Gilmore v. Henderson

• Decision Date: 07 November 1986
• Docket Number: No. 86 CV 1009(ERN).,86 CV 1009(ERN).
• Parties: Kenneth GILMORE, Jr., Petitioner, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

646 F. Supp. 1528

Kenneth GILMORE, Jr., Petitioner, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent.

No. 86 CV 1009(ERN).

United States District Court, E.D. New York.

November 7, 1986.

Martin B. Adelman, New York City, for petitioner.

Elizabeth Holtzman, Dist. Atty., Kings County, Brooklyn, N.Y. by Richard T. Faughnan, Asst. Dist. Atty., for respondent.

MEMORANDUM AND ORDER

NEAHER, District Judge.

After a fourth trial in 1981¹, petitioner, a State prisoner, was convicted and is serving concurrent sentences of 25 years to life for murder in the second degree, 7½ to 15 years for attempted murder in the second degree, and 3½ to 7 years for criminal possession of a weapon. By memorandum decision, the New York Court of Appeals affirmed the convictions and sentences, Judge Meyer dissenting, People v. Gilmore, 66 N.Y.2d 863, 498 N.Y.S.2d 752, 489 N.E.2d 721 (1985).² Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The charges against petitioner arose out of a shooting in the early morning of Sunday, June 6, 1976, resulting in the death of Theodore Gross and the wounding of Gross' female companion, Melita Sneed. Petitioner was then employed for over a year as night manager of Webster Bowling Lanes in the Bronx, although he resided in Brooklyn. He and Gross were friends growing out of Gross' participation in a bowling league at Webster Lanes; and after petitioner closed up at 4:00 A.M., Gross offered to drive him and a newly hired shorthand cook, George Murdock, to Brooklyn in Gross' Citroen automobile. After a brief stop at an early hours club in the Bronx, the group proceeded to downtown Brooklyn. Sneed occupied the front right passenger seat next to Gross; petitioner, the left rear seat behind Gross, and Murdock, the right rear seat behind Sneed. As the car neared Flatbush Avenue, petitioner asked Gross to stop at another after hours club called "Tears of Darkness", located on Flatbush Avenue near petitioner's home, saying he wanted to pick up some money he was owed. Gross agreed but he and Sneed remained in the car, and ran it through a nearby car wash. Petitioner and Murdock returned in 20 or 25 minutes and the group drove off.

According to Sneed, petitioner then said "Pull alongside right here," which Sneed described as "like a little street, like a junction ..." When the car stopped, she saw petitioner "bending over," and saying something about "Let me check my pistol" or "Let me check my gun," but then said "I don't really remember, but it was something to that effect ..." Then she heard "this loud noise, and there was a hole in the windshield" and she "saw blood, my hand was bleeding ..." She jumped out of the car and tried to summon help but no one responded, so she sat in the car until the police and an ambulance came and took her to Cumberland Hospital.

Murdock, who was then on parole for a robbery conviction, testified for the prosecution. He said that while he and petitioner were in the "Tears of Darkness" club, petitioner said "he was going to kill Ted Gross and the girl," and that "If I want to come I could come; if I didn't, he'd respect me for that." On their return to Gross' car, they resumed the same seats: petitioner behind Gross and Murdock behind Sneed. As the car began moving, petitioner asked Gross "Do you want to drop Musah meaning Murdock off at the bus stop?" Murdock then saw petitioner "bending down. When he came up, I just heard shots." Murdock opened the door, as the car was then moving back, and jumped out carrying his green bag and ran up the street. He saw petitioner run past him carrying a brown burlap bag. They ran to a subway, took a train one stop and then caught a cab, and finally Murdock took a train to his girlfriend's house in Queens. He went to work on Monday and Tuesday and, after a telephone call and visit with his parole officer, he agreed to give a statement to the police which inculpated petitioner as the killer.

Petitioner, testifying in his own behalf, denied shooting Gross or Sneed, asserting that Gross had helped him get his job at Webster Bowling Lanes. He denied that he had a brown bag and said it was Murdock who pulled a gun out of his bag and shot Gross. According to petitioner, Murdock then pointed the gun at his chest and said: "You seen what just happened to Ted. If you don't keep your mouth shut, you're going to get the same thing", ordering petitioner to follow him out the right side of the car, when petitioner went to get out on the left side. According to petitioner, it was Murdock who directed the escape route, reminding petitioner to "keep my mouth shut."

