Cappiello v. Hoke, CV 87-0831.
| Decision Date | 07 January 1988 |
| Docket Number | No. CV 87-0831.,CV 87-0831. |
| Citation | 698 F. Supp. 1042 |
| Parties | John CAPPIELLO, Petitioner, v. Robert HOKE, Superintendent Eastern Correctional Facility, and The State of New York, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
Bennett M. Epstein, New York City, for petitioner (Isabelle A. Kirschner, of counsel).
Elizabeth Holtzman, Dist. Atty. of Kings County, Brooklyn, N.Y. by Michael Gore, Asst. Dist. Atty., for respondents.
John Cappiello petitions this court for a writ of habeas corpus pursuant to 28 U.S. C. Section 2254. Presently serving two concurrent terms of fifteen years to life imprisonment for his July 9, 1979 conviction on two counts of felony murder, Cappiello alleges violations of his constitutional rights insofar as certain inculpatory statements were used against him at trial. Specifically, Cappiello argues that he was arrested without probable cause in violation of the Fourth Amendment and that his subsequent inculpatory statements, as the "fruits" of this arrest, should have been suppressed. He further claims that, insofar as trial counsel failed to challenge the validity of his arrest, he was denied his Sixth Amendment right to effective assistance of counsel. Finally, Cappiello complains that his inculpatory statements were coerced in violation of his rights under the Fifth, Sixth and Fourteenth Amendments. The state responds that petitioner is barred from presenting his Fourth and Sixth Amendment claims and that his claim of coercion is without merit. For the reasons set forth below the petition is dismissed.
On August 10, 1976, Joseph and Angelina Tucci were the victims of a robbery in their Brooklyn home. In the course thereof, each was bound, gagged and brutally murdered, sustaining multiple skull fractures and lacerations of the brain as a result of beatings with a blunt instrument. A hammer was found near the dead body of Mrs. Tucci; an axe next to that of her husband.
On the morning of August 10, 1976, a neighbor, Lorraine Frasca, noted a green station wagon parked a few houses down the street from the Tucci home. A youth, whom she would later describe as having light brown curly hair styled in a medium "Afro", a description that apparently fit John Cappiello, was seated in the back. Within a few minutes, Mrs. Frasca saw two other youths emerge from an alleyway alongside the Tucci home, enter the green station wagon and drive off. Her suspicions aroused, Mrs. Frasca noted the license plate number.
Two days later, a relative discovered the slain bodies of Joseph and Angelina Tucci in their ransacked home and notified the police.
The following day, August 13, 1976, having learned of the murders from news reports, Lorraine Frasca contacted the police and related what she had seen at the Tucci home, giving a detailed description of the two individuals who emerged from the alleyway, a more general description of the individual in the car, and the car's license plate number. Detective Andrew Kilcullen traced the license plate to Mary Santanella of Brooklyn.
When Detective Kilcullen met with Mrs. Santanella on August 14, 1976, he confirmed her ownership of the green station wagon. More significantly, he learned that her son, Ralph Santanella, was recently missing. From Mrs. Santanella and other neighborhood contacts, Detective Kilcullen obtained a list of Ralph Santanella's friends, including petitioner, John Cappiello, and Anthony Tamilio.
Detective Kilcullen went that same day to interview Anthony Tamilio at his father's nursery business. Although Tamilio was not technically a "suspect" at this time, Detective Kilcullen did think he might be one of the persons Mrs. Frasca had seen at the Tucci home. Asked about Santanella, Tamilio volunteered that he had last seen him the previous Tuesday August 10, 1976 when the two had been driving around with John Cappiello.
Detective Kilcullen then asked Tamilio to accompany him to the police station for further questioning. Kilcullen testified that he generally conducted interviews in his office at the police station. Tamilio's father, who had recently arrived on the scene, told the detective that his son had work to do for him and that he would bring him to the station later that day. Kilcullen relied on the elder Tamilio's representation and, making the strategic decision not to reveal his investigation of the Tucci murders at this time, did not pursue the matter further.
