U.S. v. Kearney

• Decision Date: 20 July 1981
• Docket Number: No. 81-1043,81-1043
• Citation: 659 F.2d 1203,212 U.S. App. D.C. 319
• Parties: UNITED STATES, v. Lawrence KEARNEY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1203

659 F.2d 1203

212 U.S.App.D.C. 319

UNITED STATES, v. Lawrence KEARNEY, Appellant.

No. 81-1043.

United States Court of Appeals, District of Columbia Circuit.

July 20, 1981.

Before MacKINNON, MIKVA and EDWARDS, Circuit Judges.

ORDER

PER CURIAM.

On consideration of the motion for appointment of counsel referred from the District Court, it is

ORDERED by the Court that the aforesaid motion is granted.

The dissenting opinion of Circuit Judge MacKINNON is attached.

MacKINNON, Circuit Judge (dissenting).

This case personifies the great abuse of repetitive post conviction § 2255 proceedings that clog the courts and raise unjustified hopes in petitioners that a new trial years down the road from their conviction will leave the government with insufficient witnesses and evidence to again obtain a conviction for a most heinous offense.

I. PRIOR PROCEEDINGS

An indictment charged Lawrence Kearney with committing first degree murder and carrying a dangerous weapon on November 23, 1967. He shot and killed Metropolitan Police Officer Silvia in cold blood. Following a jury verdict of guilty to the lesser included offense of second degree murder and for carrying a dangerous weapon, he was sentenced on September 13, 1968 to concurrent sentences of 15 years to life on the murder and 3 to 10 years on the weapons count.

The conviction was affirmed in United States v. Kearney, 420 F.2d 170 (D.C.Cir.1969) by a panel consisting of Chief Judge Bazelon, Senior Circuit Judge Fahy and Circuit Judge Leventhal. Judge Leventhal wrote the opinion filed on August 15, 1969 which upheld the conviction against appellant's attack on the identification testimony of one Warren.

Kearneys' defense claimed an alibi. The jury disbelieved it. The circuit court held that the failure of the trial court to allow defendant's counsel to cross-examine witness Warren as to whether or not he was on narcotics at the time he gave a statement to the police was not grounds for a reversal or remand where the possibility of mistaken identity of the defendant was strongly negatived by other evidence. It also ruled that the testimony by another witness as to the circumstances of the shooting which had been given to him by the slain officer on the day after he was shot, and the day before he died, was admissible both as a spontaneous utterance and a dying declaration.

Over five years after he was sentenced and four years after the affirmance on appeal, on September 12, 1973 Kearney filed a habeas corpus proceeding claiming (1) newly discovered evidence, (2) "ineffectiveness of counsel", (3) denial of fair trial under due process and equal protection of laws requirements of the 5th, 6th and 14th Amendments and the Bill of Rights, (4) use of prefabricated and manufactured testimony of an alcoholic and drug-addict, and (5) that relevant issues had not been challenged. The petition was bottomed on what was claimed essentially to be newly discovered evidence, principally in the form of an affidavit by one Stanley Warren who was a friend of Kearney's and an eyewitness to the shooting. ¹ Warren was 17 at the time of trial and his affidavit five years later stated he had testified falsely at the trial that he was present and saw his friend Kearney shoot Silvia. Id. The habeas corpus petition was denied on the ground that a proceeding under 28 U.S.C. § 2255 was required and the government moved that the "petition be treated in the alternative as a motion to vacate under Section 2255."

Thereafter on November 15, 1973 Kearney filed a § 2255 motion (1) alleging ineffective assistance of counsel, (2) that his conviction was based on "prefabricated and manufactured evidence" and "perjured testimony of Stanley Warren." District Court File, 39, p. 2. The principal allegation relied upon was the claim of newly discovered evidence in the form of the affidavit by Stanley Warren that he committed perjury at the trial. Id. Kearney's § 2255 petition was considered and denied on February 12, 1974 by the judge who had tried the criminal case. The denial was accompanied by a written order of the trial judge that relied upon the decision by the Court of Appeals and recognized that the claim of possible narcotics use was the alleged underpinning for the perjury claim which in substance was essentially an attack on the identification testimony :

"The subject (limited exploration of possible narcotic influence of Stanley Warren at the time of his written statement) relates to the issue of identity, and the possibility of mistaken identity is strongly negatived if indeed it is not eliminated beyond reasonable doubt by the scientific evidence, particularly the palm prints, and the credibility of Warren's testimony as buttressed by the account given by Officer Silvia to Detective Crooke. Such strength of the Government's case is highly material in determining whether the interest of justice may be served by affirmance rather than remanded for refinement of trial procedure." United States v. Kearney, 136 U.S.App.D.C. 328, 332, 420 F.2d 170, 174 (1969).

