Knapp v. Leonardo

• Citation: 46 F.3d 170
• Decision Date: 24 January 1995
• Docket Number: D,No. 1502,1502
• Parties: Ricky A. KNAPP, Petitioner-Appellant, v. Arthur LEONARDO, Superintendent of the Great Meadow Correctional Facility, Respondent-Appellee. ocket 93-2532.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 170

46 F.3d 170

Ricky A. KNAPP, Petitioner-Appellant, v. Arthur LEONARDO, Superintendent of the Great Meadow

Correctional Facility, Respondent-Appellee.

No. 1502, Docket 93-2532.

United States Court of Appeals, Second Circuit.

Argued April 18, 1994.

Decided Jan. 24, 1995.

John A. Cirando, Syracuse, NY (Patrick J. Haber, Ivette Iza Zenner, D.J. & J.A. Cirando, of counsel), for petitioner-appellant.

Martin A. Hotvet, Asst. Atty. Gen. of State of N.Y., Albany, NY (G. Oliver Koppell, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., Nancy A. Spiegel, Asst. Atty. Gen., of counsel), for respondent-appellee.

Before: OAKES, KEARSE, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Petitioner-appellant Ricky A. Knapp appeals from a judgment entered July 7, 1993 in the United States District Court for the Northern District of New York, Neal P. McCurn, Judge, that denied Knapp's petition for a writ of habeas corpus, and from an order entered August 17, 1993 in that court which denied reconsideration of the court's judgment.

Knapp's habeas petition sought to overturn his state court conviction for second degree manslaughter in violation of N.Y.Penal Law Sec. 125.15(1) on the grounds that: (1) the trial court should have granted his request for a change of venue due to the prejudicial effects of extensive pretrial publicity; (2) potential jurors should have been examined in camera before the retrial to prevent the media from publicizing the voir dire and further prejudicing public opinion against Knapp; (3) the retrial should not have been held in a church facility; (4) his retrial violated the Double Jeopardy Clause; (5) evidence obtained in violation of Knapp's right to counsel should have been suppressed; (6) there was insufficient evidence to sustain Knapp's conviction; (7) the trial court denied him due process of law and a fair trial by refusing to charge the jury on the lesser included offense of criminally negligent homicide; (8) the court gave erroneous instructions in response to questions posed by the jury; and (9) Knapp's sentence as a persistent felony offender following retrial was vindictive and otherwise illegal. He asserts most of these grounds on this appeal, as well.

We conclude that Knapp is not entitled to habeas relief, and accordingly affirm the judgment of the district court and its order denying reconsideration of that judgment.

Background

A. The Events at Issue.

Knapp was arrested and indicted in January 1978 on two counts of second degree murder stemming from the December 9, 1977 death of Linda Jill Velzy, a student at the State University College of Arts and Sciences at Oneonta, New York. After Velzy was reported missing by her roommate, city and state police interviewed over 100 people, including Knapp, in connection with Velzy's disappearance. During the initial police interview, Knapp agreed to submit to a polygraph test at the request of police investigators. However, John Owen, an attorney who was representing Knapp on unrelated sodomy and unlawful imprisonment charges, advised Knapp not to take the test, and also directed the police either to arrest Knapp or cease questioning him.

Although the police ceased questioning Knapp directly, they continued to investigate Knapp through an informant named Arthur Hitt, who owned a lumber yard where Knapp occasionally worked. Hitt was facing criminal charges for third degree robbery. In an apparent attempt to ameliorate his situation, Hitt told state police investigators that Knapp had asked him to support an alibi that Knapp had been with Hitt until 8:00 p.m. on December 9. On December 21, Hitt, accompanied by counsel, agreed to a plea bargain on the pending robbery charge that was conditioned upon Hitt's cooperation in the Velzy investigation and upon that cooperation leading to the arrest of at least one person criminally responsible for Velzy's disappearance. Hitt's attorney later testified that Knapp was the target of the investigation.

Over the next ten days, Hitt made several telephone calls to Knapp that were recorded by police investigators. In two recorded conversations, Knapp reiterated his request that Hitt support Knapp's alibi for the night of December 9. On December 31, in an unrecorded conversation, Knapp allegedly admitted to Hitt that he had murdered Velzy. According to Hitt's trial testimony, Knapp revealed that he had picked up Velzy, who was hitchhiking, and had engaged her in a sexual encounter. Then, Knapp continued, while driving back to town, he and Velzy had argued, and she had jumped out of the car and fell semiconscious in a ditch. Knapp allegedly stated that he had then placed Velzy in the back seat of his car, and had subsequently killed her by hitting her in the throat with his fist three times. In that same conversation, Knapp requested Hitt's assistance to move Velzy's body to Hitt's logging site.

