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June 9, 1981;

Walter SHER, Petitioner,
Donald STOUGHTON, Commissioner of Corrections, Onondaga County Correctional Facility, Jamesville, New York; Benjamin Ward, New York State Commissioner of Corrections, Respondents

The opinion of the court was delivered by: MUNSON


On October 31, 1980, this Court granted the petitioner's application for a writ of habeas corpus, finding that the petitioner had been denied his right to a fair and impartial trial by jury and his right to confront all evidence against him, as guaranteed by the Sixth and Fourteenth Amendments. On March 5, 1981, the Second Circuit, 657 F.2d 264, vacated this Court's decision in light of the strictures imposed by Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981) upon federal judicial review of state court findings of fact.

On remand, the Court shall take this opportunity not only to consider the Supreme Court's decision in Mata, but also to elaborate further the legal questions posed by the instant application. For the reasons set forth below, the Court again concludes that the petitioner's application should be granted.


 As developed at trial, on April 5, 1962, Walter Sher, who was 23 years old, and Dominick Carbonaro entered Hansen's Jeweler's, in Manhasset, New York, with loaded guns. While Carbonaro stayed in the front of the store, Sher walked toward a back room, displayed a .38 caliber revolver, and said "This is a stickup." Sher ordered one of the proprietors, Edward Hansen, and two employees in the back room to lie down. At this time, Donald Hansen, the other proprietor and brother of Edward, left the area in the front of the store and moved toward Sher. Despite Sher's "screaming" that Donald Hansen should stay back, Donald Hansen and an employee seized Sher and struggled with him on the floor. In the meantime, Edward Hansen ran to the front of the store and grappled with Carbonaro. Two shots went off from Sher's gun, one of which fatally injured Donald Hansen. Carbonaro, in turn, shot and wounded Edward Hansen and the employee, who, with Donald Hansen, tried to overtake Sher.. Both Carbonaro and Sher then fled from the scene in an automobile, and two days later were arrested in a New York City apartment.

 Sher and Carbonaro were indicted for felony murder, First Degree Murder, and other crimes on April 13, 1962. Both defendants pled not guilty. After a hearing before the County Court, Nassau County, Sher was found to be incapable of understanding the charges against him and of assisting in his defense, and thus unable to stand trial. As evidenced by later testimony, it appears that both Sher and members of his family have histories of psychotic behavior. Sher was committed to Matteawan State Hospital for the criminally insane. Meanwhile, Carbonaro was tried separately, and subsequently convicted of felony murder and other offenses. He was sentenced to death on October 4, 1963.

 On July 23, 1963, Sher was ordered returned from Matteawan. His trial by jury began on October 8, 1963, before Justice Edwin R. Lynde, of the Supreme Court, Nassau County. Sher's principal defense was insanity. At the completion of the prosecutor's case in chief, however, and during the evening of October 24, 1963, a total of six jurors received telephone calls at their residences from an unidentified woman who stated inter alia, that Sher was a vicious killer and should be sentenced to die, and that the jury should disregard evidence produced to establish Sher's insanity. Two of these jurors did not speak directly with the woman. In this regard, one juror who spoke with the woman telephoned another juror who had not received any call, and informed him of the substance of the conversation. The next morning, on October 25, 1963, the jurors returned to court, and, with the exception of one alternate juror, all of the jurors and alternates, discussed or heard discussed the substance of the telephone calls. The jurors had been instructed not to discuss the trial among themselves. The clerk of the court was also informed of the conversations. When the trial judge learned of the events of the previous evening, he called the jurors and alternate jurors individually into his chambers, and questioned each of them. The respective counsel and the defendant were present, but did not participate in the questioning. The record reveals the following specific information about these in chambers proceedings and about the telephone calls. See Rec. at 538-62.

 The four jurors who spoke directly with the woman reported similar types of communications. Mr. Gordon Kinsey, one of the jurors, stated that an unidentified woman had urged him to disregard the arguments of Sher's attorney and find Sher guilty. Rec. at 539. Mr. Edward Yasko, another juror, stated that a woman had told him to encourage other jurors "to vote for the electric chair" and to ignore any testimony concerning insanity. Rec. at 540. This juror also revealed that he had discussed this conversation with another juror, Mr. Robert Kirschenheiter, the preceding evening, and with other jurors that morning. Rec. at 541. He was not asked what he had told the other jurors. The third juror, Mr. Charles Guest, reported that the woman had said that Sher must be found guilty. Rec. at 545. Mr. Guest also informed the trial judge that he had "compared" the subject matter of his telephone call with the communications received by other jurors. Rec. at 546. The fourth juror, Mr. William Nachbar, noting that the unidentified woman seemed to be reading, told the judge that the woman referred to Sher as a "vicious killer with a past record" who should be "sent to the chair," and stated to him that Sher's co-felon had been sentenced to death. Rec. at 549. Mr. Nachbar was not asked whether he had discussed his telephone conversation with other jurors.

