Appeal from a judgment and order of the Southern District, Charles E. Stewart, Jr. J., denying petition for a writ of habeas corpus. Petitioner appeals on ground that, inter alia, admission of confessions of two non-testifying co-defendants was unconstitutional under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Remanded with direction to grant the writ unless petitioner is retried within a reasonable time.
Lumbard, Oakes and Meskill, Circuit Judges.
Claude Holland appeals from an order and judgment of the Southern District, Charles E. Stewart, Jr., J. entered on February 11, 1986, denying his petition for a writ of habeas corpus. Holland is currently serving a term of twenty-five years to life for felony murder, having been convicted, along with two co-defendants, after a 1977 jury trial in the New York State Supreme Court, Queens County. In denying the writ, Judge Stewart adopted the Report and Recommendation of Magistrate Michael H. Dolinger, dated September 5, 1985. The district court granted a certificate of probable cause to appeal on March 3, 1986, and this appeal followed.
Holland's petition argues three grounds for granting the writ. First, Holland argues that his sixth amendment rights were violated by admission at his trial of the confessions of his co-defendants whom he could not cross-examine. See Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Second, Holland argues that the trial court violated his fifth amendment right against self-incrimination by admitting at trial his confession, part of which he alleges to have been taken in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Third, Holland argues that the trial judge's supplemental instructions to the jury during its deliberations violated his right to a fair trial because the instructions gave the jury the misleading impression that it could convict Holland of the substantive crime of robbery without proof of his intent. Because we agree with Holland's first claim, that his trial was fundamentally tainted under Bruton by the admission of his co-defendants' confessions, we remand to the district court with direction to grant the writ unless Holland is retried within a reasonable time.
In May, 1976, Holland's co-defendants and old friends Percy Moore and Richard Payton travelled from Chicago to New York and moved in with him. A month later, on June 25, 1976, Moore and Payton robbed the Van Dam check cashing facility in Long Island City, Queens. In the course of the robbery Moore shot and killed George Caccavalle, an off-duty transit patrolman and owner of the check-cashing business. Holland, Moore, Payton, and a fourth accomplice named Arthur Elliott, were subsequently indicted for first-degree murder, felony murder, first-degree robbery, and possession of a weapon.
Before trial in the State Supreme Court, all four defendants moved for a severance under Bruton because the State intended to introduce statements from each of them that might inculpate the others. In addition, all four moved to suppress their own inculpatory statements, under Miranda. After nine days of testimony, State Supreme Court Justice Thomas Agresta denied the pretrial motions to the extent that they sought separate trials, holding that severance was not required under Bruton because each of the defendants had made statements implicating themselves as well as their co-defendants. Justice Agresta also denied each defendant's request for redaction of incriminating portions of his co-defendants. Justice Agresta also denied each defendant's request for redaction of incriminating portions of his co-defendants' statements. Finally, he denied all the motions to suppress except as to one statement made by defendant Moore.
Following pretrial hearings, but before trial, Elliott pled guilty to robbery in the first degree and agreed to testify at trial. Holland, Moore, and Payton were tried together, and the jury convicted all three of felony murder on November 16, 1977. On December 14, 1977, the court sentenced Holland and Moore to twenty-five years to life, and Payton to twenty years to life. Elliott received a ten-year sentence on his plea of guilty to robbery.
Through the testimony of eyewitnesses, of Elliott, and of Payton's wife, the State sketched the involvement of all the defendants in the Van Dam robbery. After Moore and Payton moved in with Holland in New York in May, 1976, the three men together visited the Van Dam checkcashing office on several occasions. At trial, Caryl Thompson identified Holland as one of two men who, on June 24, 1976, the day before the robbery, held him up in the elevator of his Brooklyn building; they took his wallet, which contained his drivers' license and other identification.
Elliott testified that on the evening of June 24 he visited the apartment of Holland, whom he knew from work. Holland introduced Elliott to Moore and Payton, and told him that they were planning to rob the Van Dam facility; he asked whether Elliott wanted to make some money. Elliott agreed. He testified that the plan called for him to take his truck and pick up Moore and Payton at 9:00 A.M. the next morning at a designated rendezvous point. Holland would arrive in his own car. The three men told Elliott that Moore and Payton were going to rent a getaway van from Goldie's Leasing, using someone else's driver's license, which they had already obtained. Holland was not supposed to participate in the actual robbery, but was to drive Moore and Payton to the airport after they had divided the loot.
On the morning of June 25, Holland dropped Moore off near Goldie's. Moore rented a van, using the stolen identification papers, and provided Goldie's with a telephone number which later turned out to be Holland's. Moore and Payton drove the van to the Van Dam facility in Long Island City, Queens. By 9:00 A.M., a number of people were waiting outside. Demary Alicea, one of the Van Dam employees who opened up that morning, testified that she saw a red Goldie's van parked outside the office, with a man sitting in it whom she identified at trial as Moore. Three other witnesses also saw the van parked outside the facility, with one or two men sitting in it.
Shortly after the store opened, George Caccavalle, an off-duty transit detective who regularly delivered the Van Dam cash payroll, arrived with the cash for the week. As he carried some of the money in a canvas bag from his car to the store, he was struck by three or four gunshots. After Caccavalle fell to the ground, the gunman took the money bags, jumped in the Goldie's van, and drove off.
