Kenneth Grochulski v. Robert J. Henderson, Superintendent, Auburn Correctional Facility , 637 F.2d 50 ( 1981 )

LUMBARD, Circuit Judge:

Kenneth Grochulski appeals from the dismissal by the District Court for the Southern District, Brieant, J., of his petition for a writ of habeas corpus. On February 10, 1977, Grochulski was convicted in Supreme Court, New York County, Bentley Kassal, J., on two counts of second degree murder, one count of first degree burglary, and one count of second degree weapons possession. Grochulski was subsequently sentenced from 20 years to life imprisonment.

Grochulski’s appeal to the Appellate Division resulted in an affirmance, 64 A.D.2d 872, 407 N.Y.S.2d 770 (1st Dept. 1978).¹ Leave to appeal to the Court of Appeals was denied. 45 N.Y.2d 842, 410 N.Y.S.2d 1028 (1978). In his present appeal, he argues that he was deprived of his right to a fair trial because of the trial court’s failure to order immunity conferred on two defense witnesses: one Grochulski maintains, would have testified in such a way possibly as to exculpate him; and the other would have testified that another man confessed to the crime for which Grochulski was on trial. We find these arguments to be without merit, and affirm the denial of the writ.

The evidence presented at trial showed that Grochulski took part in the first of two attempted robberies of Robert Kortright, a Manhattan drug dealer. Sharon Quinn, Grochulski’s girlfriend, knew Kortright and believed that he kept substantial amounts of money in his apartment. Quinn suggested that Grochulski steal his money, and offered to reconnoiter Kortright’s home and to take his gun away from him.

On October 20,1975, Quinn, along with a friend, Karen Smagalla, visited Kortright and purloined his gun. They went to Jersey City, where Grochulski lived. Grochulski then drove to Manhattan with Smagalla, along the way picking up John Ek and Kenneth Borovina.

Smagalla’s inquiries at Robert Kortright’s apartment revealed that no significant amount of money was present. The conspirators then decided that the money might have been left with Robert’s parents, and resolved to rob their apartment, located a few blocks away at 340 East 11th Street. Finding the door unlocked, Grochulski, Ek and Borovina, all armed, entered, and held six members of the Kortright family at gunpoint. During his attempts to locate the cash he believed to be there, Grochulski struggled with Robert Kortright’s father, Angel, and shot him dead at point blank range.

The three men then fled the apartment and drove off with Smagalla in Grochulski’s car. On her return to New Jersey, Smagalla told Quinn what had happened, and Quinn later told her story to an acquaintance, Robert Baron. Quinn decided to attempt the robbery a second time, this time with Smagalla, Baron and two additional men, Peter Janulis and Danny Cusick. On October 25,1975, this group drove to Robert Kortright’s apartment in Baron’s car. They entered the apartment, struggled with Kortright, wounded him, and fled.

A witness described Baron’s car, and the police eventually located all participants in the two crimes. A bystander to the October 20 crime identified the getaway car used in that attempt as Grochulski’s. Several members of the Kortright family, all eyewitnesses to Angel’s murder, identified Grochulski as the killer in police line-ups. Smagalla was indicted and allowed to plead guilty to second degree manslaughter with no promises as to sentence, and she testified against Grochulski, Ek, Borovina, Baron, Cusick and Janulis, all of whom were indicted and stood trial.

Appellant’s first contention is that he was denied a fair trial because Sharon Quinn was not given immunity by the trial court or prosecutor. Grochulski asserts that her testimony would have exculpated him, though he does not suggest in what manner it would have done so. Quinn was called as a prosecution witness at trial. Because the prosecutor had been informed by her attorney that she would plead the Fifth Amendment in response to questions about the events of October 20 and 25, 1975, she was put on the stand outside the presence of the jury. Quinn was asked if she knew Robert Kortright, and she then took the Fifth, saying that her response to further questions would be the same. At this point, Grochulski’s attorney attempted to cross-examine her, asking if she had been in the Criminal Courts building on a day during the trial when Karen Smagalla had also been in the building. Quinn again took the Fifth. Borovina’s counsel then asked the court to immunize Quinn with respect to those questions she had been asked.

The trial judge ruled he had no authority under New York law to confer immunity; only the prosecutor could do so. Defense counsel then asked the,prosecutor to immunize Quinn. He refused.

As a matter of New York law it is clear that the defense cannot require a prosecutor to grant immunity to a witness. People v. Sapia, 41 N.Y.2d 160, 391 N.Y.S. 93, 359 N.E.2d 688 (Ct.App.1976), cert. denied, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 (1977). No constitutional right is thus violated. Even when, as in federal prosecutions, a witness can be granted mere “use immunity” in order to surmount his invocation of the Fifth Amendment, we have held that the circumstances under which a prosecutor might be under a duty to confer such immunity on a witness pursuant to defense request are extremely narrow. United States v. Turkish, 623 F.2d 769, 771-79 (2d Cir. 1980).