 Two other jurors also received telephone calls, but neither individual spoke directly with the woman. One of these jurors, Mr. Ernest Smoker, stated that he did not discuss the matter with other jurors. Rec. at 543. No inquiry was made of him as to whether his wife, who had answered the telephone, had reported to him what, if anything, the woman had said. The other juror, Mr. William Frye, overheard discussions that morning of the substance of one of the conversations. Specifically, Mr. Frye learned that another juror had been told that Sher was a "vicious character" and that the jury should ignore his plea of insanity. Rec. at 547.

 The examinations of the jurors who had received no telephone calls supply additional information. Three jurors, who apparently had learned information regarding Mr. Nachbar's call, said that they understood that an anonymous woman telephone caller had referred to Sher as a "vicious killer." Rec. at 544 (Joseph Rollo); Rec. at 554 (Charles Shaw); Rec. at 555 (George Lee). One of these jurors reported also that he had heard that the woman had told a juror to try to influence other jurors. Rec. at 554 (Charles Shaw). A fourth juror, Mr. Robert Kirschenheiter, said that he had spoken the previous evening with a juror who had received a telephone call, and that he had been told that the woman had urged the juror essentially to ignore Sher's defense and to encourage other jurors "to vote for the electric chair." Rec. at 551. Mr. Kirschenheiter also revealed to the trial judge that he had heard other jurors discuss the telephone calls that morning. A fifth juror, Mr. Robert McDougald, also stated that he had understood that a woman had told jurors to "vote for the death penalty." Rec. at 557. Two other jurors, Mr. James Krut and Mr. Gerard Cattone, believed that the woman had requested jurors to bring in verdicts of guilty. Rec. at 552; Rec. at 558. Mr. Krut and two additional jurors said that they thought the woman had told jurors to ignore the defense of insanity. Rec. at 552 (Krut); Rec. at 555 (George Lee); Rec. at 556 (Floyd Gianbalvo). Only one alternate juror, Mr. Thomas Seaman, stated that he had heard no discussions about the telephone calls. Rec. at 559.

 After each juror related to the trial judge whether and what he had learned either directly or indirectly about the woman's conversations, the judge admonished them individually that the conversations were not evidence in the case, and that Sher was to be judged only upon the basis of evidence adduced at trial. Each juror gave assurances that he would disregard information gleaned from the telephone calls or from discussions concerning the telephone calls.

 Following the series of questioning, the district attorney stated that all the jurors appeared to share the same information, except Mr. Nachbar, "who apparently received the further message to the effect that Carbonaro was sentenced to the electric chair." Rec. at 560. For this reason, the district attorney stated that "if counsel for the defendant wished to specifically challenge this juror, I would not interpose any objection as to that particular juror." Rec. at 560. As to the other jurors, however, the district attorney asserted that these individuals would, as they stated, disregard the telephone calls, and that they would probably hear information in the trial that was the subject matter of the telephone calls, such as psychiatric evidence. Rec. at 560. In response to these comments, the defense attorney argued that he knew of no procedure to challenge a juror individually during the trial, and that the only ground for replacing a juror with an alternate juror is in the event of illness or some other inability to serve. Rec. at 561. Thus, the defense attorney made a motion, on two occasions, "for the withdrawal of a juror and the declaration of a mistrial." Rec. at 560, 561. The trial judge denied this motion without explanation.

 The jury found Sher guilty of felony murder and other offenses on November 21, 1963, thus rejecting Sher's defense of insanity. In a separate proceeding, the jury recommended on November 23, 1963, that Sher be sentenced to die for the murder of Donald Hansen. Consistent with the jury's recommendation, the trial judge issued a Death Warrant on December 13, 1963, ordering that Sher be executed during the week of January 27, 1964.

 On direct appeal to the New York Court of Appeals, Sher challenged his conviction on several grounds, one of which concerned the trial judge's denial of his motion for a mistrial. In a 4-3 per curiam decision, the New York Court of Appeals affirmed Sher's conviction on April 17, 1969. People v. Sher, 24 N.Y.2d 454, 248 N.E.2d 887, 301 N.Y.S.2d 46 (1969). The Court's discussion regarding this question was brief:

The (trial) incident resulted in no palpable prejudice to the defendant since each of the jurors during the trial was questioned whether he could sit impartially and confine his verdict to the record evidence, and each answered in the affirmative, despite the telephone calls to Nachbar and others of the jury. This was after each related his own telephone conversations with the anonymous caller and with his fellow jurors. This cures the possible harm under the accepted (state) precedents because the questioning of the jurors and the admonition to them serve a real purpose in drawing their attention to the unfairness of their considering anything but the record of evidence.

