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January 30, 1974

UNITED STATES of America ex rel. Larry JOHNSON, Petitioner,
Leon J. VINCENT, Superintendent of Green Haven Correctional Facility, Stormville, New York, Respondent

Bauman, District Judge.

The opinion of the court was delivered by: BAUMAN

Larry Johnson, currently confined in the Green Haven Correctional Facility, petitions this court for a writ of habeas corpus. On January 23, 1970, he was sentenced by Justice Charles G. Tierney of the Supreme Court, Bronx County, to a term of fifteen years to life after a jury trial in which he was convicted, along with one Boyce Thompson, of murder. His motion for a new trial based on newly discovered evidence was denied by Justice Tierney on November 9, 1971. Both the judgment of conviction and the order denying a new trial were unanimously affirmed, without opinion, by the Appellate Division. People v. Johnson, 38 A.D.2d 689, 327 N.Y.S.2d 545 and 38 A.D.2d 692, 327 N.Y.S.2d 546 (1st Dept. 1971); leave to appeal to the Court of Appeals was denied on January 25, 1972. A second new trial motion, based on substantially the same grounds asserted in the instant petition, was denied by Justice Fein of the Supreme Court, Bronx County, on September 5, 1972 and leave to appeal to the Appellate Division was denied by Justice Steuer on October 31 of that year.

After reading the instant petition, I concluded that an evidentiary hearing was warranted. Counsel was assigned, and a two day hearing was held after which further briefs were submitted. What follows constitutes my findings of fact and conclusions of law.


 A brief statement of the facts adduced at the trial before Justice Tierney is necessary to place petitioner's present contentions in context. On December 14, 1968, Johnson, Boyce Thompson, Perry Ford, Cecil Luckie and William Van Hook, also known as Koreem Evans, *fn1" met one Nicholas Chambers at Boston Road and 168th Street in the Bronx. The six men then proceeded to the apartment of Linda West Mullins, Ford's common law wife, located at 165th Street and Boston Road. Ford had recently been released from prison and during his incarceration his apartment had been burglarized. Mrs. Mullins apparently suspected Chambers, and had recently told Ford that she had seen someone wearing a coat which she believed belonged to him. It was thus Ford's intention to see whether Mrs. Mullins would identify Chambers as the possessor of the coat.

 When they reached the apartment she did so identify Chambers, and Ford immediately accused him of the burglary. Chambers denied it, and was thereupon savagely beaten. The principal damage was apparently inflicted by Ford, although each of the other four participated to some degree. *fn2" After Chambers had been knocked more or less senseless, Van Hook and Luckie were told to go downstairs. As they were descending the stairs from the fourth floor apartment, the two men saw Johnson, Thompson, and Ford carrying Chambers up the next flight of stairs, apparently toward the roof.

 There was a significant hiatus in the state's case at this juncture; it presented no eye witness testimony of what transpired on the roof. Mrs. Mullins testified that Ford returned to the apartment fifteen to twenty minutes later and informed her that he had just thrown Chambers off the roof. Luckie and Van Hook testified that they waited outside the apartment building until Thompson came down and showed them Chambers' body lying in an alley beside the building. Thompson, testifying on his own behalf, stated that as the four men reached the landing between the fourth and fifth floors, Johnson turned and went downstairs. When Thompson started to do likewise, his account continues, Ford pulled a gun and ordered him to continue upwards. On the roof, according to Thompson, Ford and Chambers started fighting, and at some point Ford "punched the guy and he fell off the roof."

 Both Johnson and Thompson were found guilty of murder, and both were given sentences of fifteen years to life. Ford, who had previously pleaded guilty, was sentenced to a term of twenty years.


 Johnson has presented two arguments in support of his petition. First, he contends that the prosecution violated his rights secured by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to disclose exculpatory information to his trial counsel. More specifically, he alleges that Irvin J. Goldsmith, the Assistant District Attorney in charge of the prosecution, was told by Perry Ford in an interview in October, 1969, several weeks before the trial, that the petitioner had not been on the roof when Chambers fell off. This information, it is contended, was never communicated to Mary Johnson Lowe, petitioner's trial counsel, who consequently did not summon Ford to testify at trial. Second, petitioner contends that the trial court erroneously failed to submit to the jury the lesser offenses included within the crime of murder. Petitioner argues that this failure was in itself a violation of due process; in addition, however, he argues that the failure of his assigned counsel to raise this point on appeal violated his right to counsel secured by the Sixth Amendment.


 Resolution of the first of these contentions requires a threshold determination of credibility. At the hearing held before me, Perry Ford testified that in October, 1969, he was brought to the Bronx County Courthouse and thereafter delivered to Irvin Goldsmith's office. During this interview, which took place outside the presence of his assigned counsel, Ford told Goldsmith his version of the events of December 14, 1968, namely, that Johnson did not accompany him to the roof of the building, and was in no way implicated in the fall of Chambers from the roof. Ford also testified that Goldsmith was dissatisfied with this account, stated that he was not "helping himself" with such a story, and that there would be no recommendation of a lenient sentence if Ford adhered to it. Ford also testified that he endeavored to communicate this version to Mrs. Lowe, petitioner's trial counsel, and there was introduced in evidence a letter from Ford to petitioner's wife, to be forwarded to Mrs. Lowe, containing Ford's version of the crime substantially as he had testified. The letter, however, was dated February 4, 1970 and was thus too late to be of use at the trial.

 When called to testify at the hearing in the case at bar, Mr. Goldsmith denied that any such meeting had taken place. I accept this testimony, not merely because I found Goldsmith, who is First Assistant District Attorney and Chief of the Homicide Bureau of Bronx County, a credible witness, but also because the available evidence regarding the practices of the District Attorney's office supports his account. First, Goldsmith testified that he never interviewed a defendant in a criminal case outside the presence of that defendant's lawyer as well as a police officer. Ford, however, testified that he met Goldsmith alone. Second, Goldsmith's diary bore no entry of such a meeting. Third, Goldsmith testified that a defendant cannot be brought to the District Attorney's offices without some form of court order. No such order is contained in the Ford case folder. Goldsmith's testimony is further buttressed by the affidavit of Noah Braunstein, Ford's assigned counsel, stating that he is unaware that Ford ever discussed his case with Goldsmith outside his presence and has no information of such an event ever having transpired.

 On balance, then, Goldsmith's testimony is the more plausible. To accept Ford's account would be to believe that there were three significant departures from the unvarying practices of the District Attorney's office: the interview of a defendant by a prosecutor without his lawyer, the interview of a defendant by a prosecutor without a police officer, and the delivery of a defendant to a prosecutor without a court order. I am unwilling to assume that an experienced and obviously competent prosecutor would sanction such departures. I find the testimony of Goldsmith was honestly given and, as I have stated, fully credible. I further find that no ...

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