United States ex rel. Santiago v. Vincent

• Decision Date: 30 November 1976
• Docket Number: No. 75 Civ. 3225.,75 Civ. 3225.
• Citation: 423 F. Supp. 103
• Parties: UNITED STATES of America ex rel. Efrain SANTIAGO, Petitioner, v. Leon VINCENT, Superintendent of Green Haven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

423 F. Supp. 103

UNITED STATES of America ex rel. Efrain SANTIAGO, Petitioner, v. Leon VINCENT, Superintendent of Green Haven Correctional Facility, Respondent.

No. 75 Civ. 3225.

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

November 30, 1976.

William E. Hellerstein, William J. Gallagher, New York City, for petitioner; Barry T. Bassis, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, for respondent; Rhonda Amkraut Bayer, Deputy Asst. Atty. Gen., New York City, of counsel.

GAGLIARDI, District Judge.

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted after a jury trial in New York Supreme Court, Bronx County of common law murder and possession of a weapon. On April 5, 1973, petitioner was sentenced to an indeterminate term of imprisonment of 18 years to life on the murder charge to run concurrently with a one year sentence for the weapon possession charge. The Appellate Division, First Department, affirmed the murder conviction and the sentence therefor, but reversed the conviction for possession of a weapon and vacated the sentence on that charge. Appellate Division Order, April 3, 1975. Leave to appeal was denied by a judge of the Court of Appeals (May 19, 1975). The petitioner is now serving his sentence at the Green Haven Correctional Facility.

The sole issue in this petition is whether the trial court's refusal to allow cross-examination of a prosecution witness on the subject of her interest in the case deprived petitioner of his right of confrontation guaranteed by the Sixth and Fourteenth Amendments and thus requires the reversal of his conviction. This issue was fully briefed and argued before the Appellate Division and in the petition for leave to appeal to the Court of Appeals. Petitioner has exhausted his available state remedies. See Picard v. Connor, 404 U.S. 270, 275, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Chesney v. Robinson, 403 F.Supp. 306, 308 (D.Conn.1975), aff'd on opinion below, 538 F.2d 308 (2d Cir. 1976).

After thoroughly reviewing the record in this case, for the reasons stated herein, this court finds petitioner's confrontation rights guaranteed by the Sixth and Fourteenth Amendments were violated when cross-examination was limited and, accordingly, grants the writ.

On December 17, 1971 at 12:15 A.M. a New York City Police patrolman, in response to waves from a crowd and to a police radio communication, entered a building at 827 Melrose Avenue, Bronx County, New York. This building is the residence of the three key witnesses in this case. Between the first and second floor landing of the building the patrolman saw the victim of the crime in this case, Manuel Perez, Jr., sitting in a slumped position. From the stairway the victim was removed to Morrisania Hospital. According to the testimony of the Medical Examiner of the City of New York, the victim had died shortly after he had sustained multiple stab wounds.

At the trial the prosecution relied heavily upon the testimony of three witnesses. The first of these witnesses, Isabel Alvarez, the only eyewitness to the murder, looked out of the peephole in the door of her apartment and saw the knife penetrate the victim. Myrna Crespo, who testified after Isabel Alvarez, stated that she responded to the cries of Isabel Alvarez, came out into the hallway of her fourth floor apartment and saw the perpetrator and the victim on the landing below. She stated that the perpetrator had a knife and was going through the pockets of the victim, and that she saw the perpetrator's face for a short period of time. The next witness, Myrna's sister Mildred Crespo, an occupant of the same fourth floor apartment, testified that she went out of the apartment as her sister was returning and also saw the perpetrator and the victim on the landing below. She too stated that the perpetrator had a knife and was going through the victim's pockets. She also testified that she saw the perpetrator's face for a few seconds. The only other witnesses at the trial were the policeman who found the body and the father of the victim who both testified before Isabel Alvarez and the medical examiner and the police detective in charge of the investigation of the murder who testified after Mildred Crespo.

It was at the end of the cross-examination of Mildred Crespo that the petitioner alleges the Sixth and Fourteenth Amendment confrontation violation took place. Petitioner claims that the cutting-off of cross-examination denied him the opportunity to establish that Mildred Crespo's knowledge of her brother's arrest for the very crime for which the petitioner was on trial gave her a motive to falsify her testimony. The sustaining of the prosecutor's objections in the following exchange, T. 730-32¹ petitioner alleges, was a constitutional violation requiring reversal of petitioner's conviction:

THE COURT: Anything further?

