Gilmore v. Henderson

• Decision Date: 31 July 1987
• Docket Number: No. 1226,D,1226
• Citation: 825 F.2d 663
• Parties: Kenneth GILMORE, Jr., Petitioner-Appellant, v. Robert J. HENDERSON, Robert Abrams, and Elizabeth Holtzman, Respondents- Appellees. ocket 86-2443.
• Court: U.S. Court of Appeals — Second Circuit

Page 663

825 F.2d 663

Kenneth GILMORE, Jr., Petitioner-Appellant, v. Robert J. HENDERSON, Robert Abrams, and Elizabeth Holtzman Respondents- Appellees.

No. 1226, Docket 86-2443.

United States Court of Appeals Second Circuit.

Argued May 28, 1987.

Decided July 31, 1987.

Martin B. Adelman, P.C., New York City, for petitioner-appellant.

Richard T. Faughnan, Asst. Dist. Atty., Kings County, Brooklyn (Elizabeth Holtzman, Dist. Atty., Kings County, Barbara D. Underwood, Asst. Dist. Atty., Kings County, Brooklyn, N.Y., of counsel), for respondents-appellees.

Before LUMBARD, WINTER and MINER, Circuit Judges.

LUMBARD, Circuit Judge:

In 1981, after four trials, a New York state jury found Kenneth Gilmore, Jr. guilty of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon. Gilmore received concurrent sentences of twenty-five years to life on the murder count, seven-and-one-half years to fifteen years on the attempted murder count, and three-and-one-half years to seven years on the weapons possession count. In 1985, the New York Court of Appeals affirmed Gilmore's conviction. People v. Gilmore, 66 N.Y.2d 863, 498 N.Y.S.2d 752, 489 N.E.2d 721 (1985). The Court of Appeals acknowledged that "the trial court improperly impeded defendant's ability 'to present his own witnesses to establish a defense,' " but concluded that the error was harmless. 66 N.Y.2d at 867, 498 N.Y.S.2d 752, 489 N.E.2d 721. In a thorough and persuasive opinion, Judge Meyer dissented. Id. at 867, 498 N.Y.S.2d 752, 489 N.E.2d 721.

On November 10, 1986, Judge Neaher entered an order in the Eastern District denying Gilmore's petition for a writ of habeas corpus, 646 F.Supp. 1528. As the Court of Appeals had before him, Judge Neaher found that the trial court had violated Gilmore's constitutional rights to present witnesses in defense but deemed those violations harmless. Gilmore now appeals. Because we do not believe that these violations of Gilmore's constitutional rights were harmless beyond a reasonable doubt, we remand to the district court with instructions to grant the writ unless Gilmore is retried within a reasonable time.

In the early morning of June 6, 1976, Theodore Gross was fatally shot at point blank range while driving his car. Bullet fragments also severely injured his companion, Melita Sneed, who was seated next to him in the passenger seat. Two other men were in the car--Kenneth Gilmore, the defendant, and George Murdock, the prosecution's primary witness--both sitting in the back seat.

For over a year, Gilmore had worked as the night manager at the Webster Bowling Lanes in the Bronx. Murdock, who was on parole for armed robbery, had been recently hired at the same bowling alley. Because of his participation in a bowling league, Gross frequented the alley, and occasionally ate and drank with Gilmore.

At about 4:00 a.m. on June 6, Gross offered to drive Gilmore and Murdock home to Brooklyn after they closed up the bowling alley. Murdock had previously met Gross only once or twice. On the way, the group made a brief stop at a club in the Bronx called "Rosie's Walk-in" and then, at Gilmore's request, stopped at an after-hours club in Brooklyn named "Tears of Darkness." Gilmore and Murdock went into the club for about fifteen minutes, while Gross and Sneed ran the car through a nearby carwash. When they returned, Gilmore sat behind Gross in the left rear seat; Murdock sat behind Sneed in the right rear seat. Gilmore then suggested that Gross drop Murdock off at a nearby bus stop, where Murdock could board a bus to take him home. As the car slowed, Gross was shot three times.

