361 F. Supp. 843 | S.D.N.Y. | 1973
OPINION
This is a petition for a writ of habeas corpus sued out by Robert Rice, presently incarcerated at the Greenhaven Correctional Facility in Stormville, New York under life sentence for murder in the first degree, attempted murder in the first degree and attempted robbery in the first degree.
BACKGROUND
Robert Rice was one of the original “Harlem Six”, six youths accused of the robbery of a small clothing store on West 125th Street in Manhattan, the murder of Margit Sugar and the near murder of her husband, Frank Sugar, the proprietors.
The ease was reviewed by the Court of Appeals and the convictions of all of the defendants set aside.
The four were retried in early 1971 but the jury could not agree. A third attempt by the State ended on January 27, 1972 with another hung jury; thus, after eight years of incarceration, the four defendants were allowed to go free on bail pending further action. A fourth trial was decided upon by the State, but pleas of guilty to the reduced charge of manslaughter in the first degree and conspiracy were accepted on April 4, 1973. The four were sentenced on that day to time served, and left the courthouse free men. Also, in the interest of fairness, Justice Jacob Grumet ordered that each be issued a certificate of relief from civil liability.
Rice was not as fortunate. Alone of the six, as Hamm ultimately decided to and did plead guilty to lesser included charges,
Subsequent to Rice’s second trial, Robert Barnes, Jr., a principal witness for the prosecution, a would-have-been seventh member of the group who, it is asserted, participated in the planning of the crime, recanted his testimony in two lengthy notarized affidavits. Then, dur
As under New York practice a direct appeal can raise only what is found within the four corners of the record,
The Supreme Court of New York, New York County, denied the motion in an opinion dated September 10, 1972.
An application for leave to appeal the latter decisions of the trial and intermediate appellate courts was made to the Court of Appeals of New York on November 30, 1972. Four days later, on December 4, 1972, notification was received, signed by the Deputy Clerk of the Court of Appeals, to the effect that the order of the Appellate Division was not appealable.
There being no further recourse available to him in the courts of New York, Rice, on January 19, 1973, presented this collateral attack upon his conviction to this federal district court.
THE EVIDENCE
When Rice was convicted in April, 1970, the People’s evidence consisted of a confession signed by Rice, the eyewitness identification of Olin Roe, a clerk at a drugstore adjacent to the Sugars’ store, the eye-witness accounts of Barbara and Constance Wright, who were in the same drugstore ’ on an errand for their aunt, the testimony of Robert Barnes, Jr. and the fingerprint of Rice found at the scene of the crime.
A. The Confession
During the night of April 29, 1964, Robert Rice signed a statement of confession prepared by Detective Joseph E. Halk, and later responded in the presence of a stenographer to questions by Assistant District Attorney Robert J. Lehner. On motion of the defense, Mr. Justice Culkin of the Supreme Court of New York, New York County, on March 31, 1965, determined that the results of the question and answer session were to be suppressed, but allowed the signed statement to be read to the jury.
The statement described Rice meeting with the other five defendants between 3:30 and 4:00 in the afternoon of April 29, 1964, and the ultimate decision of the group to rob the Sugars’ clothing store. Hamm was to be the look-out, and the others were to enter in two waves. Suits, raincoats and any currency that
During the course of the actual attempt, the statement continued, Mr. Sugar panicked, and Felder stabbed him. Rice then pushed Mrs. Sugar to the floor and Felder killed her. All fled, taking nothing with them, and regrouped at the apartment of Rice’s grandmother.
Above Rice’s signature on the statement were those of Detective Halk and Detective Sergeant Robert Wilson, the officers who conducted the interrogation.
This confession was extracted from Rice before the Supreme Court’s landmark decision Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and would clearly have been inadmissible had it not been for the accident of its chronology.
Rice was seventeen years old at the time, and accused of a crime for which, if convicted, he could be sentenced to death under then applicable New York law, Penal Law of 1909 § 1045-a. He was not given food or drink from the time of his arrest until the next day, and not asked if he wanted to contact an attorney, a parent or a friend.