By the time of the shooting, just after 9:00, Elliott had arrived at the designated meeting point. He saw Holland sitting in his car about half a block away and waved to acknowledge his presence. By 9:05 or 9:07, Moore and Payton had arrived in the red Goldie's van. Leaving the van behind, the two men got into Elliott's truck, carrying what appeared to be a money bag. Elliott then drove to his mother-in-law's house in Brooklyn, with Holland following in his own car.
According to Elliott, the four men entered the house and went upstairs. Elliott kept watch out of the window of one room, while the three men were in a back room counting the money. About ten minutes later, Holland told Elliott that the robbers had recovered $33,000, and gave him $3,000 of it. Holland, Moore, and Payton each received $10,000. At some point Holland went to his car, and brought back a suitcase that contained changes of clothes for Moore and Payton. Elliott then departed, and was told that Holland was going to drive Moore and Payton to the airport.
The next morning, after reading about the robbery in the newspaper, Elliott called Holland and told him that the person shot in the robbery was a police officer and that he was dying. Elliott testified that Holland's answer was that he was "sorry it was a cop, it [is] going to bring a lot of heat." Caccavalle died that day of injuries resulting from the gunshot wounds. Shirley Payton testified that Payton discussed the facts of the robbery with her, and that she saw Holland with her husband in Chicago a week later.
A number of police officers testified to inculpatory statements made by Holland in the course of investigations. Holland's phone number appeared on the Goldie's rental slip and the police first questioned him on June 28, 1976. Holland could not explain why his number was on the slip, but showed police his business card to demonstrate that many people had access to the number.
On July 19, 1976, Shirley Payton contacted the New York City police and gave a taped interview. Two days later, the police arrested Holland at his workplace and read him his rights. They took him to the 114th Precinct, where Detective Delphin Greene again gave him the Miranda warnings. Holland said that he was willing to answer questions. He admitted that he had known about the robbery because his friends "Richard and Percy" from Chicago had planned it at his house. Although he denied having been at the scene "when the robbery went down," he admitted that he met them after the crime and accompanied them to Elliott's mother-in-law's house. Greene testified that Holland admitted that they had "split up the money." Holland also admitted that he threw the money bag containing Moore's and Caccavalle's guns into a sewer in front of a church on Washington Avenue. Holland then agreed to make a statement to an Assistant District Attorney.
Later that night, A.D.A Albert Gaudelli took a taped statement from Holland, after advising him of his rights. In answer to a series of Gaudelli's questions, Holland stated that Moore and Payton were old friends from Chicago who had come to visit him about a month before the robbery. The two men accompanied Holland to Van Dam several times when he cashed his checks and, about three weeks before the robbery, told him that they might rob the facility. On June 24, 1976, in a conversation in front of Elliott, Moore and Payton told Holland that they were planning the robbery for the following morning, and that the plan called for them to shoot the man carrying the money so that he would drop his gun.
The two men, Holland continued, said that they needed a van for the hold-up, and asked where they could rent one. He said he usually rented from Goldie's Leasing. They asked if he could drop them off at Goldie's the next morning on his way to work, and he agreed. According to Holland, during the conversation Moore told him that he and Payton "had took" a license from someone in Brooklyn and were going to use it to rent the van; Holland remembered the name on the license as "Carl." He also admitted that he drove Moore to Long Island City the next morning at 7:00 A.M.
Although Holland denied any participation in the robbery, he did admit that he had some additional involvement after the fact. First, he discussed the robbery with Payton shortly after it occurred, and Payton told him that, during the robbery, Moore had shot Caccavalle several times because he tried to raise his gun. Holland also discussed the robbery with Elliott at that time, who said that Caccavalle's death would "bring a lot of heat." Holland admitted calling Payton on June 27 to tell him that Caccavalle was a police officer, during which conversation Payton told him that the robbery had netted $33,000, and that $3,000 had gone to Elliott for driving Moore and Payton to the airport. Finally, Holland admitted that on July 17, four days before his arrest, he spoke with Moore and requested money from him in return for his silence and because he needed to get a lawyer.
At the end of the tape, Holland told Gaudelli that he wanted to talk to a lawyer. Gaudelli left Holland alone, and about twenty minutes later (at approximately 11:45 P.M.) Detective John Daly placed a Yellow Pages in front of Holland, opened to "Lawyers." Daly testified that Holland then asked him what the directory was for, and he replied that Gaudelli had told him that Holland wanted a lawyer. Holland then supposedly said "I don't really want a lawyer, I am going to get one in court." Daly responded that he wanted to ask Holland questions and that Holland was entitled to get a lawyer. Daly testified that Holland repeated "I'll get one in court."
Daly testified that, after he again advised Holland of his rights, he accused him of having lied during the taped interrogation. According to Daly, Holland then dropped his head and said "Now I'm going to get involved." When Daly said he believed that Holland had received money from the robbery, Holland admitted getting a $10,000 share. Holland also admitted placing Moore's and Caccavalle's guns into the money bags and throwing them into a sewer in front of a church on Washington Avenue in Brooklyn. This admission coincided that with one of the statements he had supposedly made originally to Detective Greene.
Daly and other police witnesses testified that the police subsequently searched the sewers near the church on Washington Avenue, but could not find the bag. As a result, they took Holland to the site and he directed them to the correct sewer where, ...