Appeal from a judgment of the United States District Court for the Southern District of New York, Stewart, J., denying appellant's petition for a writ of habeas corpus. Affirmed.
Before Lumbard, Mansfield and Van Graafeiland, Circuit Judges.
On December 9, 1969, Kenneth Wedra was convicted of second degree murder in Westchester County Court. After completing his appeals, which included a petition to the Supreme Court for certiorari, Wedra filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. In his petition, Wedra alleged that the prosecution knowingly permitted an informer to commit perjury concerning a cooperation agreement with the State and suppressed information about the assistance it rendered the informer in connection with certain criminal charges pending against him. Judge Stewart denied the petition but granted a certificate of probable cause. We affirm.
On November 25, 1968, Dorothy DeTore was murdered in her home in Dobbs Ferry, New York. Several days later, her husband John confessed to having contracted for the slaying. DeTore told the police that he had paid Nicholas Gasparino $10,000 to make the arrangements. In exchange for a grant of immunity, Gasparino agreed to testify before the Westchester County Grand Jury. In this testimony, Gasparino identified appellant Wedra as the actual killer. Wedra and DeTore were then indicted for second degree murder.
On November 16, 1969, the day before the Wedra/DeTore trial was to begin, Detective William Cunningham of the Dobbs Ferry Police Department received a phone call from Bruno LaSpina, an inmate at the Westchester County jail. LaSpina told Cunningham that he had some information which might prove useful at Wedra's trial and requested a meeting. Later that day, Cunningham and Eugene Curico, a senior investigator with the New York State Police, met with LaSpina. LaSpina told them that he and Wedra, a long-time acquaintance, recently had shared a cell at the Westchester County jail and, during that time, Wedra had admitted his participation in Dorothy DeTore's murder. LaSpina then asked whether the prosecution would help him with some pending charges if he testified for the People. Curico and Cunningham told LaSpina that they could not make any promises regarding assistance, because only the District Attorney's office had that authority, but they would see what could be done.
At the request of the detectives, Assistant District Attorney James R. Cowhey, the chief prosecutor in the Wedra/DeTore trial, met with LaSpina that evening. After LaSpina recounted the substance of Wedra's confession, Cowhey inquired about LaSpina's criminal record. LaSpina stated that he had been convicted of several different offenses; that he had recently pled guilty to a narcotics charge in New Rochelle, New York, and had been sentenced to serve three years at the drug rehabilitation prison in Comstock, New York. LaSpina also told Cowhey that two narcotics charges were pending against him in Nassau County, New York. However, LaSpina did not request assistance with these charges as he had done with the detectives. Instead he told Cowhey that he had mailed a pro se motion for resentencing on the New Rochelle charges and asked Cowhey to find out whether the motion papers had been received. Cowhey agreed to do so, although he felt that LaSpina's testimony would not be needed in view of Gasparino's willingness to testify.
The next day, LaSpina's motion papers arrived at the clerk's office and were forwarded to Assistant District Attorney Anthony B. Morosco, Deputy Chief of the Appeals and Motions Bureau. Upon reviewing the motion, Morosco concluded that it had merit and decided to ask Chief Assistant District Attorney Thomas Facelle for permission to agree to the resentencing. When Morosco entered Facelle's office, Facelle was in the midst of a meeting on the Wedra trial. Gasparino's attorney had just informed the District Attorney that his client would not testify against Wedra, and the prosecution team was trying to decide how best to proceed without Gasparino's testimony. Facelle told Morosco that they were considering the proffered testimony of a convict named Bruno LaSpina. Surprised to hear LaSpina's name mentioned, Morosco stated that he had come to discuss a resentencing motion then being made by LaSpina. Because LaSpina had been sent to Comstock that morning, Facelle decided to use the sentencing motion as the vehicle for securing his return. Upon LaSpina's return, Cowhey could question him again and decide then whether to call him as a witness.
On November 18, Morosco secured an order for LaSpina's return. Shortly thereafter, a representative of the District Attorney's office contacted Lawrence Martin, the attorney who had represented LaSpina in connection with the New Rochelle charges, and asked Martin if he would counsel LaSpina about testifying in the Wedra trial. Martin was told, however, that the District Attorney would make no deals with LaSpina. Although Martin no longer represented LaSpina, he agreed to speak with his former client.
On November 22, Cowhey met again with LaSpina. LaSpina did not ask for any help on the Nassau County charges or the New Rochelle sentencing, and Cowhey did not offer any. The two men simply discussed Wedra's confession and the possibility of LaSpina testifying. During this conversation, Cowhey learned that LaSpina also had petty larceny charges pending against him in Bronx County. At the conclusion of their meeting, Cowhey told LaSpina that he would be called as a witness on November 24.
Prior to testifying on November 24, LaSpina spoke with Martin. Martin advised LaSpina not to testify until he had a firm offer of assistance from the State, but LaSpina decided to testify without it. However, to the surprise of both Martin and the prosecution, when LaSpina took the stand, he denied that Wedra had confessed the murder of Mrs. DeTore. LaSpina stated that he had agreed initially to testify against Wedra in exchange for leniency but that he could not bring himself to commit perjury. Before LaSpina completed his surprising testimony, the trial judge declared a recess.
During the recess, LaSpina was taken to a holding room where he talked with Martin. LaSpina told Martin that, while he was testifying, he saw several known criminals in the spectator section. Because both he and his family had been threatened with death if he testified against Wedra, LaSpina feared he would be slain in the courtroom unless he changed his testimony. Martin relayed this information to the trial judge, who ordered the courtroom cleared and would-be spectators searched.
When LaSpina returned to the stand, he recanted his previous testimony and explained the circumstances surrounding it. He then testified about Wedra's damaging admissions. On cross-examination, Wedra's counsel sought to establish that the prosecution had induced LaSpina to change his testimony. LaSpina repeatedly denied having spoken with anyone but his attorney. Defense counsel also challenged LaSpina's testimony that he had not been offered any promises of leniency. Although LaSpina admitted that he was looking for consideration, he denied the existence of any deal.
While LaSpina was testifying, Assistant District Attorney McKenna called the Nassau County District Attorney's Office and attempted unsuccessfully to find out the nature of the charges against LaSpina. Several days later, McKenna again called Nassau County and reached Chief Assistant District Attorney Richard Dellin. After being informed of the charges against LaSpina, McKenna told Dellin that, because LaSpina had testified for the State, his life would be in danger if he went to jail. McKenna asked whether Dellin could arrange to have the Nassau County charges against LaSpina dropped. Dellin agreed to look into the matter but suggested that nothing be done until ...