B. The Testimony of Olin Roe
Olin Roe, in April, 1964, worked as a clerk in the drugstore directly adjacent to the Sugars’ clothing store, and was there on the afternoon of the 29th. Directly after the incident, however, when questioned by police, he denied having recognized anyone. He repeated his denial in a television interview the next morning, and, in fact, continued to deny having recognized anyone for a year thereafter, despite repeated inquiries by police and assistant district attorneys.
On April 28,1965, Roe was arrested for grand larceny. A trial subpoena was served upon him on May 6, and, nine days after his arrest, on May 7, he appeared in court to testify as a prosecution witness at the trial of the six.
Roe testified that in fact he did recognize those involved in the robbery on April 29, 1964, and that several of the “six” were those that he had seen on that day.
At the first trial in 1965, Roe stated that he had seen the group run by from inside -the drugstore as he was on his way to investigate banging noises.
Dr. Levit, Roe continued, called to him to come out of the basement, which he did, and he returned to the street in time to see the group go by. Rice was one of the group.
Roe’s arrest on April 28, 1965 for grand larceny became a charge of petty larceny to which he plead guilty on September 1, 1965, after the trial of the six had been concluded. He was sentenced on October 22 to probation.
The purpose of this illicit activity was to support Roe’s $40 to $50 per day heroin needs. His “habit” required repeated hospitalization for detoxification from early 1964 until the end of 1965, when he went on a program of methadone maintenance.
Roe also admitted to being a transvestite.
C. The Testimony of Constance and Barbara Wright
Barbara Wright, 13 years old at the time of the event, and her sister Constance, 8 years old in April, 1964, were called as prosecution witnesses at the several trials.
Constance was found by the court at the trial of the six to have been too young to take the oath, but did give sworn testimony at the retrial of Rice. She described having seen a group of boys run by with blood on their hands; she identified these from photographs as Thomas, Baker, Hamm and Felder.
She also contradicted the testimony of Olin Roe (that given by him at the retrial of Rice), by stating that she did not see Roe leave the drugstore on April 29th.
Barbara also contradicted the account given by Roe at the Rice retrial. Roe had testified that as he was leaving the drugstore for the second time, when he claimed to have glimpsed the six fleeing, he literally r.an into Mr. Sugar.
On April 18, 1968, Barbara was adjudged a youthful offender and sent to Westfield State Farm, Bedford Hills. About a year before, she had participated in an armed robbery' — the theft of a wallet, ring and automobile from an individual while he was held at bay with a piece of pipe.
D. The Testimony of Robert Barnes, Jr.
The jury at the second trial of Robert Rice heard the testimony of Robert Barnes, Jr. Barnes recounted that he had been with the six from about 3:30 on the afternoon of April 29, 1964 until a few minutes before 5:00 P.M., when, enroute to the Sugars’ store, his father, Robert Barnes, Sr., called out to him to come and settle a dispute with their landlady. Barnes complied with his father’s request, and the six continued on without him. During that hour and a half, he asserts, the plans for the crimes were set.
Barnes and his father left their apartment at approximately 5:45, and, after passing by the Sugars’ store and noting puddles of blood on the floor, Robert, Jr. headed for the apartment of Rice’s grandmother. There, he met Rice, Baker, Thomas and Craig and was informed that the robbery had been attempted, but was unsuccessful. Rice, he continued, admitted to stabbing Mrs. Sugar.
The jury was also told of a statement written by Barnes on March 15, 1970, labeled by him an “affidavit”, although neither verified nor notarized, which appears to run about a page in length. In it, Barnes described being held incommunicado by police on April 29 and 30, 1964, that his life and the lives of his family were threatened, apparently, by the police, and that he had been attacked by seven policemen in the station house. He was 18 at the time, frightened, and claims to have been coerced into giving false testimony. The six, the statement continued, were innocent.
