United States v. Wilkins

• Decision Date: 06 January 1964
• Docket Number: Docket 28178.,No. 89,89
• Citation: 326 F.2d 135
• Parties: UNITED STATES of America ex rel. Thomas MEERS, Relator-Appellee, v. Walter H. WILKINS, Warden of Attica State Prison, Attica, New York, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

326 F.2d 135 (1964)

UNITED STATES of America ex rel. Thomas MEERS, Relator-Appellee, v. Walter H. WILKINS, Warden of Attica State Prison, Attica, New York, Appellant.

No. 89, Docket 28178.

United States Court of Appeals Second Circuit.

Argued October 16, 1963.

Decided January 6, 1964.

Gerald Zuckerman, New York City (Anthony F. Marra, New York City, on the brief), for relator-appellee.

Lester Esterman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of the State of New York, on the brief) (Paxton Blair, Sol. Gen., of counsel), for appellant.

Before WATERMAN, HAYS and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

Relator was convicted of robbery in the first degree after a trial in the Erie County Court in February 1937, and was sentenced to a term of 40 to 75 years on February 23, 1937 after admitting prior felonies. His petition alleges that his federally-protected right to a fair trial was violated by the prosecution's suppression of evidence material to his defense. This claim rests on the affidavits of two witnesses to the crime, Cecilia Colosanti and Christopher Colosanti, her husband. Cecilia Colosanti's affidavit states that she was employed in the store where the robbery occurred and was present at the time it occurred, the night of October 31, 1936; that she observed a man enter the store holding a revolver, that he ordered her to move to the rear of the store, which she did, and that she observed the same man several times thereafter while the robbery was in progress. Christopher Colosanti's affidavit states that he was waiting for his wife in a parked car outside the store, shortly before 10 P.M. on the night of the robbery, noticed that it was dark inside, and observed three men leaving it, one of whom was carrying a bag or suit case. Both affiants state that they were called to police headquarters in December 1936, and were asked to look at a man who they later learned was Thomas Meers, relator herein, that they were asked whether they had seen him on the night of the robbery, and that they positively stated to the police that they had not seen him on that night. They continue that they were not asked to testify before the grand jury or at the trial, and had no further contact with the police or the district attorney's office. At petitioner's trial, the prosecution introduced the testimony of Ferdinand Zeiger, manager of the store and of one other witness, both of whom positively identified Meers as a participant in the crime, while Meers introduced testimony tending to establish an alibi.

After his conviction, Meers moved for a new trial and offered the affidavits of the Colosantis in support of his motion. He also submitted an affidavit of the attorney assigned to represent him, who stated that he had not learned of the Colosantis' existence until after the trial was concluded. After denial of the motion, Meers appealed to the Appellate Division, which affirmed the denial of the new trial and the judgment of conviction. People v. Meers, 255 App. Div. 941, 8 N.Y.S.2d 708 (4th Dep't 1938). Relator then sought relief by way of coram nobis in the state courts in August 1961, pressing the claim on which he relies here. His application for the writ was denied without a hearing, the denial was affirmed by the Appellate Division, and leave to appeal to the Court of Appeals was denied by a judge of that court. He then moved for habeas corpus relief in the federal courts. Judge Burke's memorandum order and opinion, entered after hearing, finds that relator had exhausted his state remedies,¹ and that the

"prosecution knew at the time of the trial that both these witnesses had the opportunity to see and observe circumstances which would have been material to the petitioner\'s defense, and that their testimony would have aided the petitioner in his defense. That with such knowledge they failed to disclose it to either the court or to the petitioner or his counsel, that because of this failure to disclose important testimony which would have been beneficial to the petitioner in his defense, the rights of petitioner were prejudiced and an element of unfairness existed, which amounted to a deprivation of the petitioner\'s right under the Federal Constitution to a fair hearing."

We are in accord with Judge Burke's view of this case and affirm his order sustaining the writ.

