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April 24, 1974

UNITED STATES of America ex rel. Peter BUTLER, Relator,
Theodore SCHUBIN, Superintendent, Ossining Correctional Facility, Ossining, New York, Respondent

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

Petitioner, Peter Butler, presently serving a life sentence at the Ossining Correctional Facility, Ossining, New York, imposed on June 15, 1967, pursuant to a judgment of conviction for the crime of murder in the first degree, following a jury trial in the Supreme Court, New York County, seeks his release upon a writ of habeas corpus. He alleges his federally protected constitutional rights to due process of law under the Fourteenth Amendment and under the confrontation clause of the Sixth Amendment were violated by (1) the failure of the prosecution to turn over tape recordings of conversations between a prosecution witness and Richard Conroy, petitioner's codefendant; and (2) the admission in evidence of out-of-court statements attributed to his codefendant who did not testify.

 Petitioner's conviction was affirmed by the Appellate Division, First Department, on November 20, 1969, *fn1" and thereafter unanimously upheld by the New York Court of Appeals. *fn2" The State acknowledges that petitioner has exhausted available state remedies.

 The crime for which petitioner and his codefendant were convicted was committed on the evening of April 14, 1964. The victim was Charles J. Gallagher, a Columbia University physics professor, who was found early the next morning in Central Park, in an area known as the "Rambles," with a bullet in his heart. There were no eyewitnesses to the homicide. Petitioner and Conroy were arrested two years later and charged with the murder. The theory of the prosecution was that Butler and Conroy went to Central Park the evening of the murder for the purpose of robbing homosexuals, and in the course of their mission committed the murder. The evidence against petitioner and his codefendant consisted principally of admissions made by each to various friends who were called as prosecution witnesses.

 The evidence offered by the State established that within several hours after the commission of the crime, Butler and Conroy went to a bar in Brooklyn where they related the circumstances of the murder to William R. Rachun, a bartender. Butler and Rachun had been friends for twelve years; Rachun knew Conroy for about two years, having met him through Butler. Rachun testified that, in the presence of Conroy, Butler detailed events of the crime. Butler said he and Conroy had gone into Central Park to roll some "queers"; he picked up the decedent, went into the bushes with him, pulled a gun and demanded money. The victim resisted; a struggle ensued, the gun went off discharging a bullet and the victim fell to the ground. As the two defendants ran out of the park, Conroy advised Butler to throw the gun into the lake, but he did not do so. Butler displayed to Rachun powder burns on his right hand, which he tried to wash off. He also showed Rachun the murder weapon, a.25 caliber Italian-make automatic pistol which Butler had obtained about a month previously from Rachun. The three men discussed destruction of the weapon. Rachun supplied a hammer and screwdriver, which Conroy used to take apart the gun and mutilate its pieces. All three left the bar at about midnight and proceeded to Newton Creek in Rachun's car; there the pieces of the weapon were thrown by Butler into various sections of the creek. They then left the area and agreed no mention should be made of the incident. The next day Butler telephoned Rachun and asked if he had read any of the press accounts of the murder. When Rachun replied he had, Butler disputed a version which described the decedent as a bird watcher. Thereafter, on several occasions Butler admonished Rachun to keep quiet.

 Rachun was first questioned by police authorities in August 1966, almost two and a half years after the murder, when he was in military service. At first he denied knowledge of the killing, but on the second day acknowledged the matters to which he testified upon the trial. This was after he was promised immunity as an accessory after the fact. Also, he admitted Butler owed him $1,000, which he asked for on various occasions but did not receive; he denied ever threatening Butler about its repayment. Rachun further acknowledged he was a bookmaker at the time of the events in question.

 Timothy Kraft, also a friend of both Butler and Conroy, testified that he read newspaper articles about the killing of a Columbia University professor in Central Park. Several days later, while outside the Port Authority Terminal in New York City waiting for a friend, he accidently met Butler, who, after some casual conversation, asked if Kraft heard about the killing of the professor; when he responded affirmatively, Butler said, "It was me, I did it." When Kraft expressed skepticism, Butler answered he was not "kidding." Kraft asked Butler why he did it and the latter responded that the victim was a homosexual whom he was trying to "roll," and that a struggle had ensued during which he killed the professor. Butler went inside the terminal to purchase cigarettes but returned within a few minutes and told Kraft he had been only "kidding."

