United States ex rel. Rice v. Vincent, 364

• Decision Date: 07 February 1974
• Docket Number: 365,Dockets 73-2195,No. 364,73-2196.,364
• Citation: 491 F.2d 1326
• Parties: UNITED STATES ex rel. Robert RICE, Relator-Appellee, v. Leon J. VINCENT, Superintendent, Greenhaven Correctional Facility, Stormville, New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

491 F.2d 1326 (1974)

UNITED STATES ex rel. Robert RICE, Relator-Appellee, v. Leon J. VINCENT, Superintendent, Greenhaven Correctional Facility, Stormville, New York, Respondent-Appellant.

Nos. 364, 365, Dockets 73-2195, 73-2196.

United States Court of Appeals, Second Circuit.

Argued October 19, 1973.

Decided February 7, 1974.

Lewis M. Steel, New York City (William M. Kunstler, Conrad J. Lynn, and Chester Mirsky, New York City, on the brief), for appellee.

Robert A. Goldschlag, Asst. Dist. Atty., for New York County (Frank S. Hogan, Dist. Atty., New York County; Michael R. Juviler and Lewis R. Friedman, Asst. Dist. Attys., on the brief), for appellant.

Before MEDINA, LUMBARD and TIMBERS, Circuit Judges.

LUMBARD, Circuit Judge:

Leon J. Vincent, the Superintendent of the Greenhaven Correctional Facility of Stormville, New York, appeals from an order entered on July 17, 1973, in the Southern District which granted the petition of Robert Rice, a prisoner in the facility, for a writ of habeas corpus unless the State of New York granted him a new trial within 60 days. Rice was convicted in the Supreme Court for New York County of the crimes of murder in the first degree, attempted murder in the first degree, and attempted robbery in the first degree after a trial before a jury lasting from March 11, 1970, to April 9, 1970. On September 22, 1970, Rice was sentenced to life imprisonment for murder; from 12½ to 25 years for attempted murder; and from 7½ to 15 years for attempted robbery, the sentences to be served concurrently.

After the trial it was learned that a prosecution witness, Robert Barnes, Jr., had recanted his testimony and that a fingerprint at the scene of the crime which a police expert testified was Rice's had originally been given a "no value" designation by another police expert. Rice made an appropriate motion for a new trial on the grounds of newly discovered evidence, which Justice Fine of the New York Supreme Court denied. Leave to appeal this order was denied by Justice Steuer of the Appellate Division, which decision was not appealable. Having thus exhausted his state remedies, Rice filed a petition for a writ of habeas corpus in the Southern District. Judge Tyler agreed with Rice's contention that, in light of the new evidence, due process required a new trial and, without holding a hearing, he ordered that the writ be granted unless Rice is retried within 60 days. 361 F.Supp. 843 (S.D.N.Y.1973). On August 3, 1973, Judge Tyler also granted Rice's motion for bail pending appeal of his order. On September 5, another panel of this court stayed the bail order pending disposition of this appeal, 486 F.2d 215 (2d Cir.1973), and at argument we denied a motion to vacate this stay.

I.

On April 29, 1964, there was an attempted robbery of a small clothing store on West 125th Street in Manhattan owned by two Hungarian immigrants, Frank and Margit Sugar. During the course of the attempted robbery, Margit was killed and Frank was seriously wounded. Following an intensive police investigation, Wallace Baker, Ronald Felder, William Craig, Robert Rice, Daniel Hamm, and Walter Thomas (who came to be known as the "Harlem Six") were indicted for murder, attempted murder, and attempted robbery. A trial was held in the spring of 1965 at which all six were convicted and sentenced to life imprisonment. At the trial the confessions of Hamm, Baker, and Rice were introduced. None of these defendants testified. The Appellate Division, First Department, affirmed the convictions, People v. Baker, 28 A.D.2d 24, 281 N.Y.S.2d 161 (1967); People v. Felder, 28 A.D.2d 823, 282 N.Y.S.2d 644 (1967) (no opinion); but the New York Court of Appeals reversed and ordered three new and separate trials, People v. Baker, 23 N.Y.2d 307, 296 N.Y.S.2d 745, 244 N.E.2d 232 (1968). The court held that Baker's confession should have been excluded, but upheld the trial court's finding that Hamm's and Rice's confessions were admissible. It also held that a sweater seized from Rice should have been excluded. Finally, the court ordered separate trials for Rice and Hamm on the grounds that use of their confessions, which implicated the other four, at the trial of the six had violated the mandate of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

As noted earlier, Rice was retried and convicted again in April 1970. The conviction was affirmed without opinion by the Appellate Division, People v. Rice, 39 A.D.2d 840, 332 N.Y.S.2d 1010 (1972). On June 30, 1972, the New York Court of Appeals granted leave to appeal, but we have been informed that the appeal will not be heard until the collateral attack before us is decided.