Q. You have a brother by the name of Peewee?

A. Mildred Crespo Yes.

Q. And did you learn between the time of the night of the incident and the time you spoke with Detective Hughes for the first time that Peewee had been arrested for this homicide?

MR. GILLEECE: Oh, I object to this question.

MR. GETZ: I asked her if she learned it. If she didn't learn it, she could say no.

THE COURT: Did you ever hear that?

THE WITNESS: That he was arrested? No.

Q. Did you learn he was taken to the station house about this incident?

MR. GILLEECE: Hold on. I object to this now.

THE COURT: Sustained.

MR. GETZ: That's a term of legal art, Judge.

THE COURT: Not sic it's sustained.

MR. GETZ: If the court pleases, it's a term of legal art.

THE COURT: Now, sir, I don't know where you learned English, but I learned it here in the United States, and it requires me to say certain things and you to understand them. I have said to you five times today if I have said it once, I don't want argument after I have made a ruling.

MR. GETZ: Well, Judge —

THE COURT: Is that clear enough?

MR. GETZ: Yes, sir.

THE COURT: Now, don't reply to it. Put your next question.

MR. GETZ: Judge, if the other witness —

THE COURT: Just put your next question.

MR. GETZ: Obviously, if the other witness had a problem with English, this witness has a problem with English.

THE COURT: Would you be seated now.

THE COURT: Don't you hear what I say to you or are you so anxious to talk?

MR. GETZ: I hear you, sir.

THE COURT: You heard me say to you to put the next question. Do you have another question to put, Counselor?

MR. GETZ: Yes.

BY MR. GETZ:

Q. Did your brother ever tell you that he had been taken to the station house to be questioned with reference to this homicide?

MR. GILLEECE: Objection.

THE COURT: Sustained.

MR. GETZ: No further questions.

MR. GILLEECE: I have no further questions.

THE COURT: Step down.

Federal court review of state criminal proceedings under 28 U.S.C. § 2254 is limited to errors of constitutional magnitude. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir.), cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975). Furthermore, in order to grant petitioner's habeas corpus petition and reverse his conviction, this court must find that the cutting-off of cross-examination, even if of constitutional dimension, was not harmless error beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Duhart, 511 F.2d 7, 10 (6th Cir.), cert. denied, 421 U.S. 1006, 95 S.Ct. 2409, 44 L.Ed.2d 675 (1975).

It is well established that the scope and extent of cross-examination is within the sound discretion of the trial court. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). However, it is equally well established that the right of cross-examination is a fundamental one grounded in the Sixth Amendment right of an accused to confront the witnesses against him. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 294-95, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Pointer v. Texas, supra. This fundamental right is made obligatory on the states by the due process guarantees of the Fourteenth Amendment. Pointer v. Texas, supra, 380 U.S. at 403, 85 S.Ct. 1065.

When a government witness in a criminal case is being questioned as to his possible motives for testifying falsely, wide latitude should be allowed in cross-examination. United States v. Masino, 275 F.2d 129, 132 (2d Cir. 1960). Indeed, "cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, supra, 415 U.S. at 316, 94 S.Ct. at 1110; United States v. Harris, 501 F.2d 1, 8 (9th Cir. 1974). Cross-examination is proper when its purpose is to reveal bias or interest on the part of the witness being examined. See Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); United States v. Lester, 248 F.2d 329, 334-35 (2d Cir. 1957). Thus, while the trial judge has wide latitude in the control of cross-examination, "`this principle cannot be expanded to justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony.'" United States v. Harris, supra at 8, quoting Gordon v. United States, 344 U.S. 414, 423, 73 S.Ct. 369, 97 L.Ed. 447 (1953).

A careful review of the over 900 page record in this case establishes that petitioner was denied his Sixth and Fourteenth Amendment rights to adequate cross-examination at his trial. In the cross-examination at issue, Mildred Crespo did answer, over the prosecutor's objection, that she did not know her brother had been arrested T. 730. However, this single denial was not enough to allow the court to deny further cross-examination intended to discredit the...