Barnes asserted therein that he was not coerced in any way to execute the statement, but did so to relieve his con
At the trial, however, Barnes claimed to have executed the statement after being threatened by Rice when they were both incarcerated at the Tombs in New York City. He then reiterated his testimony given at the trial of the “six”.
It was also brought out that on October 4, 1968, Barnes was arrested, that he pleaded guilty to robbery on March 26, 1969, and was then sentenced to a term of eight years. For some reason, not at all clear from the record, Barnes was re-sentenced to a shorter term on February 16, 1970.
E. Fingerprint Identification
Likely the most convincing of the proofs against Rice put in by the State was People’s Exhibit 17-M-l, a fingerprint taken from the metal frame flanking the door to the Sugars’ store on April 29, 1964. Sergeant John Ferrara, then in the Identification Section of the New York City Police Department, identified the print as that of the left ring finger of Robert Rice.
POST-CONVICTION DEVELOPMENTS
A. The Barnes’ Recantation
On June 30, 1972, some two years after Rice had been convicted for the second time, Barnes, then incarcerated at the Clinton Correctional Facility at Dannemora, New York, wrote attorney William Kuntsler that the “Harlem Six are innocent.” Kuntsler responded by visiting Barnes, and, on July 3 and 5 assisted him in executing two notarized affidavits, combined totaling some 38 pages in length.
In these affidavits, Barnes asserts that conscience, not threats or other coercion, served as the motivation for his recantation. Referring to his prior recantation, he claims that it had not been induced by threats as he had stated at the Rice retrial, and that, instead, fear of prosecution for his “admitted” involvement in planning the Sugar murder and for his perjury were responsible for his contradicting that recantation on the witness stand. If called on again to testify, he would now tell the truth as is purportedly contained in these statements.
The day of April 29, 1964 is described in detail. Barnes claims to have been with Thomas until 3:30 P.M., then with his father until 5:00 P.M., when he returned to Thomas’ house. When the police arrived, at about 6:00 P.M., he was sitting on the stoop of Thomas’ building.
He was taken to Harlem hospital, presented to Mr. Sugar, who could not identify him, and then removed to the 28th precinct. The next morning, after being questioned and returned to his cell, others were put in the cell with him. To one of these, Barnes said he had an idea as to who had been involved in the Sugar murder and robbery. This, he asserts, was done to impress his listener.
Soon after, the affidavit continues, he was questioned again in the manner of the classic third degree; he was threatened physically, warned of “the chair”, confronted with his earlier statement to his cellmate and harassed for being a Black Muslim. Finally, he told the story that eventually became his testimony. This, he asserts, was a fabrication.
To construct his fabricated testimony, Barnes claims to have put together what he had heard while being taken by police to and from Harlem Hospital, what he had learned from Thomas, Craig and Felder while alone with them in a room at the station house late on the night of
Finally, on this subject, Rice now avers in his papers before this court that Barnes, after giving to Rice’s attorney the affidavits, was spirited away by state agents to another correctional facility and rendered inaccessible to all but police and prosecutors.
B. The Fingerprint
During the second retrial of the “four”, on direct examination of Sergeant Ferrara by Assistant District Attorney Lehner, it was revealed that Sergeant Ferrara’s identification of People’s Exhibit 17-M-l as the fingerprint of Robert Rice had been made on May 19, 1965 and, further, that the print had sat for over a year with a designation of “no value” given it by police expert David Goldstein on April 30,1964.
No value, according to Ferrara, meant that there would not be enough upon which to base a search or identification,
Ferrara testified that he had discussed the reclassification with Detective Gold-stein, and that Goldstein agreed that the prints were valuable.
THE MERITS
It is undisputed that Barnes did in fact recant his trial testimony in the manner set forth above. Whether that recantation represents his true recollection of the events of April 29, and 30, 1964, is a matter for a jury, not a court, to pass upon. The fact that People's Exhibit 17-M-l was originally designated “no value”, and that this was revealed only after Rice had been tried and sentenced for the second time has been conceded by the State. There is little to be gained, therefore, by way of an evidentiary hearing.
