United States ex rel. Carbone v. Manson, H-77-310 and H-77-311.

• Decision Date: 03 February 1978
• Docket Number: No. H-77-310 and H-77-311.,H-77-310 and H-77-311.
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America ex rel. James CARBONE v. John R. MANSON, Commissioner of Corrections. UNITED STATES of America ex rel. Peter CARBONE v. John R. MANSON, Commissioner of Corrections.

447 F. Supp. 611

UNITED STATES of America ex rel. James CARBONE v. John R. MANSON, Commissioner of Corrections.

UNITED STATES of America ex rel. Peter CARBONE v. John R. MANSON, Commissioner of Corrections.

Nos. H-77-310 and H-77-311.

United States District Court, D. Connecticut.

February 3, 1978.

COPYRIGHT MATERIAL OMITTED

Jacob D. Zeldes, Elaine S. Amendola, Zeldes, Needle & Cooper, Bridgeport, Conn., for plaintiff, James Carbone.

Ira B. Grudberg, Jacobs, Jacobs & Grudberg, New Haven, Conn., for plaintiff, Peter Carbone.

John F. Mulcahy, Jr., Deputy Chief State's Atty., Robert E. Beach, Jr., Asst. State's Atty., Joseph T. Gormley, Jr., Chief State's Atty., Woodbridge, Conn., for defendant Commissioner of Corrections.

RULING ON PETITIONS FOR WRITS OF HABEAS CORPUS

CLARIE, Chief Judge.

The petitioners, James Carbone and Peter Carbone, are both state prisoners, who are presently confined in the Connecticut Correctional Institution at Somers. They were tried together and convicted by a state court jury on an information charging each with four counts of larceny. They have filed applications for writs of habeas corpus in this Court pursuant to 28 U.S.C. § 2254, claiming that their confinement is unconstitutional for the following reasons: (1) there was admitted into evidence at their trial a business document seized during the execution of an allegedly invalid search warrant, in violation of petitioners' Fourth Amendment rights; (2) the seizure and admission into evidence of that same business document also constituted a violation of their Fifth Amendment privilege against self-incrimination; (3) the trial judge impermissibly restricted the cross examination of the principal prosecution witnesses, in violation of petitioners' Sixth Amendment right to confront their accusers; and (4) the petitioners' conviction was based upon an information which charged the petitioners with the mutually exclusive crimes of theft and of receiving stolen goods, which violated petitioners' rights under the due process clause of the Fourteenth Amendment to the United States Constitution.

The Court finds that the petitioners have failed to establish the existence of constitutional error in their trial, and their respective applications for the issuance of writs of habeas corpus are accordingly denied.

Facts

The petitioners were each charged in a four count substituted information with the crime of larceny of personal property valued in excess of two thousand dollars, in violation of Conn.Gen.Stat. § 53-63(a) (repealed Oct. 1, 1971). After a jury trial in the Connecticut Superior Court in Fairfield County, a verdict of "guilty" on each count was rendered against each of said petitioners. Both were sentenced on June 23, 1972 to serve a period of confinement of not less than three nor more than nine years in the Connecticut Correctional Institution at Somers.

The evidence presented at the trial by the State indicated that the petitioners on four separate occasions in January and February of 1971, participated in the theft of quantities of precious metals from Carpenter Technology Corporation, Inc., located in Bridgeport, Connecticut. The State's principal witnesses were Russell Scofield and Albert Edwards, two employees of Carpenter Technology, who plead guilty to removing the precious metal from the premises of their employer. Both confessed participants gave statements to Detective Robert J. Cafferty of the Bridgeport Police Department to the effect that they had removed the metal from the Carpenter Technology premises and transported it to Fairfield Scrap Iron and Metal Company (hereinafter "Fairfield Scrap"), a sole proprietorship owned by the petitioner James Carbone. The petitioner Peter Carbone is the brother of James and is also an employee of Fairfield Scrap. Edwards and Scofield testified at trial that the petitioners had made arrangements to purchase the selected stolen material prior to the thefts, had helped to unload the metal when it was delivered to Fairfield Scrap, and made payments to Edwards and Scofield for the stolen property.

