Landano v. Rafferty

• Citation: 670 F. Supp. 570
• Decision Date: 29 September 1987
• Docket Number: Civ. A. No. 85-4777.
• Parties: Vincent James LANDANO, Petitioner, v. John J. RAFFERTY, Superintendent, Rahway State Prison, and Irwin I. Kimmelman, Attorney General of the State of New Jersey, Respondents.
• Court: U.S. District Court — District of New Jersey

670 F. Supp. 570

Vincent James LANDANO, Petitioner, v. John J. RAFFERTY, Superintendent, Rahway State Prison, and Irwin I. Kimmelman, Attorney General of the State of New Jersey, Respondents.

Civ. A. No. 85-4777.

United States District Court, D. New Jersey.

September 29, 1987.

Neil Mullin, Smith, Mullin & Kiernan, P.C., West Orange, N.J., for petitioner.

Leslie Schwartz, Deputy Atty. Gen., Appellate Div., Office of the Atty. Gen., Trenton, N.J., for respondents.

OPINION

SAROKIN, District Judge.

The murder of a police officer is a tragic event, not only for the loss sustained by the officer's family, but because it is the ultimate symbol of lawlessness. That tragedy is compounded however, if there is a risk that an innocent person has been convicted of such a despicable crime. The record in this case demonstrates that there is just such a risk, but because of binding precedent this court is powerless to grant the relief which petitioner seeks and to which this court believes he is entitled.

A critical prosecution eyewitness, a public spirited citizen who came forward with evidence immediately after the crime, now once again has voluntarily come forward to cast doubt upon petitioner's conviction and his own testimony which may have caused it.

Although discussed in more detail hereafter, the witness, Raymond Portas has testified under oath that (1) when he was first asked to identify the driver of the automobile (the driver being identified by others as the murderer) some months after the crime from a photo array, he selected someone other than the petitioner Mr. Landano; (2) that photograph was removed by the police never to be seen or identified again; (3) that incident is corroborated by the fact that two photos are missing from that array and their absence is unexplained; (4) thirteen days later while waiting to testify, Mr. Landano and his attorney walked by Mr. Portas and he did not recognize Mr. Landano; (5) an officer informed Mr. Portas with respect to these two persons that one was "our man"; (6) even then, Mr. Portas did not know which of the two was the alleged perpetrator; (7) he only made that determination by process of elimination — when the lawyer rose to speak, he concluded the remaining person was the one he was to identify, which he did.

His qualms of conscience were not slow in festering. Immediately upon the conclusion of his testimony he considered speaking to the judge. Doubting its propriety, he sought out the counsel of a priest, who assured him that the police knew what they were doing and not to be concerned. His concerns were allayed but never completely extinguished. He undoubtedly took comfort from the fact that other evidence existed which supported the conviction which was subsequently entered.

However, years later, in reading a magazine article about the case, he learned that much of the other evidence was suspect and realized that his testimony rather than being merely corroborative was crucial to the outcome. All of his qualms were reawakened. Again acting out of the purest and most honorable of motives he went not to the defendant or his counsel, but rather to the prosecution to express his concerns and doubts. The prosecutor's officer turned a deaf ear to his entreaties, and then and only then, did he communicate with the defense after first tracking down the author of the magazine article to ascertain defense counsel's identity.

True there are some discrepancies and inconsistencies in Mr. Portas' testimony and contrary evidence offered by the prosecution. But on the critical facts Mr. Portas has not waivered since he brought these matters to the attention of the parties. He is an honorable, intelligent and obviously conscientious person. He has no reason or motive to lie. His self doubts were not the result of a lengthy process or intercession by anyone, but followed immediately upon his testimony — even before the conviction.

This court conducted a hearing and found the testimony of Mr. Portas to be believable. If the jury had heard what he has now revealed, it might never have convicted the petitioner. On the other hand, the state court found Mr. Portas' testimony on these matters to be incredible; and denied a new trial. The obligation of this court to defer to the factual findings of the state court makes it impossible to grant the relief sought. The court candidly admits an exhaustive search for grounds to grant the writ, but could find none without violating the court's oath to follow existing precedent. In upholding the law, the court fears that a great injustice has occurred and respectfully invites reversal of its decision.

