Appeal from an order of the United States District Court for the Southern District of New York, Charles E. Stewart, Jr., Judge, denying habeas corpus relief. Reversed on the ground that appellant was deprived of his Sixth Amendment right to compulsory process when the state trial court refused to grant a short adjournment to secure the presence of an important defense witness who was unavailable due to the State's error.
Before Feinberg, Mansfield and Oakes, Circuit Judges.
This appeal is from an order of the United States District Court for the Southern District of New York, Charles E. Stewart, Jr., Judge, denying a petition for a writ of habeas corpus. Appellant was convicted of criminal possession of a dangerous drug in the fourth degree*fn1 after a jury trial before Justice Hyman Korn in the Supreme Court, New York County, Central Narcotics Part. He was given an indeterminate sentence with a three-year maximum. The conviction was affirmed by the Appellate Division, People v. Singleton, 50 A.D.2d 939, 377 N.Y.S.2d 197 (2d Dep't 1975) (memorandum opinion), and by the New York Court of Appeals, one judge dissenting. People v. Singleton, 41 N.Y.2d 402, 393 N.Y.S.2d 353, 361 N.E.2d 1003, (1977).
Appellant contends on appeal, as he has throughout the state and federal proceedings below,*fn2 that he was deprived of his Sixth Amendment right to compulsory process and his Fourteenth Amendment right to due process by the state trial court's refusal to grant him a short adjournment. The adjournment was necessary to secure the presence of a vital witness who was unavailable because the State had improperly released him from custody after his arrest pursuant to a material witness order. The district court rejected these constitutional claims and accordingly denied habeas corpus relief. United States ex rel. Singleton v. Lefkowitz, No. 77 Civ. 1264 (S.D.N.Y., dated Nov. 18, 1977). We reverse.
Appellant was the front seat passenger and David Knowles was the back seat passenger of an automobile operated by Joseph Powell. When they were stopped by two New York City police officers for a license and registration check on September 24, 1971, the three occupants got out. While Officer Braga was checking the vehicle identification number on the hinge of the driver's front door, Officer Santiago observed Knowles, the back seat passenger, attempt to reach over Officer Braga's shoulder toward the interior of the car. At that point Officer Santiago grabbed Knowles away from the vehicle and aimed his flashlight inside the car. He observed an open manila envelope on top of the console between the front seats. The envelope contained visible white powder, believed to be cocaine. The officer confiscated the envelope and arrested all three occupants. A subsequent search revealed a closed envelope containing white powder located between the driver's seat and the console. The envelopes actually held in aggregate three-eighths of an ounce of heroin. Appellant was released after arraignment but failed to appear as scheduled on October 1, 1971, when a bench warrant was issued by the criminal court.
On January 6, 1972, appellant, Powell, and Knowles were indicted by a Queens County grand jury for criminal possession of a dangerous drug in the fourth degree. Another bench warrant was issued by the Supreme Court, New York County, since appellant still had not appeared. On March 9, 1972, Powell was acquitted after a trial. On October 10, 1972, Knowles pleaded guilty to criminal possession of a dangerous drug in the sixth degree, then a misdemeanor,*fn3 and on October 25 he was sentenced to time served.
Appellant appeared pursuant to his bench warrant on February 23, 1973. Prior to the introduction of evidence, his attorney, Mr. Fabricant, revealed to the court that Knowles had stated at the time of his guilty plea "that the drugs belonged to Joseph Powell and (Knowles) knew that because he saw Joseph Powell buy the drugs and there was no implication at all of Mr. Singleton." Defense counsel further indicated that he had subpoenaed both Powell and Knowles, and that if Knowles could not be located counsel would move to introduce Knowles' plea statement as a declaration against penal interest.
