Jacobson v. Henderson

• Decision Date: 25 July 1984
• Docket Number: No. 83 Civ. 4108 (JMC).,83 Civ. 4108 (JMC).
• Parties: Howard JACOBSON, Petitioner, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility; Thomas A. Coughlin, III, Comm'r, Department of Correctional Services; and Robert Abrams, Atty. General, Respondents.
• Court: U.S. District Court — Southern District of New York

591 F. Supp. 503

Howard JACOBSON, Petitioner, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility; Thomas A. Coughlin, III, Comm'r, Department of Correctional Services; and Robert Abrams, Atty. General, Respondents.

No. 83 Civ. 4108 (JMC).

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

July 25, 1984.

Ramsey Clark, Lawrence W. Schilling, New York City, counsel for petitioner.

Mario Merola, Dist. Atty., Bronx County, Steven R. Kartagener, Asst. Dist. Atty., New York City, for respondents.

MEMORANDUM AND ORDER

CANNELLA, District Judge:

The petition of Howard Jacobson for a writ of habeas corpus is denied. 28 U.S.C. § 2254.

FACTS

Petitioner is currently confined at Auburn Correctional Facility pursuant to a judgment of the New York Supreme Court, Bronx County (Kapelman, J.), upon a jury verdict convicting him of second degree murder. N.Y.Penal Law § 125.251 (McKinney 1975). Petitioner was sentenced to serve an indeterminate term of twenty-five years to life imprisonment.

Approximately eight months after the jury verdict, petitioner moved to vacate the judgment because of jury misconduct during deliberations. The motion to vacate the judgment was denied. People v. Jacobson, 109 Misc.2d 204, 440 N.Y.S.2d 458 (Bronx Co.Sup.Ct.1981). On appeal of the judgment of conviction and the order denying the motion to vacate the judgment, the Appellate Division, First Department, affirmed the judgment and order. People v. Jacobson, 89 A.D.2d 826, 452 N.Y.S.2d 473 (1st Dep't 1982). The Court of Appeals denied petitioner leave to appeal. People v. Jacobson, 57 N.Y.2d 781, 454 N.Y.S.2d 1057, 440 N.E.2d 1348 (1982).

Thereafter petitioner sought habeas relief from this Court, asserting that he was denied (1) a fair trial and the right to an impartial jury because of jury misconduct in violation of the fifth, sixth and fourteenth amendments; (2) a fair trial, his right to compulsory process in violation of the sixth amendment and due process in violation of the fourteenth amendment because the prosecution failed to produce George Miller, an alleged material witness; and (3) a fair trial in violation of the sixth and fourteenth amendments because of the court's denial to permit Leonore Berg to testify.

Briefly, the facts relevant to the jury misconduct are: During deliberations heated colloquy occurred among the jurors: screaming, hysterical crying, fist banging and name calling.¹ Abusive language was used. One juror in particular, who basically "broke down",² threw a chair allegedly at another juror. That juror, an auxiliary policeman, stated he was sick and required medical assistance. When the chair was thrown, allegedly one of the jurors requested the court officer to inform the trial judge of the incidents occurring in the jury room but the court officer declined to do so unless a note was sent through the foreperson. Allegedly, the court officer was informed that everything was under control. The trial judge was not informed of the chair-throwing incident at that time.

Petitioner alleges that these acts were designed to coerce the jurors who favored acquittal to change their votes to guilty. The disturbing incidents were conveyed months after the verdict to the trial judge through affidavits of the jurors. It is further alleged that during deliberations one juror read from notes he had taken during the trial and that at one point, the jury was deadlocked and the foreperson would not so inform the trial court. At a later point in time, the trial judge was informed of a deadlock. Petitioner alleges that this conduct denied him a fair trial.

Judge Kapelman declined to consider the jurors' affidavits to determine if members of the jury were coerced into changing their votes from innocent to guilty. Three jurors' affidavits were taken. Allegedly, juror Michael Speller stated to the Government that his affidavit was replete with inaccuracies.³ He would, however, not swear to another affidavit for the Government. Speller's affidavit was sworn three weeks after the verdict at the request of Jacobson's paramour with whom he had taken flight following his conviction.

Jacobson's counsel had obtained the affidavits of jurors Bernice Foust on May 30, 1980 and Rose Kovnit on November 6, 1980. When the Government investigated the circumstances under which these affidavits were given, the two jurors informed them that the affidavits were accurate.