 Kraft admitted he was a gambler; also, that he had been convicted of statutory rape, as a misdemeanor, and of the unauthorized use of a motor vehicle. He further testified that the first time he told anyone about the incident was in September 1966, which was soon after Conroy had been arrested and his picture appeared in the newspaper. He then made the information available to police officers, who called at his home. Kraft, who was questioned in the presence of his mother and wife, at first denied any knowledge of the case, but upon further questioning, and after talking to his mother, finally gave the police officers the information as to which he testified upon the trial. He acknowledged that one of the reasons he furnished the information was that he had heard (from sources other than the police) that Butler had "ratted on Conroy."

 Dale Owen Tron, a friend of Conroy, testified that in 1965 Conroy asked if he recalled the killing of Professor Gallagher the year before in Central Park. Conroy gave details of the crime, stating that he and Butler had gone to the park and that Butler had taken Professor Gallagher aside and shot him; *fn3" that Butler had panicked and wanted to throw the gun into the lake in Central Park but that Conroy stopped him; that instead they took the gun elsewhere, broke it up and threw it into a creek. Conroy said the gun was a.25 caliber Bernadelli automatic. Later that summer, the witness drove with Conroy and Ronald Haake to Central Park, where Conroy pointed out a wooded spot to Haake. Tron further testified that in the fall of 1965 he told Butler what Conroy had told him about the killing in the park, whereupon Butler replied, "Jesus Christ, can't he ever keep his mouth shut about anything."

 Ronald M. Haake, at the time of the trial a 2d Lieutenant in the United States Army, knew both defendants. He testified that Conroy, in May or June 1965, after asking him if he could keep a secret, told him that Butler and he had gone into Central Park "to do a mugging"; that Butler lured a man into the bushes, got nervous and shot him; that they then went to a bar where they broke up the pistol, and later threw the pieces into Newton Creek. Soon thereafter Conroy, he and three or four others were in Central Park, adjacent to West 70th Street, and Conroy pointed it out as the place where the killing was committed. Later that year, in December 1965, Haake testified that while riding in a truck with Butler and Howard Hillowitz, the subject came up that Butler and Conroy had killed the professor, whereupon Butler asked of Haake, "Conroy told you that?" When he responded affirmatively, Butler said Conroy "has a big mouth"; that Conroy was so scared after the murder he was running around in circles; that he wanted to keep the gun but Conroy would not let him.

 Haake admitted that he had an argument with Butler over Lynn Richardson. Also, he admitted that several months prior to the trial, he had lied to defense counsel when he denied he had given a statement to the District Attorney.

 Howard Hillowitz testified as to inculpatory statements made by both Conroy and Butler, but on different occasions. He testified that he had known Conroy seven years and Butler three years. One day in June, 1964, Conroy asked him if he remembered reading in the newspapers about a professor who had been killed in Central Park. Hillowitz replied that he did and that the papers mentioned espionage and that the Russians might have killed the professor. Conroy said it was not espionage and that news accounts also were wrong in reporting that the professor was shot with a.22 caliber gun; that it was a.25 caliber. Conroy then told him the professor was killed by Peter Butler, the "guy" they were to meet that night. When Hillowitz asked Conroy how he knew of the killing, Conroy responded he was there with Butler; that a "queer" had walked by and made a pass at Butler, which Butler did not like, and he pulled the man over to the side and shot him. Later that night Hillowitz met Butler for the first time.

 The subject of the killing of the professor came up again in December 1965, when Hillowitz was with Ronald Haake, whose testimony has already been referred to. Hillowitz's testimony on this incident is substantially in accord with Haake's. Hillowitz testified that Butler entered the diner where he was with Haake and said that he had heard that Conroy had been shooting off his mouth about him. Butler further said that he had to find Rachun immediately. Haake, Hillowitz and Butler proceeded by truck to locate Rachun. En route, Butler repeated that he heard Conroy had been spreading word around that he killed the professor in Central Park. Thereupon both Hillowitz and Haake acknowledged that they had been told that by Conroy, with Hillowitz adding, "In fact, Conroy said you were the one that shot him," whereupon Butler said that when he found Conroy he was going to "break his ass."

 Hillowitz admitted having sexual relations with Lynn Richardson, but denied either Butler or Conroy ever told ...

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