Trial began on August 22, 1973, after a suppression hearing in early August. The prosecution rested on August 27, 1973, at which time Mr. Fabricant requested a continuance because neither codefendant had appeared in response to the subpoenas. An overnight continuance was granted, and that afternoon, according to Fabricant, Singleton's wife and brother went to see Knowles in Brooklyn. After they stressed the importance of his testimony, he promised to be present the following day at two o'clock in the afternoon.*fn4
When Knowles still did not appear, counsel was granted a second overnight continuance. In addition, the trial judge, who obviously recognized the importance of Knowles' testimony,*fn5 granted a material witness order authorizing Knowles' arrest. The court warned the defense, however, that the trial would proceed the following day with or without the codefendants because the judge's term at the Special Narcotics Court was to end and he also had a doctor's appointment on Friday of that week. The order was signed on Tuesday, August 28, in the early afternoon and on the same evening Knowles was arrested at his home, the address listed in the arrest authorization, by a patrolman of the 79th Precinct in Brooklyn. A police officer who then telephoned an assistant district attorney of Kings County was told by him that the material witness order was defective. Thereupon Knowles was released from custody. When this was brought to Justice Korn's attention on Wednesday morning, August 29, the judge spoke to the Assistant District Attorney who admitted the error. The judge granted an adjournment until 2:00 p.m. to enable Fabricant and the district attorney to locate Knowles. When they returned to court unsuccessful, Justice Korn refused to grant a further adjournment. Defense counsel rested without producing any evidence, appellant was convicted, a motion to set aside the verdict was denied, and sentence was imposed.*fn6
The New York Court of Appeals held that the trial court did not abuse its discretion or abridge appellant's right to compulsory process in refusing to grant appellant a fourth adjournment. People v. Singleton, supra, 41 N.Y.2d at 405-06, 393 N.Y.S.2d at 356-57, 361 N.E.2d at 1005-06. The court first distinguished People v. Foy, 32 N.Y.2d 473, 346 N.Y.S.2d 245, 299 N.E.2d 664 (1973), which held it reversible error to deny a short adjournment for the purpose of obtaining material alibi witnesses where they had been identified to the court, could be found within the jurisdiction and the movant had demonstrated diligence and good faith. The Court of Appeals believed that Justice Korn had been "most co-operative and accommodating," unlike the trial judge in Foy who "refused, for (his) own convenience, to grant even the briefest of adjournments." People v. Singleton, supra, 41 N.Y.2d at 406, 393 N.Y.S.2d at 356, 361 N.E.2d at 1003. "(I)t was hardly an abuse of discretion," concluded the Court of Appeals, "for the court to direct counsel to try the case and not the court's patience." Id. Moreover, said the Court of Appeals majority, unlike the case in Foy, Singleton, "by absconding from the jurisdiction of the court, brought about his difficulties in not being able to locate the witnesses at the time of the delayed trial." Id., 393 N.Y.S.2d at 357, 361 N.E.2d at 1006. Finally, the Court of Appeals noted that there was doubt as to the "needfulness" of the testimony since the defendant's attorney had informed the court that he did not have the "foggiest idea" whether the testimony would help or hurt appellant.*fn7 It concluded that "under these circumstances, the defendant should not be allowed to manipulate the Sixth Amendment to avoid due process of law." Id.
Dissenting, Judge Fuchsberg urged that the three criteria set forth in Foy as requiring an adjournment that the witness be material, that the moving party not be guilty of neglect, and that the witness will appear at the deferred trial were met here. Id. at 412-13, 393 N.Y.S.2d at 360-61, 361 N.E.2d at 1009-10. He pointed out that "every reasonable expectation was that Knowles' testimony would assist the defense," Id. at 412, 393 N.Y.S.2d at 360, 361 N.E.2d at 1010, as indicated by defense counsel's reference to Knowles' statement when he pleaded guilty. And he noted that the trial court had implicitly if not explicitly made a finding of materiality when it issued the material witness order. Judge Fuchsberg found "incomprehensible" how Singleton's absence months before had any bearing on the matter, because Knowles would have been available to testify but for his improper release from custody by the police. The dissent also reasoned that Knowles could and would have been produced had a reasonable adjournment been granted, for he was found by the police at his home even after he had twice ignored the subpoenas.
In agreeing with the New York Court of Appeals, the federal district court ruled that Singleton had not shown that the testimony of either coconspirator would be favorable to his defense.*fn8 This conclusion was partially based on defense counsel's lack of knowledge as to what the witness would testify to, See note 7 & accompanying text Supra. Additionally, Judge Stewart held that Knowles' statement during his plea proceedings would not aid appellant because the fact that Powell purchased the drugs was not alone sufficient to rebut the presumption of knowing possession established by the statute. See note 5 Supra.*fn9 The district court reasoned: "While it may be assumed that Knowles' testimony might have proven Singleton's lack of involvement in the purchase of the drugs, petitioner has made no claim that Knowles or Powell could have testified that Singleton had no knowledge of the presence of the drugs in the automobile."*fn10 United States ex rel. Singleton v. Lefkowitz, supra, No. 77 Civ. 1264, at 5. Finally, ...