Instead, Detective Kilcullen and another officer went to the Cappiello home, arriving in the mid-afternoon of August 14, 1976. Met first by Cappiello's parents, the officers asked for John and spoke privately with him in the family living room regarding the whereabouts of Ralph Santanella. According to Detective Kilcullen, Cappiello asked his parents to leave the living room when he spoke to the officers as he did not wish them to be upset. According to Mrs. Cappiello, it was the officers who asked them to leave, noting that young people often did not like to speak in front of their parents.
Cappiello acknowledged knowing Santanella and Tamilio but did not give a specific time when he was last with them. The officers did not tell Cappiello they were investigating the Tucci homicide, nor did they ask any questions about the station wagon. Although Detective Kilcullen did not consider Cappiello a "suspect" at this time, he did suspect the eighteen-year old of having some involvement in the crime under investigation. Accordingly, he asked Cappiello to accompany him to the station for further questioning. Mrs. Cappiello claimed that the police never said they were taking petitioner to the police station. Instead, she claims they represented they were taking him to look for Santanella.
They agree that the elder Cappiellos asked if they could accompany the officers. Detective Kilcullen told them they could not. He says he gave them the precinct number and address; Mrs. Cappiello disputes this. According to Mrs. Cappiello when she and her husband asked if their son was in trouble, the officers replied, "not that we know of." They promised to return him to his home when they completed the search for Santanella. According to Detective Kilcullen, petitioner's father offered to drive his son to the police station. The detective told him he could not do this, but indicated he could follow.
Detective Kilcullen did not consider Cappiello "under arrest" at this time. Certainly nothing was said about an arrest. But had Cappiello sought to go anywhere but with the officers, Kilcullen would not have permitted him to do so. As Kilcullen explained, "the pieces were starting to come together in my mind and I was going to make my move." By this he meant "interrogate, investigate, and then depending on what answers you get from people, you arrest him or you turn him loose and start all over again."
En route to the police station, the two officers continued their discussions with Cappiello, who spoke little. Arriving at the station at approximately 3:45 p.m., Cappiello was advised of his rights, although no mention was made that he was under arrest. For approximately three hours, Detective Kilcullen sought to persuade Cappiello to cooperate. Since Kilcullen assumed Cappiello was the person seen sitting in the station wagon by Mrs. Frasca and not one of the youths emerging from the Tucci alleyway, he did not think Cappiello had actually been in the victims' house. Accordingly, he urged him to "help himself" by telling "the truth." He warned that prison terms as high as 25 years to life were involved if a person were convicted of the crimes under investigation.
At approximately 7:00 p.m., Cappiello made his first statement to the authorities. He told Kilcullen that sometime between 9:30 and 10:00 a.m. on August 10, 1976, Anthony Tamilio had come to his home. Tamilio owed Cappiello $1400, and on August 10 said he might be able to pay it back. Cappiello went with Tamilio and Ralph Santanella in a green station wagon to pick up some cement pots from a man who was a good friend of Tamilio's father. Tamilio said he knew the man had money because he wore an expensive ring and because Tamilio's father had recently given him $500.
When they arrived at their location, Tamilio told Cappiello to stay in the car. As Tamilio and Santanella got out of the car, Cappiello saw Tamilio with a length of clothesline in a jacket he was carrying. Ten to fifteen minutes later the two returned without any money, saying that things had gotten "loused up" and that people had to be tied up and knocked out. As they drove away, Tamilio went through papers and discarded some out the window.
Cappiello was then dropped off at his home. He did not see Tamilio again until August 12, 1976. Tamilio cautioned him not to talk about the earlier events to insure no one got in trouble. He saw Santanella on August 13, 1976, by which time the murders had been reported in the newspapers. Santanella denied any participation in the killings and advised Cappiello that nothing would happen if everyone kept quiet.
After taking the first statement from Cappiello, Detective Kilcullen contacted Assistant District Attorney Marc Schultz who came to the station. Cappiello was advised of his rights by Schultz and a recorded statement was taken from him at 9:04 p.m. In this statement, in addition to the admissions already made to Kilcullen, Cappiello stated that he too had gone into the Tucci home, though some minutes after his confederates. He knew "something was up" and had "an idea" the Tuccis were going to be robbed. He was to assist in the robbery.
When Cappiello entered the house, Joseph Tucci was already...
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