United States v. McCorkle

Decision Date14 July 1955
Docket NumberCiv. A. No. 663-54.
Citation133 F. Supp. 169
PartiesUNITED STATES of America ex rel. Silvio DE VITA, Applicant, v. Lloyd W. McCORKLE, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey, Respondent.
CourtU.S. District Court — District of New Jersey

Harold Alper, Newark, N. J., for applicant. Isadore Glauberman, Jersey, City, N. J., of counsel.

Charles V. Webb, Jr., Newark, N. J., Prosecutor of Essex County, for respondent.

MODARELLI, District Judge.

This is an application by Silvio De Vita for a writ of habeas corpus.1 The determinations in this case also apply to Joseph Grillo. Both men, who are in custody in the New Jersey State Prison, were convicted in a New Jersey state court of murder in the first degree arising out of an armed robbery. Since the jury did not recommend life imprisonment, under the state law2 the convictions resulted in mandatory death sentences. The third participant in the crime, Ralph Rosania, was also convicted of murder in the first degree but the jury recommended and he received a sentence of life imprisonment. Hence, he did not take an appeal.

On November 9, 1951, Joseph Law, a uniformed special police officer, was shot and killed during a robbery while escorting Thomas Lofrano, a supermarket manager from his store to a bank with the day's receipts. As Law was about to start his car, with Lofrano seated next to him, the door on the other side of the car was opened and De Vita, who was standing close to the side of the car, pointed a gun across Lofrano's stomach. De Vita simultaneously announced, "It's a stickup." Grillo, also armed, opened the door on Law's side. Law raised his hands in response to De Vita's announcement, then there was a shot, Law slumped over the wheel and Grillo reached into the car and took the bag containing the day's receipts. Grillo fired the shot that resulted in Law's death. De Vita and Grillo escaped but were subequently apprehended.

The chronology of proceedings and legal maneuvers concerning the applicant's commitment prior to this application are:

1. February 25, 1952, the trial of the three alleged participants in the crime was commenced.

2. March 8, 1952, all three were found guilty.

3. December 15, 1952, De Vita's and Grillo's convictions were sustained by the Supreme Court of New Jersey.3

4. June 8, 1953, certiorari was denied by the Supreme Court of the United States.4

5. July 1, 1953, a New Jersey state court issued a writ of habeas corpus, returnable on July 8, 1953, when a hearing was held.

6. July 14, 1953, the court discharged the writ.5

7. October 19, 1953, that judgment was affirmed by the Supreme Court of New Jersey.6

8. January 4, 1954, certiorari was denied.7

9. March 25, 1954, in a New Jersey state court, Grillo moved for a new trial and oral argument was heard. At this point, the precise questions now raised on this application became involved in the case. The motion was denied.

10. April 15, 1954, De Vita made and the court denied a companion motion for a new trial.

11. June 28, 1954, the Supreme Court of New Jersey affirmed the decisions denying the motions for new trials.8

The execution of De Vita and Grillo was set for the week of August 15, 1954. New attorneys having been retained by De Vita, on August 13, 1954, they made three unsuccessful separate applications to Justices Black, Jackson, and Clark for a stay of execution pending application for certiorari.9

On August 16, 1954, on the eve of the execution, as is customary in cases of this character, the present application for writ of habeas corpus was made. "* * * Under the circumstances the coming into the federal court was entirely proper."10 On the same day, this court rendered an oral opinion and refused to grant the writ or to issue an order directing the respondent to show cause why the writ should not be granted.11 In order to allow an appeal, this court issued a certificate of probable cause12 and a stay of execution until August 19, 1954.13

On November 19, 1954, the Court of Appeals reversed this court's decision — not on the merits of the application, as will hereinafter appear — and remanded the case for further proceedings not inconsistent with its opinion.14

Following the receipt on December 20, 1954, of the mandate of the Court of Appeals, this court on January 10, 1955 and April 25, 1955, heard oral arguments by counsel and received into evidence the documentary evidence relied upon by the applicant.15 As will be discussed, a more extensive hearing is unnecessary.16

The "Record"

The Court of Appeals based its November 19, 1954 decision solely on the failure of this court to have before it the proper record during the August 16, 1954 hearing on the application for the writ of habeas corpus. This court interprets the language in the Court of Appeals' opinion to mean that to decide the merits of this application this court must have before it the same documents which were before the Supreme Court of New Jersey when it considered the appeals from the Essex County Court's denial on April 15, 1954 of De Vita's and on March 25, 1954 of Grillo's motions for a new trial.17 Counsel have agreed that the following documents which were before the Supreme Court of New Jersey and which they have submitted to this court are the proper "record" for this court to consider:

1. Brief and Appendix for Appellant De Vita.

2. Brief and Appendix for Appellant Grillo.

3. Brief for the State (combined reply to both appellants' briefs).

As for a complete transcript and appendix of the record, this court has the two volumes which were submitted to the Supreme Court of the United States on Petition for Writ of Certiorari, which, while not part of the Supreme Court of New Jersey record, the parties have stipulated is a complete transcript of the state court trial and appeal up to and including the Supreme Court of New Jersey's affirmance of the convictions (footnote 3 supra).

Application For The Writ Of Habeas Corpus

The grounds for this application are that during the voir dire questioning of prospective trial jurors, Mr. Arthur Kuhnle who was accepted as a juror and who was one of the jurors who rendered the verdict, concealed information from and falsely answered a question by counsel.18

From such allegations of fact it is argued that (1) De Vita did not receive a fair trial by an impartial jury within the meaning of the due process and equal protection of the laws clauses of the Fourteenth Amendment to the United States Constitution, and (2) Kuhnle's conduct was a fraud on the trial court requiring that the conviction be set aside. The word "fraud" was never mentioned in the New Jersey Supreme Court except inferentially.