The hard question presented here is whether or not due process concepts mandate a new trial for Rice. The retrial evidence against Rice, doubtless sufficient as a whole to support a verdict of guilt, nevertheless tends to weaken in proportion to the depth of scrutiny to which it is subjected. Given the unimpeached fingerprint evidence of Sergeant Ferrara and the Barnes’ testimony as it was at the time, such matters as the circumstances of Rice’s confession, the obvious weaknesses and infirmities of the other witnesses and the confused core of their testimony do not loom sufficiently large to cause concern of a constitutional dimension. Once doubt is cast upon the fingerprint evidence and Barnes decided to submit at least formally verified recantations, the total picture changes markedly. Though couched somewhat differently, this is the central theme of Rice’s petition; he argues that both the “no value” designation and Barnes’ verified recantations are “newly discovered” evidence requiring a new trial. I am constrained to agree.
Respondent presses the contention that Barnes’ recantation affidavits are not “newly discovered evidence”, as that
Where newly discovered evidence is found to exist, a new trial, in the federal system, is required where such evidence “ . . . may have had an effect on the outcome of the trial . ,” Napue v. Illinois, 360 U.S. 264, 272, 79 S.Ct. 1173, 1179, 3 L.Ed.2d 1217 (1959), or, if it would “. . .in any reasonable likelihood have affected the judgment of the jury . . . ,” Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Assessing the possible effect of presenting to a jury the change in labels of the fingerprint and the second recantation of Barnes, as well as the matter contained in the record, I find that the standard has been met.
Due to highly unusual procedural quirks, this problem is before a federal district court after trial and exhausted post-conviction proceedings but before argument and disposition of Rice’s direct state appeal. Surely, this is a situation where every sensitivity to federalist principles should be observed. But, counterbalancing this is the need to insure that fundamental fairness be accorded a defendant in a criminal case, Fay v. Noia, 372 U.S. 391, 415-426, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), which can only be done by a federal court now that Rice has exhausted all relevant state remedies.
Townsend v. Swain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), is a mandate to the federal district courts not to abstain where problems of constitutional magnitude are present. Where substantial injustice is the alternative, as it appears in this case, and given the record in this proceeding and those involving the trials and dispositions of the rest of the “Harlem Six”, I see no other course but to direct that Rice be retried within a reasonable time or be released. United States ex rel. La Belle v. Mancusi, 404 F.2d 690 (2d Cir. 1968).
The writ of habeas corpus shall issue sixty days from the date of this opinion unless in that time Rice is brought to trial before a jury of his peers by the State of New York.
It is so ordered.
. New York Penal Law, McKinney’s ConsoLLaws, c. 40 §§ 1044(1), 1044(2) and 2124.
. Indictment No. 2195/1964.
. People v. Felder, et al., App.Div., 282 N.Y.S.2d 644 (1967).
. People v. Baker, 28 A.D.2d 24, 281 N.Y.S.2d 161 (1967).
. People v. Baker, et al., 23 N.Y.S.2d 307, 296 N.Y.S.2d 745, 244 N.E.2d 232 (1968).
. 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968).
. 296 N.Y.S.2d at 751-752, 244 N.E.2d 232.
. Id., at 752-754, 244 N.E.2d 232.
. See, Transcript of Plea and Sentencing of Wallace, Baker, Felder, Craig and Thomas before Justice Jacob Grumet of the Supreme Court, Part 37, New York County, New York, April 4, 1973.
. See, Transcript of Plea of Daniel Hamm before Justice Frederick Backer, Supreme Court, New York County, New York, April 20, 1971.
. 39 A.D.2d 840, 332 N.Y.S.2d 1010 (1st Dept.1973).
. See, generally, New York Code of Criminal Procedure, §§ 519, 528.
. Petition of Robert Rice, Exhibit D.
. No. H-10621, Petition of Robert Rice, Exhibit H.
. Petition of Robert Rice, Exhibit J.
