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Rivera v. Harris

decided: February 18, 1981.


Appeal from a judgment of the District Court for the Southern District of New York (Henry F. Werker, Judge), dismissing a state prisoner's habeas corpus challenge to his conviction, which had alleged denial of due process due to inconsistent bench trial verdicts. Reversed and remanded.

Before Oakes and Newman, Circuit Judges, and Coffrin,*fn* District judge.

Author: Newman

This appeal from an unsuccessful habeas corpus challenge to a state court conviction raises interesting issues concerning the constitutionality of inconsistent verdicts rendered by a judge in a multi-defendant criminal trial without a reasoned explanation of the basis for the disparate results. Petitioner-appellant Jose Rivera and two co-defendants, Cynthia Humdy and Earl Robinson, were tried on charges of robbery and related offenses by a Justice of the Supreme Court of the State of New York sitting without a jury. The Court rendered general verdicts acquitting Robinson on all charges but convicting petitioner and Humdy. Petitioner contends that his conviction offends the Constitution because it cannot rationally be reconciled with Robinson's acquittal. We agree with petitioner that the trial court, in acquitting his co-defendant, appears to have rejected the only evidence that would sustain petitioner's conviction. However, we cannot be certain that this happened and therefore do not reach the question whether the Constitution would prohibit a trial court from rendering verdicts that are inconsistent as between co-defendants. We do conclude, however, that when verdicts in a non-jury trial are facially inconsistent, the Due Process Clause of the Fourteenth Amendment does not permit a conviction to stand unless the trial court demonstrates by appropriate findings that the conviction validly rests on a rational basis.


Petitioner and his two co-defendants were indicted for robbery in the first degree, robbery in the second degree, possession of a dangerous weapon, grand larceny in the third degree, and burglary in the second degree. All the charges were based on an episode alleged to have occurred at the apartment of Milagros Torres on March 26, 1973. The defendants pled not guilty to all charges, waived their rights to a jury trial, and proceeded to trial before a Justice of the Supreme Court.

The prosecution and defense evidence revealed a sharp dispute as to whether any of the alleged crimes had been committed. The State offered evidence to show that the three defendants, acting in concert and armed with a dangerous weapon, forcibly entered Ms. Torres' apartment and robbed her of $540. The defendants offered evidence to show that Torres was not the innocent victim of a robbery committed by three strangers, but that she was in the numbers business and that petitioner, along with the co-defendants, had been admitted to her apartment where petitioner collected his $540 winnings on a numbers bet. In order to consider petitioner's claim that his conviction cannot rationally be reconciled with Robinson's acquittal, the evidence must be examined in some detail.

The only witness for the State who testified concerning the means by which the defendants gained entry to the complainant's apartment and their actions inside the apartment was the complainant herself, Ms. Torres. She testified that on the morning of the day in question she heard noises in the hallway outside her apartment. Looking through the peephole in the door, she saw a woman, identified as defendant Humdy, dressed like a nurse. She asked the woman who she was, and the woman held up a yellow slip of paper and announced that she was investigating a matter concerning a vaccination. Torres opened the door to the extent that the chain lock would permit in order to take the slip of paper. As soon as the door was opened, a man, identified as petitioner Rivera, placed his foot in the opening, brandished a handgun, and told her to open the door. She screamed and tried to close the door but another man, identified as defendant Robinson, forced the door open, breaking the safety chain. Petitioner and Robinson then dragged her to the bedroom, where Robinson handcuffed her and placed tape over her mouth and eyes. Shortly thereafter, she heard a "commotion" in the apartment. Petitioner then removed the handcuffs and tape and warned her "not to accuse them" when the police came into the apartment. At that point, the police entered and, despite the warning, she told them what she claimed had occurred.

Torres' neighbor, Robert Parilla, also testified for the State. He stated that on the morning of the day in question he heard a woman scream. He went to the door of his apartment and attempted to look through the peephole into the hallway, but something had been placed over the opening on the other side of his door. He then peered under his door and saw two pairs of men's shoes. Suspecting that something was wrong, he telephoned the police. The police arrived, and he informed them of what he had heard. The officers knocked on Torres' door, identified themselves, and asked if everything was all right. A woman who sounded like Torres replied from inside the apartment that she was taking a shower. While the officers and Parilla were standing at Torres' door, Torres' friend, Erminda Gonzales, arrived at the apartment and informed the officers that her friend lived inside. One of the officers knocked again and ordered that the door be opened so that he could verify that everything was all right. The woman inside the apartment replied that she could not open the door because she was undressed. When Gonzales heard the woman's reply, Gonzales screamed, "You're not Milagros. You're a mugger." The woman inside the apartment replied that she was Torres' friend. The officers repeated their order to open the door. At that point Parilla returned to his apartment. As he entered, he saw through his window a woman in a nurse's uniform (Humdy) on the fire escape adjoining the two apartments. One of the officers apprehended Humdy and escorted her to the hallway. The door to Torres's apartment then opened, and petitioner and Robinson emerged. As the three intruders were being led away, Parilla overheard one of the men warn Torres not to talk to the officers.

