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April 5, 1967

UNITED STATES ex rel. Stanley KULIS, Relator,
Vincent R. MANCUSI, Warden, Attica State Prison, Respondent

The opinion of the court was delivered by: HENDERSON

HENDERSON, District Judge.

 On January 29, 1965, following a jury trial before the Supreme Court of the State of New York, County of New York, resulting in his conviction of the crime of Manslaughter, First Degree, relator was sentenced to from seven to fourteen years' imprisonment. The conviction was unanimously affirmed without opinion by the Appellate Division of the Supreme Court, First Department, on November 17, 1965. *fn1" On appeal to the New York Court of Appeals, the conviction was affirmed with two judges dissenting. *fn2"

 Pursuant to an order to show cause dated December 22, 1966, the state record and briefs on appeal have been produced for the court's examination. In his application relator relies entirely upon the record and concedes that no further hearing on the facts is required.

 The charge against relator resulted from the death of one Mary Augustis on May 9, 1964. Her nude body was found in a third-floor bathroom in an apartment building located at 300 West 51st Street, New York City. Subsequent medical examination revealed that the cause of death was multiple contusions, excoriations of the neck, face and scalp, and traumatic subdural hemorrhage with compression of the brain. Although the deceased, an epileptic, might have self-inflicted any of these injuries individually during an epileptic paroxysm, medical testimony indicated that the injuries could not have been collectively sustained during one seizure. Insertions in the vaginal and anal areas of the body were further indications of homicide.

 The bathroom, where the body was found, was apparently open to use by tenants of the building. Shortly after discovery of the body several tenants were questioned and asked to view the deceased but none were able to identify her. A police officer then noticed that the door of an apartment diagonally across from the bathroom was ajar; he knocked and the relator answered. After identifying himself, the officer entered and asked the relator to view the body. He replied that he knew she was dead and did not wish to look, but subsequently he did view the body and identified the deceased as "Mary." Although relator's responses to the police officer were exculpatory, when coupled with the officer's observations it is clear that the officer had reason to believe that relator may have known more about the death than he was revealing.

 The day following the discovery of the body, May 10, 1964, while relator was in custody, he was questioned by an Assistant District Attorney. He gave an exculpatory statement as to his activities and association with the deceased on the two days preceding her death. Prior to and during that conversation, relator's requests for counsel were ignored.

 On the trial and following the presentation of the people's case, relator took the stand and gave testimony at odds with that given to the Assistant District Attorney. The Assistant District Attorney, on rebuttal, testified as to the contradictory statements made to him by the relator. This testimony was admitted and the jury was instructed that it was being received for the limited purpose of impeaching relator's credibility.

 That the statements given by the relator to the Assistant District Attorney were taken in violation of relator's rights under the Supreme Court's ruling in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) *fn3" would appear clear. The question presented is whether exculpatory statements of an accused, taken in violation of his rights under that decision, may be used for the purposes of impeachment on rebuttal once the accused has taken the stand and give contradictory but exculpatory testimony.

 In Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954) the Supreme Court upheld the use of evidence obtained in violation of a defendant's Fourth Amendment rights to contradict his testimony. At page 65, 74 S. Ct. at page 356 the Court summed the problem as follows:

"It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine [Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652] would be a perversion of the Fourth Amendment.
"Take the present situation. Of his own accord, the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics. Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility."

 Of course, Fifth rather than Fourth Amendment rights are here involved.

 From the court's review of the record it appears that this case is similar to United States v. Curry, 358 F.2d 904 (2d Cir. 1965). There, at pages 910-911, Chief Judge Lumbard stated:

"The Walder doctrine governs here and permits the government's use of Curry's statement on his cross-examination. Although the government was precluded by the ruling of the district court from using in its direct case Curry's admissions that he participated in the robbery, when Curry attempted to construct an alibi inconsistent with his original statements to the FBI, the government could point out inconsistencies as to collateral items such as whether additional parties were implicated and whether Curry had worn a moustache on a prior occasion. Thus the government may not make any use of evidence which has been suppressed in order to make out a case which is strong enough to have the jury pass upon guilt or innocence. And, likewise, the defendant's denial of the elements of the crime may not be disputed by evidence which is the fruit of illegal action. See Agnello v. United States, supra [269 U.S. 20, 46 S. Ct. ...

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