Williams v. Henderson, 77-C-2547.
| Decision Date | 24 May 1978 |
| Docket Number | No. 77-C-2547.,77-C-2547. |
| Citation | 451 F. Supp. 328 |
| Parties | Frank WILLIAMS, Petitioner, v. Robert HENDERSON, Superintendent, Auburn Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Helen Bodian, of Prisoner's Legal Services of New York, New York City, for petitioner.
Atty. Gen. Louis J. Lefkowitz, New York City, by Gale D. Berg, Asst. Atty. Gen., New York City, for respondent.
This is a petition, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus brought on the ground that the petitioner was denied due process of law at his state trial by virtue of prosecutorial misconduct. The petition alleges that the prosecutor's improper cross-examination of petitioner, compounded by his improper summation, deprived petitioner of a fair trial in violation of the due process clause of the Fourteenth Amendment.
Following a jury trial in Supreme Court, Kings County, petitioner was convicted of four counts of robbery in the first degree, two counts of robbery in the second degree, and four counts of grand larceny in the third degree stemming from the armed robbery of a bar in Brooklyn. He appealed to the Appellate Division, Second Department, raising the identical claim presented here. The convictions on all counts of robbery in the second degree and grand larceny in the third degree were set aside by the Appellate Division because they were lesser included offenses of robbery in the first degree. People v. Williams, 50 A.D.2d 911, 377 N.Y.S.2d 183 (2d Dep't 1975). Petitioner's conviction for robbery in the first degree was affirmed notwithstanding the fact that the State conceded that prosecutorial misconduct at the trial had deprived petitioner of his right to a fair trial and that a new trial was required. (See Respondent's Brief to the Appellate Division at 16-19). The Appellate Division found that any error that may have occurred was harmless. 377 N.Y.S.2d at 185. The New York Court of Appeals denied leave to appeal on February 25, 1976.
This court finds that the prosecutor's misconduct at the trial was so egregious as to deprive petitioner of a fair trial, and that the conviction must be set aside.
When the petitioner took the stand in his own behalf, he admitted that he had been convicted of numerous crimes in the past and he catalogued those crimes (90-91).1 On cross-examination, the following exchange took place (98-102):
Mr. Monahan (defense counsel): Your Honor, I would object to this. We are just going through crimes and convictions that he's had, not the details on every single case.
The Defendant: Yes.
As can be seen from the above-quoted exchange, the prosecutor went into extensive detail with respect to defendant's prior convictions, and did so over defense objection.2 Such questioning was highly prejudicial because it could only have "influenced the minds of the jurors improperly." United States v. Puco, 453 F.2d 539, 542 (2d Cir. 1971), quoting from United States v. Palumbo, 401 F.2d 270, 273 (2d Cir. 1968), cert. denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969). Reference to a defendant's criminal record is always highly prejudicial because the "average jury is unable, despite curative instructions3 to limit the influence of a defendant's criminal record to the issue of credibility citation omitted." United States v. Puco, supra at 542.4 Aside from the fact that violent or assaultive crimes generally do not reflect directly on credibility, the potential for prejudice is "greatly enhanced where, as here, the prior offense is similar to the one for which the defendant is on trial." Id. (footnote and citations omitted).
Even assuming that the reference to the fact of the prior convictions was permissible, reference to the details of those crimes was clearly improper. United States v. Tomaiolo, 249 F.2d 683 (2d Cir. 1957). See also United States v. Dow, 457 F.2d 246, 250 (7th Cir. 1972); United States v. Mitchell, 427 F.2d 644, 647 (3d Cir. 1970). In Tomaiolo, supra, the Court of Appeals for the Second Circuit reversed a conviction, in part because the prosecutor had cross-examined the defendant with respect to the details of his prior convictions. The court stated that such questioning 249 F.2d at 687. See also United States v. Dow, supra.
Here, the questions with respect to the petitioner throwing one of his victims down a flight of stairs (100) and attempting to kill a police officer (102) were likewise intended to show that petitioner was a dangerous criminal. Neither of those questions was relevant to the crime for which petitioner was on trial and neither was borne out by the evidence (100-101, 110). The questions, which were highly inflammatory, could only have had the effect of indicating that petitioner was a violent and dangerous man, and they were therefore improper. United States v. Tomaiolo, supra. Moreover, the prosecutor's misstatement that "all the time its robbery in the first degree," (99) surely had the effect of indicating a propensity on the part of the petitioner to commit crimes such as the one for which he was on trial. That statement, and the questions leading up to it, were highly prejudicial and improper. See People v. Condon, 26 N.Y.2d 139, 309 N.Y.S.2d 152, 155, 257 N.E.2d 615, 617 (1970) (). The other examples of improper cross-examination cited by petitioner (see Petitioner's Memorandum of Law, at 12-14) simply compounded the prejudice to petitioner. Cf. United States v. Drummond, 481 F.2d 62 (2d Cir. 1973).
In addition to challenging the cross-examination by the prosecutor, petitioner also challenges the propriety of the prosecutor's summation. This court is of the opinion that the prosecutor's summation "contained a host of infirmities," United States v. Gonzalez, 488 F.2d 833, 836 (2d Cir. 1973), and was highly prejudicial and improper. For example, the prosecutor sought to inflame the jury by referring to the victims of the robbery as "people who have guns shoved under their necks, working people" (116). He referred to "Mrs. Weissberg who was thrown down a flight of stairs" (116), when in fact petitioner's uncontradicted testimony was that no such incident had ever occurred (100-101). The prosecutor implied that petitioner claimed the police had planted certain evidence in his wallet (116) when no such claim had been made; rather petitioner's claim, borne out by the arresting officer's own testimony, was that such evidence had been found not on his person, but in the borrowed car he had been driving (108, 109). The prosecutor's mis-characterization of p...
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...drawing many parallels to the cases from which he quotes, or offering much in terms of analysis, Smith turns to Williams v. Henderson, 451 F.Supp. 328, 333 (E.D.N.Y. 1981), where the District Court for the Eastern District of New York determined that a "prosecutor's misconduct made petition......
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