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October 31, 1979

THOMAS FELTON, Petitioner, against DAVID HARRIS, Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: WEINFELD

Petitioner, Thomas Felton, now serving a sentence of 25 years to life at Green Haven Correctional Facility, New York pursuant to a judgment of conviction of the murder in the second degree, of three separate victims, entered upon a jury verdict in the Supreme Court, Bronx County, petitions for his release under a federal writ of habeas corpus. Petitioner's co-defendant, Willie Lee Kirksey, also was convicted at their joint trial of the same charges and received the same sentence. The judgment of conviction was affirmed by the Appellate Division, First Department and leave to appeal to the Court of Appeals was denied. Soon thereafter, petitioner commenced this proceeding upon a claim that his conviction was obtained in violation of his right of confrontation under the Sixth Amendment in that Kirksey's confession, which directly implicated petitioner, was admitted in evidence over his objection, although Kirksey did not testify, as petitioner did.

Before trial, each defendant moved pursuant to Huntley *fn1" to suppress his individual statements or confessions. Each motion was heard separately before State Supreme Court Justice Donald Sullivan who, after extensive testimony, denied each defendant's motion upon specific findings that appropriate Miranda warnings were given; that the statements were voluntary; that the People had established beyond a reasonable doubt that each defendant's constitutional rights had not been violated; and that each had made an intelligent waiver. The Court also denied motions made by Kirksey to suppress eyewitness identification evidence pursuant to Wade *fn2" and physical evidence, a school guard crossing shield, obtained during a search of his apartment, pursuant to Mapp. *fn3"

 Following the denial of the aforesaid motions, the case proceeded to trial before Judge Sullivan and resulted in the conviction of each defendant of the murders of Elsie Simon, Margaret Doyle and Stella Bloswick, committed during the commission of robbery and other felonies. Several days after petitioner had been sentenced thereon, he pled guilty to manslaughter in the first degree in the killing of another victim, Rose Jocelyn and was sentenced to a term of 8 1/3 to 25 years. He also pled guilty to an attempt to commit robbery in the second degree upon one Ethel Dyer and was sentenced to 2 1/3 to 7 years. The latter two sentences were to run concurrently with those imposed upon the second degree murder convictions. *fn4"

 A series of murders of elderly women were committed between March and September 3, 1975 in Bronx County, New York City, each of which followed a common pattern. The assailants gained entry into apartments by a ruse and when the occupant opened the door she was pushed in and assaulted. The apartment was ransacked for money, jewelry and other valuables and in some instances, the aged woman was raped before she was killed either by violent assault, gagging or strangulation.

 The Kirksey Statements

 In the late afternoon of September 5, 1975, as a result of a report of a robbery in the general area of the most recent homicide, Willie Lee Kirksey was apprehended soon after he jumped over a fence of a hospital near the scene of the reported robbery. He was arrested and interrogated by detectives who, it so happened were in the vicinity investigating the murder of Margaret Doyle two days earlier on September 3. Kirksey was told that any leads he could give concerning the homicide might be helpful to him on the instant arrest charge. He mentioned that three of his friends Tommy, Ronny and Bobby had disclosed to him that they had "ripped off" an old lady; that when she opened the door of her apartment in response to their knock they pushed her in and she screamed. The detectives, with respect to the Doyle murder, had information that the deceased in fact had screamed. Kirksey's reference to this detail led one of them to suggest "you were there," whereupon, after a moment's reflection, Kirksey admitted he had been and said he wished to talk because his conscience was bothering him. *fn5" He agreed to take the detectives to the scene of the homicide.

 He led them to 2476 Webb Avenue, Bronx, walked three flights up to an apartment, described the layout before entering, and upon entry gave a detailed account of his and each accomplice's role in, and recounted events leading to, the assault, robbery and murder and how they later divided the proceeds of the crime. He said it was Tommy who pushed her inside when she screamed and then used a pillow as he began punching the struggling 75 year old woman. Margaret Doyle resided and was murdered in that apartment two days earlier. He also mentioned that before they had entered the apartment, using his shirt, he had unscrewed a hallway light bulb so that it would not light. It was the loosened bulb, which the custodian of the building was about to remove, that led to the discovery of the deceased when he checked the door of her apartment.

