United States Ex Rel. Angelo John La Marca v. Wilfred L. Denno, Warden of Sing Sing Prison, 257 F.2d 295, 2d Cir. (1958)

257 F.
2d 295
UNITED STATES ex rel. Angelo John LA MARCA, Petitioner,

v.
Wilfred L. DENNO, Warden of Sing Sing Prison, Respondent.
United States Court of Appeals Second Circuit.
Argued June 27, 1958.
Decided July 2, 1958.
David M. Markowitz, New York City, for petitioner.

Henry P. DeVine, Asst. Dist. Atty. of County of Nassau, N.Y., Mineola,
N.Y., for respondent.
Before MOORE, Circuit Judge.
MOORE, Circuit Judge.
The petitioner, Angelo John LaMarca, moves before me during a recess of this
court for a certificate of probable cause pursuant to 28 U.S.C. section 2253.
That section, in part, provides: 'An appeal may not be taken to the court of
appeals from the final order in a habeas corpus proceeding where the detention
complained of arises out of process issued by a State court, unless the justice or
judge who rendered the order or a circuit justice or judge issues a certificate of
probable cause. June 25, 1948, c. 646, 62 Stat. 967, amended May 24, 1949, c.
139, 113, 63 Stat. 105.' The sole issue, therefore, is whether there exists
'probable cause' for the appeal.
The proposed appeal is from an order made by Judge David N. Edelstein filed
on June 13, 1958 which order denied petitioner's application for a writ of
habeas corpus. Petitioner's application was based upon the ground that he could
not have received a fair trial in Nassau County because of prejudice existing
there at the time of the trial which prejudice was allegedly created in large part
by newspaper and radio publicity given to the crime. Petitioner argued before
Judge Edelstein, as he argues now, that this publicity and alleged prejudice,
particularly in the selection of the jury, 'must of necessity preclude that kind of
fair trial which is guaranteed by the Fourteenth Amendment of the Federal
Constitution.' Since protection of petitioner's constitutional rights is of
paramount importance, a thorough review of the proceedings so far as they bear

upon the prejudice complained of has been made.
3
Petitioner was indicted on August 29, 1956 for the crimes of murder in the first
degree and kidnapping. On September 5, 1956 he pleaded not guilty with the
specification of insanity in the County Court of Nassau County. On September
21, 1956 he made a motion in the Supreme Court, Appellate Division, Second
Judicial Department, for a change of venue. In support of that motion petitioner
submitted lengthy affidavits reciting the news coverage which the crime had
had in the local press and statements as to the feelings of the local populace.
This motion was denied on October 1, 1956.
The trial commenced on November 5, 1956. The first six days were devoted
exclusively to the examination and selection of jurors. Accepting the figures
given by the petitioner in his present application, 230 jurors were examined, 44
were excused because they could not devote the time necessary to try the case,
6 were excused for illness, 13 were excused because of their own ideas on
insanity, 20 were excused because they were acquainted with one or more
persons involved, and 15 were excused for various other reasons. A balance of
132 jurors remained. The voir dire of the prospective jurors commenced on
November 5, 1956 and was concluded at the end of the sixth court day, on
November 14, 1956. The examination is set forth verbatim from pages 50 to
685 of the printed record on appeal in the State Court. Examination of jurors for
the selection of alternates continues to page 740. I have reviewed the voir dire
and find that petitioner's trial counsel, who is now his counsel on this
application, carefully examined every juror. Furthermore, the trial court was
most protective in excusing jurors for cause. Turning to the record with respect
to the jurors finally chosen, I find that in every case except the twelfth
petitioner's counsel after thorough examination said that the juror was
satisfactory or acceptable to the defendant (petitioner here). This satisfaction
appears on pages 94, 156, 190, 229, 239, 324, 397, 430, 467, 527, 560, and on
684-5 where after having exhausted his peremptory challenges petitioner
acknowledged as to the twelfth juror that he had no challenge for cause.
After conviction petitioner appealed to the New York Court of Appeals. In the
notice of appeal in addition to the appeal from the judgment of conviction
petitioner stated that he intended 'to bring up for review before the Court of
Appeals of the State of New York the intermediate order made by the Appellate
Division, Second Department, denying the defendant's motion for a change of
venue * * *.' The record on appeal contained the motion for a change of venue
and the supporting affidavits as well as the entire transcript of the voir dire in
the selection of the jurors. This point, however, was expressly waived by
petitioner's appellate counsel. The conviction was affirmed (People v.