 Id. at 457, 248 N.E.2d at 888, 301 N.Y.S.2d at 47-48. In this regard, the Court went on to characterize Mr. Nachbar as a juror "to whom the only really seriously unfavorable communications were made," noting that Mr. Nachbar had told the trial judge that he could serve impartially:

If I may say so, Judge, this incident has done only one thing to me: It has strengthened my resolve to be completely impartial and to be governed by the evidence alone. There was no evidence given me at all yesterday, nothing whatsoever, that could be called evidence. It was just somebody's urging to do certain things.

 Id. at 457-58, 248 N.E.2d at 888, 301 N.Y.S.2d at 48.

 Thereafter, Sher was ordered to be executed during the week of June 2, 1969. On May 9, 1969, however, New York Governor Nelson Rockefeller granted an executive clemency, changing Sher's sentence to life imprisonment. By statute, N.Y.Exec.Law § 259-h, Sher's sentence was modified in 1977 to an indeterminate sentence of imprisonment for a period of not less than twenty years, and not to exceed life.

 From the decision of the New York Court of Appeals, Sher sought review in the Supreme Court, arguing that the trial judge's failure to declare a mistrial denied his right to an impartial jury and his right to confront and cross-examine, as secured by the Sixth and Fourteenth Amendments. On October 13, 1969, the Supreme Court denied certiorari. Sher v. New York, 396 U.S. 837, 90 S. Ct. 96, 24 L. Ed. 2d 87 (1969).

 On January 26, 1970, Sher filed a pro se habeas corpus petition in the United States District Court for the Eastern District of New York before the Hon. Anthony J. Travia. In his petition Sher again argued that the trial judge's failure to grant his motion for a mistrial denied him rights under the Sixth and Fourteenth Amendments. Without conducting a hearing, Judge Travia on June 25, 1970, denied Sher's application for a writ of habeas corpus. United States ex rel. Sher v. LaVallee, 70-C-124 (E.D.N.Y. June 25, 1970) (Travia, J.). The judge rested his decision on essentially three grounds. First, he concluded that the individual inquiries made by the trial judge immediately upon learning of the incident and during the trial, the corrective instructions given by the judge, and the assurances of the jurors eliminated the possibility of substantial prejudice. Second, the judge noted, without explanation, that much of the substance of the telephone calls was similar to information and arguments disclosed at trial. Finally, the judge found that Mr. Nachbar was the only juror to whom the woman had revealed information inadmissible at trial. Because, however, the defendant's attorney did not seek the removal of Mr. Nachbar, Sher could not now rest a federal post-conviction challenge upon the trial judge's failure to declare a mistrial.

 On July 27, 1970, Judge Travia denied a certificate of probable cause to appeal from his denial of a writ of habeas corpus, for the reasons set forth in his earlier decision. The Second Circuit denied a certificate of probable cause on January 12, 1971, and the Supreme Court denied certiorari on October 12, 1977. Sher v. LaVallee, 404 U.S. 834, 92 S. Ct. 118, 30 L. Ed. 2d 65 (1971).

 Sher then filed the instant habeas corpus petition before this Court on September 19, 1977, arguing once more that the trial judge's denial of his motion for a mistrial violated his rights under the Sixth and Fourteenth Amendments. The Court referred the matter to Magistrate John P. McLane on October 4, 1977, and the Magistrate issued his Report and Recommendation on March 31, 1978. In his Report, the Magistrate effectively concluded that the second petition should be dismissed because the matter had been fully presented to Judge Travia, and because the passage of time since Sher's conviction would unduly prejudice the State's case. On the merits, the Magistrate expressed his agreement with the actions of the New York Court of Appeals and of Judge Travia, noting implicitly that the trial judge had correctly denied the defendant's joint motion for the withdrawal of a juror, whom the Magistrate believed to be Mr. Nachbar, and for a mistrial.

 The Court, however, did not share the position of the able Magistrate, finding, as a matter of record fact in the October 1, 1980 order that "when defense counsel moved for the withdrawal of a juror, he was not ... referring to Mr. Nachbar, but was merely requesting the Court to have a juror any juror step down." Then, the Court went on to rule, as a matter of law, that once one juror, any juror, would have stepped out of the jury box, a mistrial would necessarily have been declared because there would have been only eleven jurors in the jury box. In this regard, with the exception of only one alternate juror, all the remaining jurors and alternate jurors had heard conversations concerning the telephone calls. Thus, no matter how one sliced the cake, a jury of twelve impartial jurors would not have ...

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