Welcome v. Vincent

• Decision Date: 02 February 1977
• Docket Number: D,No. 519,519
• Citation: 549 F.2d 853
• Parties: Ernest WELCOME, Petitioner-Appellant, v. Leon J. VINCENT, Superintendent, Greenhaven Correctional Facility, Respondent-Appellee. ocket 76-2126.
• Court: U.S. Court of Appeals — Second Circuit

Page 853

549 F.2d 853

Ernest WELCOME, Petitioner-Appellant, v. Leon J. VINCENT, Superintendent, Greenhaven Correctional

Facility, Respondent-Appellee.

No. 519, Docket 76-2126.

United States Court of Appeals, Second Circuit.

Argued Dec. 7, 1976.

Decided Feb. 2, 1977.

Julia P. Heit, New York City, for petitioner-appellant.

Joseph W. Henneberry, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of N. Y., New York City, of counsel), for respondent-appellee.

Before KAUFMAN, Chief Judge, and FRIENDLY and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal presents the question whether appellant was deprived of his due process right to a fair trial when the trial court refused to permit his counsel to question a defense witness regarding his confession to the same crimes for which appellant and his two codefendants were on trial. We answer the question in the affirmative and reverse the judgment of the United States District Court for the Southern District of New York, Edward Weinfeld, Judge, dismissing appellant's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Facts

On March 10, 1970, appellant was convicted in the New York Supreme Court, Bronx County, on two counts of murder, for which he was sentenced to concurrent terms of 25 years to life imprisonment. The convictions were affirmed without opinion by the Appellate Division. 39 A.D.2d 841, 331 N.Y.S.2d 995 (1972) (mem.). Leave to appeal to the New York Court of Appeals was originally denied by that court's Judge Burke but was later granted by Chief Judge Breitel.

While his application was pending in the Court of Appeals, appellant moved in the Supreme Court, Bronx County, for a new trial and vacatur of his conviction, pursuant to N.Y.Crim.Proc.Law §§ 440.10(1)(g), (h) (McKinney 1971), on the ground that a prosecution witness had recanted his trial testimony and admitted perjuring himself. The motion was denied by the Supreme Court without an evidentiary hearing, and this denial was affirmed without opinion by the Appellate Division, with one justice dissenting, 46 A.D.2d 860, 361 N.Y.S.2d 378 (1974) (mem.). The Court of Appeals, consolidating the direct appeal and the appeal from the denial of the new trial motion, dismissed the direct appeal, on the ground that Chief Judge Breitel had no authority to grant leave to appeal after it had been denied by Judge Burke, and affirmed the Appellate Division's denial of a new trial. 37 N.Y.2d 811, 375 N.Y.S.2d 573, 338 N.E.2d 328 (1975) (per curiam). Appellant then commenced the federal habeas corpus proceedings that have led to this appeal.

The murders for which appellant and two codefendants were indicted occurred on November 2, 1967, at the office of Katz Brothers Realty in the Bronx. Three armed men entered the office and shortly thereafter shot and killed the two Katz brothers. Prior to appellant's indictment for these crimes, the State indicted one Cunningham, who had confessed participation in the murders. Cunningham later repudiated this confession, claiming it was elicited through police brutality, but New York Supreme Court Justice Murtagh held, after an evidentiary "Huntley" hearing, see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), that Cunningham's statements to the police "were made freely and voluntarily and were in no wise the product of coercion of any nature whatsoever." Accordingly, Cunningham was tried for the Katz murders, and his statements to the police were admitted against him.

In those statements Cunningham said that on the afternoon of November 2 he and three others, one Green, one Branch and a third fellow that he did not know, went to 308 East 149th Street in the Bronx, the address of the Katz realty office, and that he went up to the first floor landing, remaining in the hallway while the other three went into the office. After several minutes he heard some shots, became excited, ran down the stairs and out onto East 149th Street, then ran to Cortlandt Avenue, and then over to 145th Street and Third Avenue, at which point he hailed a cab and returned to Manhattan.