LaMarca, 3 N.Y.2d 452, 165 N.Y.S.2d 753, 144 N.E.2d 420) and the
application for a writ of certiorari was denied (355 U.S. 920, 78 S.Ct. 351, 2
L.Ed.2d 279). The record before the Supreme Court, therefore contained all the
facts theretofore presented concerning the alleged prejudice and the method of
the jury selection.
6
Subsequently an application was made to the United States District Court for
the Southern District of New York for a writ of habeas corpus based upon the
fact that alleged prejudice in Nassau County had deprived him of the right of a
fair trial. The court stayed petitioner's execution so that coram nobis
proceedings could be instituted in the state court and hearings held on the
prejudice question. Pursuant to that order hearings were held in the County
Court of Nassau County before the Honorable Cyril J. Brown. After hearing
some 35 of the rejected prospective jurors and after counsel had stipulated that
the balance of the witnesses subpoenaed would testify in a similar vein the
petitioner rested. Judge Brown concluded that nothing had occurred during the
examination 'which might have impaired the defendant's right to a full and fair
disclosure of the facts on the voir dire (People v. Winship, 309 N.Y. 311 (130
N.E.2d 634)).'
Thereafter petitioner sought to appeal to the New York Court of Appeals. 4

N.Y.2d 925, 175 N.Y.S.2d 167, 151 N.E.2d 353, 356. Chief Judge Conway
wrote a detailed opinion particularly with reference to the examination of the
twelve jurors who actually served and said in part:
'Thus, it is clear that the attorney for the defendant never said that any one of
the 12 jurors was prejudiced against defendant.
'I can find no support in the evidence presented to me for defendant's charge
that he was unable to, and did not, receive a fair trial in Nassau County. His
guilt was proved beyond doubt and the trial was free from legal error. He,
himself, was satisfied that none of the jurors was prejudiced against him and he
never claimed on the trial that any one of them was prejudiced against him.
Accordingly, there is no justification for a further appeal to our court and I find
myself unable, in good conscience, to certify that there is. The defendant has
had his day in court and has received the full protection of the law.'
10
On June 2, 1958 petitioner made application before Judge Edelstein for a writ
of habeas corpus alleging in substance the same grounds as presented in the
coram nobis proceeding before Judge Brown and in the application for leave to
appeal before Chief Judge Conway. Judge Edelstein came to the conclusion that
'Counsel for the petitioner proposes to produce precisely the same evidence at
such a hearing as was produced before Judge Brown in Nassau County, but
with the hope, of course, of achieving a different evaluation of that evidence.'
After examining the transcript on the coram nobis proceedings he decided that
there was no need to hold another hearing on this issue, Brown v. Allen, 344
U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, and concluded 'that there is no support in
the evidence for the petitioner's charge that he was unable to, and did not,
receive a fair trial in Nassau County.'
11
A review of the many decisions of the Supreme Court indicates that the
petitioner's constitutional rights have been fully protected. Giving little weight
to possible technical arguments, such as, failure to exhaust state remedies, I find
on the merits that the proof establishes that petitioner's rights have been
zealously safeguarded both during trial and upon appeal. Rocognizing also the
doctrine of freedom of the press, it is to be expected that crimes will receive
publicity in the local press. Certain crimes of violence are bound to receive
greater publicity than petty larceny. The degree of publicity will require an
equal degree of care in making sure that the jurors are carefully sifted so that
both sides are satisfied that they have twelve fair, impartial and unprejudiced
persons to hear the proof. In this case that standard has been met. An unusually
large group of veniremen was called. Jurors were readily excused for cause.
The very duration of the examination shows the care with which the trial judge
proceeded. Finally the acceptance by petitioner's trial counsel of eleven jurors
as satisfactory after thorough examination and, after exhaustion of his
peremptory challenges, his inability to find any ground for challenging the
twelfth juror for cause, indicate that petitioner was accorded every
constitutional right to eliminate from the jury persons who might be prejudiced
against him.
12
After a protracted review of all the previous proceedings, I can find no probable
cause for appeal. Therefore, under the law the certificate applied for must be
denied.

United States Ex Rel. Angelo John La Marca v. Wilfred L. Denno, Warden of Sing Sing Prison, 257 F.2d 295, 2d Cir. (1958)

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United States Ex Rel. Angelo John La Marca v. Wilfred L. Denno, Warden of Sing Sing Prison, 257 F.2d 295, 2d Cir. (1958)

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257 F.

UNITED STATES ex rel. Angelo John LA MARCA, Petitioner,

David M. Markowitz, New York City, for petitioner.

paramount importance, a thorough review of the proceedings so far as they bear

petitioner's appellate counsel. The conviction was affirmed (People v.

Thereafter petitioner sought to appeal to the New York Court of Appeals. 4

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