PROCEDURAL HISTORY

Petitioner, Vincent James Landano, comes before this court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On October 6, 1976 petitioner was indicted by a Hudson County Grand Jury on one count of felony murder (N.J.S.A. 2A:113-1 and 2), three counts of armed robbery (N.J. S.A. 2A:141-1 and 1A:151-5), one count of breaking and entering with intent to steal (N.J.S.A. 2A:94-1), one count of receiving a stolen motor vehicle (N.J.S.A. 2A:139-3), one count of illegal possession of a firearm (N.J.S.A. 2A:151-41) and one count of conspiracy to commit armed robbery (N.J.S.A. 2A:98-1). Also named in the indictment were three codefendants, Allen Roller, Victor Forni and Bruce Reen.

On April 6, 1977, the prosecution of codefendants Forni and Reen, each of whom was then confined in New York and contesting extradition, was severed from that of petitioner and codefendant Roller.

On April 18, 1977, Roller entered a plea of non vult to the felony murder charge alleged in the first count of the indictment pursuant to a plea agreement reached with the Hudson County Prosecutor. The agreement provided that Roller would testify against petitioner at trial.

The following day, April 19, 1977 petitioner's trial began before the Honorable Maurice A. Walsh, Jr., J.S.C., and a jury. Following 19 days of trial, on May 17, 1977 petitioner was found guilty on all counts. As a result of the jury's verdict, the court sentenced petitioner to life imprisonment on the felony murder count and a consecutive seven to fifteen year term for the remaining offenses.

Petitioner filed a Notice of Appeal on June 29, 1977. On September 26, 1978, petitioner filed a motion in the Superior Court of New Jersey, Appellate Division seeking remand to the trial court for consideration of a motion for a new trial on the basis of newly discovered evidence. An order granting that motion was subsequently entered by that court on October 17, 1978.

On November 20, 21 and 27, 1978 evidentiary hearings pursuant to petitioner's new trial application were conducted before Judge Walsh. By opinion and order dated December 1, 1978, Judge Walsh denied petitioner's application. Thereafter, on March 21, 1980, the Superior Court of New Jersey, Appellate Division denied both petitioner's direct appeal and the consolidated appeal from the denial of a motion for new trial. Landano's petition for certification was denied by the New Jersey Supreme Court on July 8, 1980. See State v. Landano, 85 N.J. 98, 425 A.2d 264 (1980).

On March 31, 1982, petitioner filed a verified petition for post-conviction relief and supporting brief. Hearings pursuant to this petition were conducted before the Honorable Joseph P. Hanrahan, J.S.C. on June 16, September 22, October 6 and 28, and November 17, 1982. Judge Hanrahan issued a series of letter opinions concerning the numerous issues raised and ultimately denied the relief sought in an order dated January 4, 1984.

Petitioner appealed Judge Hanrahan's ruling to the Appellate Division. On January 30, 1984, that court denied petitioner's appeal. On June 13, 1984, the Supreme Court of New Jersey denied certification.

On October 10, 1985, petitioner filed the instant habeas corpus petition. Having properly exhausted the available state remedies, petitioner's application is ripe for disposition by this court.

As grounds for relief petitioner alleges: (1) that his due process rights to a fair trial were infringed by the admission of Raymond Portas' identification testimony; (2) that the state unlawfully suppressed exculpatory and material evidence that would have impeached the testimony of codefendant Allen Roller; (3) that the state unlawfully suppressed exculpatory and material evidence that would have impeached the testimony of Jacob Roth, victim of the armed robbery; and (4) that the state court's coercive charge to the jury violated the petitioner's Sixth Amendment right to an impartial jury.¹

FACTS

The underlying facts may be distilled from the many state court opinions. The events leading up to the crime for which petitioner was convicted involved the activities of a "motorcycle gang" known as "The Breed". According to testimony at trial by Breed members and affiliates, the Breed frequently planned and executed armed robberies in the Staten Island area. Testimony at trial revealed that in June 1976 Allen Roller, president of The Breed's Staten Island chapter, together with Victor Forni, not a "Breed" member but reputedly responsible for organizing most Breed criminal endeavors, conceived a plan to rob the Kearny, New Jersey Check Cashing Service owned and operated by Jacob Roth.

Though it was undisputed at trial that petitioner, Vincent James Landano, was neither a Breed member nor a Breed affiliate, co-defendant Roller testified that petitioner had been specifically recruited for this job when another Breed affiliate refused to participate. Roller admitted that Forni and not petitioner was responsible for orchestrating the Kearny robbery, but Roller vigorously denied Forni's participation in the crime's execution. Roller's testimony revealed that petitioner was a long standing friend of Forni's and that Forni had suggested recruiting Landano for this job.

In the early morning hours of August 13, 1976, Allen Roller...