United States v. McCorkle

• Decision Date: 06 August 1957
• Docket Number: No. 11726.,11726.
• Citation: 248 F.2d 1
• Parties: UNITED STATES of America, ex rel. Silvio DE VITA, Appellant, v. Lloyd W. McCORKLE, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

248 F.2d 1 (1957)

UNITED STATES of America, ex rel. Silvio DE VITA, Appellant, v. Lloyd W. McCORKLE, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey.

No. 11726.

United States Court of Appeals Third Circuit.

Argued February 9, 1956.

Reargued January 8, 1957.

Decided August 6, 1957.

As Corrected August 16, 1957.

Writ of Certiorari Denied November 12, 1957.

Isadore Glauberman, Jersey City, N. J., for appellant.

C. William Caruso, Newark, N. J. (Charles V. Webb, Jr., County Pros., Essex County, Newark, N. J., on the brief), for respondent.

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

Writ of Certiorari Denied November 12, 1957. See 78 S.Ct. 121.

McLAUGHLIN, Circuit Judge.

The problem here is whether there was fundamental unfairness in appellant's trial. Finally, and very late, it is conceded within this court that the same question was before the state court and that we are bound to decide the appeal on its merits. There remains only the suggestion that since Rosania, the third defendant, received a sentence of life imprisonment the jury acted fairly, though it had as one of its members, a disqualified person. From the facts, even if the jury had consisted of twelve patently prejudiced people they still would have found a major differentiation between Rosania and the other defendants, DeVita and Grillo. The latter two committed the holdup, Grillo firing the fatal shot. Rosania, a former employee of the place which was robbed, had been in on the planning of the robbery but in the words of the trial court's charge to the convicting jury, "* * * Ralph Rosania was not at the scene of the actual killing." (Emphasis supplied). That is obviously the reason why he was given a recommendation of mercy by the jury. In the situation it might be well to remember that preconceived vacuum conclusions must yield to the record in even this wretched case. "The proponent before the Court is not the petitioner but the Constitution of the United States."¹ Therefore the chain of events which makes it obligatory for us at this time to pass on the merits of the appeal should have been examined and faced up to prior to anyone attempting to reach a conclusion on the specific issue confronting us.

On March 30, 1951, juror Kuhnle, carrying a night deposit from the Western Union office where he was night manager, to the National State Bank, was held up on Broad Street, Newark, New Jersey, and robbed of $1,287.00. He regularly had a police escort when he made his nightly deposits. On November 9, 1951, seven months later, several blocks away on the same Broad Street, Thomas Lofrano, manager of the Universal Food Market, was taking his receipts to another Broad Street branch of the National State Bank for a nightly deposit. He and James Law, a uniformed special police officer, left the market and entered Law's automobile on Broad Street for that purpose. Appellant and Joseph Grillo held them up, took the receipts and in the course of the robbery Law was killed by a shot from Grillo's gun. Thereafter, "An investigation by the Newark police and the Essex County Prosecutor's office ensued, directed to the solution not only of the Law killing but of other then unsolved robberies in the area."² The petitioner, Grillo, and one Rosania, an accomplice, were quickly apprehended. They signed confessions, admitted the facts, and actually had no defense to the charge of murder under the New Jersey felony-murder statute. The real problem before the trial jury was whether its verdict should be "guilty" without any recommendation (in which event the death penalty was mandatory) or "guilty" with a recommendation of life imprisonment. Court, counsel and everyone else concerned were aware of this.

From the transcript of the voir dire of the 81 talesmen summoned, it is evident the defendants, through their counsel, sought to excuse from jury membership persons who had robbery experience, directly or indirectly, or close association or relationship with personnel of law enforcement agencies.

The State's effort was directed almost exclusively to keeping off the jury persons with scruples about capital punishment. This strongly pointed up the prosecution's primary objective, the obtaining of the death penalty against De Vita and Grillo. All defendants had offered to plead to the life-term offense.

