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Taylor v. Curry

decided: June 7, 1983.

CAROL TAYLOR, PETITIONER-APPELLANT,
v.
PHYLLIS CURRY, RESPONDENT-APPELLEE



Appeals from judgments of Judge Duffy and Chief Judge Motley, both Judges of the United States District Court for the Southern District of New York, dismissing petitions for writs of habeas corpus. Appellant claims that her Sixth and Fourteenth Amendment right to present a full defense was violated when the state judge excluded relevant evidence.

Mansfield, Meskill and Newman, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

Carol Taylor appeals from judgments of Judge Duffy dated January 9, 1981 and Chief Judge Motley dated March 19, 1982, both Judges of the United States District Court for the Southern District of New York, dismissing Taylor's petitions for habeas corpus relief.*fn1 Petitioner claims that the state trial court violated her Sixth and Fourteenth Amendment right to present a full defense by ordering, on grounds of attorney-client privilege, that a draft separation agreement be excluded from evidence at her second criminal trial. Although we find error in this evidentiary ruling, petitioner was not deprived thereby of a fair trial. Accordingly, we affirm the judgments of the district court dismissing the petitions for habeas corpus relief.

BACKGROUND

On the evening of March 13, 1976, Herbert Taylor was murdered in his Far Rockaway, New York, bungalow. After several months of investigation, Taylor's wife Carol was arrested by local authorities and was charged with second degree murder, criminal solicitation and conspiracy to murder her husband.*fn2 At trial, the prosecution suggested three possible motives for the murder. The first motive emerged from a classic "lover's triangle," focusing on the existence and intensity of a lesbian relationship between petitioner and her lover, one Elizabeth Taylor (not a relative of Herbert and not the actress). According to the state, Carol Taylor arranged for the murder of her husband to liberate herself from an unhappy marriage and to pursue more fully a lesbian relationship with Elizabeth.

The second motive advanced by the state was petitioner's fear that her husband would use the homosexual relationship as leverage to gain custody of the couple's two children. Testimony at trial revealed that the decedent apparently was aware of his wife's lesbian affair and that Carol was visibly upset at his discovery. Finally, the state posited a financial motive -- Carol was the sole beneficiary of life insurance policies totalling $134,700.

The state offered the testimony of petitioner's brother, Robert Rozell, who stated that approximately one week before the killing Carol offered him $10,000 to arrange for Herbert's demise. Rozell also testified that two or three days before the murder he overheard Carol ask their sister Barbara to accompany her to the Far Rockaway bungalow to determine if Herbert had been killed. Finally, Rozell testified that seven months after the murder, in October 1976, Carol stated that "well, if everybody keeps their mouth shut there will be $10,000 in it for everybody." Trial Tr. at 1827. Barbara Rozell, petitioner's sister, substantially corroborated her brother's testimony. Barbara also related that two or three days before Herbert's death, she overheard a phone conversation between Carol and Elizabeth Taylor in which they discussed the murder scheme.

Additional damaging testimony was elicited from Anthony and Theresa Pasquarelli, friends of Carol Taylor. The Pasquarellis each testified that on or about March l, 1976, approximately two weeks prior to Herbert's death, Carol visited their New York home. They stated that Carol was distraught when she arrived and, during a conversation in their kitchen, she related that Herbert was aware of the lesbian relationship and that she was fearful he would use this homosexual affair as leverage to gain custody of their children. The Pasquarellis testified that after voicing her concerns, Carol offered Anthony Pasquarelli $10,000 to arrange for the murder of her husband. According to the Pasquarellis, Carol proposed to make partial payment before Herbert's death and to tender the balance after she had received the insurance proceeds. Wendy Condoleo, a friend of Theresa Pasquarelli, who apparently was babysitting for the Pasquarelli children that night and was present in the kitchen during this conversation, substantially corroborated the Pasquarellis' testimony.

Petitioner's first trial ended in a mistrial after the court learned that the prosecution had solicited an informant, Barbara Rozell, to obtain uncounseled incriminating evidence from her sister after Carol had been arrested. The court found Barbara Rozell to be an agent of the state and declared a mistrial after ruling that petitioner's Fifth Amendment rights had been violated by the state's surreptitious conduct.

At the second trial petitioner defended principally on the theory that the Pasquarellis, the Rozells and Wendy Condoleo were lying in an effort to protect Anthony Pasquarelli and Robert Rozell from complicity in the murder. The jury was not persuaded -- petitioner was convicted on each of three counts and sentenced to concurrent prison terms of twenty five years to life on the murder charge, eight and one-third to fifteen years for conspiracy, and two and one-third to seven years for the criminal solicitation charge. The conviction was unanimously affirmed by the Appellate Division on April 28, 1980, People v. Taylor, 74 A.D.2d 177, 427 N.Y.S.2d 439 (2d Dep't 1980). Leave to appeal to the New York Court of Appeals was denied on June 20, 1980. People v. Taylor, 50 N.Y.2d 1005 (1980). These habeas petitions followed.

Discussion

At the outset, we note that petitioner has satisfied the exhaustion requirements of the federal habeas statute, 28 U.S.C. ยง 2254 (1976), because she has limited her appeal to an issue that had been raised and rejected by the appropriate state courts. See Rose v. Lundy, 455 U.S. 509, 518-19, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).*fn3 We proceed to consider that sole claim.

Petitioner asserts that the state trial judge violated her Sixth and Fourteenth Amendment right to present a full defense when he excluded the draft separation agreement from evidence at the second trial. This document, prepared by Herbert's attorney in March 1976 after consultation with both spouses, contained a provision that Carol would retain custody of the children and ...


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