United States v. Fay

• Decision Date: 27 April 1965
• Citation: 241 F. Supp. 51
• Parties: UNITED STATES of America ex rel. Willie FERNANDERS, Petitioner, v. Edward M. FAY, Warden of Green Haven Prison, Stormville, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

241 F. Supp. 51

UNITED STATES of America ex rel. Willie FERNANDERS, Petitioner, v. Edward M. FAY, Warden of Green Haven Prison, Stormville, New York, Respondent.

United States District Court S. D. New York.

April 27, 1965.

Anthony F. Marra, The Legal Aid Society, New York City, for petitioner; Christopher D. Stone, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen., of State of New York, New York, City, for respondent; Michael H. Rauch, Deputy Asst. Atty. Gen., of counsel.

WEINFELD, District Judge.

Petitioner, now serving a ten to fifteen year sentence at Green Haven Prison, Stormville, New York, under a judgment of conviction for robbery and related crimes entered in June 1962 upon a jury verdict in the Kings County Court, seeks his release by way of Federal habeas corpus. He charges that the conviction is void for violation of his federally protected right to a fundamentally fair trial under the due process clause of the Fourteenth Amendment. The essence of petitioner's claim centers about a question and answer statement, allegedly containing inculpatory admissions, which was never offered or received in evidence but which he contends nonetheless was unfairly used by the State to secure his conviction because it had been "solidly implanted in the jury's mind"¹ when the prosecutor in his opening statement to the jury referred to it as part of the proof he would offer in support of the charge.

The Court has read every word of the trial transcript and fully considered the contentions advanced by petitioner. It is satisfied that against the factual background of the entire case the single incident relied upon did not violate the petitioner's right to a fair trial. Indeed, the record demonstrates that he received an eminently fair trial, that his interests were adequately protected by his attorney and scrupulously guarded by the Trial Court.

Petitioner and three others, Lester Lee, Charles Darby and Raymond Respas, were charged with the holdup of a grocery store in Brooklyn. The three codefendants pleaded guilty before petitioner's trial and one of them, Lee, testified as a prosecution witness. That Lee and the other two codefendants entered the store and actually committed the holdup was not in dispute. What was in issue was whether petitioner, who drove the trio to the holdup scene and remained outside, had been a knowing participant in the crime or, rather, an innocent bystander, an unwitting tool of the others before, during and after the holdup. The jury answered by its verdict of guilty. Upon appeal the judgment of conviction was affirmed without opinion by the Appellate Division, Second Department,² and leave to appeal to the Court of Appeals was denied. The constitutional issue here presented was urged upon the State appellate courts and hence the matter is properly before this Court.

The sequence of events pertaining to the present application is in order. In his opening to the jury the prosecutor, after outlining the State's contention that the petitioner acted in concert with the other three in that he drove the getaway car and supplied the gun used in the robbery, added that when questioned by an Assistant District Attorney, petitioner made inculpatory admissions. The prosecutor then mentioned the witnesses he planned to call—the holdup victim, the arresting officer, Lester Lee, and finally the official stenographer who recorded the questions and answers of the petitioner. Since it is this reference which is the hard core of petitioner's contention, it is set forth below.³

Lee was the key prosecution witness and directly inculpated the petitioner. The victim testified as to the facts of the holdup; the arresting officer as to his observations of petitioner and Lee prior to and at the time of their arrest, which corroborated portions of Lee's testimony. On direct examination Lee, in summary, testified that Fernanders, the petitioner, drove him, Darby and Respas to the vicinity of the holdup; that when the car was brought to a stop Fernanders told them that if there was one man in the store to "take it"; that from underneath the seat of the car Fernanders supplied the gun which Lee used in the holdup; that as the three left the car Fernanders pulled up its hood to give the appearance that something was wrong with the motor, although in fact it had functioned properly; that after the robbery the three holdup men fled from the store, Lee running in one direction, pursued by the victim, and the other two in a different direction; that as they passed his car the defendant waved them by; that shortly thereafter and some blocks from where the car had been parked, Fernanders drove it close to the curb where Lee was running with a gun in his hand; that the door of the car was "slammed open for me Lee to jump in," which he did; that with both petitioner and Lee in it the car continued on its way and at one point Fernanders jumped a red light; that they were soon stopped by the police, the gun found in the car and both arrested. Lee further testified that when he got into the car Fernanders, who observed they were being followed, told Lee, "Don't worry about nothing," and if they were stopped to say the reason they had jumped the red light was because they had been drinking.