Failure to Produce George Miller

As a defense, Jacobson contended at trial that Tupper's narcotic coconspirators murdered Tupper. Jacobson contended that Miller was the only one, other than Tupper's coconspirators, who could testify about Tupper's involvement with drug traffic. Petitioner further asserts that it was incumbent on the Government to produce Miller or inform petitioner of Miller's whereabouts.

Miller had testified as a confidential informant in a federal narcotics case in the Eastern District of New York in which Tupper was named as an unindicted coconspirator. He testified in the Eastern District case prior to petitioner's trial. Jacobson unsuccessfully tried to subpoena Miller by serving the subpoena on the Assistant United States Attorney "Assistant" who represented the Government in the Eastern District case. The Assistant refused service since Miller was no longer working with the Government and had returned to private life. The Assistant stated that he would contact Miller to inquire if he would appear voluntarily. He then testified at petitioner's trial that although he had a current address for Miller, he was unable to contact him. Furthermore, neither the District Attorney nor the trial judge knew of Miller's whereabouts. Defense counsel told the trial court that a journalist had informed him that Miller could not be located. The trial court encouraged defense counsel to determine Miller's availability. The record does not indicate that Jacobson sought a court order directing the Assistant or anyone else to produce Miller.

Testimony of Leonore Berg

Petitioner claims constitutional error by the trial court's denial of Berg's testimony as collateral. At trial, David Silbergeld testified that Melanie Cain told him petitioner "had nothing to do with Tupper's murder."⁴ Berg notarized Silbergeld's signature on an affidavit in which Silbergeld swore that Cain had stated this to him. Cain denied having made the statement to Silbergeld and he testified that the affidavit to which he swore before Berg was not the one introduced at trial because it was not on legal sized paper. The affidavit offered into evidence was one third the size of legal sized paper.⁵ Petitioner alleges he sought to introduce Berg's testimony to authenticate Silbergeld's affidavit. The respondent contends it was sought to be admitted to impeach Silbergeld's testimony which would impeach Cain's testimony.

The Court ruled that Berg's testimony which would allegedly impeach the testimony of an impeachment witness by admitting extrinsic evidence was collateral and denied any testimony from Berg.⁶

DISCUSSION

Initially, the Court must determine whether petitioner has exhausted his state court remedies. See 28 U.S.C. § 2254(b), (c); Petrucelli v. Coombe, 735 F.2d 684 at 687 (2d Cir.1984). With respect to petitioner's claims concerning jury misconduct, nonproduction of Miller and exclusion of Berg's testimony, there is no dispute that these alleged constitutional claims have been exhausted. The Court agrees.

Because it is necessary that the petition contain only exhausted claims for a federal court to consider the petition's constitutional merit, the Court addresses the issue raised by respondent that if petitioner is alleging that the denial of a hearing by Judge Kapelman on the jury misconduct claim constitutes a constitutional violation of petitioner's rights, then the petition must be dismissed in its entirety because petitioner did not present the claim to the state court and thereby has not exhausted this claim. See Daye v. Attorney General of State of New York, 696 F.2d 186, 190-91 (2d Cir.1982), cert. denied, ___ U.S. ___, 104 S.Ct. 723, 79 L.Ed.2d 184 (1983). While petitioner sought a hearing before the trial court if Judge Kapelman did not rule in petitioner's favor based on the jury's affidavits, respondent contends that petitioner waived his right to a hearing.⁷ Petitioner stated on a number of occasions that he did not consider a hearing necessary because the affidavits would be sufficient to support a finding of jury misconduct that denied petitioner a fair trial.⁸

The Court finds that petitioner failed to argue to the state court that the denial of the hearing gave rise to a constitutional claim.⁹ Indeed, in petitioner's papers to this Court, there is no claim that the denial of the hearing violated petitioner's constitutional rights. Petitioner merely argues that he has not waived his right to a hearing. Once Judge Kapelman denied petitioner's motion to vacate the judgment because of jury misconduct, there is no indication that petitioner then sought a hearing on the issues. Likewise, petitioner did not raise this issue on appeal.¹⁰

Petitioner's brief to the Appellate Division states in general terms that testimony should be received when the jury's verdict has been improperly influenced.¹¹ He then refers to cases in which hearings have been held following a trial. No constitutional argument is presented in these cases. Therefore, even broadly construing petitioner's papers submitted to the state courts, petitioner did not alert the state court to constitutional considerations involved in the denial of the hearing. See Daye v. Attorney General of the State of New York, supra, 696 at 194. Thus, if the Court were to assume arguendo that petitioner is raising in this writ a constitutional violation by the denial of the hearing,¹² the Court would be constrained to find that the claims have not all been exhausted. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71...