Gilmore and Murdock told different stories about that night's event, each accusing the other of being the killer. Murdock testified that when Gilmore and he went into "Tears of Darkness," Gilmore left him alone for fifteen minutes. When Gilmore returned, he stated that he was going to kill Gross and Sneed and that Murdock could stay or he could leave, a decision which Gilmore would respect. Murdock ignored these comments because he thought Gilmore was joking.

Murdock testified further that when Gross pulled over to drop him off at the bus stop, Gilmore reached down into a burlap sack between his feet, and, when he sat up, shots rang out. Murdock said he never saw a gun or heard Gilmore say anything about a gun. Gilmore and he then jumped out of the car, took the subway one stop, and grabbed a cab. Gilmore told Murdock that he should say that the two of them took a train home from work. Murdock then went home, did not contact the police, and told his wife that she was to say that he had been with her the entire evening.

Gilmore testified that when Gross pulled over to drop off Murdock, he bent down to tie his shoes. At the same time, Murdock pulled a gun out of his bag, Gilmore exclaimed, "A gun," and Murdock began firing. After the two got out of the car, Murdock pointed the gun at Gilmore and said, "If you don't keep your mouth shut, you're going to get the same thing."

Sneed testified that when Gilmore asked Gross to drop off Murdock, she turned around and saw Gilmore bend down and say something about "checking his gun or pistol": She could not remember the exact comment and admitted that immediately after the accident she had been unsure what Gilmore had said. She then heard gunshots and realized that she had been hit. She did not see either Gilmore or Murdock with a gun.

The day after the shooting, Gilmore took a bus to South Carolina. The prosecution repeatedly contrasted Gilmore's flight with Murdock's conduct, emphasizing this distinction between the two suspects. At trial, Gilmore attempted to explain that his fear of the police rather than his consciousness of guilt motivated his flight; he called his sister-in-law, Dolores Dayton, to testify that detectives had come to her home, armed with shotguns, looking for Gilmore and that they had pointed their guns at a male relative when he arrived, believing him to be Gilmore. Dayton then telephoned the Arion Manor, a catering house where Gilmore was attending a christening, and gave the message about the police to Gilmore's mother-in-law, who relayed it to Gilmore.

The trial court ruled the testimony of Dayton inadmissible, stating that "the defendant has the option of explaining anything he wants to explain when he takes the stand." When Gilmore tried to explain what he had learned from his mother-in-law during his own testimony, however, the trial court, sua sponte, refused to allow him to do so.

Robert Glover also testified for the prosecution. Glover, a convicted felon with a history of cooperation with the district attorney's office, had a pending felony charge reduced to a misdemeanor--and received time served--in exchange for his testimony. He claimed to be an acquaintance of Gilmore's from Brooklyn. When the two met in a holding cell, Glover contended, Gilmore confessed that he had killed Gross because of a drug related dispute and offered to pay Glover to kill the two eyewitnesses if Glover was to be released soon. Gilmore also told Glover that he had been at his uncle's house when one of his uncle's friends, Sergeant Gathers of the Charleston, South Carolina police force, paid a visit. Gathers recognized Gilmore from a "wanted" poster. Gilmore then offered Gathers a $10,000 bribe to forget that he had seen him. Gathers refused the bribe, but, because of his friendship with Gilmore's uncle, allowed Gilmore to surrender voluntarily.

Gilmore denied having ever met Glover, and Glover acknowledged that he had learned about Gilmore's arrest, which had been publicized in the New York City newspapers, before his alleged conversation with Gilmore.

Gilmore attempted to call Sergeant Gathers, a 32-year veteran of the Charleston police force, to testify that he had never been offered a bribe by Gilmore. The trial court sustained the prosecutor's hearsay objection to such testimony. During his summation, the prosecutor bolstered Glover's credibility by referring to Glover's knowledge of the "fact" of Gilmore's...