Taylor v. Curry, s. 1024

Decision Date07 June 1983
Docket NumberNos. 1024,D,1187,s. 1024
Citation708 F.2d 886
PartiesCarol TAYLOR, Petitioner-Appellant, v. Phyllis CURRY, Respondent-Appellee. ockets 82-2193, 81-2098.
CourtU.S. Court of Appeals — Second Circuit

Darrell K. Fennell, The Legal Aid Society, Federal Defender Services Unit, New York City, for petitioner-appellant.

Susan L. Yarbrough, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty. Gen., State of N.Y., Gerald J. Ryan, Asst. Atty. Gen., State of N.Y., New York City, of counsel), for respondent-appellee.

Before MANSFIELD, MESKILL and NEWMAN, Circuit Judges.

MESKILL, Circuit Judge:

Carol Taylor appeals from judgments of Judge Duffy dated January 9, 1981 and Chief Judge Motley dated March 19, 1982, both Judges of the United States District Court for the Southern District of New York, dismissing Taylor's petitions for habeas corpus relief. 1 Petitioner claims that the state trial court violated her Sixth and Fourteenth Amendment right to present a full defense by ordering, on grounds of attorney-client privilege, that a draft separation agreement be excluded from evidence at her second criminal trial. Although we find error in this evidentiary ruling, petitioner was not deprived thereby of a fair trial. Accordingly, we affirm the judgments of the district court dismissing the petitions for habeas corpus relief.

BACKGROUND

On the evening of March 13, 1976, Herbert Taylor was murdered in his Far Rockaway, New York, bungalow. After several months of investigation, Taylor's wife Carol was arrested by local authorities and was charged with second degree murder, criminal solicitation and conspiracy to murder her husband. 2 At trial, the prosecution suggested three possible motives for the murder. The first motive emerged from a classic "lover's triangle," focusing on the existence and intensity of a lesbian relationship between petitioner and her lover, one Elizabeth Taylor (not a relative of Herbert and not the actress). According to the state, Carol Taylor arranged for the murder of her husband to liberate herself from an unhappy marriage and to pursue more fully a lesbian relationship with Elizabeth.

The second motive advanced by the state was petitioner's fear that her husband would use the homosexual relationship as leverage to gain custody of the couple's two children. Testimony at trial revealed that the decedent apparently was aware of his The state offered the testimony of petitioner's brother, Robert Rozell, who stated that approximately one week before the killing Carol offered him $10,000 to arrange for Herbert's demise. Rozell also testified that two or three days before the murder he overheard Carol ask their sister Barbara to accompany her to the Far Rockaway bungalow to determine if Herbert had been killed. Finally, Rozell testified that seven months after the murder, in October 1976, Carol stated that "[w]ell, if everybody keeps their mouth shut there will be $10,000 in it for everybody." Trial Tr. at 1827. Barbara Rozell, petitioner's sister, substantially corroborated her brother's testimony. Barbara also related that two or three days before Herbert's death, she overheard a phone conversation between Carol and Elizabeth Taylor in which they discussed the murder scheme.

wife's lesbian affair and that Carol was visibly upset at his discovery. Finally, the state posited a financial motive--Carol was the sole beneficiary of life insurance policies totalling $134,700.

Additional damaging testimony was elicited from Anthony and Theresa Pasquarelli, friends of Carol Taylor. The Pasquarellis each testified that on or about March 1, 1976, approximately two weeks prior to Herbert's death, Carol visited their New York home. They stated that Carol was distraught when she arrived and, during a conversation in their kitchen, she related that Herbert was aware of the lesbian relationship and that she was fearful he would use this homosexual affair as leverage to gain custody of their children. The Pasquarellis testified that after voicing her concerns, Carol offered Anthony Pasquarelli $10,000 to arrange for the murder of her husband. According to the Pasquarellis, Carol proposed to make partial payment before Herbert's death and to tender the balance after she had received the insurance proceeds. Wendy Condoleo, a friend of Theresa Pasquarelli, who apparently was babysitting for the Pasquarelli children that night and was present in the kitchen during this conversation, substantially corroborated the Pasquarellis' testimony.

Petitioner's first trial ended in a mistrial after the court learned that the prosecution had solicited an informant, Barbara Rozell, to obtain uncounseled incriminating evidence from her sister after Carol had been arrested. The court found Barbara Rozell to be an agent of the state and declared a mistrial after ruling that petitioner's Fifth Amendment rights had been violated by the state's surreptitious conduct.