Later that day (Sunday) petitioner attended a christening and learned from his sister that police armed with shotguns were looking for him. Petitioner decided to take a bus to Charleston, South Carolina, where, accompanied by his uncle, he surrendered voluntarily to a family friend, Sergeant Gathers, who arranged with New York police for petitioner's waiver of extradition and return to New York.

Petitioner's Contentions

I.

Petitioner contends that the prosecutor elicited his post arrest silence on the State's direct case contrary to Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Despite the absence of an objection, he asserts that the error is of constitutional dimension, citing People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786 (1983) (memorandum), and not subject to harmless error analysis, relying on Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705 (1967). Petitioner also points out that the Appellate Division had reversed a prior conviction in this matter because the same prosecutor, on cross-examining petitioner, also elicited his post arrest silence. People v. Gilmore, 76 A.D.2d 548, 430 N.Y.S.2d 854 (2d Dept.1980).

While defense counsel's failure to object may be attributed to a desire to avoid underscoring prejudicial testimony in the jurors' minds by drawing attention to it, Williams v. Henderson, 451 F.Supp. 328, 331 n. 5 (E.D.N.Y.1978), aff'd. 584 F.2d 974 (2d Cir.1978), this explanation is unavailing. Defense counsel raised the same matter on cross-examination, Tr. 223-24, leaving petitioner in a poor position to complain. See United States v. Nunez-Rios, 622 F.2d 1093, 1101 (2d Cir.1980); cf. People v. Seaton, 119 A.D.2d 600, 500 N.Y.S.2d 771, 772 (2d Dept.1986) (memorandum).

The New York Court of Appeals ended its memorandum decision stating,

"Defendant's remaining arguments, to the extent that they have been preserved for our review, are without merit."

498 N.Y.S.2d at 754.

The State, as a basis for affirmance, had urged petitioner's procedural default in failing to object. In such a situation,

"the teaching of prior cases of this federal Court is that when (a) the defendant has failed to follow prescribed state procedures in the trial court to raise a constitutional issue, (b) he thereafter attempts to raise the constitutional issue on appeal to the state appellate court, (c) the State objects to his raising the constitutional question because of the failure properly to preserve the question for appellate review, and (d) the state appellate court affirms the defendant's conviction without stating whether it has rejected the constitutional claim on its merits or on the ground of the procedural default, the federal habeas corpus court should normally interpret the state appellate court's ruling as one based on the procedural default. Although this principle was developed in cases in which the state appellate court had simply affirmed convictions without opinion, it is equally applicable to an affirmance in an opinion that does not address the constitutional claim."

Stepney v. Lopes, 760 F.2d 40, 44 (2d Cir. 1985) (citations omitted).

Writing for the Court in Hawkins v. LeFevre, 758 F.2d 866 (2d Cir.1985), Judge Kaufman reviewed the cases and concluded that New York courts do not require an objection to preserve errors concerning reference to the accused's post arrest silence, id. at 871, relying on People v. McLucas, 15 N.Y.2d 167, 256 N.Y.S.2d 799, 204 N.E.2d 846 (1965), and also citing People v. Bowen, 65 A.D.2d 364, 411 N.Y.S.2d 573 (1st Dept.1978). In Bowen, despite the absence of an objection, the Appellate Division, also citing McLucas, considered the defendant's complaint that the prosecutor had been allowed to question him about his post arrest silence. Ultimately, the Court rejected the merits of the claim and further noted that the error, if any, was harmless beyond a reasonable doubt. 411 N.Y.S.2d at 577. In affirming the Appellate Division, the Court of Appeals stated,

"Appellant tenders two issues. With respect to the first — the propriety of the prosecutor's cross-examination of defendant as to his failure at the time of his arrest to come forward with the exculpatory version of the episode to which he testified on trial — it appears that the issue is not preserved for our review inasmuch as no timely protest was registered."

People v. Bowen, 50 N.Y.2d 915, 917, 431 N.Y.S.2d 449, 409 N.E.2d 924 (1980) (memorandum).

Despite his extensive review of the cases, Judge Kaufman in Hawkins neither cited nor referred to the Court of Appeals' decision in Bowen, which obviously refuses to extend McLucas to the improper use of the accused's post arrest silence. In McLucas the Court had ruled that no objection was necessary to preserve error concerning the trial court's improper comment on the accused's failure to testify in his own defense. While related, the two situations are not identical.

In light of Bowen and the Court of Appeals' invocation of waiver in petitioner's case, this Court finds that the Court of Appeals rejected this claim of error on procedural grounds.

"Petitioner's procedural default in state court precludes him from raising the issue in a federal habeas proceeding unless he is able to show cause and prejudice."

...