Appeal from denial by the District Court for the Southern District, Brieant, J., of a petition for writ of habeas corpus. Affirmed.
Before Lumbard, Oakes and Meskill, Circuit Judges.
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).*fn1 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.2d 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.*fn2
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.*fn3
Grochulski's second 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 ...