Daye v. Attorney General of State of N.Y., 1163

• Decision Date: 27 June 1983
• Docket Number: D,No. 1163,1163
• Citation: 712 F.2d 1566
• Parties: William DAYE, Petitioner-Appellant, v. ATTORNEY GENERAL OF the STATE OF NEW YORK and Eugene S. LeFevre, Superintendent Clinton Correctional Facility, Respondents-Appellees. ocket 80-2292. . Re
• Court: U.S. Court of Appeals — Second Circuit

Page 1566

712 F.2d 1566

William DAYE, Petitioner-Appellant, v. ATTORNEY GENERAL OF the STATE OF NEW YORK and Eugene S.

LeFevre, Superintendent Clinton Correctional

Facility, Respondents-Appellees.

No. 1163, Docket 80-2292.

United States Court of Appeals,

Second Circuit.

Resubmitted Dec. 9, 1982.

Decided June 27, 1983.

Phylis Skloot Bamberger, The Legal Aid Soc., Federal Defender Services Unit, New York City, for petitioner-appellant.

Meredith Anne Feinman, Asst. Dist. Atty., New York City (Robert M. Morgenthau, Dist. Atty., Norman Barclay, Asst. Dist. Atty., New York City, on brief), for respondents-appellees.

Before LUMBARD and NEWMAN, Circuit Judges, and METZNER, District Judge. ^*

NEWMAN, Circuit Judge:

This appeal from the denial of a writ of habeas corpus sought by a state prisoner requires consideration of the constitutional limits upon intervention by a state trial judge in a criminal jury trial to the detriment of the accused. William Daye appeals from a judgment of the District Court for the Southern District of New York (Milton Pollack, Judge) dismissing on the merits his habeas corpus petition challenging his state court conviction for murder and robbery. On our initial consideration of the appeal, a divided panel ruled that Daye had not sufficiently exhausted his state court remedies. Daye v. Attorney General, 663 F.2d 1155 (2d Cir.1981) (Daye I ). Upon rehearing by the full Court, it was determined that exhaustion had occurred, the panel decision was vacated, and the appeal was remanded to the panel for consideration on the merits. Daye v. Attorney General, 696 F.2d 186 (2d Cir.1982) (en banc) (Daye II ). For the reasons that follow, we affirm the judgment dismissing the habeas corpus petition.

I.

Daye was convicted in the New York Supreme Court in June 1976 of felony murder, intentional murder, and two counts of first degree robbery as a result of events that occurred on March 19, 1974, at the E & D Luncheonette on 144th Street in the Bronx. His conviction was affirmed by the Appellate Division without opinion, People v. Daye, 72 A.D.2d 669, 421 N.Y.S.2d 955 (1979), and leave to appeal to the New York Court of Appeals was denied, 48 N.Y.2d 978, 425 N.Y.S.2d 1034, 401 N.E.2d 421 (1979).

The evidence at trial disclosed that a man entered the luncheonette and robbed the patrons and the employees at gunpoint. In the course of the robbery, he pointed a pistol at the cook, while trying to remove the cook's wallet from a rear pocket of the cook's trousers. The robber fired his weapon, fatally wounding the cook. The bullet passed through the cook's body and lodged in a finger of the robber's hand. Several persons in the luncheonette heard the robber exclaim that he had just shot himself in the hand. The robber then pointed his pistol at a patron and an employee and pulled the trigger, but fortunately the weapon misfired. After taking money from several patrons and employees and placing it in a paper bag, the robber fled from the luncheonette. One of the patrons saw him enter a nearby building on 142nd Street and directed police to the building. A detective on the roof of the building saw Daye climb out of a third-floor window of the building and crawl down a drainpipe. The detective ran downstairs, broke through a hall window on the landing, pulled Daye into the building through the window, and arrested him. One of the patrons, David Miller, who was standing behind the detective on the landing, immediately identified Daye as the person who had robbed the people in the luncheonette a few minutes earlier.

At trial Miller and three others from the luncheonette positively identified Daye as the robber. The prosecution also introduced into evidence a wallet taken from one of the patrons, a small amount of cash in a paper bag, and a pistol identified at trial as the weapon the robber had carried; all these items were found in a third-floor apartment of the building in which Daye was arrested. Perhaps the most devastating evidence was the fact that Daye's left hand disclosed a bullet wound when he was arrested, a bullet was removed from his hand hours later at a hospital, and ballistics evidence confirmed that the bullet had been fired from the pistol found in the third-floor apartment.

