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October 4, 1974

UNITED STATES ex rel. Frantz M. DUMAS, Petitioner,
Hon. J. W. PATTERSON, Superintendent, Eastern New York Correctional Facility, Respondent

Robert L. Carter, District Judge.

The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, District Judge.

Facts and Proceedings to Date

 Petitioner was tried and convicted in the New York State Supreme Court by a jury, and sentenced on June 20, 1972, to twelve years' imprisonment for manslaughter in the first degree. After trial but before sentencing, petitioner learned that William Powell, a key prosecution witness, had been under indictment for forgery at the time he testified against petitioner, a fact not disclosed when Powell testified. A motion was made for a new trial on the ground that the prosecution withheld vital information from the defense counsel and the jury. The state answered that the trial prosecutor was also unaware of the indictment at the time Powell testified, and that the non-disclosure was, therefore, accidental and did not justify a new trial. The trial judge denied the motion. On appeal, the Appellate Division unanimously affirmed the conviction without opinion, People v. Dumas, 42 A.D.2d 1052, 348 N.Y.S.2d 547 (2d Dep't 1973), and leave to appeal was denied on December 3, 1973, by the New York Court of Appeals.

 The ground on which petitioner seeks the writ of habeas corpus is (1) either that the prosecutor deliberately suppressed Powell's indictment for forgery at the time he testified or, (2) if the suppression was unintended, there was a substantial likelihood that disclosure of Powell's indictment would have raised a reasonable doubt in the minds of the jurors and avoided conviction.

 At the trial, Powell, an eyewitness to the crime charged, was examined by both the defense and prosecution as to his criminal record. On direct examination he revealed that he had been convicted of felonious possession of drugs, sentenced to five years' probation, and was wanted on an outstanding warrant for violation of that probation. Although he had twice denied that the Assistant District Attorney had offered to assist him with his warrant difficulties, he did concede that fact before the conclusion of his direct examination. On cross-examination the defense attorney elicited the admission that, in addition to the probation violation, Powell was also liable to answer warrants charging the crimes of forgery and petit larceny; upon further questioning, Powell acknowledged that he had in fact committed both forgery and theft and described the circumstances surrounding those acts. He also admitted having sold drugs in the past; at one point the defense attorney read a portion of the testimony in the drug case, in which Powell acknowledged passing, and presumably selling, heroin. On cross-examination, the defense returned again to the issue of Powell's forgery warrant and the promise of help by the prosecutor. On re-direct, Powell refuted the suggestion that his testimony was colored by the possibility of obtaining assistance on the warrant. Powell was again summoned by the defense for further cross-examination. He revealed that the Assistant District Attorney in charge of the Homicide Bureau had told him that the prosecutor would try to help him and that it was Powell's belief that he would be "helped out" not only on the drug warrant, but on the forgery and petit larceny charges as well. He finally stated that he anticipated help in those two matters in return for being a witness in petitioner's trial.

 Powell's arrest for forgery and petit larceny was discussed by both the defense and the prosecution in their summations. The defense attorney noted Powell's motivation to lie, arguing that he "has two criminal charges hanging . . . over his head even to now," again repeating that he was wanted for forgery and larceny, and stating that Powell was testifying in exchange for a promise of leniency in respect of the outstanding warrants. The prosecution conceded that it had offered to aid Powell on the forgery and probation violation warrants in return for his cooperation in petitioner's trial.

 Exhaustion of State Remedies

 The petitioner has exhausted state remedies within the meaning of 28 U.S.C. ยง 2254(b). Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971).

 Disposition of the Petition

 Petitioner's first contention, that the prosecutor's failure to reveal the existence of the indictment against William Powell was deliberate, must be rejected on one or all of three grounds. First, Justice Mollen in his denial of the motion for a new trial inferentially determined that the non-disclosure was not purposeful. See Townsend v. Sain, 372 U.S. 293, 313-315, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). From the record before this court, it appears that Justice Mollen accepted as uncontroverted the representations of the trial Assistant District Attorney and the Assistant District Attorney in charge of the Homicide Bureau, in opposition to the motion for a new trial, that they had no actual knowledge of the indictment at the time Powell testified. *fn1" As far as is known, petitioner, faced with these statements, did not produce any evidence to the contrary nor request an evidentiary hearing on the issue of deliberateness. See United States ex rel. Cronan v. Mancusi, 444 F.2d 51, 56 (2d Cir.), cert. denied, 404 U.S. 1003, 92 S. Ct. 572, 30 L. Ed. 2d 556 (1971); Jefferson v. Follette, 396 F.2d 862, 864-865 (2d Cir. 1968). If Justice Mollen as I read the record did determine that the concealment was not calculated, his determination is not subject to challenge on the present petition where the only evidence submitted points in the direction of inadvertent suppression.

 Second, even if Justice Mollen did not address himself to the question of knowing suppression, *fn2" petitioner obviates the need for the resolution of this point by his concession in his papers filed here that the trial prosecutor had no actual knowledge of the indictment. *fn3"

 Third, the circumstances in any event here do not add up to a case of deliberate suppression. Petitioner's position is grounded upon the Supreme Court's statement in Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), that a prosecutor should be held responsible for all relevant information available to him or known to other prosecutors in his office: "Whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor." Id. at 154, 92 S. Ct. at 766. In this case, a prosecutor in the District Attorney's Office of Kings County took Powell's case to the grand jury after the Criminal Court dismissed the forgery and larceny charges against him. An indictment resulted. The trial prosecutor, also from the Kings County Office, was unaware that an indictment had been sought and obtained on the forgery offense. Petitioner characterizes this lack of personal knowledge of the pending indictment as immaterial to the question of wilful suppression, and argues that failure to reveal the existence of the indictment should be judged under the standard of deliberate suppression.

 However, that is not the law. Giglio merely estops the prosecution from denying that there has been a suppression simply because the trial assistant did not have personal knowledge of the information in issue. Giglio cites with approval United States v. Keogh, 391 F.2d 138 (2d Cir. 1968). In Keogh, the Second Circuit classified claims of suppression by the prosecution into three categories: (1) deliberate suppression, which includes "not merely a considered decision to suppress, taken for the very purpose of obstructing, but also a failure to disclose evidence whose high value to the defense could not have escaped the prosecutor's attention"; (2) suppression of evidence material either to guilt or punishment after a request by the defendant without regard to the "good faith or bad faith of the prosecution"; and (3) non-deliberate suppression outside categories (1) or (2) where hindsight discloses the suppressed evidence could have been put "to not insignificant use" by the defense. Id. at 146-147. The standard applied to determine prejudice to the defendant as a result of the suppression varies with the category.

 In the first category, due process infringement is clear and a new trial is almost automatic; even where prosecutorial misconduct is evident, however, a new trial will not ordinarily be granted if the suppressed evidence was immaterial and could not "in any reasonable likelihood have led to a different result on retrial." United States v. Mele, 462 F.2d 918, 924 (2d Cir. 1972). *fn4" In the second category, the critical factors are the request and the materiality of the undisclosed evidence; if the request "flagged" the government's attention to the importance of the evidence to the defense and the evidence is found to be material, the suppression again is a violation of due process warranting a new trial. In the third category, the invalidation of a conviction occurs only where there is a high probability that the undisclosed evidence ...

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