The law has been established since Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), that the conduct of state prosecuting officers may be grounds for finding a defendant's right to a fair trial violated and to authorize the federal courts to grant writs of habeas corpus. That case stands for the proposition that a conviction obtained through the use of knowingly false and perjured testimony cannot be permitted to stand. See also Pyle v. Kansas, 317 U.S. 214, 63 S.Ct. 177, 87 L.Ed. 214 (1942) and White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945). Decisions since Mooney have extended the rule to cover the case where, although the false testimony is not solicited by the prosecution, no effort is made to correct it after discovery of its falsity. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Curran v. Delaware, 259 F.2d 707 (3 Cir. 1958), cert. denied, 358 U.S. 948, 79 S.Ct. 355, 3 L.Ed.2d 353 (1959). Recently, and most relevantly, the Supreme Court held that, even though there was no falsehood in the testimony offered at a trial, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). In Brady, petitioner had been convicted of first degree murder along with a companion, Boblit, in separate trials. Brady moved in the Maryland state courts for post-conviction relief, alleging inter alia, that the prosecution failed to furnish him with a confession made by Boblit in which he had admitted firing the fatal shot, although copies of other confessions which pointed to Brady as the actual slayer were provided his counsel. Brady claimed that introduction of the withheld statement might have induced the jury to pronounce a sentence of life imprisonment rather than death, which was in fact its judgment. The Court of Appeals of Maryland held that the failure to turn the particular confession over to his attorneys, was "a violation of due process," despite the fact that the prosecution apparently acted in an honest, though mistaken belief that the unsigned confession would not have been admissible at the trial for any purpose. It granted a new trial limited to the issue of punishment. 226 Md. 422, 174 A.2d 167 (1962). The Supreme Court's opinion, as noted above, specifically upheld the decision regarding the right to disclosure of the confession as a question of federal law, over the objection of Justices White, Harlan and Black that this question was not properly before it.

The case before us differs from Brady in that the defense counsel here never requested the disclosure of evidence from the prosecution, but we think that such request is not a sine qua non to establish a duty on the prosecution's part. It is important that the Supreme Court's opinion in Brady agreed with the Maryland Court that the decisions in U. S. ex rel. Almeida v. Baldi, 195 F.2d 815 (3 Cir. 1952) cert. denied, 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341 (1952), and U. S. ex rel. Thompson v. Dye, 221 F.2d 763 (3 Cir.), cert. denied sub nomine Pennsylvania v. United States ex rel. Thompson, 350 U.S. 875, 76 S.Ct. 120, 100 L.Ed. 773 (1955), state the correct constitutional rule regarding the obligation of a prosecutor to disclose exculpatory evidence. In the Almeida case, as in Brady, an important issue for the jury in determining punishment for first degree murder was whether the defendant fired the fatal shot. It was proved that a .38 caliber bullet was found near the body of the slain man and a .45 caliber bullet within the store which was the scene of the crime. Neither of these bullets was introduced in evidence by the prosecution, although it was well aware of their existence and the fact of their existence was not communicated to defense counsel. Disclosure of the bullets would have strengthened Almeida's claim that he did not fire the shots, since he was armed with a .45 and the police were armed with .38's. The prosecution apparently instructed police witnesses not to mention the .38 caliber bullet and did not respond to defense counsel's inquiry whether there were any other bullets than those which were introduced. The court affirmed the grant of the writ of habeas corpus, holding that "the suppression of evidence favorable to Almeida was a denial of due process." In the Thompson case, also a murder prosecution, an issue on the trial was whether defendant was intoxicated at the time of the killing. An arresting officer, who took him into custody three hours after the shooting, testified to the effect that he appeared "perfectly normal in every respect." Another officer, however, informed the prosecutor that at the time of the arrest defendant appeared drunk. He was not called to testify, although he was present in the courtroom during most of the trial, nor was his statement made known to the defense. Instead, the prosecutor stated in court that he could call other officers to testify that defendant was not intoxicated. The Court of Appeals reversed the district court's determination on a habeas corpus hearing that there was no suppression of material evidence, finding that the testimony of the second officer would have been of substantial value to the defense. In a concurring opinion, Judge Hastie expressed the view that whether or not the prosecutor in a criminal case must disclose evidence in his possession favorable to the accused depends on...