Daye was the only witness to testify for the defense. He acknowledged being present in the luncheonette, but claimed to have been a victim rather than the perpetrator of the robbery and the shooting. He testified that he felt a pain in his hand when the cook was shot and later discovered that he had been struck by a bullet. He denied exclaiming that he had shot himself in the hand. He claimed that he ran out of the luncheonette because he had previously been arrested for being present at the scene of a crime and he was afraid of the police.

II.

The circumstances claimed to have rendered the trial constitutionally unfair concern the extent and nature of the questioning of witnesses, including the defendant, undertaken in the presence of the jury by the state court trial judge, Justice Burton B. Roberts. The flavor of the judge's questioning, including the instances likely to have been most detrimental to the defendant, can be appreciated from a reading of the portions of the transcript set out in the opinion of Judge Lumbard, dissenting from the panel's original decision on exhaustion of state court remedies and favoring granting the writ on the merits. Daye I, supra, 663 F.2d at 1160-71. Much of the questioning pressed the witnesses to be precise as to the details of their testimony, especially the exact locations of the witness and the robber. To place the trial judge's questioning in some perspective, we have reviewed the entire state court transcript and conclude that, of the 478 pages reflecting examination of witnesses, on 192 pages Justice Roberts asked no questions, on 257 pages he asked one or more questions that clarified matters in evidence, and on 29 pages he asked questions that elicited new evidence, challenged the defendant's version, or pointedly reenforced testimony favorable to the prosecution.

Three categories of questioning plainly were detrimental to the defendant. First, the trial judge intervened to afford two witnesses an opportunity to reenforce the certainty of their identification of the defendant. After the first witness for the prosecution, William Wright, had identified Daye in the courtroom as the robber, the following occurred:

The Court: Any questions about that; is that the man?

Wright: No doubt.

The Court: No doubt in your mind?

Wright: No.

During the cross-examination of Wright, the following occurred:

The Court: Can you make an identification?

Wright: Could I make an identification?

Mr. Russo [defense counsel]: I object to that question.

The Court: Overruled.

Can you make an identification of the person that killed Isaac Stanback [the cook] in the luncheonette?

Wright: Yes.

The Court: And who is the person that killed him?

Wright: This guy right here.

The Court: Indicating the defendant.

Still later during the cross-examination of Wright, the following occurred:

The Court: Do you know the man who did the shooting in the restaurant?

Wright: Yes, sir.

The Court: Who is it?

Wright: This guy sitting right here. (Indicating.)

The Court: Indicating the defendant.

This same type of intervention occurred on one other occasion during cross-examination of the prosecution's sixth witness, Dorothy Taylor:

The Court: Is it fair to say that since March 19, 1974, the first time that you have ever viewed the person who you say shot and killed Isaac Stanback is in this courtroom today?

Taylor: This is the first time, yes.

The Court: Are you sure that the defendant whom you see in this courtroom is the individual you say shot Mr. Stanback and who robbed you at gun point at the counter?

Taylor: I could never forget the face because the way he pulled the trigger on my stomach. He kept trying to pull the trigger. I could never forget that face.

The second category of harmful questioning comprises 12 instances when the trial judge, in asking a question about the episode in the luncheonette, referred to the robber as "the defendant." Each instance occurred after one or more witnesses had identified the defendant as the robber. On the first occasion, Justice Roberts promptly corrected himself; after starting to say, "The defendant--," he quickly added, "withdrawn. A man with a gun." Nevertheless, during the course of the trial he asked several questions about "the defendant." When defense counsel objected on the twelfth use of this phrasing, the trial judge sustained the objection and rephrased his question to ask about "the man with the gun."

The third category of detrimental questioning comprises two instances in which the trial judge questioned the defendant in a challenging manner, revealing considerable skepticism about the defendant's testimony. First, the Judge probed Daye's account of how the person he claimed was the robber had moved past him to a position near the cook:

The Court: You saw a man pass by you?

Daye: Yes.

The Court: You were standing at "R" [a mark on a diagram indicating the location of a refrigerator]?

Daye: Yes.

The Court: The telephone is in front of you, correct?

Daye: In that area, yes.

The Court: The telephone is in front of you, correct?

Daye: In that area, yes.

The Court: Right?

Daye: Right.

The Court: How could a man pass by you--

Mr. Russo: Objection, Your Honor.

The Court: Overruled.

Mr. Russo: Exception.

The Court: Will you tell this court and jury if you're standing at "R" how a man can pass by you and then shoot the man at the telephone?

Now, you get off that stand and show how that can be done.

Second, the Judge cast doubt on Daye's claim--that he had fled out of fear of being wrongfully accused based on his previous presence at the scene of a crime--by developing the point that, on Daye's version of the facts, other...