United States v. Casscles
| Decision Date | 03 May 1973 |
| Docket Number | No. 73-C-301.,73-C-301. |
| Citation | 358 F. Supp. 517 |
| Parties | UNITED STATES of America ex rel. Armstrong JOHN, Petitioner, v. J. Leland CASSCLES, Superintendent, Great Meadow Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Robert T. Kasanof, Legal Aid Society for petitioner; by Mark Levine, New York City, of counsel.
Louis J. Lefkowitz, Atty. Gen., for respondent; by Hillel Hoffman, Asst. Atty. Gen., of counsel.
This is a petition by a prisoner in state custody for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The petitioner was tried to the court and a jury in Supreme Court, Kings County, New York from June 10 through June 19, 1968, and was found guilty of Manslaughter in the First Degree. On September 19, 1968, Judge Starkey, the trial judge, sentenced the petitioner to a term of imprisonment of 10 to 20 years.
The judgment of conviction was affirmed without opinion by the Appellate Division, Second Department, 35 A.D.2d 1081, 318 N.Y.S.2d 266 (1970). The Court of Appeals denied leave to appeal on February 4, 1971.
Petitioner moved for a new trial on the grounds of newly discovered evidence. This motion was denied on April 13, 1972. Petitioner then filed a habeas corpus petition in this court. Such petition was withdrawn in order to enable petitioner to exhaust his state remedies with respect to his motion for a new trial. Petitioner moved in the Appellate Division, Second Department for leave to appeal from the denial of his motion for a new trial. On February 14, 1973, the application for leave to appeal was denied. Thus, petitioner exhausted his state remedies with respect to his motion for a new trial. See New York CPL § 450.90(1); People v. Fein, 18 N. Y.2d 162, 272 N.Y.S.2d 753 (1966), cert. denied, 385 U.S. 649, 87 S.Ct. 766, 17 L.Ed.2d 668 (1967).
The court has examined the following from which it has gleaned the facts:
On May 10, 1967, at approximately 9:00 P.M., an armed robbery was committed in the cleaning store of Louis Connor located at 287 Nostrand Avenue, Brooklyn, New York. During the commission of this robbery, Louis Connor was shot in the head, resulting in his death. There were no eyewitnesses to the crime.
Petitioner and Allen "Peewee" Durham were arrested for the offense on June 3, 1967, and subsequently indicted on October 24, 1967 in Indictment Number 2289/67 for the crime of Murder in the First Degree. Petitioner was also indicted for the crime of unlawful possession of a loaded revolver. Prior to trial Durham pled guilty to Murder in the Second Degree and the indictment was severed as to him.
Prior to trial, a Wade hearing was held to determine the admissibility of the identification of petitioner by one Marvis Johnson. Her testimony at this hearing was substantially similar to her testimony at trial and will be discussed infra. After the hearing, the court held that the identification was not tainted and was admissible at trial.
Marvis Johnson was the first witness called by the prosecution. She testified that on the evening of May 10, 1967, she had gone to the Clifton Bar, a bar located on the same side of the street as Mr. Connor's cleaning store and two stores away. She entered the bar while it was getting dark, had two bottles of beer and left when it was dark out. She had no idea of what time she entered the bar, how long she remained therein or what time she left. Although it was dark out, she did testify that there were some street lights. She started walking towards the cleaners. As she approached the store, she saw a boy standing outside of the store. She then heard a sound like a firecracker and another boy ran out of the cleaner's and bumped into her. At trial, she identified the second boy as petitioner, and previously had identified the first boy as Allen Durham. The boy who bumped into her had a gun in one hand and money in the other hand. She testified that she glanced at his face, glanced inside the cleaning store and ran home. She testified that the boy standing outside was short and that one of the boys was wearing a leather coat. Other than that, she was unable to describe anything about the two boys, their age, description or clothing. She further testified that she had never seen petitioner before this incident.
