Appeal from an order of the District Court of the Western District of New York, John T. Curtin, Chief Judge, granting a writ of habeas corpus to a state prisoner. Affirmed.
Before Moore, Friendly and Feinberg, Circuit Judges.
This case, arising from the death of Lucille Graham in Elmira, N. Y. on August 26, 1961, has had a long history. This is recorded in many opinions of the New York courts*fn1 and in one of our own, U. S. ex rel. Graham v. Mancusi, 457 F.2d 463 (2 Cir. 1972), familiarity with which is assumed.
Burton Graham was indicted in 1961 for first degree murder of his wife Lucille and was convicted of second degree murder. Important evidence against him was a highly inculpatory post-arraignment statement taken on September 1, 1961, which was immensely more damaging than a statement made shortly after discovery of the homicide. The September 1 statement revealed that he had typed out two notes in his wife's name in which she admitted sexual misconduct, child abuse and an intention to go away, and that he had left them where they would be found by the police. See 457 F.2d at 465-66. The Appellate Division for the Third Department, People v. Graham, 20 A.D.2d 949, 249 N.Y.S.2d 97 (1964), ruled that under People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103 (1962), this statement was improperly received because taken from Graham after arraignment without the presence of an attorney, and that the two notes were also improperly received because their identification and reception in evidence had been based solely on the illegally obtained statement. The Appellate Division held that admission of this evidence had given rise to substantial prejudice, and that in the absence of the erroneously admitted material the evidence was insufficient to warrant conviction of second degree murder, to wit, the killing of a human being "when committed with a design to effect the death of the person killed, or of another, but without deliberation and premeditation," former N.Y. Penal Law § 1046, current version at N.Y. Penal Law § 125.25. However, the court concluded that the properly admitted evidence sufficed to support a conviction of first degree manslaughter, a killing "(i)n the heat of passion, but in a cruel and unusual manner", former N.Y. Penal Law § 1050, current version at N.Y. Penal Law § 125.20. Availing itself of the power confided to it by § 543 of the former N.Y. Code of Criminal Procedure, the court modified the portion of the judgment convicting Graham of second degree murder so as to convict him of first degree manslaughter, and sentenced him to a term of not less than 10 nor more than 20 years, the maximum permitted by law. Graham's motion for leave to appeal to the New York Court of Appeals was denied.
After various state proceedings unnecessary to detail, see 457 F.2d at 467, Graham sought federal habeas corpus in the District Court for the Western District of New York. Reversing a denial of his petition by that court, we held that the Appellate Division had deprived Graham of due process since he was entitled to have any claim of first degree manslaughter presented to a trier of the facts which would not have been exposed to tainted evidence.*fn2
We directed issuance of the writ, 457 F.2d at 471:
unless Graham is retried within sixty days from the issuance of our mandate or such further reasonable time as the district court, for good cause shown, may allow.
While our opinion did not specify for what crime Graham was to be retried, an issue not discussed in the briefs, we*fn3 scarcely supposed that, quite apart from considerations of double jeopardy, the county prosecutor would seek to retry Graham on a charge for which the Appellate Division had held there was no adequate admissible evidence unless, as was not suggested to us, new evidence had been developed, as was then permitted by New York law.*fn4 However, the prosecutor elected to do just that, and the local judge sustained this course of action, People v. Graham, 69 Misc.2d 670, 330 N.Y.S.2d 711 (Sup.Ct., Chemung Co., 1972).
Faced with the second degree murder charge, Graham testified in his own defense, again along the lines of his August 26, 1961 statement, see 457 F.2d at 465. If the jury credited this, the evidence would not have permitted it to find that Graham had "a design to effect the death" of his wife, and perhaps it might not even have found that he intended to kill her "in a cruel and unusual manner." The prosecutor having indicated that he proposed to use the September 1 confession in cross-examination, the judge conducted a hearing under People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1963), on whether it was voluntary and concluded that it was and therefore was admissible for impeachment.*fn5 In cross-examining the prosecutor called attention to such statements in the confession as that "My troubles and worries had built up to such an extent that I decided Lucille had to die" and that she had gone limp and Graham "went out of the room knowing she was drowning or going to drown." With this testimony before it, even although only as impeachment, the jury convicted of second degree murder.