The Voir Dire Questioning Of Prospective Jurors

During the morning session of the first day of the trial, nine prospective jurors were questioned by court and counsel, but only No. 6 was asked the question "Has anyone ever attempted to commit a robbery against you or any other member of your family?" The answer was "No, sir." He was excused by the State. Kuhnle was the tenth person questioned that day and the first at the afternoon session.

Kuhnle admitted he had read about the case in the newspapers, but he said he had no firm, imbedded conviction as to the innocence or guilt of the defendants, and if selected as a juror he could approach the trial with an open mind. He answered questions pertaining to reasonable doubt, a recommendation of life imprisonment, the police status of the victim of the killing, his (Kuhnle's) acquaintance with certain individuals, the nationality of the defendants, obeying the charge of the court. He answered no to several general questions relating to whether he was biased and whether he knew of any reason why he could not sit as a fair and impartial juror. In response to the fourth and fifth questions asked by Mr. McGlynn, attorney for De Vita, Kuhnle admitted he had heard and followed the questions asked during the morning voir dire. Immediately McGlynn asked him only two more general questions, the first of which, in substance, was whether Kuhnle knew of any reason "* * * anything at all that you might think of that would prejudice you?" His answer: "I would have no prejudice at all." In response to McGlynn's second (and final) question, Kuhnle said he thought he would be able to recommend life imprisonment. Two of the three counsel for the defendants De Vita and Grillo specifically asked Kuhnle if he knew of any reason why he could not sit as a fair and impartial juror, and the third one substantially asked that question. Kuhnle said that he knew no reason. Prospective juror No. 13 was asked if anyone ever attempted to rob her or any member of her family. She answered: "Yes," fifteen years ago at least, but she knew very little about it and the incident would not influence her. She also said that she had formed an opinion concerning the case as a result of reading newspaper accounts of the killing. She was peremptorily challenged by counsel for De Vita. Prospective jurors No. 24, No. 36, No. 38, No. 46, and No. 76 also were asked the question relating to their experience as robbery victims. Thus, only seven prospective jurors, three of whom served as jurors, were asked the question, although thirty-three of them were extensively questioned during the voir dire.

The Action Of The New Jersey State Courts

Under the doctrine of Brown v. Allen,19 one of the duties of this court is to decide whether the New Jersey state courts gave fair consideration to the issues and the offered evidence relating thereto now raised by this application for the writ of habeas corpus. On April 15, 1954, in the Essex County Court the same judge who sat at the trial of the case heard De Vita's motion for a new trial based on the same grounds now urged on this application. Since his counsel had been in court on March 25, 1954, when the same motion on the same grounds was made on behalf of Grillo, the court asked ...

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5 cases
  • State v. Singletary
    • United States
    • New Jersey Superior Court — Appellate Division
    • February 14, 1978
    ...our state and federal courts a generation ago. State v. Grillo and De Vita, 16 N.J. 103, 106 A.2d 294 (1954); United States v. McCorkle, 133 F.Supp. 169 (D.C.N.J.1955), rev'd, 248 F.2d 1 (3 Cir. 1957), cert. den. 355 U.S. 873, 78 S.Ct. 121, 2 L.Ed.2d 77 (1957). In Grillo and De Vita, supra,......
  • United States v. McCorkle
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 6, 1957
    ...question involved has been fairly considered by the highest State Court." 1 Kuhnle was Juror No. 5. 2 106 A.2d 294. 3 D.C.N.J.1955, 133 F.Supp. 169, 176, 177, 178. 4 Filed with this Court February 3, ...
  • State v. Rosania
    • United States
    • New Jersey Supreme Court
    • July 18, 1960
    ...hands of the jury, also redounded to his benefit. United States ex rel. DeVita v. McCorkle, 248 F.2d 1 (3 Cir. 1957), reversing 133 F.Supp. 169 (D.C.N.J.1955), certiorari denied 355 U.S. 873, 78 S.Ct. 121, 2 L.Ed.2d 77 (1957), rehearing denied 355 U.S. 908, 78 S.Ct. 329, 2 L.Ed.2d 263 In de......
  • Hall v. State, 6856
    • United States
    • Nevada Supreme Court
    • September 10, 1973
    ...does not, as a matter of law, disqualify her as a juror. NRS 16.050; NRS 175.071; NRS 175.121(4). 4 See: United States ex rel. DeVita v. McCorkle, 133 F.Supp. 169 (D.C.N.J.1955); State v. Hirsack, 465 S.W.2d 543 (Mo.1971). Whether or not the incident disqualified her for cause became a ques......
  • Request a trial to view additional results
1 books & journal articles
  • VICTIMIZING THE VICTIM AGAIN: WEAPONIZING CONTINUANCES IN CRIMINAL CASES.
    • United States
    • Ave Maria Law Review No. 18, January 2020
    • January 1, 2020
    ...Cir. 1990) (emphasis added) ("At this point, justice delayed is justice denied."); see also United States ex rel. De Vita v. McCorkle, 133 F. Supp. 169, 180 (D.N.J. 1955) ("It has been said many times, 'To delay justice is to deny justice.'"); Pritchard v. Johnson & Johnson, No. 19-0110......

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