No question was asked by the prosecutor on direct examination of Lee as to what transpired at the station house following his and the petitioner's arrest. It was defense counsel who, on Lee's cross-examination, initiated the inquiry to establish that coercive tactics had been employed by the detectives. The prosecutor objected to this line of inquiry, pointing out that no evidence of any confession or inculpatory statement had been offered up to that point. Defense counsel, however, insisted that his questioning was material "because there is no question but that the confession will come out. It has already been mentioned before the jury," whereupon the Trial Judge stated, "I will permit counsel to proceed. It is a matter of tactics, I don't think anything will be lost by having counsel bring it out now rather than later." The defense inquiry continued and was directed solely to threatening and coercive questioning of petitioner by detectives at the station house. Not a single word was elicited as to any inculpatory statement by petitioner. On the contrary, Lee testified that although he and the other two had confessed, the petitioner persisted in his denial of guilt to the detectives and later to the Assistant District Attorney. On redirect examination Lee was not questioned as to any admissions by petitioner.

Upon the conclusion of Lee's testimony the Court, in the absence of the jury, advised the prosecutor that if any alleged confession were offered it would be excluded in view of Lee's testimony that petitioner had been threatened during his interrogation. The prosecutor protested that he had not as yet attempted to lay a foundation for the receipt in evidence of the claimed admissions, but the Trial Judge took the position that the prosecution, by calling Lee, had vouched for his credibility and he would not permit either the detectives or the official stenographer to testify in contradiction of Lee's testimony. In consequence, the prosecution never offered the statement, and the State's case was based entirely upon the testimony of Lee, the arresting officer and the holdup victim.

The petitioner testified in his own behalf. Needless to say, his version of material events, preceding, during and subsequent to the holdup, sharply varied from that of Lee and the arresting officer. In substance, petitioner testified that he had no idea that Lee and his two confederates had planned a robbery until they were leaving his car and about to enter the grocery store, when it was announced they planned to rob the place, to which petitioner responded, "If you do, you are on your own." He further testified that, his car having stalled when they arrived at the scene, he was still tinkering with it when the trio suddenly ran from the store; that he inquired as to the reason and Lee responded, "We had trouble in the store," to which petitioner replied, "If you did, you ain't getting back in my car"; that Lee ran in one direction and the other two in another; that he, Fernanders, "hollered" for the police; that it took some time to get the car started because the battery had gone dead; that finally he drove from the scene of the robbery to return to his place of work; that several blocks away, when his car was at a "standstill" because of a red light and two cars ahead, Lee re-entered the car against his efforts to exclude him.

When petitioner was about to testify as to events at the station house, the Trial Judge asked counsel, "Do you wish to pursue all these details * * *?" Counsel responded in the negative, whereupon the Court, in the jury's presence, ruled:

"It is patent that there is no evidence of any confession here; none. I am stating that as a matter of law. At the present moment there is no evidence of any confession on the part of this defendant, and any opening by the District Attorney is merely an opening.

"So there being no evidence of any confession before this Court and jury, what happened in the station house will be received by the Court if you feel it is material.

"The alleged threats and so forth are only material in one instance on the question of the voluntariness of any statement. There is no evidence of any statement that is incriminating.

"Don't you agree, counsel?

"DEFENSE COUNSEL: I heartily agree.

"THE COURT: So that is out of the case, the opening of the District Attorney to which I referred. There is nothing before this Court or jury that this defendant made any admissions or confessions; that is, culpatory admissions, nothing.

"So, what happened in the station house has no bearing on what he said. I will say that to the jury when I charge them, if it goes to the jury.

"DEFENSE COUNSEL: I think

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