United States ex rel. Durso v. Pate (426 F.2d 1083, 1970)

MORGAN, District Judge.

In October, 1964, appellants, Thomas Durso and Michael Gargano, were convicted in the Circuit Court of Cook County, Illinois, of the crime of murder of one Anthony Moschiano. The Illinois Supreme Court affirmed their convictions. People v. Durso, 40 Ill.2d 242, 239 N.E.2d 842 (1968), cert. denied, 393 U.S. 1111, 89 S.Ct. 923, 21 L.Ed.2d 807 (1969). They then filed a petition for a writ of habeas corpus in the court below, alleging several grounds on which it was contended that their conviction was obtained in violation of the Constitution of the United States.

On May 28, 1969, the court denied the petition and dismissed the cause. On the same date, the trial judge filed a Memorandum of Opinion containing a narrative statement of his findings of fact and conclusions of law. Appellants have appealed from that decision.

. The principal contention by appellants is that they were denied due process of law and a fair trial because evidence of other criminal offenses was admitted at their trial.

The petition alleged: “The People were allowed to introduce, over objection, evidence of violations of the Illinois Narcotic Drug Act, not by petitioners, but by others out of the presence of the Petitioners and in so doing, so inflamed the passion and prejudice of the jury as to deny to the petitioners a fair trial for the crime of which they were charged.”

In this connection, appellants contend that the trial judge dismissed their petition on this point upon his holding that the issue was res adjudicata because of the denial of certiorari by the United States Supreme Court. Had the court based its decision upon that ground, the ruling would have been erroneous, Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); but when the reference to “res adjudicata” is read in context, the appellants’ contention is seen to be without merit.

With reference to the contention that evidence of other crimes had been admitted, the judge concluded in his memorandum that no constitutional question was raised by the petition, that the allegation related only to the relevancy of evidence, and that such evidence, when submitted to a jury, was for the jury to weigh and evaluate with all other evidence in arriving at its verdict. In that context, the judge noted that the convictions had been affirmed by the Illinois Supreme Court and certiorari had been denied, concluding with the statement: “The question is now res adjudicata.”

We think a proper reading of that paragraph of the district court’s memorandum requires the conclusion that the court was construing the issues presented by the petition, and it concluded that the only question properly raised with relation to that evidence was the question of the relevancy of evidence. In that context, then, the ruling by the State’s highest court upon the question of relevancy and admissibility of evidence could properly be said to be res adjudicata. We do not read the opinion as stating that the raising of a constitutional question is barred by the fact of denial of certiorari by the United States Supreme Court.

In discussing the admission of the evidence of which complaint is made, the Supreme Court of Illinois said that the evidence of other criminal activities was relevant and had a probative bearing upon the issue of motive and intent which attended the commission of the murder charged.

It has often been stated, as a general rule, that evidence of prior criminal acts of an accused which are not charged in an indictment is inadmissible [e. g., United States v. Fierson, 419 F.2d 1020 (7th Cir. 1969); United States v. Menk, 406 F.2d 124 (7th Cir. 1968), cert. denied, 395 U.S. 946, 89 S.Ct. 2019, 23 L.Ed.2d 464 (1969)]; but the true general rule is not nearly so broad. Evi dence of other criminal activities is clearly admissible if it is relevant to indicate motive or some other element of the crime charged, unless minor probative value is outweighed by major prejudicial effect. E. g., United States v. Fierson, supra: United States v. Marine, 413 F.2d 214 (7th Cir. 1969). The question on admissibility is, in the first instance, a matter addressed to the discretion of the trial court. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Fierson, supra.

In each case, then, upon direct review, a procedural question is presented whether there was a permissible exercise of discretion in admitting evidence of other criminal activity. We think the constitutional concept in a habeas corpus case must parallel that procedural question. No precise rules can be laid down in either instance. The issue, in each instance, requires a determination whether the probative value of the evidence, for the purpose for which it was admitted, outweighs the prejudice to the accused in the admission of that evidence. Grunewald v. United States, 353 U.S. 391, 420, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); United States v. Fierson, supra 419 F.2d at 1022. When it must be said that the probative value of such evidence, though relevant, is greatly outweighed by the prejudice to the accused from its admission, then the use of such evidence by a state may rise to the posture of the denial of fundamental fairness and due process of law.

As we have noted, the Illinois Supreme Court held that the evidence here complained of was properly admitted because it tended to prove motive. With one possible exception, we are convinced that the evidence did have a great probat _____ value to show a single, continuing series of related transactions within a brief time which culminated in the commission of the crime charged.

As appellants suggest, the evidence is properly divided into two categories. The first relates to evidence of criminal activities in which appellants, or one of them, participated. The second relates to criminal activities in the sale or purchase of drugs in which neither defendant was shown to have directly participated.

There were two incidents in the first category prior to the date of the alleged murder. In the first, Lupe Costible, a narcotics addict and friend of the victim, testified that shortly prior to Christmas, 1963, she went with Durso and Moschiano in Durso’s automobile to a housing development on the South Side of Chicago, wherein a sale oi a quantity of heroin was to be concluded by Moschiano. She testified that, upon arriving at the housing development, Durso waited in the car while she and Moschiano went inside one of the buildings in the development. Upon returning to the car, Moschiano explained to Durso that the sale had not been concluded because the prospective purchaser did not have the money and, also, because the purchaser was suspicious of Durso’s car, which contained a plaque indicating some connection with the Chicago Police Department. During the drive to return Lupe to her apartment, a conversation ensued between Durso and Moschiano, in which Moschiano requested, and Durso agreed, that Moschiano would sell the heroin involved on the streets. She further testified that Durso had consented to that arrangement upon the condition that Durso receive payment for the narcotics within two weeks.

