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December 26, 1979

EDWARD C. FORMAN, Petitioner,
HAROLD J. SMITH, Superintendent, Attica Correctional Facility, Respondent.

The opinion of the court was delivered by: CURTIN

Petitioner Edward C. Forman was convicted of second degree murder after a jury trial in New York Supreme Court, Erie County, in January 1973. In February of that year a brief recantation hearing was held before the trial judge, the Honorable Charles Gaughan, to determine whether the petitioner's wife, codefendant Florence McClain, was recanting part of her trial testimony which had implicated the petitioner. A motion to set aside the verdict based on the alleged recantation was denied in May 1973. The Appellate Division affirmed the conviction without opinion. People v. Forman, 45 A.D.2d 820, 358 N.Y.S.2d 353 (4th Dep't 1974). The Court of Appeals denied leave to appeal on September 18, 1974. Forman's petition for writ of certiorari was denied by the United States Supreme Court. Forman v. United States, 420 U.S. 1007, 95 S. Ct. 1451, 43 L. Ed. 2d 765 (1975).

Petitioner then filed a petition for a writ of habeas corpus in this court which subsequently was amended in October 1976 after counsel was assigned. Pursuant to a stipulation between the parties, a stay of this proceeding was ordered until petitioner's post-conviction motion under New York Criminal Procedure Law § 440 was decided by the New York courts. *fn1" That motion was denied both initially and on appeal, and the stay was lifted on December 1, 1977. On April 25, 1978, this court conducted an evidentiary hearing as to the facts underlying petitioner's claim that his pretrial statement, used by the prosecution at trial, was obtained in violation of his sixth amendment right to counsel. Legal memoranda were provided and the petition was submitted for decision.


 In the early morning of May 15, 1972, Archie Gilliland was found shot to death at the residence of petitioner and his wife, Florence McClain. Detectives Edward Gorski and Gerald Dove questioned McClain at the house. She initially told them that a gang had broken into the house and had shot the decedent. Upon further questioning, she stated that she had shot the victim with a pistol and then thrown the pistol away. Finally, she told Detective Gorski that she had used a rifle and had given it to an unknown man who came to the door at the time of the shooting. Florence McClain was taken into custody and charged with murder.

 At 7:00 a.m. the same morning, petitioner was detained briefly by the detectives for questioning in a home across the street from where the body was found. He denied any knowledge of the shooting and was not charged. Two days later, on May 17, 1972, a Willie James Harris turned a rifle in to Buffalo Police Headquarters. Harris stated that Forman gave him the rifle after the shooting and that Forman told him his wife had just killed a man.

 On May 22, 1972, Florence McClain, in the presence of counsel, made a statement to police. She said that she had not shot Archie Gilliland and that she believed her husband had. McClain further claimed that she had been awakened on May 15, 1972 by a gunshot and had seen petitioner and a John Adams leaving her house, petitioner carrying a rifle in his hand. Petitioner's wife took a polygraph examination on May 24, 1972 which indicated that she had told the truth on May 22. She was then released and the charges against her were dropped.

 Four months later, on September 19, 1972, Forman was arrested on three outstanding warrants, two for vehicle and traffic offenses and one for possession of a weapon. Later that day, Lieutenant Leo Donovan signed an information charging Forman with hindering the prosecution and tampering with physical evidence in connection with the death of Archie Gilliland in May. This was based on Harris' sworn affidavit of May 17, 1972, signed when Harris turned in a rifle to the police. Donovan and Detectives Gorski and Dove questioned the petitioner at this time about Gilliland's death. Prior to questioning, they read him his rights from a form waiver card. *fn2" Forman at first wrote his initials on the back of the waiver card and then scratched them out. See Petitioner's Exhibit 7. He denied any involvement in the shooting and refused to execute any signed statement. On the following day, September 20, 1972, Forman was arraigned in Buffalo City Court on the hindering prosecution and tampering charges. He retained attorney James Robinson, Jr. who later represented him on this matter. (Federal Hearing ("F.H.") at 61, 62). There is a dispute in the testimony from the evidentiary hearing as to whether or not Lieutenant Donovan was present at the arraignment. Forman was unable to post bail and was remanded to the custody of the Erie County Sheriff.