The category of such circumstances cannot be any broader where, as in New York State, only full transactional immunity can be granted, since such expanded immunity means that the prosecutorial interest in avoiding such compelled grants of immunity (an interest given paramount recognition in Turkish) will be even greater than in the context in which Turkish was decided.

Appellant’s reliance on Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980) is misplaced, because in Turkish we explicitly rejected Smith's standards for the grant of defense witness immunity. Turkish controls this aspect of Grochulski’s appeal. In that opinion we stated that “in most situations where defense witness immunity is likely to be sought, some legitimate opposing prosecution interest will exist, and constitutional fairness is not a satisfactory standard against which to assess such interests.” Turkish, supra, at 777. “Without precluding the possibility of some circumstances not now anticipated,” we continued, “we simply do not find in the Due Process Clause a general requirement that defense witness immunity must be ordered whenever it seems fair to grant it.” Id. The only circumstance cited by the Turkish opinion as one suitable for a grant of immunity was that present on the unusual facts of Smith itself, which we described as constituting “simply an instance of a prosecutor interfering, for no apparent reason, to suppress evidence that was about to become available to the accused,” when the objecting prosecutor lacked jurisdiction over the witness. Id.

Nothing in appellant’s arguments convinces us that his claim that Sharon Quinn should have been granted immunity falls within the narrow category left open by Turkish. His argument, in essence, is precisely the one we rejected in Turkish-that Due Process requires that defense witness immunity be granted when “it seems fair to grant it.” Id. We said in Turkish that “we think trial judges should summarily reject claims for defense witness immunity whenever the witness for whom immunity is sought is an actual or potential target of prosecution. No hearing should, be held to establish such status.” Id. at 778. We suggested that the prosecutor submit an affidavit setting forth his suspicions of a witness’s criminal activity. In this case, such an affidavit would have been superfluous. Quinn’s involvement in the crimes which were the subject of the trial was brought out in testimony, and it was apparent she was a “potential target of prosecution” within the meaning of Turkish. Thus the court’s refusal to order the prosecutor to give her immunity was correct.²

A subsidiary claim made by Grochulski is that the prosecutor intimidated several witnesses, who, Grochulski argues, would otherwise have taken the stand and corroborated his other alibi witness. The trial court held a special hearing to deal with these charges, and concluded that the prosecution had engaged in no misconduct. The district court similarly found no evidence of misconduct. We agree. The prosecutor did visit the homes of various alibi witnesses in order to obtain statements about their forthcoming testimony, but these visits were limited to the minimum necessary, and indeed, occurred only because the defense had notified the prosecution of its intent to put these witnesses on the stand at a time later than that fixed by the New. York statute governing adversary notice of alibi witnesses, N.Y.Crim.Proc.Law § 250.-20. The trial court concluded, on the basis of questioning the allegedly intimidated witnesses, that no prosecutorial misconduct had occurred; in light of the trial judge’s ability to observe the demeanor of the witnesses, we reject Grochulski’s claim to relief on this point.³

Grochulski’s secorid major claim on appeal is that he was denied a fair trial because Justice Kassal ruled inadmissible an out of court statement made by Lawrence Grant to Hudson County, New Jersey, prosecutors, in which Grant reported that Robert Baron had confessed to him the crime for which Grochulski was convicted. Grochulski argues that his conviction, following the exclusion of the Grant statement, violated Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). We disagree.

Baron had been called by the prosecution for the limited purpose of exhibiting his appearance to the jury in order to rebut a defense claim that one of the defendants might have been mistaken for Baron. The trial judge ruled that the defense could not ask Baron any questions on cross-examination other than ones concerning his name and physical appearance without Baron becoming a defense witness for purposes of such additional testimony. Nonetheless, the defense did attempt a cross-examination, to which Baron responded by pleading the Fifth Amendment.

Later in the trial, the defense sought to introduce a transcribed statement made in February, 1976, in which Grant told Lee Redd, a Hudson County prosecutor, that he had been at the home of Drew Jeziorski when Baron entered, in possession of a shotgun. Grant told the prosecutor that Baron admitted to having used the gun to rob a Manhattan man and his son, and that the crime had been set up by “Karen Spingolli.” Grant’s statement also included descriptions of others said to be involved in the crime (which matched the identities of Peter Janulis and Danny Cusick), and a description of events leading up to the fatal shooting. According to Grant, Baron told Jeziorski he wanted to hide the murder weapon in the latter’s apartment and, in return for drugs, Jeziorski agreed. Grant also stated that Janulis had confirmed Baron’s “confession” in a conversation some time later.