Juror Kuhnle was the tenth talesman called and the fifth juror accepted. An earlier prospective juror had been queried on previous robbery experiences. Kuhnle's attention was directed to the questions put to the other panel members but he did not disclose that he had recently been held up and robbed. He was specifically asked whether he knew any of the State's officers or personnel. He answered in the negative although it is now shown that he knew a number of Newark police since he ordinarily called for a police escort each night and though his own holdup had been in all likelihood investigated and handled by the "Bandit Squad" of Newark police, as was the case to be tried.³ During the selection of jurors for another day and a half, counsel for the defendants pleaded with the talesmen for frank disclosure of any possible source of prejudice, asking many of them if they had ever been robbed, etc., and if they had acquaintance or relationship with any law enforcement personnel, local, state or federal. One talesman mentioned a fifteen year earlier robbery experience; she was challenged and excluded. One mentioned relationship to someone working in the jail — excluded. A talesman knew a detective who had worked on the case; he was excused by consent. One, whose office in the vicinity of the holdup had been broken into, was excused by defendant Rosania. Two were excused because they worked in banks and the money robbed was being taken to a bank. Of one, the court said, "This gentleman carries considerable money in his business for his employer, and in fairness to the defendants I think I had better excuse him." Through all these incidents in his presence and hearing, juror Kuhnle sat quiet and in the course of the long questioning of seventy more talesmen failed to disclose his own robbery experience, his nightly journey to deposit his employer's receipts in the bank, or his acquaintance with a substantial number of police department personnel.

The State's theory and modus operandi in trying the indictment was not calculated to leave the memory of juror Kuhnle's recent encounter at rest. There were remarks "to the effect that these defendants were members of an organized criminal group"⁴ in Newark. The defendants and an undetermined number of their acquaintances of similar background were referred to repeatedly by the Prosecutor as "Associates, Inc." It was shown that one of the defendants had not worked for some months prior to the crime, but was financially affluent. The pistols used in the holdup were alluded to as the defendants' "stock-in-trade" for some months prior to the crime. The following excerpt from the Prosecutor's summation to the jury vividly illustrates the position in which Kuhnle, as trial juror #5, had placed himself, whether he was striving to be impartial or not:

"* * * The Associates Incorporated: Rosania, DeVita, Grillo, Cardone, Aulisi, Mucci, Angelo, Petrucci, Pontilla; the Associates Incorporated.

"Why, they would stick you up, Mr. Juror No. 6, and you Mrs. Garrabrant, and you, Mr. George * * *."

After that amazing, violent assertion to the jury by the prosecutor, vividly reminding Kuhnle of his own ordeal, how could the latter have functioned other than short of the constitutional standard of impartiality.

When Kuhnle's history came to appellant's attention he sought relief in the state courts. His motion for a new trial, among other things, was founded on his affidavit which was part of the motion and which, after stating the previous robbery of Kuhnle and that he, DeVita had no knowledge of it during the trial, said, "Had I known of this fact, I would have requested my attorney, Edward R. McGlynn, to excuse said juror; I being of the opinion that such a juror, having been the victim of a holdup and this homicide having occurred in a holdup, the probability is that the said Arthur Kuhnle, as a juror, had a preconceived enmity, prejudice and bias against me and could not render an impartial verdict." (Emphasis supplied). Mr. McGlynn, DeVita's trial attorney in his affidavit, also part of the motion, said, "Had the said Arthur Kuhnle made full and fair disclosure to me that he had been a victim of a robbery, I would have interposed a challenge for cause and had the challenge been denied, I would have interposed a peremptory challenge to excuse the said Arthur Kuhnle as a juror in this cause." (Emphasis supplied).

The Grillo petition for a new trial which with the DeVita motion was handled as the one application by the trial judge itself alleged the known facts, that those facts "must have been known or at least should have been known to the prosecutor but which he did not disclose * * *" during the trial and that Kuhnle "concealed" the facts on his voir dire. In the argument on the Grillo petition which was titled in the names of Grillo and DeVita, counsel, in connection with his offer of proof, urged that Kuhnle be subpoenaed to prove facts averred in the petition. The court, deeming that unnecessary, assumed some of the facts and proceeded to dispose of the contentions in the petition as follows:

"There is no indication that the Prosecutor or any representative of the Prosecutor or of the State had any knowledge of the incident that occurred to Mr. Kuhnle in March, 1951 and therefore, I can give that suggestion no consideration.

"* * * there was no obligation on Mr. Kuhnle\'s part to volunteer any information as to the incident, assuming, (which I do not feel we can do), that he even thought about it."

The court went on to hold that the...