Thereafter, on January 8, 1964, a man named Fiorenzo had a conversation with Durso, at which time Durso stated that he had given a large quantity of narcotics to Moschiano for sale, that he had not seen Moschiano in some time, that he knew that Fiorenzo and Moschiano had been together foA several days, and that Fiorenzo was in ^ trouble and his life depended on fino'ing Moschiano. Fiorenzo then went with ©urso to Moschiano’s home. Failing to find him there, they drove to a restaurant where they were joined by Gargano. The three of them then proceeded in Durso is car to Lupe’s rooming house. Upon arriyal at the rooming house, Durso demanded ,of Nancy Bourne, Lupe’s landlady, the key to Lupe’s room. Gargano remained downstairs holding a pistol on Fiorenzo and a man who roomed in the building, while Durso and Mrs. Bourne went upstairs to Lupe’s room. During the search of Lupe’s room by Durso, he knocked Mrs. Bourne down, whereupon he drew a pistol and told her to get up. She said that she had recently broken her back and couldn’t get up, whereupon Durso swore that he would break her back again and would blow her head off if she didn’t get up. He then forced Mrs. Bourne downstairs and forced her to phone Moschiano. When someone answered the call, Durso grabbed the phone from Mrs. Bourne and told the answering party to have Moschiano on the street within ten minutes or someone would be hurt. Durso then sent Gargano to get Moschiano. After Gargano and Moschiano returned, Moschiano and Fiorenzo were handcuffed together and taken from the Bourne home. Later both were released with the understanding that Moschiano was to sell the remaining heroin within two weeks and deliver the proceeds to Durso.

In the second category, there were a number of instances of testimony relating to the sale or the use of narcotics by Moschiano, Fiorenzo, and others. Lupe testified that after the abortive trip to the South Side, she kept the parcel of heroin overnight. She further testified that Moschiano had picked up the parcel on the following day, and that two or three days thereafter she went with Moschiano and a drug addict by the name of Buonaro to a hotel where they proceeded to cut the heroin by mixing it with a white powder procured and supplied by Buonaro. She further testified that a part of the narcotics was wrapped in foil packages, and that both Moschiano and Buonaro took a part of the wrapped packages. Lupe also testified that the three of them at that time took injections of heroin.

Fiorenzo testified that during the period of time between Christmas, 1963, and January 6 or 7, 1964, he and an addict named Melkonian had occupied a hotel room together, during which time Fiorenzo saw Moschiano daily and on each occasion purchased narcotics from him.

Fiprenzo testified that on January 9, 1964, he and Moschiano rented a room at the Cass Hotel, where they divided a part of the narcotics into about 300 small packages. They then took some four ounces of heroin not yet packaged to the Ontario Hotel, where they rented a room and packaged up fifty additional packages, each somewhat larger than the 200 which had been prepared at the Cass Hotel. The packages of narcotics were stored at the Ontario Hotel in a padlocked room. On about January 9 and 10, 1964, Fiorenzo made sales of a part of the narcotics to an addict by the name of Cancialosi for the sum of $200. He testified that he then left $175 of that money with Jimmy Green at Green’s Tavern to be picked up by Moschiano.

There was further testimony by Fiorenzo to the use of narcotics by himself, Moschiano, and others during the period of time intervening.

Shortly after the narcotics were packaged and stored at the Ontario Hotel, Fiorenzo and Melkonian, who were police informers, went to police headquarters where they reported to a Detective Brown. For some six days thereafter, both were confined to the witnesses’ quarters maintained by the State’s Attorney of Cook County. Meanwhile, Moschiano, who was also a police informer, led officers to the Ontario Hotel room where the narcotics were seized.

That background of criminal activity led up to the events of January 21, 1964. On that date, shortly following Fiorenzo’s release from custody, Durso contacted Fiorenzo at a restaurant, at which time Fiorenzo told him that he had been arrested for petty theft and that he had been confined for six days. He also told Durso at that time that Moschiano had also been confined, and that during their confinement someone had broken into the Ontario Hotel and stolen the narcotics. He then asked Durso if Moschiano had give him the $175 that Fiorenzo had left with Green. Durso replied that Moschiano had not mentioned it, and the two of them then went to Green’s Tavern where Durso asked Jimmy Green about the money. At,, that point Durso ordered Fiorenzo to take Durso’s car and pick up Moschiano “in the neighborhood.” Fiorenzo did so, after which the three of them drove to a place which was later identified as Durso’s suburban home. Enroute, Durso asked Moschiano why he had never mentioned the money he had picked up from Green. Moschiano told him that he still had the money, along with other money from sales of narcotics, which he would deliver to Durso. Moschiano further told Durso that he had the opportunity to make a kilogram sale of heroin and that he would make up for the missing money and missing narcotics from the proceeds of that sale. Durso stated that he was not going for that sale.

When the three of them arrived at Durso’s home, Fiorenzo parked the car in Durso’s garage. The three of them went into the house where they were met by Gargano. Gargano asked Moschiano what had happened to the heroin. Moschiano said that the hotel room had been broken into and that the narcotics had been stolen. He further told Durso and Gargano that if they didn’t go for the kilogram sale which he proposed, he was a thief and he would pay back the money he owed them on an installment basis from the proceeds of theft. Fiorenzo testified that shortly after that conversation Durso had stabbed Moschiano to death in the trunk of Durso’s car in the garage at his home. Durso told Fiorenzo at that/time, “I want you to look at this (M