. These are the essential points of the People’s Case, as set forth in Respondent’s Exhibit 2, p. 2. In discussing the evidence, reference will be made to testimony and events of all of the proceedings involving any and all of the original six. For the sake of clarity all eitations to the retrial of Robert Rice will be to the record on appeal submitted to the Appellate Division, First Department, and will be designated “Rice, Record on Appeal.” Citation to the trial of the six will be to the record on Appeal submitted to the Court of Appeals, and will be designated “6, Record on Appeal.” References to proceedings as to the “four” will be designated “4, First” or “Second Retrial.”
. TR 497, Rice, Record on Appeal.
. Supra, at 3-4.
. Halk TR 1515-18, Rice, Record on Appeal.
. Halk TR 156, 1518, Rice, Record on Appeal.
. See, Jenkins v. Delaware, 395 U.S. 213, 213-214, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969) holding that Miranda did not apply to retrials of cases originally tried prior to June 13, 1966.
. Scheinfeld TR 56-60, Rice, Record on Appeal.
. Geneva Rice TR 96, Rice, Record on Appeal.
. Lelmer TR 33-41, Rice, Record on Appeal.
. Halk TR 1489, Rice TR 1916, Rice, Record on Appeal.
. Rice TR 1912-13, Rice, Record on Appeal.
. Roe TR 4356-8, 4360-62, 4381-82, 4, Second Retrial.
. Roe TR 4359-63, 4382-84, 4, Second Retrial.
. Roe TR 4269-72, 4, Second Retrial, TR 1291, Rice, Record on Appeal. Roe asserted that his prior denials were due
. Roe TR 1292-99, Rice, Record on Appeal.
. Roe TR 4486-94, 4, Second Retrial. See also supra at 4.
. Roe TR 990-93, 6, Record on Appeal.
. Roe TR 992-93, 6, Record on Appeal.
. Roe TR 1284-91, Rice, Record on Appeal.
. Respondent’s Exhibit I, p. 14.
. Roe TR 4406-14, 4, Second Retrial.
. Roe TR 4122-24, 4404, 4, Second Retrial. There is also a reference to an out-of-state arrest and disposition in the winter of 1971, at pp. 4332-33, 4392, 4, Second Retrial.
. Roe TR 4312, 19, 23, 99, 4430, 4, Second Retrial.
. Roe TR 4317-4320, 4, Second Retrial.
. Constance Wright TR 1443 — 47, Rice, Record on Appeal.
. Constance Wright TR 1464-68, Rice, Record on Appeal.
. Barbara Wright TR 823-33, Rice, Record on Appeal.
. Barbara Wright TR 3398-3408, 4, Second Retrial.
. Roe TR 1291, Rice, Record on Appeal.
. Barbara Wright TR 822, Rice, Record on Appeal.
. TR 3458, 4, Second Retrial.
. Robert Barnes, Jr. TR 251-72, Robert Barnes, Sr. TR 231-2, 240-2, Rice, Record on Appeal.
. Robert Barnes, Sr. TR 230-35, Rice, Record on Appeal.
. Robert Barnes, Jr. TR 274-84, Rice, Record on Appeal.
. Robert Barnes, Jr. TR 312-16, Rice, Record on Appeal.
. Barnes, Jr. TR 330-33, Rice, Record on Appeal.
. Robert Barnes, Jr. TR 324-25, Rice, Record on Appeal.
. Ferrara TR 1137, Rice, Record on Appeal.
. The letter and affidavits referred to above were appended to petitioner’s original moving papers, and are part of the court file in this case.
. Affidavit of Michael Feit.
. Affirmation of Herman Kaufman, at 6.
. Ferrara TR. 4182, 4199, 4, Second Retrial.
. Ferrara TR 4199, Rice, Record on Appeal.
. Ferrara TR 4243, Rice, Record on Appeal.
. United States v. DeSapio, 435 F.2d 272 (2d Cir. 1970); United States v. Miller, 411 F.2d 825 (2d Cir. 1969).