 When asked by the detectives if he had anything to so with any other homicides committed against elderly people, Kirksey stated he had been involved in another, four or five weeks earlier, and named Tommy, Ronny, Bobby and Skip as the other participants. He then led the detectives to a building at 2364 Tiebout Avenue, Bronx, and pointed out a ground floor apartment. It was the scene of the Elsie Simon murder committed on July 29, 1975. In this instance, he said his accomplices went into the building while he waited downstairs in a car; that in about twenty minutes they came running out of the building; and after meeting them at a pre-arranged spot, they told him that they had ripped off an old woman, tied and gagged her and had gotten some jewelry and money and split the proceeds.

 The detectives then returned to the police precinct where Kirksey repeated his versions of the Doyle and Simon crimes and signed a statement summarizing what he had recounted to the detectives. Efforts late that evening to locate the named accomplices, including Tommy, proved fruitless. The detectives, in their quest for those named by Kirksey, were accompanied by him. He pointed out their usual haunts, but they were not to be found.

 Upon their return to the police precinct, Kirksey was asked whether or not there were really accomplices and had he acted on his own. He became visibly upset and told detectives he was responsible for a third murder, committed in March 1975, at De Voe Terrace in the Bronx. The homicide, as described by him, had been committed in similar fashion to the Doyle and Simon murders. The victim was pushed into her apartment, assaulted, robbed and killed. Again he directed the officers to an apartment at 2435 De Voe Terrace where Stella Bloswick's dead body was discovered on March 15, 1975.

 When they returned to the station house, Kirksey was again asked if in fact he had not committed the crimes by himself. This time he said he had committed the Doyle and Bloswick murders by himself and that Tommy was involved only in the Simon homicide. He also eliminated Ronny, Skip and Bobby as accomplices in any of the murders. *fn6" Following this reinterview, he repeated his revised version to an Assistant District Attorney that he alone was responsible for the Doyle and Bloswick murders and that he and Tommy committed the murder of Elsie Simon. He stated that he and Tommy entered the Tiebout apartment house on July 29, 1975, and met Elsie Simon as she was leaving her apartment to empty garbage; that they pushed her back into her apartment and he restrained her on the floor while Tommy tied and gagged her, following which they took money and jewelry from a rear bedroom. The question and answer statement was stenographically recorded. Later that morning, Kirksey was arraigned and charged with the three murders.

 Thomas Felton and His Statements

 Kirksey's reference to "Tommy" led detectives to believe that he was Thomas Felton, the petitioner. However, it was not until September 17 that contact was made with him. This was effected through Detective William Hoard who was known to be friendly with the Felton family and whose assistance was enlisted in locating Felton by the detectives investigating the murders. Hoard himself was not engaged in any aspect of the investigation into the murders. Hoard left word with James Felton that the investigating detectives desired to interview his son Tommy. Thereafter, Thomas Felton voluntarily appeared on September 17 at the police precinct. He first saw Hoard to whom he denied any knowledge of the crimes. He was later interviewed by the detectives investigating the murders. He was informed of Kirksey's arrest for several homicides and after first stating he did not know who Kirksey was, identified his picture as somebody he knew from the neighborhood. When told that Kirksey had named him as a participant in one of the homicides, he denied he had anything to do with Kirksey with respect to criminal activities. Felton was not detained. In the meantime, the detectives continued their investigation.

 On October 3, 1975, Felton, without solicitation, called on the detectives at the station house. He was again given his Miranda rights. He told detectives that he worked for a company as a protective gate installer which gave him access to residences; that he was thus in a position to "case" apartments; and that when he went into apartments he looked for valuables and later passed this information on to Kirksey. He told them he had "fingered" three locations; that the Elsie Simon residence was one where he had seen an old lady and valuables in the apartment and subsequently had given this information to Kirksey. He agreed to locate the premises about which he had given the information to Kirksey. He then directed them to the building where the Simon murder occurred and pointed out the window gates on the ground floor apartment he had installed. He next led them to another building where he said he had taken measurements for gates to be installed in an apartment three flights up. This apartment was the scene of the Margaret Doyle murder. Later he identified yet another apartment on De Voe Terrace where he said he had fingered ...

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