Coleman v. Denno

• Decision Date: 07 November 1963
• Citation: 223 F. Supp. 938
• Parties: Application for Writ of Habeas Corpus by David COLEMAN, Petitioner, v. Wilfred L. DENNO, as Warden of Sing Sing, and Edward Silver, District Attorney, Kings County, Respondents.
• Court: U.S. District Court — Southern District of New York

223 F. Supp. 938

Application for Writ of Habeas Corpus by David COLEMAN, Petitioner, v. Wilfred L. DENNO, as Warden of Sing Sing, and Edward Silver, District Attorney, Kings County, Respondents.

United States District Court S. D. New York.

November 7, 1963.

Jack L. Kroner, Stanley J. Levy, Frederick C. Stern, Martin A. Garbus, New York City, for petitioner.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, for respondent, Wilfred L. Denno, as Warden of Sing Sing, Stephen N. Rubin, Deputy Asst. Atty. Gen. of the State of New York, of counsel.

Edward S. Silver, Dist. Atty., Kings County, pro se, William I. Siegel, Asst. Dist. Atty., of counsel.

FREDERICK van PELT BRYAN, District Judge.

David Coleman, confined in Sing Sing Prison under a death sentence following a conviction by a jury of murder in the first degree in the County Court of Kings County, New York, has petitioned this court for a writ of habeas corpus.

Upon his appeal as of right to the New York Court of Appeals, the conviction was affirmed. People v. Coleman, 10 N.Y.2d 765, 219 N.Y.S.2d 612, 177 N.E.2d 53 (1961). Coleman then moved for reargument and for assignment of counsel to represent him on reargument. This motion was granted. 10 N.Y.2d 815, 227 N.Y.S.2d 520, 178 N.E.2d 234 (1961). Reargument was denied but the remittitur was amended to state that a federal question had been passed upon as to violation of Coleman's right under the Fifth and Fourteenth Amendments to the United States Constitution because of certain remarks of the prosecution in summation which will be referred to later here. The Court of Appeals, however, found no such violation. 10 N.Y. 2d 1008, 224 N.Y.S.2d 686, 180 N.E.2d 265 (1961).

Coleman then applied to the Court of Appeals for assignment of counsel to aid him in preparing a petition to the Supreme Court for a writ of certiorari. This application was denied on January 11, 1962, and a motion for reconsideration was denied on February 22, 1962. 11 N.Y.2d 769, 227 N.Y.S.2d 19, 181 N.E.2d 763.

In the meantime Coleman, advised by volunteer counsel, had applied to the Supreme Court for writ of certiorari on February 14, 1962. The application sought (1) to review the order of the New York Court of Appeals of January 11, 1962 denying Coleman's application for assignment of counsel to prosecute the writ of certiorari, and (2) to extend his time to review the affirmance of his conviction until the question of assignment of counsel had been resolved.

On March 19, 1962 the Supreme Court denied the petition for writ of certiorari without comment. Coleman v. State of New York, 369 U.S. 826, 82 S.Ct. 843, 7 L.Ed.2d 791.

Thereupon Coleman applied to this court for a writ of habeas corpus based solely upon the failure of the New York Court of Appeals to assign counsel to represent him during the post-appellate period between the affirmance of his conviction and his execution, or other final disposition of his case.

This petition was denied by Judge Sugarman on May 25, 1962. Judge Sugarman expressly stated that the denial was limited to the single issue of Coleman's right to counsel in the post-appellate period and was "not addressed to any other basis which petitioner may have for a writ of habeas corpus in this court, including, but not limited to, alleged prejudicial statements by the District Attorney in summation, which deprived petitioner Coleman of due process in his trial in the County Court of Kings County." Coleman v. Denno, 205 F.Supp. 510, 514-515 (S.D.N.Y.1962).

The denial of the writ by the District Court was affirmed by the Court of Appeals, 313 F.2d 457 (2 Cir. 1963), and certiorari was denied, 373 U.S. 919, 83 S.Ct. 1310, 10 L.Ed.2d 418 (1963). Both in the Court of Appeals and upon certiorari the sole question presented related to the refusal to assign counsel to petitioner in the post-appellate period.

After the Supreme Court had denied certiorari on May 13, 1963, the New York Court of Appeals, on motion of the District Attorney of Kings County, fixed the week beginning June 24, 1963 as the new date for execution of Coleman's death sentence.