At Cunningham's trial, Detective Edward Farrell explained the circumstances surrounding this confession and told of other inculpatory statements and actions by Cunningham while in police custody. Farrell testified that, with the assistance of two other detectives, he went to Cunningham's apartment in Manhattan on November 9, 1967, took Cunningham back to the 40th Detective Squad clerical room in the Bronx, explained to him his Miranda rights, and heard Cunningham make certain admissions. Farrell testified that the detectives then took Cunningham in an automobile to 145th Street, which Cunningham said was familiar to him, and past the 149th Street bridge, which Cunningham said he and the others had driven across on the day of the shooting, and that Cunningham pointed out where they had parked the car at Morris Avenue, told the detectives, "Hold it," when they got about 75 feet past the Katz Brothers office, and said, "Back up, I believe you passed it, this looks like the place." He said, according to Farrell, "I think I was standing up in the middle of the stairs someplace. I ran in that direction," indicating Cortlandt Avenue. He also said, "This looks like the spot. I almost got hit over there by a car. I was running." Cunningham was subsequently questioned by an assistant district attorney, and then, according to Farrell, he and another detective took Cunningham for a second ride, during which he essentially confirmed his previous story as to what he had done and where he had been. Farrell further testified that Cunningham had said that Branch and Green had small revolvers and that the third fellow had a shotgun in a paper bag and was wearing a hat similar to the hat that was found in the Katz Brothers office as well as glasses, a pair of which had also been found in the office. One of the other detectives corroborated Detective Farrell's testimony.

Despite this incriminating evidence, the charges against Cunningham were dropped in the middle of his trial. Subsequently, at appellant Welcome's trial, the Bronx District Attorney appeared personally and stated that Cunningham was an addict suffering from the symptoms of withdrawal and "would have admitted anything," that he had been given a lie detector test which showed he had nothing to do with the particular case, and that a police investigation revealed that Branch and Green, the two persons whom Cunningham named as committing the robbery with him, could not have done so since one was out of state and the other was in jail at the time. It was left unexplained how such an unreliable person could have provided so many details (date and time of the robbery, exact location of the Katz office, number of men entering the office) regarding a robbery with which he supposedly had no connection, in the absence of police prompting, which was not suggested by the Bronx District Attorney or by any party to these proceedings. It was also left unexplained why the District Attorney's office originally had enough faith in Cunningham's confession to indict him, to argue for admission of the confession at the Huntley hearing, and to bring Cunningham twice to trial (the first trial ended in a mistrial).

Appellant Welcome was then brought to trial with two codefendants, Gale and Holmes. Janet Lacorn, a Katz Brothers employee, identified appellant at trial; her identification had first occurred in a lineup some five weeks after the murders. Her testimony was cast in doubt by the fact that she said she had never seen appellant with a gun in his hand, although she had testified at the Cunningham trial that the second man to come into the office (identified as appellant) had a gun. Dolores Marcell, not an eyewitness to the crime, testified that at the time of the murders she had bumped into appellant on the street in front of the building that housed both the office where she worked and the Katz office. She, too, had identified appellant in a lineup, but, when asked in court to point to the man she had bumped into on the street, she first pointed to a codefendant, not Welcome, then claimed that she had been mistaken. Moreover, when shown photographs of appellant prior to the lineup, Mrs. Marcell had not been able to identify him. The testimony of these two key witnesses was contradictory on a crucial point: Mrs. Lacorn was quite positive that on the date of the murder appellant had been wearing a checkered coat and no hat; Mrs. Marcell was equally positive that appellant had been wearing a dark, solid color coat and a hat.

Other than police officers testifying about their investigation, ¹ the only prosecution witness besides the two women was Vincent Turner, an acquaintance of appellant's. Some two weeks after the murders, according to Turner's testimony, appellant mentioned to him in a poolroom that he had "burnt" two men in the Bronx, "them two studs." At the time he testified, Turner, who had four previous convictions, was incarcerated awaiting sentencing on five felony indictments to which he had pleaded guilty a year earlier. Some two and one-half years after appellant's conviction. Turner recanted his trial testimony in a statement to appellant's counsel, a recantation upon which, as noted above, appellant based his unsuccessful new trial motion in the state courts.

Appellant presented an alibi defense at trial. His girlfriend stated that she was with him on the afternoon of the crime at his mother's house. Two friends of his mother testified that they saw him at his mother's house on the afternoon in question; one corroborated the girlfriend's testimony that appellant was washing the walls of the house in preparation for a party planned by his mother.

After appellant presented his alibi witnesses, he called the man previously tried for the crime, Cunningham, who testified, rather remarkably,...