OPINION
MOTLEY, District Judge.
On December 11, 1965, at approximately 9:00 P.M., three men robbed a delicatessen in Niagara, New York, of about $130.00 in bills and coins. In the course of the robbery, one of the robbers hit a customer of the delicatessen with a gun, knocking him unconscious and taking his wallet and money. This robber was wearing a beige trench coat, a black beret, and a mask which covered his mouth. He was pursued by two policemen who saw him running out of the delicatessen, but he escaped apprehension after a chase. In the meantime, two other officers had come on the scene and, after losing sight of this suspected robber for a brief time, spotted petitioner and arrested him.
At the time of his arrest, petitioner was wearing a beige trench coat and black beret. Two black stockings, which appeared to fit the description of the robber's mask, were discovered in his pockets along with over $25.00 in change and $73.00 in bills, only $20.00 of which was in his wallet.
Petitioner was taken to police headquarters where he was placed in a series of lineups and identified by three witnesses to the robbery, including two who claimed to have known petitioner previously. All three witnesses identified petitioner at trial as did a fourth eyewitness who claimed to have seen petitioner in front of the store before he put on his mask. Petitioner steadfastly professed his innocence before and after his arrest. At trial, he presented an alibi defense through his own testimony, elements of which were corroborated by various defense witnesses.
During the night of the robbery, the police also arrested a 17 year old, Terry Fox, after he had been named by an eyewitness as a participant in the crime. Cox was identified in a lineup that night and signed a confession the following morning. At trial, Cox denied the truthfulness of the statement, charging that he was scared at the time and that he was told that he would go free if he confessed. The confession referred to the fact that "the stout fellow [one of the other two robbers] told the people in the store to stick em up."
Petitioner, Cox, and a third co-defendant, Norman Jones, were subsequently indicted and were brought to trial in the County Court of Niagara County, New York on March 2, 1966. At the end of the taking of testimony, but before the summations by counsel, the District Attorney was granted a motion to dismiss the indictment against Jones for lack of evidence against him.
Petitioner now seeks a federal writ of habeas corpus to release him from Wallkill State Prison, Wallkill, New York, where he is presently serving his term. He raises several claims of federal constitutional error in the state proceedings, which the court shall consider seriatim. Unless otherwise noted, petitioner's claims were presented to the state appellate courts and are cognizable here. 28 U.S.C. § 2254(b) (1970).
I. The Lineups
Petitioner contends that his constitutional rights were violated during the post-arrest lineups conducted for identification purposes in that 1) he was denied counsel at the time, and 2) the procedure utilized denied him due process of law. Since the lineups were conducted in 1966, the right to counsel claim is clearly without merit. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). While petitioner's due process claim may have substance, he neither raised it on direct appeal of his conviction nor in any other post-conviction proceeding in the state courts.
II. Dismissal of Charges against Jones
Petitioner's second contention is that the trial court committed error when it granted a motion by the District Attorney, in the hearing of the jury, to dismiss charges against co-defendant Jones. See Trial Record, Vol. IX, at 2-6. The motion was made and granted prior to summations by counsel
Petitioner next contends that the admission into evidence of Cox's confession at the joint trial violated petitioner's constitutional rights. The challenge is made on two grounds. First, petitioner claims that since the confession arguably implicated him in the crime, its introduction at the trial violated the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). However, in those cases appellants, who were implicated by the extra-judicial confessions of their codefendants, had no opportunity to cross-examine these codefendants at trial and were thus denied their Sixth and Fourteenth Amendment rights. Here, in contrast, Cox did testify at the joint trial and was cross-examined by petitioner's counsel. Cox admitted making the statement, but denied its truthfulness, and otherwise testified favorably to petitioner. Trial Record, Vol. X, at 72-79, 141-43, 153-155. Consequently, petitioner has no viable Bruton claim. See Nelson v. O'Neil, 402 U.S. 622, 628-630, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971). Cf. California v. Green, 399 U.S. 149, 159-164, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). In any event, if error there were, it would be harmless beyond a reasonable doubt for the reason stated below. See Harrington v. California, 395 U.S. 250, 252-253, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
Second, petitioner claims that the trial judge's failure to make a preliminary determination, outside the hearing of the jury, of the voluntariness of Cox's confession transgressed the rule of Jackson v. Denno, 378 U.S. 368, 377, 391, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and, therefore, rendered the confession inadmissible at trial.
The only part of Cox's confession which inculpated petitioner was its reference to "the stout fellow [who] told the people in the store to stick em up." (sic) Trial Record, Vol. VII, at 19. At worst, this statement was merely cumulative evidence supplementing other overwhelming evidence on the issue of petitioner's identity. Petitioner was captured immediately following the robbery in clothing matching the description of that worn by one of the robbers. In addition, he was identified by four eyewitnesses at trial. Thus, there is not the slightest possibility that the description of one of the robbers as a "stout fellow" affected the jury's determination on the identity issue. Compare Harrington, supra, where the Supreme Court found the alleged error harmless beyond a reasonable doubt, although the challenged statements were more incriminatory and the evidence against the defendant less conclusive than in the instant case. (See p. 1001 infra)
IV. The District Attorney's Summation
Petitioner finally argues that the state prosecutor employed improper and prejudicial argument in his summation, thereby depriving petitioner of a fair trial within the meaning of the due process clause of the Fourteenth Amendment. Petitioner cites no less than eighteen different remarks in the summation to support this contention. [Plaintiff's Memorandum of Law, at 6-8.]
