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June 11, 1991


The opinion of the court was delivered by: Mukasey, District Judge.


On the evening of July 10, 1972, Samuel Charles, a black male, was stabbed to death in the vicinity of 45th Street and Broadway. On June 14, 1984, petitioner Warren Schurman, who is white, was indicted for the murder and was subsequently convicted after trial and sentenced to an indeterminate prison term of from 25 years to life. He appealed his conviction to the Appellate Division, where it was summarily affirmed. The Court of Appeals denied petitioner leave to appeal.

He seeks habeas corpus on several grounds: (1) the 12-year delay between the murder and his indictment denied him due process; (2) the prosecution improperly solicited hearsay testimony from one of its witnesses that petitioner had been a suspect in the crime in 1972; (3) the prosecution improperly bolstered witnesses' credibility prior to cross-examination by soliciting testimony about its chief witness's cooperation with federal authorities and placement in the federal witness protection program, as well as about petitioner's alleged attempts on that witness's life; (4) the prosecution elicited testimony about an uncharged assault on a black man by petitioner, which improperly tended to show a criminal disposition and tendency towards violence; and (5) the prosecutor made inflammatory statements in his opening and his summation that the alleged crime was racially motivated. For the reasons discussed below, petitioner's writ for habeas relief is denied.


The facts are as follows: On the night of July 10, 1972, Bernard Schneider, a cab driver, was parked on 46th and Broadway. At about 8:30 p.m., Samuel Charles opened the door of the cab, told Schneider that he had been stabbed and asked if Schneider would take him to the hospital. On the way to the hospital, Charles lost consciousness. He died several days later, without regaining consciousness, of a stab wound to the heart.

The police were informed at about 10:00 p.m. that an individual had been brought to the hospital with a stab wound in his chest, and Detective Louis Richardson began an investigation. After talking to Schneider, he traced Charles to a parking lot at 137 West 45th Street where he worked. The police then began interviewing people in the area, including people in The Broadway Pub, a restaurant/bar next door to the parking lot. The only material information Richardson learned was that on the night he was murdered, Charles had been involved in an altercation with Alfred Ianniello, the owner of The Broadway Pub.

The case was actively investigated for about two or three weeks. Toward the end of the second week, Detective Richardson received information from F.B.I. Special Agent Corrigan that an informant Corrigan was using had told him that he had heard from one of his sources that a person named Frank Schurman stabbed Charles. (Singer Hr., Corrigan Testimony at 5) The informant provided a physical description of Schurman. (Singer Hr., Corrigan Testimony at 13) The informant told Corrigan that Charles and Ianniello had gotten into a fight, and that Ianniello asked Schurman if he would kill Charles. Schurman then stabbed Charles. (Singer Hr., Corrigan Testimony at 20) Corrigan did not speak to the informant's source or learn his name, and did not provide Richardson with the informant's name. (Singer Hr., Corrigan Testimony at 7-9) The informant's source was not an eyewitness, but rather got his information from somebody else. (Singer Hr., Corrigan Testimony at 23)*fn1 Richardson checked police records and came up with a picture and last known address for "Frank Warren Schurman." He went to that address with the picture and spoke to the building's superintendent, who did not recognize the individual in the picture. (July 8th Hr. at 20-24) Richardson stopped pursuing this lead, judging it to be merely a rumor. He did not return to The Broadway Pub to question people there about a Frank Schurman, nor did he check the District Attorney's office or criminal court records for other information about Schurman. The investigation then lay basically dormant.

In late 1983 or early 1984, F.B.I. Special Agent Edward Woods contacted Detective Kennedy, who was at that time responsible for the Charles murder investigation, and informed him that he had witnesses who could provide information about the murder. Although Woods had had this information since December 1982, he did not disclose it for fear of disrupting a sensitive undercover investigation one of the witnesses was involved in.

The witness who was at that time cooperating with Woods was Edward Maloney, who in 1972 was one of petitioner's close friends — in fact, petitioner lived on and off with Maloney and Linda Boyce, Maloney's girlfriend at that time. After interviewing Maloney and other witnesses who came to light through Woods, Kennedy turned his information over to the District Attorney's Office. Petitioner was indicted on June 14, 1984.

At trial, Maloney testified that on July 10, 1972, he and petitioner went to The Broadway Pub between 7 and 9 p.m. for dinner and drinks. (Tr. at 179) Maloney and petitioner were good friends and regular patrons of The Broadway Pub. On that night, Maloney and petitioner were drinking at the bar when Allie Ianniello, the owner of the bar, came into the bar, upset that "this nigger," Samuel Charles, who worked in a nearby parking lot, had cursed him out. (Tr. at 179) According to Maloney, petitioner seemed "really disturbed" that Ianniello was so upset, and told Maloney, "I'm going to go outside and take care of this guy." (Tr. at 180) Maloney testified that he told petitioner to forget about Charles, but petitioner took out a knife and told Maloney that he was going outside to stab him. (Tr. at 180) Schurman left the bar, while Maloney stayed inside waiting for him to return. After about five minutes, Maloney headed outside, where he saw a disturbance in the street, although he saw no one injured and that Schurman was no longer there. (Tr. at 181) He then returned to the bar.

Some time later that evening, some one came into the bar and said that there had been a stabbing. (Tr. at 181) Maloney testified that he then left the bar and went to Schurman's apartment, where he found Schurman lying on the couch, reading Playboy. He testified that he asked petitioner why he was still there, and petitioner responded: "Nobody's going to worry about that nigger, so I killed him, so what." (Tr. at 182) Maloney testified that petitioner told him that he had walked up to Charles, asked him what he had said to Ianniello, and then stabbed him in the chest. (Tr. at 182) He also said that he may have stabbed him in the back as Charles was attempting to get away.

Boyce, now Maloney's ex-wife, also testified at trial. Although her recollection was somewhat at odds with Maloney's, she confirmed that petitioner had discussed the killing in her presence. She testified that on the night the murder occurred, she accompanied Maloney and petitioner to The Broadway Pub, and that no commotion was made by Ianniello. (Tr. at 356-57, 362) She and Maloney went home by cab at approximately 10:30 or 11:00 p.m. (Tr. at 360-61) Some time after 11:00 p.m., petitioner rang the bell at their home. He appeared agitated and told them that he had stabbed a "yom," apparently referring to "a black person." (Tr. at 344, 360, 369-70)

There was also testimony that petitioner was involved in a second assault on a black man, in which petitioner admitted to having killed Charles. Maloney testified that there came a time after the murder that he, petitioner, Robert Cordice and a friend of Cordice's were driving in Brooklyn. A van driven by a black man cut them off. Cordice, who was driving, chased the van and stopped it at a light.*fn2 Schurman jumped out of their car, opened the door to the van, and held a knife to the throat of the driver. Maloney pulled petitioner away, while petitioner exclaimed, according to Cordice's testimony at trial: "I'll kill this fucking nigger, I'll cut him up and throw him in the water," and "[I] would have done to that nigger what [I] had done to the other nigger," and that "I will cut that nigger up the way I cut the other nigger up." (Tr. at 277-78, 316-18) Both Cordice and his friend asked Maloney if petitioner was crazy. Maloney testified that he told them that petitioner was good with a knife, and that had they not stopped him, he would have done to "that nigger what he had done to the other nigger." (Tr. at 189) Maloney then told the others about petitioner murdering Charles. Maloney testified that petitioner then admitted killing Charles ...

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