At the second trial petitioner defended principally on the theory that the Pasquarellis, the Rozells and Wendy Condoleo were lying in an effort to protect Anthony Pasquarelli and Robert Rozell from complicity in the murder. The jury was not persuaded--petitioner was convicted on each of three counts and sentenced to concurrent prison terms of twenty five years to life on the murder charge, eight and one-third to fifteen years for conspiracy, and two and one-third to seven years for the criminal solicitation charge. The conviction was unanimously affirmed by the Appellate Division on April 28, 1980, People v. Taylor, 74 A.D.2d 177, 427 N.Y.S.2d 439 (2d Dep't 1980). Leave to appeal to the New York Court of Appeals was denied on June 20, 1980. People v. Taylor, 50 N.Y.2d 1005, 431 N.Y.S.2d 1044, 409 N.E.2d 1013 (1980). These habeas petitions followed.

DISCUSSION

At the outset, we note that petitioner has satisfied the exhaustion requirements of the federal habeas statute, 28 U.S.C. Sec. 2254 (1976), because she has limited her appeal to an issue that had been raised and rejected by the appropriate state courts. See Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203-04, 71 L.Ed.2d 379 (1982). 3 We proceed to consider that sole claim.

Petitioner asserts that the state trial judge violated her Sixth and Fourteenth Amendment right to present a full defense when he excluded the draft separation agreement from evidence at the second trial. This document, prepared by Herbert's attorney in March 1976 after consultation with both spouses, contained a provision that Carol would retain custody of the children and that Herbert would be permitted reasonable visitation rights. See App. for Petitioner at 29, 34-35.

The prosecution had introduced the draft separation agreement into evidence at petitioner's first trial, ostensibly to support the theory that Taylor killed her husband out of fear that she would be removed as sole beneficiary of his life insurance policies after the couple's separation and divorce. After the mistrial, the prosecution shifted its litigation strategy and decided not to introduce the separation agreement.

After the state presented its case at the second trial, defense counsel sought to introduce the draft agreement as relevant to the question of motive. The state promptly objected, asserting that the document was inadmissible under New York's attorney-client privilege because the decedent never waived his right to preserve the confidentiality of the draft agreement. The trial judge agreed and accordingly ordered the draft agreement excluded from petitioner's second trial.

Taylor argues in her habeas petition that the separation agreement would have substantially undermined the state's theory of the case. According to petitioner, two major motives advanced by the prosecution--the intensity of her love for Elizabeth and the fear that her husband would use the lesbian relationship to gain custody of their children--were effectively refuted by the separation agreement. She points out that the draft agreement showed that Herbert was amenable to their separation and that he was willing to relinquish custody of their children. Hence, Taylor asserts that there was no compelling reason to kill Herbert because the separation agreement permitted her to maintain custody of the children and liberated her to pursue the lesbian love affair. Petitioner maintains that had the jury known these facts the testimony of the Pasquarellis, the Rozells and Wendy Condoleo would have been substantially discredited.

The state concedes on appeal that it was "disingenuous" for the prosecutor to introduce the draft agreement at the first trial and then to object when defense counsel sought to admit the document at the subsequent trial. We agree. The prosecutor is charged with a dual responsibility--he must vigorously represent the interests of his client, the state, but he must also act zealously to ensure that justice is done. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); United States v. Berry, 627 F.2d 193, 198 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981). 4 A prosecutor does a disservice to the state and to his profession when he makes "disingenuous" objections to the admission of probative evidence.

The trial court's decision to exclude the draft agreement from evidence at the second trial was error. Although the State of New York has an important interest in preserving the confidentiality of attorney-client communications, see N.Y.C.P.L.R. Sec. 4503(a) (McKinney Supp.1982), 5 that interest dissipated when the agreement was introduced at the first trial and became part of the public record. See Lanza v. New York State Joint Legislative Committee On Governmental Operations, 3 N.Y.2d 92, 98, 164 N.Y.S.2d 9, 13, 143 N.E.2d 772, 775, cert. denied, 355 U.S. 856, 78 S.Ct. 85, 2 L.Ed.2d 64 (1957). The draft agreement was relevant to refute the...

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