Outside the presence of the jury, the defense made an offer of proof with regard to the Grant statement, putting Redd on the stand to testify that he was familiar with Grant as an informer whose information, prior to the February, 1976, statement, had ranged from reliable to unreliable. Sometimes, Redd said, Grant’s information was unreliable because of his deliberate lying; sometimes the inaccuracies were inadvertent.

Grant-who had a record of intermittent imprisonment on various offenses-was under federal detention for unrelated reasons at the time of Grochulski’s trial. He was brought to court and given a Legal Aid Society lawyer after Redd testified. Grant’s attorney told the court that under no circumstances would Grant testify at Grochulski’s trial.

Baron’s “confession” to Grant was hearsay, but it was also an admission against penal interest. As the latter, it might have qualified for admission under the New York version of the admission exception to the hearsay rule. But People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16 (1970), had made it a requirement that the declarant be “unavailable” before such an admission could be received in evidence. Brown further defined unavailable to mean, inter alia, that the declarant refused to testify “as to the fact of the admission,” for example by pleading the Fifth Amendment.

Baron was thus recalled to the stand, still outside the presence of the jury, and shown the Grant statement. He denied that anything in the statement was true, denied that he owned a shotgun, denied ever having been in Jeziorski’s apartment, and denied ever having met Grant until after the date of Grant’s statement. Baron did invoke the Fifth Amendment when questioned about his relationship to Quinn, Smagalla, Cusick, Janulis and Robert Kortright, and about his activities on the dates of the crimes.

The trial judge then ruled the Grant statement inadmissible. It could not be received in evidence as an exception to the hearsay rule, he reasoned, because Baron, by testifying, had shown himself not to be “unavailable” as required by Brown. Further, Justice Kassal ruled, the statement could not be introduced by the defense to impeach Baron’s testimony, because N.Y. Crim.Proc.Law § 60.35 does not allow impeachment by a party of that party’s witness, except by means of the witness’s prior sworn or written statement. Baron, in the trial court’s view, was the defense’s witness for the sake of any testimony beyond that involving his name and physical appearance. Finally, Justice Kassal relied on the fact that, as an out-of-court statement reporting an earlier out-of-court statement, the Hudson County transcription was double hearsay, and thus even if Baron’s “confession” was an admission against interest it could not be received. This second level of hearsay could have been surmounted if Grant had been willing to testify at the trial directly as to Baron’s statement to him, but Grant was clearly unwilling to do so.

Realizing this, the defense had asked the prosecutor if he would immunize Grant in order to overcome Grant’s refusal to testify. The prosecutor refused to take a position because of the necessity of conferring with other members of the District Attorney’s office.

Grochulski now argues that the prosecutor’s failure to immunize Grant deprived him of a fair trial, and that he should have been allowed to impéach Baron with the Grant statement.

We reject this argument for all the reasons given earlier in this opinion in our discussion of appellant’s claim that Sharon Quinn should have been granted immunity. We further note that with regard to the Grant statement Grochulski’s arguments are even weaker. Even if Grant had been immunized, People v. Brown stands as a barrier to the admission of the statement. There would have been no purpose to be served by the immunity, unless the court below was-as Grochulski argues-required to ignore People v. Brown because of Chambers v. Mississippi.

Chambers v. Mississippi, an opinion confined to its facts, may be read to stand for the principle that state evidentiary rules may not unduly intrude into the right to present an effective defense under the Sixth Amendment. In Chambers, the Court found that such a denial of a fair trial had occurred when the conjunction of two state evidentiary rules-one prohibiting the impeachment by a party of its “own” witness, and one prohibiting the admission of any hearsay admissions against penal interest-prevented a criminal defendant from introducing strong evidence that another individual had confessed to the crime for which he was on trial.

In Welcome v. Vincent, 549 F.2d 853 (2d Cir. 1977), we read Chambers to forbid “technical” restrictions (such as state rules prohibiting the impeachment of a party’s own witness) from restricting unduly a defendant’s right to cross-examine a witness who has confessed to the crime for which he is on trial. Id. at 857-58.

Despite the surface similarities of Welcome and Chambers to the case at bar, we think they are clearly distinguishable. In both Chambers and Welcome the witness on the stand admitted that he had confessed to the crime, but in each case the witness had later recanted. In the case at bar Baron had explicitly denied when questioned that he had ever made a confession. The Welcome opinion concluded:

Our holding is narrowly confined to rare situations of this sort, where another person, present on the witness stand, has previously confessed that he, rather than the defendant on trial, has perpetrated the crime. We hold that to restrict examination of such a witness, so that his prior confession may not be proven, is to deny the defendant a fair trial, at least when the confession, though retracted, has some semblance of reliability .... We disavow any attempt to ‘constitutionalize’ the law of evidence pertaining to the use of prior statements of a witness

Id. at 858-859. Thus Welcome applied Chambers to a case in which a witness admitted in the presence of the jury that he had previously made a retracted confessional. In the case at bar, the declarant having denied making such a confession, the witness’s testimony was not of significance.

