Gayle v. Scully, 846

Decision Date12 December 1985
Docket NumberNo. 846,D,846
Citation779 F.2d 802
PartiesKeith GAYLE, Petitioner-Appellant, v. Charles SCULLY, Superintendent, Green Haven Correctional Facility, Respondent-Appellee. ocket 84-2374.
CourtU.S. Court of Appeals — Second Circuit

Barry Bassis, New York City (Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for petitioner-appellant.

Shulamit Rosenblum, Brooklyn, N.Y. (Elizabeth Holtzman, Dist. Atty., Barbara

D. Underwood, Asst. Dist. Atty., Kings County, N.Y., of counsel), for respondent-appellee.

Before OAKES, MESKILL and PIERCE, Circuit Judges.

PIERCE, Circuit Judge.

Whether conduct by a judge in a state court criminal trial is sufficiently excessive to constitute a violation of the federal constitutional right to a fair trial is the issue presented here. Clearly, the fundamental right to a fair trial rests at the epicenter of our broad array of due process rights, thus, a most scrupulous review of the events which occurred in the challenged criminal trial is required of us. Principles of fundamental fairness represent the constitutional litmus test we must apply; concurrently, principles of comity and federalism warrant our respectful attention. Our review leads us to conclude that the determination by the district court denying the petition for a writ of habeas corpus should be affirmed.

Procedural History

On April 23, 1974, petitioner Gayle was indicted in Kings County, State of New York, for the murder of one Dennis Nunes on January 2, 1972. He was tried by a jury before a Justice of the New York State Supreme Court, Kings County. The jury found Gayle guilty of Murder in the Second Degree, and on October 28, 1974 he was sentenced to a prison term of twenty-five years to life. The Appellate Division, Second Department, affirmed the conviction without opinion on December 13, 1976. People v. Gayle, 55 A.D.2d 858, 390 N.Y.S.2d 768 (2d Dept.1976). On January 24, 1977, leave to appeal to the New York Court of Appeals was denied.

In April of 1977, Gayle filed a petition in the United States District Court for the Eastern District of New York seeking a writ of habeas corpus; he claimed that the trial judge's conduct had been so biased that it denied him a fair trial and thereby deprived him of liberty without due process of law. On September 14, 1978, the district court (Neaher, Judge), ruling on the merits, denied Gayle's petition. On appeal, this court did not address the substance of petitioner's claim. Following Johnson v. Metz, 609 F.2d 1052 (2d Cir.1979) (Gurfein, J.), we held that Gayle had not exhausted his state remedies adequately because in his state appeal he had failed to identify his claim of denial of fair trial based on judicial bias as asserting the denial of a federal constitutional right. Accordingly, we affirmed the denial of the petition. Gayle v. LeFevre, 613 F.2d 21, 22-23 (2d Cir.1980) (Pierce, J.) (Oakes, J., dissenting).

Gayle returned to the New York courts and sought to exhaust state remedies. On January 15, 1980, he moved in the Appellate Division, Second Department, to have that court amend its December 13, 1976 ruling to include a statement that the court had considered and rejected his claim that the trial judge's conduct had deprived him of his rights under the fourteenth amendment of the United States Constitution. The Appellate Division denied this motion without opinion on March 31, 1980. Thereafter, on March 6, 1981, in Supreme Court, Kings County, Gayle filed a motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law Sec. 440.10(1)(h) (McKinney 1983). In support of this motion, Gayle alleged in an affidavit that the state trial judge's bias had deprived him of his rights under the fourteenth amendment. On October 2, 1981, the Supreme Court denied this motion pursuant to N.Y. Crim. Proc. Law Sec. 440.10(2)(c), which mandates denial of a Sec. 440.10 motion raising any issue that the movant unjustifiably failed to raise on his direct appeal. On April 20, 1982, the Appellate Division, Second Department, denied Gayle leave to appeal.

On September 30, 1982, Gayle filed the instant habeas petition in the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. Sec. 2254. Reviewing this petition, Judge Bramwell ruled that under the "relaxed exhaustion standards set forth in Daye v. Attorney General, 696 F.2d 186 (2d Cir.1982) (en banc) (Daye II)"--which was decided after, and effectively overruled, Johnson v. Metz and Gayle v. LeFevre--Gayle had sufficiently identified his claim of denial of a federal constitutional right in his direct state appeal, and that he had exhausted his state remedies sufficiently to pursue his habeas application in federal court. Then, addressing the merits of Gayle's application, the district judge found that "although the trial judge's conduct may have approached the constitutional limit of fundamental fairness, the petitioner herein was not denied a fundamentally fair trial."