The other five were more fortunate. Hamm pleaded guilty in April 1971 to lesser included charges. The remaining four were tried in early 1971, but the trial ended with a hung jury. Another trial was held in January 1972 and ended in yet another hung jury. On April 4, 1973, the four pleaded guilty to manslaughter in the first degree. They were sentenced that day to the time that they had already served and were thus set free.

II.

A. Rice's confession.

The issue of whether due process requires a new trial necessitates a recital in some detail of the evidence adduced at Rice's second trial in 1970. Probably the most important piece of evidence was Rice's own confession. Prior to the first trial it was claimed that the introduction of the confession into evidence would be unconstitutional and a suppression hearing was held pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1965), and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). The trial judge ruled that Rice's oral statements and a written statement would be admissible, but that a later stenographic record of a question-and-answer session would be suppressed, evidently because it occurred after Rice's counsel had arrived at the station house but before he had been allowed to see Rice. See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The New York Court of Appeals affirmed this order, and the correctness of this decision is not before us. Admittedly, Rice was not told of his right to remain silent or to have counsel present since the interrogation took place before the decision of Miranda v. Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but it is clear that Miranda does not apply to confessions introduced at retrials if the first trial began before that decision was rendered, as is the case here. Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969).

Rice was picked up about 5:00 on the afternoon of April 30, 1964. At 7:30 Detective Halk and Sergeant Wilson began to question him. At first Rice denied all knowledge of the murder, and Wilson went into an adjoining room to speak to Hamm, who was then confessing. When Wilson returned, he told Rice that he knew about the plan to rob the store and the identity of the participants. Rice then confessed. While he recounted the details a second time, Halk prepared a written statement, which Rice signed at about 11:30 P.M.

In both the oral and written statements Rice admitted that he and the other five had met the day before on 129th Street to plan the crime. Hamm was to be the lookout. Rice, Thomas, and Baker first entered the store with shopping bags, and Thomas asked where the size forty suits were. The proprietor pointed to the suit rack. Felder and Craig came in a few minutes later and the proprietor began to panic. Felder then stabbed the owner with a knife. His wife tried to grab the phone and Rice knocked her down and Felder stabbed her. Confused and frightened, the group then fled from the store without taking any money or suits. The police testified that no officer beat or threatened Rice.

Testifying in his behalf, Rice said that he denied all knowledge about the crime and was then handcuffed to a chair and was savagely beaten. He still refused to confess but he did sign a statement that Halk had written even though he did not know what it said. When he saw his attorney that night, the first thing he said was "I did it." His attorney, David Scheinfeld, said that Rice appeared to be in a state of shock but that he saw no bruises or other signs of beating. Rice explained his exclamation by saying that he feared Scheinfeld was another policeman and that he did not want another beating. This is despite his claim that he had withstood prior severe beatings and despite the fact that he had met with Scheinfeld about twenty times previously in an unrelated civil matter.

In rebuttal the prosecution introduced evidence showing that Rice had made no complaints about being beaten when he was arraigned the next day, May 1. The same day Rice was interviewed at the Manhattan House of Detention for Men and filled in a form saying his physical condition was "okay." The interviewer testified that he would have recorded any observations of marks and bruises on Rice, which he did not. Finally, a physician who examined Rice at the Brooklyn House of Detention, to which Rice was then transferred, stated that he did not detect any bruises, discoloration, or swelling on Rice's body.

B. Ollin Roe's Testimony

Ollin Roe testified that he was working in the drugstore adjacent to the clothing store at the time of the crime. He heard a commotion next door and banging on the walls. The pharmacy owner, Julius Levitt, sent Roe next door to see what was happening. Roe looked through the front door of the store and saw a couple of fellows around Mrs. Sugar and heard Mr. Sugar screaming. Roe recognized Rice, Felder, Hamm, and Thomas. Roe ran back into the pharmacy and went into the basement. Levitt said that he looked "agitated." Levitt called Roe from the basement and told him to go back to the Sugars' store. Near the front door of the pharmacy, Roe saw five or six young men run by and turn up Fifth Avenue.

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