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Sher v. Stoughton

decided: December 14, 1981.

WALTER SHER, PETITIONER-APPELLEE,
v.
DONALD STOUGHTON, COMMISSIONER OF CORRECTIONS, ONONDAGA COUNTY CORRECTIONAL FACILITY, JAMESVILLE, NEW YORK; BENJAMIN WARD, NEW YORK STATE COMMISSIONER OF CORRECTIONS, RESPONDENTS-APPELLANTS



Appeal from order of the United States District Court for the Northern District of New York, Howard G. Munson, Chief Judge, granting appellee's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Reversed.

Before Feinberg, Chief Judge, and Mansfield and Newman, Circuit Judges.

Author: Feinberg

Respondents Donald Stoughton, Commissioner of Corrections, Onondaga County Correctional Facility, and Benjamin Ward, New York State Commissioner of Corrections (collectively referred to as "the State") appeal from an order of the United States District Court for the Northern District of New York, Howard G. Munson, Chief Judge, granting Walter Sher's petition for a writ of habeas corpus and ordering Sher's release from custody unless the State retries Sher within 60 days. The basis for the court's ruling was that anonymous telephone communications with several jurors during the course of Sher's trial violated his constitutional right to a fair trial. For the reasons stated below, we reverse the judgment of the district court.

I

Sher was convicted in New York State Supreme Court in 1963 of, among other crimes, two counts of first degree murder. He was sentenced to death on each count, but his sentence was commuted to life imprisonment by then Governor Rockefeller and later by statute, N.Y.Exec.Law § 259-h, to an indeterminate term of imprisonment of not less than 20 years nor more than life. Sher appealed his conviction directly to the New York Court of Appeals, a procedure authorized in capital cases by Article 6, § 3(a) of the New York Constitution and former New York Code of Criminal Procedure § 517(1), which also empowered that court to review questions of fact as well as of law in such cases. One of Sher's arguments in that court was that he had been deprived of a fair trial because of "gravely prejudicial" communications to jurors from an unknown third party during his trial. The Court of Appeals affirmed his conviction by a four to three vote. People v. Sher, 24 N.Y.2d 454, 301 N.Y.S.2d 46, 248 N.E.2d 887 (1969). Sher's petition for a writ of certiorari was denied. Sher v. New York, 396 U.S. 837, 90 S. Ct. 96, 24 L. Ed. 2d 87 (1969).

In 1970, proceeding pro se, Sher sought a writ of habeas corpus in the United States District Court for the Eastern District of New York, citing the anonymous telephone calls among his reasons for the writ. That petition was dismissed on the merits by Judge Travia. U. S. ex rel. Sher v. LaVallee, 70-C-124 (June 25, 1970). Applications to the district court and to this court for a certificate of probable cause were denied as was Sher's second petition for a writ of certiorari. Sher v. LaVallee, 404 U.S. 834, 92 S. Ct. 118, 30 L. Ed. 2d 65 (1970).

In 1977, this time represented by counsel, Sher petitioned the United States District Court for the Northern District of New York for a writ of habeas corpus, raising the identical issue presented to the New York Court of Appeals and in his earlier petition to the Eastern District. The petition was referred to Magistrate John P. McLane, who in 1978 recommended that it be denied. In October 1980, the district court refused to accept the magistrate's recommendation and granted Sher's petition. After the State appealed, we remanded the case in March 1981 for reconsideration in light of Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1980), decided after the district court had granted the petition, and for a written explanation as required by Mata of the district court's disagreement with the state court's presumptively correct findings of fact. 657 F.2d 264. Following remand, the district court discussed the effect of Mata on this case but once more granted Sher's petition. 516 F. Supp. 534. The State again appeals.

II

Sher's conviction for murder arose out of an attempted robbery of a jewelry store in 1962 during which one of the owners of the store was killed by a shot fired by Sher. Before trial began, a New York County Court found Sher not sufficiently capable of understanding the charges pending against him to make a defense and to confer intelligently with counsel. Sher was committed to Matteawan State Hospital. In the meantime, Sher's co-defendant, Dominic Carbonaro, was tried and found guilty of murder. Sher was released in 1963, and thereafter was tried before a jury. His principal defense was insanity.

At trial, the State introduced "overwhelming" evidence of Sher's guilt. People v. Sher, 24 N.Y.2d at 457, 301 N.Y.S.2d 46, 248 N.E.2d 887. Sher was identified both in lineups and in court by several eyewitnesses who had been present at the scene of the crime and at the getaway. A palmprint was taken from the steering wheel of the getaway car and identified as Sher's. Sher made two detailed confessions of the crime, one written and signed by Sher and the other oral. Sher admitted in his brief before the New York Court of Appeals that "(t)here is no question but that Walter Sher and Dominic Carbonaro were both involved in the perpetration of acts which, assuming a proper and fair trial and a finding of sanity, would justify a conviction." People v. Sher, id.

The crux of this appeal grows out of an incident that occurred after the State had rested its case and before Sher presented his defense, when trial was in recess for two days. The night before trial was to resume, an unidentified female called six jurors on the telephone at their residences and was successful in speaking with five of them. When the jurors returned to court the next morning, the trial judge was informed of the telephone calls and that the jurors had discussed the calls among themselves. Immediately thereafter and before the trial resumed, the trial judge called each juror and each alternate juror into chambers individually and, in the presence of the defendant, his counsel and the prosecutor, conducted an inquiry into the nature of the communication. Each juror was asked whether he had received a call and what he was told. Jurors who had not received calls were asked if they had discussed the calls with the other jurors. Several of the jurors said that they had discussed the calls among themselves, and other jurors admitted overhearing those discussions. The jurors who received the calls said they were told that Sher was guilty, that his defense counsel should be disregarded, that the juror should urge the other jurors to vote for the "electric chair" and that the defendant's insanity defense should be disregarded. One juror, William Nachbar, was also told that the defendant had a prior record, that he was a "vicious killer" and that his co-defendant had been sentenced to death.

Following his thorough inquiry into the nature of the communication, in which counsel was given the opportunity to ask questions but did not do so, the trial judge carefully instructed each juror "that any effort to tamper with a juror is not only illegal but it is improper and is no part of the evidence in the case." The trial judge then meticulously inquired of each juror whether he could "put (the call) out of (his) mind as though it had never occurred?" Each juror answered that he could. The trial judge went on to ask "Do I have your assurance that it will be no part of your consideration, that no inferences will be drawn therefrom?" Each juror assured the court that he could remain impartial and that he would decide the case only on the evidence presented at trial. Juror Nachbar also assured the court that the call had "strengthened (his) resolve to be completely impartial and to be governed by the evidence alone."

Following the inquiry, the prosecutor stated that he would have no objection if juror Nachbar were replaced. Defense counsel then moved for the withdrawal of a juror and for a mistrial, stating that he did not know "of any procedure whereby one juror under these circumstances can be challenged and an alternate take his place." Defense counsel declined the opportunity to consider the question further, and his motion for a ...


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