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August 26, 1982

WALTER FOGG, Superintendent, Eastern Correctional Institution, ROBERT ABRAMS, Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: NEAHER


 NEAHER, District Judge.

 Petitioner, a State prisoner serving concurrent terms of imprisonment of 25 years to life imposed following his conviction on two counts of felony murder, has applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His conviction was affirmed by the Appellate Division, Second Department, with an opinion, People v. Santanella, 63 A.D.2d 744, 405 N.Y.S.2d 284 (2d Dept. 1978), and leave to appeal to the Court of Appeals of the State of New York was denied. A petition for a writ of certiorari in the United States Supreme Court was also denied, 443 U.S. 912 (1979), with Justices Brennan and Marshall noting that they would grant certiorari. Petitioner has exhausted all available State court remedies.

 The sole claim raised is that petitioner's conviction was obtained in violation of his Sixth Amendment right to be confronted with the witnesses against him as established in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Petitioner and two co-defendants, John Cappiello and Ralph Santanella, were tried jointly -- petitioner's several motions for a severance having been denied -- for the felony murder of an elderly couple, Joseph and Angelina Tucci, which occurred during a burglary and robbery in their home on August 10, 1976. Petitioner was 15 years old at the time of the crime. Although petitioner's co-defendants did not testify at trial, he did so, denying guilt and offering evidence in an attempt to establish that, while he was at the Tucci home with his co-defendants on the morning of August 10, 1976, he was there on an errand for his father and the Tuccis were alive when he left.

 Petitioner asserts he was deprived of his right of confrontation by the admission into evidence of the unredacted confessions or statements of his co-defendants, which placed primary responsibility for the murders on him. The trial court's rulings denying him a separate trial were based on the "interlocking confession" exception to the rule of Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), see Parker v. Randolph, 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132 (1979); United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U.S. 942, 25 L. Ed. 2d 123, 90 S. Ct. 956 (1970); People v. McNeil, 24 N.Y.2d 550, 301 N.Y.S.2d 503, 249 N.E.2d 383, cert. denied, 396 U.S. 937, 90 S. Ct. 282, 24 L. Ed. 2d 236 (1969), despite the fact that petitioner denied before the jury making the "confession" relied upon to invoke the doctrine and offered corroboration in support of his denial. He claims it was prejudicial error to deny him the right to cross-examine his co-defendants concerning their confessions or statements which implicated him as a participant in the crime.

 Although the jury convicted all the defendants of felony murder, the Appellate Division granted new trials to petitioner's two co-defendants on the ground that the trial judge's improper instructions had denied them the benefit of the "non-killer" affirmative defense applicable in felony murder cases. The court said this error was not relevant to petitioner, however, because he "did not rely upon, and the evidence as against him did not suggest the availability of, the affirmative defense." 405 N.Y.S.2d at 288.

 More significantly, petitioner was denied a new trial on the Bruton point urged here, even though the Appellate Division observed that Tamilio's "own statement does not clearly implicate himself as the actual murderer . . . [and] to that extent, . . . does not interlock with and support those of his codefendants," 405 N.Y.S.2d at 288, who repeatedly had asserted it was petitioner who did the killing. Reasoning that to convict petitioner on the charge of felony murder required the prosecution to show only that he participated in the underlying felony, not that he committed the murders, and that "to that extent" petitioner's statement had interlocked with and supported those of his co-defendants, the court held that

"so much of the statements of Santanella and Capiello as characterized Tamilio as the actual murderer was extraneous to the question of Tamilio's guilt or innocence of felony murder. Therefore, those portions of the codefendants' statements could not have been prejudicial to Tamilio, and it was unnecessary that such portions of those statements interlock with and be supported by a statement by him." 405 N.Y.S.2d at 288.

 The evidence on which the defendants were convicted for the felony murders of the Tuccis is summarized below. Considering the record and arguments of counsel, the Court is of opinion that unless petitioner is granted a new trial within 60 days, the writ must be granted.