Gonzales and two of the arresting officers provided additional details. All testified that when they first observed Torres inside the apartment, she appeared upset and frightened. Clothing was on the floor, and some furniture had been overturned. The officers did not search the apartment, but they did observe a large amount of cash and several pieces of expensive jewelry in the bathtub, a fully loaded and operable automatic pistol on the living room floor, and two pairs of handcuffs and a key in the bedroom. One of the officers testified that he found $540 in a large roll in Humdy's pocket, which Torres subsequently identified as cash that she had been keeping in her apartment.

The defendants' version of the events was presented by Robinson, the only defense witness. He testified that on the morning of the day in question petitioner visited him at his apartment. Petitioner told him that he was driving downtown to take Humdy, petitioner's wife, to beautician school. Robinson requested a ride to work, and petitioner agreed, but said that he had to make a stop to collect his winnings on a numbers bet. When the three arrived at Torres' apartment, Torres answered the door and asked petitioner what he wanted. Petitioner told her that he had "a hit for Saturday," and Torres told him to come in so that she could "check the work." Torres invited Robinson and Humdy to sit in the living room and went into the kitchen with petitioner. Robinson overheard Torres and petitioner arguing loudly about whether petitioner had a "hit." During the argument there was a knock at the door. Torres asked who was there, and a voice answered, "Police. What's going on in there?" Torres replied, "Nothing," and then ran to the kitchen, grabbed some cash and numbers slips, and ran to the bathroom. Robinson heard the toilet flushing as the police knocked again at the door. Torres went to the door and told the police that she would open it as soon as she was dressed. She then ran again from the kitchen to the bathroom, where she flushed more numbers slips down the toilet.

After hiding her electric calculator under the bed, Torres ordered Robinson, petitioner, and Humdy to climb out the window to the fire escape. Humdy did so, but Robinson and petitioner refused. Robinson then announced that he was going to open the door and did so. The officers ordered Robinson and petitioner into the hallway, where Humdy already had been taken into custody. Torres told the officers that it was "just an argument among friends," and the officers told the three to leave. As they started to leave, Gonzales emerged from Parilla's apartment and spoke to Torres in Spanish. One of the officers then accompanied Torres and Gonzales into Torres' apartment. Moments later, the officer emerged and ordered the three placed under arrest. Petitioner implored "Millie" (Torres) to tell the officer the truth, but she remained silent. After the three were taken from the building, petitioner and Robinson explained to the officers that Torres was operating a policy parlor and that petitioner had come to the apartment to collect his winnings on a bet.

In their closing arguments all counsel agreed that the outcome of all three cases depended on whether the Court believed Torres or Robinson. The Assistant District Attorney argued that Robinson had told "a story which is merely the evasion of a man that committed a crime, who is trying to avoid the consequences of that act." Counsel for the defendants argued that Torres' version of the incident was cast in doubt by discrepancies in the record. They noted that although the indictment charged the defendants with robbery and related offenses, the original complaint, signed by Torres, had alleged only the far less serious offense of menacing. Torres had testified before the grand jury that she saw petitioner hide the handgun in a living room chair, and it was undisputed that he had ample time after the police arrived to hide any incriminating evidence, yet one of the officers had testified that he discovered the handgun lying in plain view on the living room floor. The officers had testified that they recovered a large amount of cash and jewelry from the bathtub, which they took to the stationhouse and then returned to Torres, yet the only property the officers "vouchered" at the stationhouse was the $540 found in Humdy's pocket. Defense counsel argued that Torres' version was cast in further doubt by the absence of corroborating evidence. Torres had testified that the defendants gained entry to her apartment by breaking the chain lock on the door, yet none of the State's other witnesses recalled any sign of forcible entry. Moreover, although Torres had testified that Robinson placed tape over her mouth and eyes, no tape was found in or around the apartment or in the possession of the defendants.

Finally, defense counsel focused on two points that directly supported Robinson's claim that Torres was in the numbers business. The first point concerned Torres' personal finances. Torres had testified that at the time of the incident she was working as a night supervisor at a laundry, that this was her sole source of income, and that she was earning between $75 and $95 per week, yet she also had testified that she vacationed for three weeks each year in such places as Puerto Rico, South America, and Europe, that she owned a new car, and that she had installed a wall safe in her apartment to protect her valuables. The second point, judicially noticed by the trial court, was that the $540 found in Humdy's pocket equals the winnings on a $1 numbers bet, $600, discounted by the customary 10% runner's fee. Defense counsel argued that this extraordinary coincidence was sufficient to create a reasonable doubt about the defendants' guilt.

The trial judge entered only general findings on each of the charges. All three defendants were found not guilty of robbery in the first degree and not guilty of possession of a dangerous weapon. The trial judge found petitioner and Humdy guilty of robbery in the second degree and grand larceny in the third degree,*fn1 but acquitted Robinson on these counts, stating only that he had a reasonable doubt as to Robinson's guilt. Finally, the trial judge found all three not guilty of ...

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