District Court File, 40. The trial judge ruled without a hearing that "the motions, pleadings, files and records conclusively show that petitioner is entitled to no relief." Id. at 2. Since the affidavit of Warren was before the trial judge and he ruled on the basis of the "motion " and the files and records, and not on any procedural defect, he had complete jurisdiction under § 2255 to grant Kearney's motion based on Warren's affidavit, and his order denying such motion is a decree upon the merits. Mayes v. Pickett, 537 F.2d 1080, 1082-83 (9th Cir. 1976), cert. denied, 431 U.S. 924, 97 S.Ct. 2198, 53 L.Ed.2d 238 (1977); United States v. Romano, 516 F.2d 768, 771 (2d Cir.), cert. denied, 423 U.S. 994, 96 S.Ct. 420, 46 L.Ed.2d 368 (1975); Case v. Beauregard, 101 U.S. 688, 692, 25 L.Ed. 1004 (1879); Hughes v. United States, 4 Wall. 232, 237, 18 L.Ed. 303 (1866); Rogers v. Rogers, 37 W.Va. 407, 16 S.E. 633, 638 (1892).

No appeal was taken from this § 2255 ruling.

Over seven years later, on October 14, 1980, after the trial judge had died, Kearney filed the instant case which is his second proceeding under section 2255. It raises essentially the same claim with respect to Warren's testimony, that was made in 1973 and denied, in contending (1) that his Fifth Amendment due process right was denied allegedly because: "Stanley W. Warren's confession (sic) was coerced and obtained under duress and that it was erroneous and perjured testamony (sic)." It also contends (2) that there was a shifting in the burden of proof in the court's instructions that violated the due process clause of the Fifth Amendment when the court charged: "In determining whether a wrongful act is done with malice, you may infer that a person ordinarily intends the natural and probable consequences of acts performed" (Tr. 974-975, see also Tr. 967). The other contention was (3) that a fair trial as required by the Fifth Amendment was denied in that: "The jury was not properly examined on its qualifications and that several jurors objected to being the tryer (sic) of facts on a case of this nature but were used as jurors anyway." Also, in an aside, Kearney states that none of these issues was brought out at trial and claims support from "(unspecified) newly discovered evidence."

The district court denied this motion by fiat. District Court File, No. 43.

II. THE TRIAL TESTIMONY

The testimony at trial proved beyond a reasonable doubt that Officer Silvia was shot at about 10:30 or 11:00 p. m. on Thanksgiving Day, November 23, 1967. The only issue was the identity of the killer.

Positive physical evidence, in the form of Kearney's palm prints, combined with other persuasive testimony, indicated that Kearney was the murderer.

A. The Palm Prints

His palm print was on the steering wheel of the Plymouth car in which he had been sitting behind the steering wheel immediately before he shot Officer Silvia. This fact is of conclusive significance because the car belonged to a third person (Callaghan) and Kearney had been observed moments before by Officer Silvia effecting an illegal entry into the locked car by breaking the glass in the door. ² Since (1) the car was not his, (2) he never had prior access to the inside of the car, and (3) he was observed at the critical time effecting an illegal entry, the physical evidence of his palm prints at two locations on the steering wheel and at one other location inside the car is practically conclusive evidence that Kearney was present at the time and place in question. And there is no evidence disputing the fact that the man who was inside the car emerged to shoot Officer Silvia.

B. The Blood Stains

In gaining entry into the car when Kearney broke the glass he may have cut himself slightly as some blood stains were found in the glove compartment. Laboratory tests of this blood indicated type A, which matched Kearney's type. This is not conclusive evidence but it proves that Kearney might have been the one who left the blood stains.

C. The Revolver and the Bullet Slugs

Additional testimony indicated that Kearney did have a .38 caliber revolver on the day of the murder, which was the caliber of the gun that killed Officer Silvia. A friend of Kearney's testified that on the day of the murder he saw Kearney with a .38 revolver (Tr. 177-78, 830), and that Kearney told him he had obtained the gun on November 20th and that he, the friend, had unsuccessfully tried to buy the gun from Kearney. Additional evidence tying the gun to Kearney and the murder was presented in the form of three slugs from a .38 caliber revolver. One slug was obtained from a door in the house where Kearney lived. Another was obtained from a log that Kearney had fired the .38 into in the presence of his friend. ³ The other slug was fired into the police officer's stomach and caused his death. An additional .38 caliber unfired bullet was obtained from a...