Sher v. Stoughton

• Citation: 516 F. Supp. 534
• Decision Date: 10 June 1981
• Docket Number: No. 77-CV-402.,77-CV-402.
• Parties: Walter SHER, Petitioner, v. Donald STOUGHTON, Commissioner of Corrections, Onondaga County Correctional Facility, Jamesville, New York; Benjamin Ward, New York State Commissioner of Corrections, Respondents.
• Court: U.S. District Court — Northern District of New York

516 F. Supp. 534

Walter SHER, Petitioner, v. Donald STOUGHTON, Commissioner of Corrections, Onondaga County Correctional Facility, Jamesville, New York; Benjamin Ward, New York State Commissioner of Corrections, Respondents.

No. 77-CV-402.

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

June 9, 1981.

As Amended June 10, 1981.

Seidenberg & Strunk, Syracuse, N. Y., for petitioner; Faith A. Seidenberg, Syracuse, N. Y., of counsel.

Denis Dillon, Dist. Atty. of Nassau County, Mineola, N. Y., for respondents; William C. Donnino, Bruce E. Whitney, Asst. Dist. Attys., Mineola, N. Y., of counsel.

MEMORANDUM — DECISION AND ORDER

MUNSON, Chief Judge.

On October 31, 1980, this Court granted the petitioner's application for a writ of habeas corpus, finding that the petitioner had been denied his right to a fair and impartial trial by jury and his right to confront all evidence against him, as guaranteed by the Sixth and Fourteenth Amendments. On March 5, 1981, the Second Circuit, 657 F.2d 264, vacated this Court's decision in light of the strictures imposed by Sumner v. Mata, ___ U.S. ___, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) upon federal judicial review of state court findings of fact.

On remand, the Court shall take this opportunity not only to consider the Supreme Court's decision in Mata, but also to elaborate further the legal questions posed by the instant application. For the reasons set forth below, the Court again concludes that the petitioner's application should be granted.

I.

As developed at trial, on April 5, 1962, Walter Sher, who was 23 years old, and Dominick Carbonaro entered Hansen's Jeweler's, in Manhasset, New York, with loaded guns. While Carbonaro stayed in the front of the store, Sher walked toward a back room, displayed a .38 caliber revolver, and said "This is a stickup." Sher ordered one of the proprietors, Edward Hansen, and two employees in the back room to lie down. At this time, Donald Hansen, the other proprietor and brother of Edward, left the area in the front of the store and moved toward Sher. Despite Sher's "screaming" that Donald Hansen should stay back, Donald Hansen and an employee seized Sher and struggled with him on the floor. In the meantime, Edward Hansen ran to the front of the store and grappled with Carbonaro. Two shots went off from Sher's gun, one of which fatally injured Donald Hansen. Carbonaro, in turn, shot and wounded Edward Hansen and the employee, who, with Donald Hansen, tried to overtake Sher.. Both Carbonaro and Sher then fled from the scene in an automobile, and two days later were arrested in a New York City apartment.

Sher and Carbonaro were indicted for felony murder, First Degree Murder, and other crimes on April 13, 1962. Both defendants pled not guilty. After a hearing before the County Court, Nassau County, Sher was found to be incapable of understanding the charges against him and of assisting in his defense, and thus unable to stand trial. As evidenced by later testimony, it appears that both Sher and members of his family have histories of psychotic behavior. Sher was committed to Matteawan State Hospital for the criminally insane. Meanwhile, Carbonaro was tried separately, and subsequently convicted of felony murder and other offenses. He was sentenced to death on October 4, 1963.

On July 23, 1963, Sher was ordered returned from Matteawan. His trial by jury began on October 8, 1963, before Justice Edwin R. Lynde, of the Supreme Court, Nassau County. Sher's principal defense was insanity. At the completion of the prosecutor's case in chief, however, and during the evening of October 24, 1963, a total of six jurors received telephone calls at their residences from an unidentified woman who stated inter alia, that Sher was a vicious killer and should be sentenced to die, and that the jury should disregard evidence produced to establish Sher's insanity. Two of these jurors did not speak directly with the woman. In this regard, one juror who spoke with the woman telephoned another juror who had not received any call, and informed him of the substance of the conversation. The next morning, on October 25, 1963, the jurors returned to court, and, with the exception of one alternate juror, all of the jurors and alternates, discussed or heard discussed the substance of the telephone calls. The jurors had been instructed not to discuss the trial among themselves. The clerk of the court was also informed of the conversations. When the trial judge learned of the events of the previous evening, he called the jurors and alternate jurors individually into his chambers, and questioned each of them. The respective counsel and the defendant were present, but did not participate in the questioning. The record reveals the following specific information about these in chambers proceedings and about the telephone calls. See Rec. at 538-62.