Johnson testified that she had been shot on June 2, 1967, by one Gregory Brown, a friend of petitioner. Prior to this shooting, she had also been to the Clifton Bar and had come home at 1:00 A.M. on June 2nd. After she came home, she testified that Brown came to her house and shot her. At the Wade hearing, Johnson testified that when Brown shot her he said: Although Brown was called as a prosecution witness, he was not questioned about the shooting. Nor was the above reason for the shooting introduced at trial. While she was awaiting a hearing with reference to this shooting, she saw petitioner and Durham in court. The court records indicate that petitioner's case and Brown's case were both on the July 6, 1967 calendar so that was the date she testified to when she next saw petitioner. Although she testified that she saw petitioner that day, and even though at that time she was with a detective, Johnson did not tell anyone that she recognized the petitioner.
Sometime in 1967, two detectives came to Johnson's apartment asking for her. Upon answering the door, Johnson testified that she told the policemen that she was Marvis' sister and that Marvis was in Detroit.
On May 14, 1968, over one year after the killing, an assistant district attorney accompanied by four detectives went to Johnson's apartment, inquiring about petitioner's case. Why the investigation led them there was not revealed. At that time, and for the first time, she testified that she admitted having seen the holdup men. She was shown two photographs (mug shots), one of petitioner and one of Durham and asked if she could identify them. She was unable to recognize the two photographs as those of the perpetrators of the killing. Sometime thereafter and on the same day, she went down to the district attorney's office where she signed a statement to that effect. In that statement, she stated that she had three beers at the Clifton Bar and, as she stepped out of the bar, two boys ran past her and that she proceeded diagonally across the street (not passing the cleaner's).
Johnson then testified that two days later, on May 16, 1968, in order to ease her conscience, she called the assistant district attorney, came down to his office and gave a statement which was substantially similar to her present testimony at trial. On May 16, 1968, she was shown the same two photographs and identified them as those of the perpetrators of the killing. She further testified that her story of May 14th was a lie.
On cross-examination it was brought out that Johnson had been hospitalized in 1963 for sixteen days for habitual drunkenness and that she was presently on probation for unlawful entry.
Thus, although the robbery and killing occurred in May of 1967, and although Johnson testified that she recognized the petitioner while in court on an unrelated matter in July of 1967, she did not come forth with an identification until May 16, 1968.
Ramona Lee, a friend of Gregory Brown and who was with Brown on June 3, 1967, the day he surrendered to the police in connection with the shooting of Johnson, testified at trial. She testified that, on the day Brown surrendered, petitioner told Brown that the police were looking for him and told Brown to give him the gun "Because that's the gun that me and Peewee Durham shot Connors with." Brown then gave a gun to petitioner and, at trial, Lee identified the gun. Lee also testified that she heard petitioner say that he knew who had shot Connor, but that he had not done it. She also heard Durham say that Sylvester Morgan was the killer, while she also heard Durham admit that he was the killer.
Gregory Brown testified that he shot Johnson with the same gun that was used to kill Connor; that petitioner had told him that the same gun had been used to kill Connor. Brown further testified that petitioner told him that he, Peewee and Crip (Sylvester Morgan) had killed Connor and that Peewee did the actual shooting. Brown also testified that Peewee told him he killed Connor, and he did not say that petitioner was with him. Brown also testified, however, that petitioner never told him that he killed Connor or that he was in any way involved with the robbery. Brown testified that he had received the gun used to shoot Johnson from Peewee and that the gun used to pass around a group of fellows like a "library card."
Raymond Kelly testified that petitioner told him that Durham killed the cleaner. He had asked petitioner if he was present at the time of the killing, and petitioner denied it. Petitioner never told him he was a party to the crime. However, Kelly did testify that petitioner told him "that him and Peewee and a third boy named Crip went to stick up the cleaners."
The petitioner took the stand in his own behalf and denied having been involved in the robbery and murder. Petitioner did admit that he had been in possession of the gun at various times, but that he never had the gun in his...
To continue reading
Request your trial
-
United States v. Casscles
...District Court for the Eastern District of New York. There, without holding an evidentiary hearing, Judge Zavatt granted the petition, 358 F.Supp. 517. The State has taken this Although there was other evidence linking appellee to the crime, one of the most important parts of the State's ca......
-
Lantz Inter. Corp. v. Industria Termotecnica Campana
... ... Girard Trust Bank, Garnishee ... Civ. A. No. 73-220 ... United States District Court, E. D. Pennsylvania ... May 3, 1973.358 F. Supp. 511 Harold ... ...