The petitioners appealed their convictions to the Connecticut Supreme Court,¹ which remanded the case for a redetermination of the voluntariness of the consent to the search for the "Parks" receipt. On remand the Superior Court ruled the consent voluntary. The Connecticut Supreme Court, in the second appeal, affirmed this ruling and held that there was no merit to the petitioners' remaining assignments of error. State v. Carbone, 172 Conn. 242, 374 A.2d 215 (1977). A timely motion for reargument was denied by the Connecticut Supreme Court on February 3, 1977 and a timely petition for certiorari was denied by the United States Supreme Court on June 13, 1977. 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063.

Discussion of the Law

1. The Fourth Amendment Claim

As one ground for issuance of the habeas writ, petitioners claim that the seizure and admission into evidence of a receipt bearing the name "John Parks" violated their Fourth Amendment right to be free from unreasonable searches and seizures. The Fourth Amendment and the exclusionary rule are, of course, binding upon the States. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

On September 2, 1971 the Bridgeport police applied for and obtained a search and seizure warrant for the premises of Fairfield Scrap. The warrant commanded a search for a variety of named precious metals as well as certain items which had been used in accomplishing the theft and delivery of those metals. The warrant was executed on that same date, but nothing named in the warrant was found on the premises. However, the police did seize a receipt from the business records of Fairfield Scrap bearing the name "John Parks." Prior to making application for the warrant, Detective Cafferty had been told by Scofield and Edwards that a false name, "John Parks", had been used on one of the receipt slips signed by Scofield when the stolen materials were delivered to Fairfield Scrap. Through an oversight this receipt was not listed in the warrant as one of the items authorized to be seized. In the course of conducting the search Alfred Constantino, an insurance investigator who was assisting Detective Cafferty in the investigation, asked if he could look at the sales receipts and slips. James Carbone replied: "Well, I see no reason why he shouldn't see them. Fine, let him have them." The "Parks" receipt was discovered during the ensuing search and subsequently introduced at trial.

A pretrial motion to suppress the "Parks" receipt was denied by the trial judge on the grounds that the search for that item had been orally consented to and that the search had not been wholly conducted by the police officers. On the petitioners' first appeal to the Connecticut Supreme Court the judgment of the Superior Court was vacated and remanded. The State Supreme Court ruled that Constantino was at all times acting at the behest of the Bridgeport police and that the seizure of the "Parks" slip was therefore subject to the constraints of the Fourth Amendment. The Court also ruled that the trial court had erred in not considering all of the circumstances surrounding the purported consent to the search, in order to determine whether consent had been given voluntarily. Specifically, the Connecticut Supreme Court held that there was some merit to the petitioners' claim that the warrant — issued more than six months after the latest delivery of stolen merchandise to Fairfield Scrap — was stale, and directed the trial court to consider this circumstance in determining the validity of the consent.

On remand the trial court ruled that the lapse of six months between the observations upon which the warrant was based and the issuance of the warrant did not preclude a finding that probable cause existed to believe that some of the items to be seized were still on the premises on September 2, 1971, because three of those items — two chains and a tarpaulin — would have been useful in the petitioners' business and thus would likely have remained on the business premises. The Superior Court also concluded that in light of the fact that there was probable cause to support the issuance of the search warrant and considering all other attendant circumstances, the consent of James Carbone to the search of the receipts was voluntary within the meaning of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Connecticut Supreme Court affirmed both of these conclusions.

The barrier which the petitioners must overcome, in order to challenge the ruling of the Connecticut Supreme Court on this issue, is the recent holding of the United States Supreme Court:

"that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 481-482, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976).

The petitioners recognize the barrier constructed by Stone, but argue that the State court's resolution fell short of the "fair litigation" required by Stone in three respects: (1) the court applied an improper scope of review in determining whether the information contained in the affidavit was too stale to support the issuance of the search warrant, (2) the State Supreme Court did an about face on the validity of the search warrant after the decision in Stone insulated that court's decision from habeas corpus review, and (3) the State Supreme Court improperly deferred to the trial court on the issue of the validity of the warrant and the voluntariness of consent.

The petitioners misconstrue the import of the Stone decision. In order to preclude habeas corpus review of Fourth Amendment claims, it is not...