On January 1, 1978, Hitt informed the police of Knapp's scheme to move Velzy's corpse. On the basis of Hitt's information, the police surveilled Hitt's logging site to await the arrival of Knapp and Hitt with Velzy's body. When Knapp was observed dragging Velzy's frozen corpse to a grave that had been prepared for her, the police announced their presence and arrested Knapp. Several police officers at the scene later testified that when arrested, Knapp exclaimed: "I am sorry; I am sorry. I killed her. I am no good. Please shoot me."

Knapp was taken to a nearby state police station, where he waived his right to counsel, made a full confession of his involvement in the disappearance and death of Velzy, and signed a typewritten copy of the confession. Based upon Hitt's sworn testimony concerning admissions that Knapp had made to Hitt, the police then obtained a warrant to search the car Knapp had driven on December 9. The search uncovered a contact lens matching one missing from Velzy's right eye, wood chips similar to a chip found in Velzy's pubic hair, a strand of blonde hair consistent with Velzy's hair, animal hairs consistent with hair found on Velzy's clothing, and fragments of Christmas decorations which were identical to others found in the sheet in which Velzy's body was wrapped.

B. The First Trial.

In January 1978, an Otsego County Grand Jury returned an indictment charging Knapp with two counts of murder in the second degree. Count one charged Knapp with intentional murder in violation of N.Y.Penal Law Sec. 125.25(1), alleging that Knapp beat Velzy to death by punching her in the head and neck. Count two charged Knapp with reckless murder in violation of N.Y.Penal Law Sec. 125.25(2), alleging that Knapp created a grave risk of death by failing to transport Velzy for medical care after she injured herself in attempting to exit his car.

The trial court denied Knapp's pretrial motions to suppress the statements of guilt and remorse uttered by Knapp at the scene of his arrest, Knapp's admissions of guilt to Hitt, Knapp's signed confession, and the various items of physical evidence seized from Knapp's car. At trial, Hitt testified with respect to his conversation with Knapp on December 31, but his taped conversations with Knapp were not introduced in evidence. Knapp testified that it was in fact Hitt who had the sexual encounter with Velzy, killed her, and supplied a shovel, sheet, and bulldozer for Velzy's burial.

At the conclusion of the trial, the jury was instructed that the two murder charges were mutually exclusive. After deliberation, the jury acquitted Knapp of intentional murder, but convicted him of reckless murder. He was sentenced to twenty-five years to life imprisonment.

On appeal, the Appellate Division held that the typewritten confession had been obtained in violation of Knapp's right to counsel under the state constitution. People v. Knapp, 82 A.D.2d 971, 971, 440 N.Y.S.2d 416, 417 (3d Dep't 1981) (mem.) ("Knapp I "), rev'd and remanded, 57 N.Y.2d 161, 441 N.E.2d 1057, 455 N.Y.S.2d 539 (1982). In light of the overwhelming evidence of guilt, however, the Appellate Division held that the written confession was surplusage and affirmed the conviction on a harmless error analysis. Id.

The Court of Appeals, however, reversed and remanded for a new trial. People v. Knapp, 57 N.Y.2d 161, 175-76, 189, 441 N.E.2d 1057, 1062, 1070, 455 N.Y.S.2d 539, 544, 552 ("Knapp II "), reiterating the Appellate Division's determination that there had been a violation of Knapp's right to counsel as provided by the New York State constitution, but declining to view the error as harmless. Id. at 173, 441 N.E.2d at 1060-61, 455 N.Y.S.2d at 542-43. The court found that by December 31, Hitt had been acting as an agent for the police, and that Knapp's admissions of guilt to Hitt on that day were therefore unlawfully obtained in contravention of Owen's direction to the police to cease questioning Knapp. Id. at 173, 441 N.E.2d at 1061, 455 N.Y.S.2d at 543. Consequently, the court reasoned, not only should Knapp's admissions to Hitt have been suppressed, but also the physical evidence found in Knapp's car that was seized pursuant to a warrant based upon Hitt's testimony. Id. at 173-74, 441 N.E.2d at 1061, 455 N.Y.S.2d at 543. The court determined that the typewritten confession should also have been suppressed because it was obtained from Knapp outside the presence of counsel despite Owen's admonition to the police to stop questioning Knapp. Id. at 174, 441 N.E.2d at 1061, 455 N.Y.S.2d at 543. The case was remanded for "further proceedings on the second count in the indictment." Id. at 176, 441 N.E.2d at 1062, 455 N.Y.S.2d at 544.

C. The Second Trial.

Because of renovations being conducted on the Otsego County Courthouse, the second trial was held in the church hall of a local Roman Catholic church. There was substantial publicity both before and during Knapp's retrial. Most significantly, the publicity included information about the confessions and other evidence that the Court of Appeals had ordered...