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BASS v. SCULLY

February 17, 1983

PHILLIP BASS, Petitioner,
v.
CHARLES SCULLY, WARDEN, GREENHAVEN CORRECTIONAL FACILITY, ROBERT ABRAMS, ATTORNEY GENERAL OF THE STATE OF NEW YORK, and DISTRICT ATTORNEY OF WHITE PLAINS, NEW YORK, Respondents


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

LASKER, District Judge.

Phillip Bass petitions for a writ of habeas corpus on the grounds that: (1) the trial court's decision to bind and gag him during the voir dire of the jury deprived him of his right to a fair trial; (2) weapons and contraband introduced by the State at trial should have been suppressed as the fruits of an unconstitutional search and seizure; and (3) the eyewitness identification testimony admitted at the trial was tainted by a constitutionally defective show-up and line-up.

 Bass was convicted after trial by jury, Hon. John J. Walsh presiding, of robbery and criminal possession of a weapon arising from the armed robbery of a supermarket. The conviction was affirmed by the Appellate Division, Second Department, and leave to appeal to the Court of Appeals was denied.

 (1) The Gagging and Handcuffing of Bass

 Bass was handcuffed and gagged during the voir dire of the jury after he and his co-defendant, Wally Williams, interrupted the proceedings on several occasions to complain of the inadequacy of their appointed counsel.

 The first interruption occurred outside the presence of the jury, at the conclusion of Judge Walsh's oral ruling on the motions to suppress. After counsel noted their objections, Bass stated that he was "being railroaded" and requested permission to speak to the Court. Judge Walsh responded:

 
"I will hear you as much as you want to talk to me. But before you do it, I want you to discuss with your attorney what you intend saying. . . . I don't want you to say something that is going to prejudice you and hurt you."

 (Transcript at 124). The Court then called a recess, after which Bass was permitted to express his concerns that the trial be fair. The Court assured Bass that he would be given a fair trial. (Id. at 126-27).

 The following day, during the voir dire, Judge Walsh cleared the courtroom of the jurors to allow Bass to make a statement concerning the inadequacy of his counsel. The Court permitted Bass to express his concerns, but denied his application to replace his counsel, explaining that seven days of hearings had already taken place without any request that counsel be replaced, but that if Bass wished to represent himself, his counsel would be directed to remain to assist him. (Id. 215-217).

 After asking both defendants whether they wished to make any other statements, Judge Walsh left the courtroom to discuss security arrangements with the Deputy because he "felt both defendants were extremely edgy." (Id. at 219). Upon his return, he was informed that the defendants had spoken to the prospective jurors, who were still seated in the courtroom, saying that they "were being railroaded and they wanted the jury to know that." (Id. at 218-220).

 The courtroom was again cleared of jurors, and the defendants were instructed that they could speak to their counsel or to the Court, but that they would not be permitted to "get up and disrupt the proceedings by addressing . . . the . . . jurors," and that there were means available to the Court to prevent interruptions "such as gagging you." (Id. at 221).

 The co-defendant, Williams, was then permitted to apply to be relieved of his counsel. Upon the denial of his application, he asked to be excused from the courtroom "because I will disrupt the courtroom when they come back in." (Id. at 224). Judge Walsh again warned Williams that he might have to be gagged if he disrupted the case. (Id.)

 No sooner had the jury been brought back to the courtroom than Bass interrupted, saying: "I can't go on with this here. I don't have attorneys." (Id. at 226). The courtroom was once again cleared of jurors, and the defendants were warned that if any further outbursts occurred, they would be gagged. (Id. at 228). The Court then called a recess to allow the defendants to "cool off" and to talk to counsel about the possible sanctions for disruption of the trial. (Id.)

 After the recess, Williams stated, "If you want to continue with this trial, please handcuff and gag me now. That's the only way I am going to let you go on with this trial." (Id. at 229). Judge Walsh replied: "That's up to you, Mr. Williams, but at this stage I am ...


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