In addition to these differences in posture, it is important to note that both Chambers and Welcome directed the reviewing court’s attention to the reliability of the evidence sought to be introduced by the defendant. See also United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974). In Chambers, the Court said the confession “bore persuasive assurances of trustworthiness.” 410 U.S. at 302-303, 93 S.Ct. at 1049-1050; the defendant sought to show that the witness had confessed to the crime on three different occasions to three reliable witnesses, as well as signing his recanted confession. In Welcome, the confession whose plausibility the defense sought to bolster by cross-examination had been considered reliable enough by the prosecutors that two prior (unsuccessful) prosecutions had been brought against the witness.

In this case, by contrast, the reliability of the statement sought to be introduced is of a low order. Grant had a mixed record as an informant. As someone who had spent time in jail prior to this statement to the Hudson County prosecutor’s office, he was someone whose report of crimes might not be disinterested. In addition, Grant had reason to lie about the identity of the owner of the shotgun, since it had been discovered in a building of which he was the manager. Finally, Grant’s statement lacked corroboration, a factor given considerable weight by Chambers, 410 U.S. at 300-301, 93 S.Ct. at 1048-1049; see also United States v. Guillette, 547 F.2d 743 (2d Cir. 1976). Not only was the description of the crime in the Grant statement contradicted by the evidence of Karen Smagalla, but Grant’s account of how Angel Kortright was killed contradicted the account given by the eyewitnesses to the murder and medical testimony. The Grant statement said that Angel Kortright was shot when he attempted to seize Grochulski’s gun; a medical expert witness testified at trial that Angel had been approximately two feet from the shotgun’s muzzle when killed.

The State’s case against Grochulski was overwhelming. Three eyewitnesses picked out Grochulski’s picture on the first occasion they were shown photos of suspects. Three eyewitnesses chose Grochulski out of a sixteen man line-up in which the defense had chosen the stand-ins. The eyewitness to the getaway car used in the October 20 attempt identified the car as a Cadillac Eldorado, with a light-colored top, probably a 1972. Grochulski’s car was a 1971 Eldorado with a white top. Karen Smagalla identified Grochulski as a member of the October 20 robbery team.

Nor do we think that the trial court’s refusal to allow the Grant statement to be used for impeachment purposes by itself deprived Grochulski of a fair trial, because Chambers and Welcome do not countenance the setting aside of a state evidentiary rule such as N.Y.Crim.Proc.Law § 60.35 simply because it seems fairer to the defendant to abrogate the rule. As explained above, Chambers and Welcome require such a result only under limited circumstances not present here. See Lipinsky v. New York, 557 F.2d 289 (2d Cir. 1977). Our review of the totality of the evidence and the circumstances of the trial court’s rulings leave us with the conviction that, despite the trial court's reliance on People v. Brown, supra, and N.Y.Crim.Proc.Law § 60.35, Grochulski received a fair trial.⁴

Affirmed.

1 . In the course of his state court appeal, Grochulski, either directly or by virtue of adopting arguments made to the Appellate Division by his co-defendants, exhausted his state remedies with regard to all the claims he raises in this appeal. Grochulski adopted his co-defendant’s argument that the Grant statement, discussed infra pp. 53-56, should have been admitted in evidence, and the trial judge’s ruling that it was inadmissible relied in part on Grant’s refusal to testify. Grochulski did not urge in the state court appeal that this refusal should have been met with a grant of immunity, as he now argues, but the question of such immunity had been raised at trial, and we view this as an instance of a mere “variationf ] in the legal theory” which does not mean that appellant has failed to exhaust his state remedies, Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971).

2 . Additionally, we note that the Turkish opinion requires, before a trial court can even consider whether to grant immunity at defense insistence, that not only has the prosecutor failed to take advantage of his opportunity to affirm that the witness is a potential defendant, but that the defendant on trial “demonstrate! ] that the witness’s testimony will clearly be material, exculpatory, and not cumulative.” Turkish, supra, at 778. In the case at bar, the most appellant has argued is that Quinn’s testimony might have been “material, exculpatory, ánd not cumulative.”

3 . We note also that his argument that the alleged intimidation was the kind of prosecutorial misconduct for which the proper relief would have been a grant of witness immunity must fail. The claim of intimidation is entirely unrelated to the claim that Grochulski had a right to present Sharon Quinn’s testimony.

4 . We are pleased to note that the State in this action is represented by the District Attorney of New York County. In most cases of this nature familiarity with the trial record and all prior proceedings are of paramount importance. Obviously the District Attorney and his assistants who have been involved in these matters are in a better position to inform us than is usually the case with the office of the Attorney General of New York State.