Waterman and Feinberg, Circuit Judges, and Bartels, District Judge.*fn* Waterman, Circuit Judge (concurring).
Following his conviction for second degree murder in the State Supreme Court, Mark Fein, the appellant, moved for a new trial asserting a number of claims. Those raising the most serious questions are (i) the suppression by the prosecution of the name and story of Dagmar Finch Generazio; (ii) the admission into evidence, without a hearing, of a chair allegedly obtained by means of an illegal search and seizure; and (iii) the use of a Blue Ribbon Jury at appellant's trial.
After an extensive hearing*fn1 by the trial court (Culkin, J.), the motion was denied. The Appellate Division of the State Supreme Court (24 App.Div.2d 32, 263 N.Y.S.2d 629 (1st Dept.1965)) unanimously affirmed both the judgment of conviction and the denial of the appellant's motion for a new trial and that decision in turn was affirmed by the Court of Appeals (Fuld, J., dissenting), 18 N.Y.2d 162, 272 N.Y.S.2d 753, 219 N.E.2d 274 (1966). The appeal to the United States Supreme Court was dismissed for want of jurisdiction (Douglas, J., dissenting) and the petition for a writ of certiorari denied. Then followed Fein's application for a writ of habeas corpus in the United States District Court for the Southern District of New York, which was denied by Judge Palmieri (United States of America ex rel. Fein v. Deegan, 359 F. Supp. 298). The judgment was reviewed by 12 State court judges and affirmed by 11 of them.*fn2
The story is a sordid one, resulting on October 10, 1963 in the murder of Rubin Markowitz, a one-time grocery clerk and bookmaker. Markowitz was last heard from by a client at 4 P.M. that same day and his death occurred after that hour.
Fein owed Markowitz $7,000, which he had lost betting against the Los Angeles Dodgers in the 1963 World Series. He made an appointment with Markowitz to pay the $7,000 and at the same time he made arrangements with a friend to pay Markowitz approximately $16,690 owed to Markowitz by that friend and another. For this purpose Fein was given $4,690 in cash and a $12,000 promissory note payable to Fein. The killing permitted Fein not only to write off his own debt but ultimately to pocket the $16,690 furnished by the friend.
The State's chief witness against Fein was Gloria Kendal, an admitted prostitute and the some time mistress of Fein. She testified that Fein telephoned her to come to his apartment (which he leased in the name of "Weissman" for his extramarital activities) between 5:30 and 5:45 P.M. on October 10, 1963. Before responding to this distress signal, Gloria left a message with another prostitute who remained in her apartment, one Sandra Ede. This message was addressed to Geraldine Boxer (Geri), whose custom was to meet daily with Gloria for light supper before each attended their respective evening classes. Gloria then taxied the ten blocks to Fein's secret lodging. When she arrived before 6 P.M. at Fein's apartment "He was very flushed. His hair was messed, and his eyes were enormous." Fein then told her that he had shot his bookmaker Ruby and asked her to assist him in disposing of the body which he had stuffed into a steamer trunk. Gloria testified that she "saw part of an arm, and some new clothes line, and some white material that looked like a shirt." Responding to his request, Gloria called one David Broudy, an unemployed taxi cab driver (who did not know Fein), who immediately proceeded by car to the "Weissman" apartment. In the meantime Geri drove to Gloria's apartment and was directed by Sandra Ede over the intercom to proceed to the "Weissman" apartment pursuant to Gloria's instructions.
Both Broudy and Geri eventually arrived at the "Weissman" apartment. In answer to a question by Broudy, Fein stated that while he was paying his bookmaker "somebody burst in * * * shot this man and scooped up the money and left." He also told Broudy that he had lined the bottom of the trunk with "some canvas bags" to prevent blood leakage. Since the trunk would not fit into either Broudy's car or Geri's car, Fein arranged for the rental of a station wagon. After he and Gloria picked up the vehicle, Fein and Gloria picked up the vehicle, Fein and Broudy loaded the trunk into it and Fein gave the keys to Broudy and departed for a dinner date with his wife and friends.
Thereafter the two women and Broudy drove the station wagon to Gloria's apartment and double parked while Gloria entered the apartment, had a drink with Sandra Ede and obtained some money to pay Broudy for his trouble. Half an hour later she returned to the car where Broudy and Geri were waiting. Thereafter the three disposed of the trunk in the Harlem River. During the weeks that followed Gloria and Broudy, in answer to Fein's plea for help, attempted to obliterate all evidence that might have associated Fein or the crime with the "Weissman" apartment by filling and painting holes in the floor and wall, destroying the carpet and removing furniture and furnishings.
The Alleged Suppression of the testimony of one Dagmar Finch Generazio
One of the chief grounds for Fein's application for habeas corpus was the alleged suppression of the testimony of one Dagmar Finch Generazio (Dagmar), a prostitute associate of Gloria, which Fein claims to be exculpatory. There are two phases of Dagmar's testimony, the first relates to an alleged phone call from Gloria to Dagmar and the story Dagmar told the prosecutor pertaining to that call, and the second relates to Gloria's second recantation on September 28, 1964, three weeks before the trial. Dagmar's post-trial testimony was to the effect that Gloria had telephoned her on the day of the murder*fn3 before 4 P.M. at Gail Weiner Tracy's apartment on 64th Street, where she was living at the time. In this conversation Gloria tried to induce Dagmar to assist her in finding a car to move a heavy box but was unsuccessful. The defense claims that the testimony of this telephone call before 4 P.M. would have been not only damaging to Gloria's credibility but might have suggested that Gloria, rather than Fein, was responsible for the murder.
Dagmar's estranged husband corroborated his wife's account to the police by testifying at the hearing that his wife had said to the detectives that the call was "in the afternoon of October, this particular time * * * She did say it was in the afternoon." Gail Tracy testified that the phone call was made shortly after 3 P.M. But prior to this testimony at the hearing Gail testified that she had called Dagmar a liar when Dagmar stated that such a phone call had been made because, according to Gail, Dagmar had not been in Gail's house for six or seven months. She also admitted that, except on one post-trial occasion, she had flatly denied the occurrence of any such call and did so on one occasion in Dagmar's presence.
Both Assistant District Attorney Vincent Dermody and Detective Leman testified that Dagmar had never said that the telephone call was made earlier than between 6 and 7 o'clock. At one time she told Detective Leman that "maybe it was eight o'clock or nine o'clock." In an effort to fix the time more precisely she said "All I know is that it was dark out, and when I entered the building the dry cleaning man was getting ready to close his store." On a second visit to the District Attorney's office, Dagmar related in front of Gail Tracy the story of receiving a phone call at her house some time after or between 6 and 7 P.M. Gail Tracy called Dagmar a liar stating that Dagmar never received a call on Gail's telephone at any time.
In his decision on the post-trial motion, the state trial judge rejected Dagmar's testimony as well as that of her husband and of Gail Tracy as being unworthy of belief, and denied the motion for a new trial. As to Dagmar, the judge specifically found as follows:
"Having seen and heard this witness, I reject her testimony as totally unworthy of belief. While under oath at the hearing, she strained with tireless effort to avoid telling the truth, whether the examination covered her recorded criminal past, the date of her marriage, the frequency which the police telephoned her, or the reaction of Gail Weiner Tracy, a witness called by the prosecution after she submitted a sworn question and answer on behalf of the defendant, upon a certain confrontation. The foregoing are all measurable standards, but of no greater import than the impression this witness created when set against less tangible marks. I find that she never told the prosecution of receiving a call on any afternoon. I further find ...