 The prosecution's theory of the case was that the defendants acted together and killed the Tuccis during the course of a burglary and robbery. In its direct case, the prosecution introduced by petitioner's count no fewer than nine out-of-court statements made by his co-defendants to third persons placing primary responsibility for the murders on petitioner. Although the statements were admitted with limiting instructions to the jury that they could only be considered against the person who made them, the court denied petitioner's motion to redact the statements so as to exclude any references to him. The prosecution also introduced two statements allegedly made by petitioner, one of which served as the basis for application of the interlocking confession doctrine.

 Following the introduction of evidence that the victims were found on August 12, 1976, and had died of multiple blunt force injuries to the head, Lorraine Frasca, a neighbor, testified that on August 10, 1976, at approximately 11:00 a.m., she observed a single car parked on the "wrong side" of the street near the Tuccis' house and saw two boys coming from an alleyway alongside the house. She identified petitioner and Santanella as the boys she observed and noted that a third boy remained in the back seat of a green station wagon parked nearby, license number 729 KUE, which she remembered because her son's birthday was July 29. She also testified to a prior lineup identification in which she picked petitioner from six individuals.

 Several tellers at the Dime Savings Bank testified. Timothy O'Neill said he was presented a bankbook in the names of Joseph and Angelina Tucci on August 10, 1976. He saw petitioner at the bank and later identied him at a lineup. Maria Pimenta also testified she saw petitioner at the Dime Savings Bank on August 10. Finally, Virginia Dunphy stated petitioner presented a bankbook in the name of Tucci on August 10, 1976, and that she also picked petitioner out of a six man lineup. An expert in fingerprint identification testified that a photograph of a fingerprint found on the bankbook compared closely with the fingerprint chart of petitioner.

 Russell Cunningham testified that he was a friend of Cappiello, that Cappiello told him that he, Santanella, and petitioner went to the Tucci house to search for money; that Cappiello had run out of the house "in shock" after he saw petitioner hitting the "old people" with a "hammer or something;" and that petitioner told Cappiello to "finish off" one of the old people but Cappiello refused.

 Frank Serpico then testified to a conversation he had with Santanella on August 12, 1976, during which Santanella said he had participated in a robbery in which two people were killed; that Santanella told him he went to the Tucci house with Cappiello and petitioner, using his mother's car, and that, once at the house, they tied up the two old people, searched the house and petitioner killed the old lady.

 The next prosecution witness, Glen Reinhold, testified to a conversation he had with Cappiello on August 12th or 13th. He said Cappiello told him he came into the house after the people had been killed; that Santanella and petitioner went into the house first and killed the old woman and petitioner told Santanella to finish off the man.

 Michael Nogaro testified he was in a car with Cappiello and Cunningham on August 10, 1976, when Cappiello recounted the story of the murders. He also testified that Cappiello went out of the house after petitioner struck the old lady with "a tool or a hammer."

 John Washington, a fellow prisoner of petitioner's in a Criminal Court Building holding pen, testified to a statement made to him by petitioner -- and the critical one for purposes of his claim -- on August 18, 1976. Washington stated he was alone with petitioner in the holding pen for a few minutes when he asked petitioner what he was in for and petitioner replied that he and two "buddies" were in for homicide but that he was not caught at the scene of the crime and therefore he was not scared. He said the robbery netted "a ring and a few grand." *fn1" Washington further testified that petitioner also told him they ransacked the house and that when the old lady began to scream he hit her with a "gun butt;" and that petitioner said he was going to give Cappiello "five grand" to "put it on" Santanella.

 Washington acknowledged that he was a friend and cellmate of Santanella and also testified to statements made by Santanella that placed primary responsibility for the crimes on petitioner. Washington's cooperation with the police concerning the Tucci murders did not begin until October 31, 1976, approximately two and a half months ...

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