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PHILLIPS v. SMITH

March 13, 1980

WILLIAM R. PHILLIPS, Petitioner,
v.
HAROLD J. SMITH, Superintendent, Attica Correctional Facility, Respondent.



The opinion of the court was delivered by: PIERCE

OPINION AND ORDER

This petition for a writ of habeas corpus presents this Court with the serious question of whether a defendant charged with capital crimes in state court can receive a fair trial where one of the members of the jury, during the course of the trial, sought some benefit from the prosecutor's office and where this fact became known to the prosecutor during the trial but was not communicated to defendant's counsel or to the court until after a verdict of guilty had been returned.

 Petitioner William R. Phillips was convicted after a trial before a jury in State Supreme Court, New York County, on November 21, 1974, on two counts of murder and one count of attempted murder. He is presently serving concurrent sentences on those charges of up to a life term of imprisonment. He has petitioned for a writ of habeas corpus pursuant to sections 2241 and 2254 of Title 28, United States Code. In support thereof, he contends, first, that he was denied his constitutional right to a trial by an impartial jury and, therefore, to due process of law in that a member of the jury had applied for employment with the prosecutor's office during the course of the trial, which application, to the knowledge of the prosecutor, was still pending at the time the jury rendered its verdict against him. He further asserts that a second juror, while serving on the jury in this case, had agreed to testify on behalf of the prosecution in another, unrelated criminal action in exchange for immunity from prosecution for himself, petitioner not having been informed of this fact until the end of the prosecution's case against petitioner. Finally, petitioner contends that a tape recording of a conversation in which he was a participant should not have been admitted into evidence at his trial because he had previously been granted transactional immunity with respect to that conversation.

 In the discussion that follows, petitioner's second and third contentions will not be addressed since this Court finds, with respect to his first contention, that the fundamental constitutional requirements of a trial before an impartial jury and of due process of law were denied to petitioner based upon the undisputed fact that a juror filed an application for a job in the prosecutor's office after being selected to serve on the trial jury in this case, which application was still pending at the time the jury rendered its verdict. The Court notes that the prosecuting attorneys became aware of this information during the trial but did not reveal it to either the defendant or the trial court until after a verdict was rendered. The Court notes further that this issue might well have been avoided if the prosecuting attorneys had timely informed the trial judge of this matter since alternate jurors were available to replace this juror/job applicant before deliberations began.

 FACTS *fn1"

 On March 29, 1972, petitioner was indicted on charges of murder and attempted murder. Thereafter on June 28, 1972, the first trial of petitioner on these charges was commenced in State Supreme Court, New York County. However, on August 9, 1972, the jury informed the court that it was unable to reach a verdict, and a mistrial was declared. Petitioner's second trial before a jury was commenced on September 16, 1974, before Justice Harold Birns. On November 21, 1974, the jury returned a verdict convicting petitioner of two counts of murder and one count of attempted murder. Both trials were prosecuted by the New York County District Attorney's Office.

 During the course of the second jury trial, one of the jurors, John Dana Smith, was informed by one Rudy Fontaine of possible employment opportunities in the Major Felony Program of the New York County District Attorney's Office. At that time, Fontaine was a uniformed court officer of the same state court in which petitioner was on trial, but was not involved in the ongoing proceedings against the petitioner. Fontaine knew that Smith had an interest in law enforcement; he also knew that Smith was a juror in the Phillips trial. During the jury selection process Smith had revealed that he was interested in law enforcement and had applied for a position with the federal Drug Enforcement Administration.

 With Smith's consent, Fontaine began to inquire about employment opportunities with the New York County District Attorney's Office on Smith's behalf, as well as his own. He spoke to Michael Mulderrig, an investigator in the District Attorney's Office whom he knew, about applying for a position. Fontaine was told that he should apply for a position by submitting a letter and a resume to the District Attorney's Office by hand or by mail. The record of this matter, including the post-trial hearings held by Justice Birns at which the testimony of these persons was taken, is inconclusive as to whether Fontaine mentioned to Mulderrig either Smith's name or the fact that Smith was a juror in a pending criminal action.

 Fontaine also spoke to a jury warden for the New York State Supreme Court, one Mario Piazza, to inquire if he knew where an employment application should be submitted. Piazza in turn spoke to an assistant district attorney, one John Lang, and was told that employment applications should be sent to the District Attorney's Office. Piazza did not know the names of the prospective applicants at that time and did not, therefore, mention Smith's name. However, he later met Smith, while petitioner's trial was underway, at a lunch with Fontaine.

 On or about October 22, 1974, Smith drafted a letter and resume pursuant to Fontaine's instructions. *fn2" He gave these to Fontaine in an unstamped envelope for delivery to the District Attorney's Office. Smith stated at the post-trial hearings before Justice Birns that he assumed that Fontaine had a personal contact in the District Attorney's Office and that Fontaine would personally hand-deliver the envelope to that person when Fontaine submitted his own application. (Hearing Transcript at pp. 71-72). He further stated that he did not expect that Fontaine would influence the evaluation of his application through any of Fontaine's contacts within the District Attorney's Office. He did later, however, seek the help of a former job supervisor, Wallace Reilly, infra, whose acquaintance with members of the District Attorney's Office, Smith hoped, would be beneficial. (Hearing Transcript at p. 73).

 Fontaine thereafter personally delivered his own application to the District Attorney's Office. However, when he offered the envelope containing Smith's application, he was told that it should be addressed and mailed to Richard Kuh, the District Attorney. Fontaine subsequently stamped and mailed the envelope as directed. *fn3"

 Several days later, Fontaine met with Smith and Piazza for lunch, at which time Piazza informed Fontaine about Smith's application having been submitted. That afternoon or the next day, Piazza called Fontaine and told him that an Assistant District Attorney by the name of Sudolnik was responsible for reviewing applications for employment in the Major Felony Program for which Smith had submitted an application and that Smith should call her. Fontaine apparently relayed this information to Smith. It appears that, at the time of his last telephone conversation with Fontaine, Piazza was not aware that Smith was a juror in an ongoing criminal proceeding in state court.

 In late October or early November, 1974, after Smith's employment application had been submitted, Assistant District Attorney Holmes was approached by Fontaine and informed that a person serving as a juror in the Phillips case had applied for a position with the District Attorney's Office. He may also have been asked if he would do something about the application, to which request, Holmes contended at the post-trial hearings, he initially indicated that he would check and see if an application had been filed. However, Holmes further contended, when he realized that the applicant was a juror, he became alarmed and told Fontaine that he would not contact Smith and that the application would not be processed. Fontaine contends that Holmes stated that he did not think that it was improper for a juror to apply for a position with the District Attorney's Office. Regardless of what was actually stated, it is clear from the record that Fontaine informally inquired about Smith's application. This event apparently took place both without Smith's actual knowledge and before the verdict was rendered in the state criminal proceeding.

 Fontaine was not the only person to discuss the position for which Smith had applied with members of the District Attorney's Office. Piazza, the jury warden, spoke on separate occasions with Assistant District Attorneys Lang and Holmes concerning the position. On one occasion, he asked Lang whether the position had been filled. Smith's name apparently was not mentioned. In two conversations with Holmes, he also inquired about the position. At the post-trial hearings before Justice Birns, Piazza testified that he did not mention Smith's name. Holmes testified, however, that Piazza mentioned Smith's name and asked him to see if Smith had applied for employment. Holmes replied that Smith was on the ...


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