On appeal, 43 A.D.2d 182, 350 N.Y.S.2d 458 (1973), the Appellate Division rejected most of Graham's arguments. Turning to his double jeopardy contentions, the court agreed that this "provision of the Constitution was clearly violated by defendant's retrial on the charge of murder in the second degree since the earlier decision of this court (20 A.D.2d 949, 249 N.Y.S.2d 97), modifying the judgment so as to convict him of manslaughter in the first degree, and the subsequent denial of leave to appeal to the Court of Appeals, had the same finality as that of a verdict of acquittal of the greater charge." 43 A.D.2d at 188, 350 N.Y.S.2d at 464-65. However, the court again exercised its power, now under New York CPL § 470.15, to convict Graham of manslaughter in the first degree and remanded for resentence. Both sides having appealed, the Court of Appeals affirmed. People v. Graham, 36 N.Y.2d 633, 370 N.Y.S.2d 888, 331 N.E.2d 673 (1975).
Graham returned to the District Court for the Western District of New York with petition for Habeas corpus filed on November 10, 1975, claiming that his constitutional rights had been impaired by his retrial for second degree murder, even though his conviction had been reduced to first degree manslaughter which he conceded the legally admitted evidence was sufficient to support. He was conditionally released from prison on May 4, 1976, and his full sentence expired on January 13, 1978, a year before the district court upheld his petition. However, this did not moot the case. Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968). Chief Judge Curtin, in a well-reasoned opinion, directed that the writ of Habeas corpus Be granted and that the parties should notify the court within 30 days whether any further proceedings in the state court were contemplated.
The State makes a number of attempts to show that the Appellate Division and the Court of Appeals were in error in holding that the action of the Appellate Division on the first appeal, followed by denial of leave to appeal to the Court of Appeals, operated as an acquittal of second degree murder. It claims that our judgment "wiped out" the Appellate Division's. It did nothing of the sort. What we "wiped out" was the conviction for first degree manslaughter, which was all that was before us. The State also argues that the Appellate Division's holding that its first ruling was an acquittal was based on a misperception of federal law rather than an application of state law. Even if the point were relevant, we see no basis for the State's contention; in any event the Court of Appeals has expressly ruled that the portion of the order relating to the charge of murder in the second degree "was equivalent to an acquittal." 36 N.Y.2d at 639, 370 N.Y.S.2d at 895, 331 N.E.2d at 677.*fn6
The interesting question is whether the prosecutor's unconstitutional action in trying Graham a second time for second degree murder, for which no valid conviction could have been obtained, also invalidates the conviction for first degree manslaughter to which the Appellate Division reduced it, with the subsequent approval of the Court of Appeals. It would seem that if the State had tried Graham before the jury for both the barred second degree murder charge and the open first degree manslaughter charge and the jury had convicted of the latter, the conviction could not stand. U. S. ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2 Cir. 1965) (Marshall, J.), Cert. denied, 383 U.S. 913, 86 S. Ct. 896, 15 L. Ed. 2d 667 (1966);*fn7 Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970). It is equally plain that if after our Habeas corpus decision, 457 F.2d 463, the State had prosecuted Graham only for first degree manslaughter and the jury had convicted, the double jeopardy clause would provide Graham no relief. The question is how the matter stands when, on the basis of sufficient untainted evidence, the jury has convicted of the greater offense and a reviewing court has reduced the conviction to what would have been permissible in a prosecution solely for the lesser offense.
While there is language in Hetenyi and Price that might suggest that the State must be deprived of any conviction on a trial that had included a charge barred by double jeopardy, we do not believe the courts intended to go so far. See Pacelli v. United States, 588 F.2d 360, 366 (2 Cir.), Cert. denied, 434 U.S. 1010, 98 S. Ct. 721, 54 L. Ed. 2d 753 (1978).*fn8 A sufficient basis for the Hetenyi and Price decisions was that the presence of the barred more serious charge created a serious risk that the jury in Hetenyi might have been led to compromise on a more rather than a less serious unbarred charge, e. g. second degree murder rather than first degree manslaughter, see 348 F.2d at 865-66,*fn9 or in Price, to have convicted on a lesser included offense, voluntary manslaughter, rather than to have acquitted or hung, see 398 U.S. at 331, 90 S. Ct. 1757. On that view Graham's case is distinguishable; the jury convicted on the more serious charge and there is thus no indication that the verdict was a compromise resulting from ...