The Trial

At Gayle's state trial for murder, the prosecution presented evidence from which the jury could have found the following: On January 2, 1972, at approximately 1:00 a.m., at a party on the first floor of an abandoned house at 666 St. Marks Avenue in Brooklyn, Gayle approached Dennis Nunes and greeted him; Gayle walked a few steps with Nunes and then drew a small automatic handgun, placed it at Nunes' stomach, fired one shot, and fled; Nunes fell to the floor; minutes later, another man came down the stairs of the house and fired a gun at Nunes but did not hit him.

The prosecution's major witnesses were as follows:

1) Royston Foster and David Jones

David Jones and his cousin, Royston Foster, testified that: At approximately 10:00 p.m. on January 1, 1972, they arrived at the party at 666 St. Marks Avenue; Jones and Foster had provided the stereo equipment being used at the party and were tending the records; sometime after midnight, a man wearing a dark coat walked up to Dennis Nunes, who was standing a few feet from Jones and Foster, put his arm around Nunes, and, according to Jones, said "What happened, Den-Den?" (Foster heard no conversation); the two men then walked together into an adjoining unlit room where the man in the dark coat took a gun from his waist and fired a single shot into Nunes' torso; within a few moments, another man came down the stairs of the building, stopped several feet from Nunes--who had fallen to the floor--and fired two shots; neither of these two bullets hit Nunes; Jones and Foster both identified Gayle as the man in the dark coat who had fired the shot that struck Nunes.

On cross-examination, Jones stated that he had never seen Gayle either before or after Nunes' murder; that he had consumed seven alcoholic drinks, including five of 150 proof rum, before arriving at the party; and that, though several months prior to that night an "eye doctor" had prescribed glasses for him, he had not at that time obtained glasses. Jones also stated that, when questioned by police at the scene of the crime, he had denied seeing anything and had told them he arrived at the party after the murder had taken place. On cross-examination, Foster stated that he had seen Gayle numerous times before the night of the party--though the two had never met--and that he had not discussed the shooting with his cousin, Jones, at any time during the two years between that event and the trial.

2) John O'Malley

Officer John O'Malley of the New York City Police Department (NYPD) was one of the first officers to arrive at the scene of Nunes' murder. O'Malley testified that, as he arrived, he observed Nunes' body outside the house. Inside the house, on the first floor, O'Malley found a single spent .25 caliber cartridge but no other evidence of any crime.

3) Reuben Bankhead

Detective Reuben Bankhead was a member of the NYPD's investigative team that responded to the report of Nunes' murder. Bankhead testified that he discovered bloodstains on the floor of the apartment where Nunes was shot. Detective Bankhead also testified that he had questioned Gayle shortly after his arrest and that after being informed of his constitutional rights, Gayle made a statement confessing to Nunes' murder. Detective Bankhead testified that he took no notes during this confession, made no record of it later, and no witnesses were present in the squad room at that time.

4) Harold Sperling

Detective Harold Sperling testified that he was a member of the "apprehension team" charged with finding the appellant. On April 23, 1973, Sperling and his partner, Detective Booze, both of the NYPD, saw appellant in the vicinity of Decatur Street and Broadway in Brooklyn. Sperling testified that he and his partner approached appellant, identified themselves as police officers, and asked him if he was Keith Gayle. Sperling further testified that appellant answered in the negative, and when Detective Booze attempted to handcuff him, he fled. The detectives gave chase and apprehended Gayle.

5) Dominick DeMaio

Dr. Dominick DeMaio, the medical examiner who performed the autopsy on Dennis Nunes' body, testified that Dennis Nunes had been killed by a single .25 caliber bullet which extensively damaged his internal organs. DeMaio further testified that the wound would have caused little external bleeding and that the entry showed no evidence of the powder burns that are normally present when a wound is caused by a bullet fired at close range. However, Dr. DeMaio stated that the powder might have been filtered out by the victim's clothes. (Nunes' clothes had been removed before Dr. DeMaio examined the body and apparently were not made available to him.)

In addition, the prosecution introduced an exculpatory statement made by Gayle to an assistant district attorney shortly after he allegedly confessed to Detective Bankhead. In this statement, Gayle said that he was at his sister's...

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