348 F.2d 844 (2nd Cir. 1965), 373, United States ex rel. Hetenyi v. Wilkins

Docket Nº:373, 29104.
Citation:348 F.2d 844
Party Name:UNITED STATES of America ex rel. George HETENYI, Relator-Appellant, v. Walter H. WILKINS, Warden of Attica State Prison, Attica, New York,Respondent-Appellee.
Case Date:July 13, 1965
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 844

348 F.2d 844 (2nd Cir. 1965)

UNITED STATES of America ex rel. George HETENYI, Relator-Appellant,

v.

Walter H. WILKINS, Warden of Attica State Prison, Attica, New York,Respondent-Appellee.

Nos. 373, 29104.

United States Court of Appeals, Second Circuit.

July 13, 1965

Argued March 12, 1965.

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Ernest J. Brown, Cambridge, Mass., for relator-appellant.

Michael H. Rauch, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of New York, on the brief), (Samuel A. Hirshowitz, First Asst. Atty. Gen., Mortimer Sattler, Asst. Atty. Gen., and Brenda Soloff, Deputy Asst. Atty. Gen., of counsel), for respondent-appellee.

Before SMITH and MARSHALL, Circuit Judges, and METZNER, District judge. [a1]

MARSHALL, Circuit Judge.

George Hetenyi is presently imprisoned in Attica, New York, by the State of New York under a sentence of from forty years to life that was imposed after a jury found him guilty of murder in the second degree. He applied to the United States District Court for the Western District of New York for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that he is being held in custody in violation of the federal Constitution. The District Court denied his application on the merits, and this is an appeal from that order. We reverse.

On or about April 22, 1949 Hetenyi's wife was shot to death. Approximately one month later, on May 19, 1949, Hetenyi was indicted by the Grand Jury of Monroe County, New York, for murder in the first degree, and he was thrice tried on this same indictment. 1 At all

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three trials the evidence supporting the charge was circumstantial.

The first trial took place during December, 1949 in the Monroe County Court. The trial judge gave the jury the alternatives of finding Hetenyi guilty of first degree murder, 2 guilty of second degree murder, 3 guilty of first degree manslaughter 4 or not guilty. The jury returned a verdict of guilty of second degree murder, and in January, 1950 Hetenyi received a sentence of from fifty years to life. He appealed to the Appellate Division, Fourth Department, and that court unanimously reversed the judgment of conviction and granted a new trial. 277 A.D. 310, 98 N.Y.S.2d 990 (1950). The Appellate Division noted 'that the verdict is supported by sufficient evidence,' yet it found error affecting 'the substantial rights of the defendant' in the charge relating to venue, in the admission of certain evidence, and in certain comments by the District Attorney on some of this evidence. Specifically, reversible error was found in the trial court's refusal to charge the jury, as requested by defendant, 'that they must find as a fact in this case that this killing occurred in the County of Monroe before they can find a conviction,' in the trial court's charge that 'it makes no difference as to where those shots (killing his wife) were fired,' and in charging that finding her body 'within the confines of the County of Monroe, is sufficient as a presumption of law that the shots were fired in the County of Monroe * * *' The Appellate Division also held that the trial judge had committed reversible error by admitting into evidence a leather holster found near the place where the body of the deceased was discovered and by allowing the District Attorney to argue in his summation that the holster belonged to defendant and 'that without question it includes the gun.' There was no direct evidence that this holster was the one claimed to have been seen in Hetenyi's car some months prior or that Hetenyi ever owned a gun. Hetenyi also sought reversal because the prosecution had used an article in a magazine relating to the paraffin nitrate test. At the trial, the subject of the test was brought up by the District Attorney on direct examination of a police officer; on cross-examination, Hetenyi's counsel read from a textbook on the subject; and on re-direct the article from the magazine was read, apparently to contradict the textbook. The Appellate Division concluded that since 'no such test was made of defendant's hands,' 'the whole matter was irrelevant and incompetent' and 'it was error to permit the reading of either the text-book or the article.' It was on the basis of all of these errors, held to affect 'defendant's substantial rights,' that the Appellate Division reversed and ordered a new trial. The State appealed from this reversal but the order of the Appellate Division was unanimously affirmed by the Court of Appeals of New York without opinion. 301 N.Y. 757, 95 N.E.2d 819 (1950).