The petition for the writ of habeas corpus now before me followed and a stay of execution, which is presently in force and effect, was duly issued by this court pending hearing and determination of the petition.

The present and second application for a writ of habeas corpus is on the sole ground that Coleman's constitutional rights against self-incrimination under the Fifth and Fourteenth Amendments to the Federal Constitution were violated at his trial in the State Court. He contends that remarks made by the prosecutor in summation constituted unfair comment to the jury on his failure to take the stand in his own defense and that the effect of such comments was compounded by statements made by the trial judge immediately thereafter in the presence of and to the jury.

Respondent urges that the petition for a writ should be denied (1) because Coleman waived the contentions he now asserts by failing to raise them on his previous application to this court for a writ, (2) because the statements of the prosecutor and the court did not in fact constitute prejudicial comments on Coleman's failure to take the stand, and (3) because under the Supreme Court cases as they presently stand, the privilege against self-incrimination under the Fifth Amendment to the Constitution is not made applicable State's courts by the Fourteenth Amendment.

There is no merit to the contention that Coleman is barred from asserting the grounds on which he now seeks relief because of the previous writ of habeas corpus denied by Judge Sugarman. The contention that he was deprived of his constitutional right against self-incrimination by the conduct of the prosecutor and the trial judge is being considered for the first time in this court by his present petition for a writ. Under the standards laid down in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), viewed in the light of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), it is plain that although prior applications for federal collateral relief have been made a petitioner is not barred from applying for such relief again if a different ground is presented by the new application, or if the same ground was earlier presented but not adjudicated on the merits.

Judge Sugarman, in denying Coleman's previous application for a writ, made it abundantly clear that he was considering only the issue as to failure to assign petitioner counsel during the post-appellate period, and that the denial of the petitioner's application was not based on any other grounds for a writ which petitioner might have, including the grounds now raised. 205 F.Supp. 510, pp. 514-515.

The issues on appeal from Judge Sugarman's decision and on certiorari were similarly limited. There is thus no question that a ground entirely different from those previously raised or passed upon is presented on this application. Coleman is not barred from maintaining his present petition.

I turn then to the merits of the application.

Petitioner was charged with strangling a 77 year old woman during the course of a burglary, after raping her.

At the trial, which resulted in his conviction, petitioner was represented by competent counsel. There is no need to discuss the evidence presented by the prosecution in detail except to say that it was ample to support the conviction. It included an oral and a written confession made to the police about which no question is raised here.

Coleman, after being fully advised of his rights,¹ elected not to testify on his own behalf and did not call any witnesses. However, his counsel read to the jury portions of a question and answer statement which Coleman had made to an assistant district attorney shortly after he made his confession to the police which had not been offered in evidence by the prosecution and which defense counsel evidently deemed to be exculpatory. In this statement Coleman admitted that he had entered the deceased's apartment, had stolen a wallet, had slapped and tied up the deceased, and had had intercourse with her, though with her consent. He denied strangling her and claimed that when he left the deceased she was still alive. The fact was that she was not found dead until three days after the burglary. The defense then rested. The prosecution did not read the balance of this statement to the jury.

Apart from the alleged comments concerning petitioner's failure to take the stand, it is not contended that the trial was unfair and there is no basis for such a contention.

Coleman's contention on this application is based on the following which occurred during the course of the prosecutor's summation:

Mr. Baumann, the Assistant District Attorney:

"Gentlemen, there are just a few things more that I would like to say to you before I make my concluding remarks. I made some notations here that I could follow during my summation, and, of course, Mr. Goldstein, counsel for the defendant, called for the statement made to the district attorney on the night he made the confession, and, in substance, he felt that this is something that the district attorney should have brought forth.

"The fact of the matter is that I had a signed confession by this defendant, and I had the detectives testify and Mr. Davies re-enact the whole crime. So that there comes a time when you are just accumulating the testimony and lengthening the trial.

"But, just the same, I had a right to exercise my prerogative as to how I would conduct this trial, and I felt I would save this statement for cross examination, if and when —

"The Court: Wait a minute, please.

"Gentlemen, I will instruct you to disregard the district attorney's statement. I am speaking with forthright language — or any implications concerning the last remark. You are to disregard

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