d 980 (1973).

Accordingly, the existence of a single minor error in the

language of a lengthy charge to the jury by a state judge,

which is harmless in the total context of that charge, cer-

tainly does not provide an adequate basis for this Court’s

exereise of certiorari jurisdiction.

In any event, it is clear from a review of the judge’s

charge that the court was well aware of the People’s

barden of proof in criminal cases:

‘“*The defendant has entered a plea of not guilty, and

thus put into issue each and every allegation of the

indictment. And it is incumbent upon the People to

prove each and every element of the crimes submitted

beyond a reasonable doubt’’ (2341-42).

Other similar language abounds in other portions of the

charge (2344, 2352-53, 2354). Indeed, in one instance the

court specifically told the jury that ‘‘The People, having

accused the defendant of the crimes charged in the indict-

ment, have the burden of proving such accusations, and the

defendant is under no obligation to disprove them. This

burden never shifts from the People to the defendant (2364-

65). Thus, the New York appellate courts had an adequate

basis for finding that the charge was substantially a proper

one. For a fuller discussion of this issue, this Court is

again referred to respondent’s brief in the New York Court

of Appeals.

Petitioner also attempts to ‘‘adopt the dissenting opin-

ion of the Appellate Division, First Department” as an ad-

ditional ground for granting the petition (Petition, Point

III). Inasmuch as this dissent was concerned only with the

reading of Ms. Diaz’s testimony to the jury, an issue dealt

with in Point I, supra, and with the dissenter’s discre-

tionary reading of the charge as error, it is obvious that no

additional federal issue is prevented by this dissent, which

was in any event overruled by both the majority of the Ap-

pellate Division and the New York Court of Appeals.

Conclusion

The petition for certiorari should be denied.

Respectfully submitted,

Ricwarp H. Kun

District Attorney

New York County

MicnHast R. Jcvicer

AntuHony J. GIrEsE

Assistant District Attorneys

Of Counsel

March, 1974

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