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CARRION v. SCULLY

July 13, 1981

William CARRION, Petitioner,
v.
Charles SCULLY, Warden, Respondent



The opinion of the court was delivered by: WEINFELD

Petitioner, now serving a prison sentence of from 3 to 6 years following his conviction for burglary in the second degree by a jury verdict in Nassau County, New York, petitions for his release by a federal writ of habeas corpus based upon alleged violation of his federal constitutional rights. Upon appeal to the Appellate Division, Second Judicial Department, his conviction was unanimously affirmed. *fn1" Thereafter leave to appeal was denied. *fn2"

Petitioner alleges that his conviction was obtained (1) in violation of his privilege against self-incrimination and due process rights based on "impeachment of (his) defense with his post-arrest silence" and (2) due to "the unconstitutional failure of the prosecution to disclose to the defendant," an apparent reference to Brady *fn3" material.

 As to his first claim the "impeachment of (his) defense with his post-arrest silence" petitioner acknowledged that upon his arrest a police officer advised him of his Miranda rights. During his appearance before the Grand Jury, referred to hereafter, he testified that he responded to the Miranda warning, "I don't have to make any type of statement until my attorney was present. So I did not talk." *fn4"

 Following his arrest, upon advice of counsel, petitioner voluntarily appeared before the Grand Jury and testified under a waiver of immunity. He thereby effectively waived his right against self-incrimination before that body. *fn5" The Grand Jury was investigating the alleged crime here at issue and in due course an indictment was returned against petitioner.

 Upon the trial, petitioner did not testify in his defense. One of the witnesses he called, however, testified that he had been fishing with petitioner early in the day of the burglary (which occurred in the evening), and on that occasion petitioner had cut his arm or hand. Petitioner, in his testimony before the Grand Jury, had given an entirely different version of the events leading to this cut, namely, that it had been sustained when he accidentally broke a window at the burglarized premises while there on an innocent mission, looking for a lost child. The state, in rebuttal, to impeach petitioner's witness and also as an admission by the defendant, proposed to introduce into evidence petitioners' Grand Jury testimony on the origins of the cut. *fn6" In light of this proposal, petitioner's counsel sought to introduce a redacted version of petitioner's entire grand jury testimony. After extensive consultation among petitioner's attorney, the prosecution, and the Court, portions of the grand jury testimony were redacted, including references to defendant's prior criminal record. *fn7" This redacted testimony was then read to the trial jury.

 Part of the testimony read to the jury focuses on petitioner's failure to apprise others of the reason for his presence in the allegedly burglarized house until some time after his arrest. In particular, the following interchange took place:

 
Q: And when did you ever let any police or anybody else, except your attorney, know that you were in that house looking for the little kid?
 
A: I didn't.
 
Q: Will you tell the jury why you never told anybody?
 
A: About what?
 
Q: That you were in the house looking for the kid.
 
A: Because I thought the matter was already taken care of because the kid came home. We found him. He was at a friend's house. Everything was okay, and I did not go into the house to rob anything or take anything. I went into the house because I was concerned for the kid. *fn8"

 Petitioner claims that this line of questioning stressed his failure to tell his exculpatory story to the police after his arrest in violation of his privilege against self-incrimination as established in Doyle v. Ohio. *fn9"

 In Doyle, each defendant presented testimony at trial of an alleged "frame-up" that tended to exonerate him. On cross-examination, in an effort to impeach these stories, the prosecutor subjected each defendant to a relentless, wide-ranging set of questions concerning his failure to reveal the exculpatory story to arresting officers. The defendants were convicted. In reversing these convictions, the Doyle court held that the due process clause forbids the prosecution to use a defendant's ...


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