 On September 29, 1972, while Forman was still in custody, he and his wife were indicted on one count each of second degree murder in the death of Archie Gilliland. After a telephone call to the Erie County Sheriff made on behalf of Lieutenant Donovan, petitioner was brought to the Homicide Bureau of the Buffalo Police Department that evening at about 8:00 p.m. pursuant to an indictment warrant. He was questioned until approximately 9:22 p.m. by Donovan and Officers Gorski and Dove. Prior to questioning, Forman was read his rights from the form waiver card (Supra, n.2), but he did not sign this card. Petitioner was questioned about Gilliland's death. He denied any involvement. At 9:22 p.m., Forman left the Homicide Bureau office. While being escorted to the men's cellblock, he asked Officer Gorski whether his wife also had been charged and was told that she had been. Gorski testified that at this point petitioner states: "Florence didn't kill him, John didn't, I didn't either." Petitioner was returned immediately to the homicide office and again advised of his rights. According to the uncontradicted record (See Petitioner's Exhibit 4), Forman admitted to owning the gun. His original story was that a man named John Adams had shot the victim. Forman later admitted that he had been passing a rifle back and forth with John Adams and that it accidentally discharged, striking Gilliland who was on the couch. (F.H. 58). Forman was never asked by the officers whether he was represented by counsel, nor did he volunteer that he was. Lieutenant Donovan was aware at the time of questioning, though, that Forman had been arraigned on the tampering charge and he assumed that Forman was represented by counsel. (F.H. 35). Donovan testified that he did not know that the attorney was James Robinson, Jr. In any case, Robinson was never notified of the indictment or questioning.

 A pre-trial Huntley hearing was conducted by the trial court to determine the admissibility of Forman's statement. Officers Donovan, Gorski, and Dove testified about the circumstances surrounding their interrogation of Forman on September 29, 1972. Donovan testified that after returning to the homicide office and after being read his rights, petitioner indicated his willingness to make a statement (which is discussed above). He also stated that petitioner was incarcerated prior to September 29 on charges "unrelated" to the Gilliland homicide. The issue of legal representation by Robinson was never developed and Robert Casey, Forman's appointed trial counsel, did not press this issue. The trial court ruled that the statement by Forman was voluntary, made after a knowing and intelligent waiver, and admissible.

 At trial, much of the evidence was circumstantial. The only witness against petitioner was his wife. She essentially repeated her earlier story that she had seen Forman running out the door after she had been awakened by a gunshot. Forman testified on his own behalf. He said that, after he and a John Adams arrived at his home, he was in the kitchen when he heard a shot fired from the living room. He ran into the room only to see Adams moving out the door. Forman chased him unsuccessfully. Adams was not located. When confronted by the prosecution with his earlier statement that he had accidentally shot the victim, Forman stated that he had fabricated it in order to protect his wife from criminal liability. Trial counsel did not challenge the admissibility of the statement. Forman was convicted and his wife was acquitted.

 One month later a recantation hearing was held. Florence McClain admitted that she had told Forman that she had lied when she testified that she saw him leave the scene with a rifle. When asked whether her trial testimony was in fact false, she asserted her fifth amendment privilege against self-incrimination. The trial judge denied petitioner's motion for a new trial. His opinion reasoned that her motive to falsify her testimony, after she had been acquitted herself, devalued her recantation testimony. He also took notice of evidence which had been precluded at the trial; this was her pre-trial statement implicating her husband and the results of a polygraph examination relating to that statement which showed she had been telling the truth. The trial judge concluded no credible recantation had occurred.

 Petitioner asserts three grounds for relief in this habeas corpus proceeding: (1) petitioner's pre-trial statement which implicated him in the death of Gilliland was obtained in violation of his sixth amendment right to counsel; (2) the trial court's refusal to instruct the jury on criminally negligent homicide invaded the province of the jury, denying him a fair trial; and (3) the recantation hearing violated his rights under the compulsory process and confrontation clauses of the Constitution. The initial question to be considered is whether petitioner has satisfied the exhaustion requirements of 28 U.S.C. § 2254(b) and (c).

 It is clear that no avenue of relief remains open in state court. Petitioner's motion to vacate his judgment under N.Y.Crim.Proc.L. § 440 was denied and leave to appeal also was denied. Therefore, no state collateral relief is possible and petitioner is properly before this court. Humphrey v. Cady, 405 U.S. 504, 516, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972).

 An additional procedural barrier to a review of the merits of petitioner's constitutional claims remains. The question raised is whether petitioner's procedural default in state court precludes this habeas court from examining those claims. With respect to petitioner's first claim that his sixth amendment right to counsel was violated, the ruling of the trial court at the Huntley hearing, that the petitioner had waived his rights before making his statement, was never challenged on appeal. In New York, CPL § 440.10(2)(c) precludes collateral attack on a judgment for unjustifiable ...

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