The four jurors who spoke directly with the woman reported similar types of communications. Mr. Gordon Kinsey, one of the jurors, stated that an unidentified woman had urged him to disregard the arguments of Sher's attorney and find Sher guilty. Rec. at 539. Mr. Edward Yasko, another juror, stated that a woman had told him to encourage other jurors "to vote for the electric chair" and to ignore any testimony concerning insanity. Rec. at 540. This juror also revealed that he had discussed this conversation with another juror, Mr. Robert Kirschenheiter, the preceding evening, and with other jurors that morning. Rec. at 541. He was not asked what he had told the other jurors. The third juror, Mr. Charles Guest, reported that the woman had said that Sher must be found guilty. Rec. at 545. Mr. Guest also informed the trial judge that he had "compared" the subject matter of his telephone call with the communications received by other jurors. Rec. at 546. The fourth juror, Mr. William Nachbar, noting that the unidentified woman seemed to be reading, told the judge that the woman referred to Sher as a "vicious killer with a past record" who should be "sent to the chair," and stated to him that Sher's co-felon had been sentenced to death. Rec. at 549. Mr. Nachbar was not asked whether he had discussed his telephone conversation with other jurors.

Two other jurors also received telephone calls, but neither individual spoke directly with the woman. One of these jurors, Mr. Ernest Smoker, stated that he did not discuss the matter with other jurors. Rec. at 543. No inquiry was made of him as to whether his wife, who had answered the telephone, had reported to him what, if anything, the woman had said. The other juror, Mr. William Frye, overheard discussions that morning of the substance of one of the conversations. Specifically, Mr. Frye learned that another juror had been told that Sher was a "vicious character" and that the jury should ignore his plea of insanity. Rec. at 547.

The examinations of the jurors who had received no telephone calls supply additional information. Three jurors, who apparently had learned information regarding Mr. Nachbar's call, said that they understood that an anonymous woman telephone caller had referred to Sher as a "vicious killer." Rec. at 544 (Joseph Rollo); Rec. at 554 (Charles Shaw); Rec. at 555 (George Lee). One of these jurors reported also that he had heard that the woman had told a juror to try to influence other jurors. Rec. at 554 (Charles Shaw). A fourth juror, Mr. Robert Kirschenheiter, said that he had spoken the previous evening with a juror who had received a telephone call, and that he had been told that the woman had urged the juror essentially to ignore Sher's defense and to encourage other jurors "to vote for the electric chair." Rec. at 551. Mr. Kirschenheiter also revealed to the trial judge that he had heard other jurors discuss the telephone calls that morning. A fifth juror, Mr. Robert McDougald, also stated that he had understood that a woman had told jurors to "vote for the death penalty." Rec. at 557. Two other jurors, Mr. James Krut and Mr. Gerard Cattone, believed that the woman had requested jurors to bring in verdicts of guilty. Rec. at 552; Rec. at 558. Mr. Krut and two additional jurors said that they thought the woman had told jurors to ignore the defense of insanity. Rec. at 552 (Krut); Rec. at 555 (George Lee); Rec. at 556 (Floyd Gianbalvo). Only one alternate juror, Mr. Thomas Seaman, stated that he had heard no discussions about the telephone calls. Rec. at 559.

After each juror related to the trial judge whether and what he had learned either directly or indirectly about the woman's conversations, the judge admonished them individually that the conversations were not evidence in the case, and that Sher was to be judged only upon the basis of evidence adduced at trial. Each juror gave assurances that he would disregard information gleaned from the telephone calls or from discussions concerning the telephone calls.

Following the series of questioning, the district attorney stated that all the jurors appeared to share the same information, except Mr. Nachbar, "who apparently received the further message to the effect that Carbonaro was sentenced to the electric chair." Rec. at 560. For this reason, the district attorney stated that "if counsel for the defendant wished to specifically challenge this juror, I would not interpose any objection as to that particular juror." Rec. at 560. As to the other jurors, however, the district attorney asserted that these individuals would, as they stated, disregard the telephone calls, and that they would probably hear information in the trial that was the subject matter of the telephone calls, such as psychiatric evidence. Rec. at 560. In response to these comments, the defense attorney argued that he knew of no procedure to challenge a juror individually during the trial, and that the only ground for replacing a juror with an alternate juror is in the event of illness or some other inability to serve. Rec. at 561. Thus, the...