Following this reversal, the same District Attorney proceeded to try Hetenyi for the second time under the same indictment charging first degree murder. The trial took place in April and May of 1951 in the Monroe County Court. The jury returned a verdict of guilty of murder in the first degree and Hetenyi was

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sentenced to be executed. Hetenyi appealed directly to the Court of Appeals, and a closely-divided court reversed the judgment of conviction and ordered a new trial. 304 N.Y. 80, 106 N.E.2d 20 (1952). The Court of Appeals held that there was no error in charging the jury that the place of the killing need not be proved beyond a reasonable doubt. The Court also held that the admission into evidence of the holster introduced into evidence in the first trial was not 'a material error' requiring reversal because the District Attorney's statement that was found so objectionable in the appeal from the first trial was lacking, and the trial judge had instructed the jury that even if they believed that this holster was the one previously seen in Hetenyi's car, 'they may not draw from that the inference that he possessed the gun which it accommodated.' However, the Court found that certain other conduct of the District Attorney had deprived Hetenyi of a fair trial and on the basis of those errors reversed. The Court viewed the 'District Attorney's repeated accentuation of the defendant's failure to testify' as sufficient to make the trial unfair; and it held that the District Attorney's attack on Hetenyi's character in which the changes in Hetenyi's religious affiliations were emphasized and Hetenyi was accused of being a 'renegade,' 'a man to whom religion is a fraud, who engages in it purely and simply for selfish reasons,' violated a 'rule of fundamental fairness in the protection of the individual against unjust prosecution.' A new trial was ordered.

Hetenyi was then tried for the third time. This third trial took place in March, 1953 in the Onondaga County Court, as Hetenyi had obtained a change in venue. Once again he was tried upon the same 1949 indictment charging him with first degree murder; and as was done in the other two trials, the trial judge gave the jury the alternatives of returning a verdict of guilty of first degree murder, guilty of second degree murder, guilty of first degree manslaughter, or not guilty. The jury returned a verdict of guilty of second degree murder, and Hetenyi was sentenced to prison for forty years to life. He appealed to the Appellate Division, Fourth Department, and that court affirmed the judgment in a per curiam opinion. 282 A.D. 1008, 125 N.Y.S.2d 689 (1953). The Appellate Division noted that the verdict 'is amply supported by the evidence' and that 'throughout the trial the Court exercised extreme care in protecting the rights of the defendant,' and concluded that the record 'contains no errors which so adversely affect the substantial rights of the defendant as to warrant reversal of the judgment and a new trial.' Leave to appeal to the New York Court of Appeals was denied.

Hetenyi is presently being held in custody pursuant to a warrant of commitment issued by the Onondaga County Court upon this judgment of conviction. He claims that it was unconstitutional for the State to prosecute him for first degree murder subsequent to the first trial, and that the prosecution for first degree murder so tainted the third trial as to render it constitutionally inadequate.

This is not the first instance that Hetenyi claimed his detention is unlawful. Hetenyi sought a writ of habeas corpus from the New York courts, but the court of general jurisdiction dismissed the writ and this dismissal was affirmed by the Appellate Division, Third Department, 10 A.D.2d 121, 198 N.Y.S.2d 18, reargument denied, 12 A.D.2d 574, 209 N.Y.S.2d 287 (1960), leave to appeal denied, 8 N.Y.2d 706, 202 N.Y.S.2d 1025, 168 N.E.2d 395, appeal dismissed, 8 N.Y.2d 913, 204 N.Y.S.2d 158. The Appellate Division found Hetenyi's claim to be without merit under the state and federal Constitutions, and added 'one last point not raised by the briefs': the relator at neither his second nor his third trial raised the question of double jeopardy or entered such a plea and therefore he 'waived his right to the defense of double jeopardy' under both federal and state constitutional standards. Without attempting to assess the

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sufficiency of the Appellate Division's conclusion, it should be noted that the factual premise appears incorrect. The petition in the present proceeding alleges that in both the second and third trials Hetenyi entered a plea of autrefois acquit. Respondent did not put that allegation into controversy below, and quite understandably the District Court did not make any finding as to its truth. We are nevertheless prepared to view the allegation as true, and thus to reject all factual basis for the waiver argument. In the course of argument before this Court, relator's counsel supported the allegation by reference to the trial transcript of the third trial, he explained that reargument was sought from the Appellate Division in order to correct its factual inaccuracy, and he suggested that reargument was denied by the Appellate Division not because there was no factual error, but because the waiver argument resting on this...

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