Respondent urges the court to dismiss this claim on the ground that it does not raise a federal question. While some decisions in this Circuit have held particular statements by state prosecutors to be trial errors without constitutional dimensions, see, e.g., United States ex rel. Garcia v. Follette, 417 F.2d 709, 713 (2d Cir. 1969); United States ex rel. Colon v. Follette, 366 F.2d 775 (2d Cir. 1966); United States ex rel. Castillo v. Fay, 350 F.2d 400, 401 (2d Cir. 1965), cert. denied, 382 U.S. 1019, 86 S.Ct. 637, 15 L.Ed.2d 533 (1966), the court reads the latter decision as propounding a rule of fundamental fairness for testing whether such errors in a specific case violate the Fourteenth Amendment. See Castillo, supra, 350 F.2d at 401, 403, 405 (Hays, J., for the Court; Kaufman, J. concurring, Marshall, J. [now Justice Marshall], dissenting on other grounds). Consequently, petitioner's claim is properly before this court.
Respondent further argues that petitioner failed to challenge many of the allegedly prejudicial remarks on his state appeal. Therefore, it is argued, petitioner has not met the exhaustion requirement of 28 U.S.C. § 2254(b) in respect to those remarks. However, while not specifically citing all conceivably prejudicial remarks, petitioner's appellate brief did point to no less than fourteen pages of the prosecutor's summation and clearly invited the appellate court to consider the summation
In reaching the merits of petitioner's claim, the court will first consider the challenged remarks of the prosecutor which make no reference to race. They are reprinted in the Appendix to this opinion, infra. Taken as a whole, these remarks cannot be said to have so prejudiced petitioner as to have denied him a fair trial.
Several of the statements complained of referred solely to co-defendant Cox and could not have affected petitioner's case. [Appendix, #3-5.] The alleged misstatements of testimony and the District Attorney's allusion to an extrajudicial identification by one of the prosecution witnesses were not so offensive as to constitute constitutional error, especially since they were immediately followed by curative warnings by the trial judge. [Appendix, #12-14.] Likewise, the prosecutor's exhortation to the jury to convict the defendants and his alleged appeals to fear, although clearly inappropriate, did not vitiate the fairness of the trial.
The prosecutor's comments evincing his personal belief that petitioner testified falsely at the trial are also challenged.
Two other comments on petitioner's credibility, however, were objectionable. The District Attorney stated that:
Taken together, these remarks constituted "a statement of belief that the jury was expected to understand came from the prosecutor's personal knowledge of, and from the prosecutor's prior experience with, other defendants, and as such he was speaking as an expert based upon matter outside the record. That the remark was improper is beyond dispute." See United States v. Grunberger, 431 F.2d 1062, 1068 (2d Cir.1970), and cases cited therein.
The combination of this indecorous characterization of petitioner and the improper disparagement of his testimony might have constituted reversible error, had petitioner's trial occurred in the federal courts. See Hall v. United States, 419 F.2d 582, 587 (5th Cir.1969). However, in reviewing petitioner's state court conviction, this court cannot say that the remarks, despite their impropriety, violated petitioner's Fourteenth Amendment rights. Viewing the trial record as a whole, the prejudicial nonracial comments did not create, as a demonstrable reality, such essential unfairness at petitioner's trial that his conviction must be reversed on federal constitutional grounds. See Buchalter v. New York, 319 U.S. 427, 431, 63 S.Ct. 1129, 87 L.Ed. 1492 (1942); United States ex rel. Castillo v. Fay, supra, 350 F.2d at 401.
On the other hand, the remarks which berated Haynes must also be considered in relation to several derogatory comments by the prosecutor directed at the "colored race." In Part V of this opinion, the court holds that the racial comments in the prosecutor's summation deprived petitioner of a fundamentally fair trial. It is only to be noted at this juncture, that the District Attorney's ostensibly non-racial observations which deprecated petitioner's character and credibility may well have produced racially prejudicial overtones in the minds of the jurors.
Petitioner's primary attack on his conviction is directed at the overt racial references which punctuated the prosecutor's argument to the jury. Two of the challenged remarks related solely to the identification issue. They were clearly relevant and responsive to arguments by petitioner's counsel and were not improper.
The prejudicial racial comments cited by petitioner were as follows:
Petitioner's constitutional claims regarding these remarks are: 1) these overt racial references crossed the line of fair comment and conduct and constituted an invitation to the jury to base its verdict not on the evidence in the case but on the petitioner's race, and 2) the trial judge—by countenancing the conduct of the prosecuting attorney—effectively communicated his own hostility toward the defendants to the jury. (Petitioner's Brief, pp. 8-9). In short, says petitioner, the actions of the prosecuting attorney—not interfered with by the court—were totally inconsistent with the fair and impartial jury trial which is petitioner's right under the Fourteenth Amendment.
The court holds that such prosecutorial argument, in the presence of a jury, is a trial error of constitutional magnitude. Indeed, where a prosecutor maligns a defendant's race before the jury, the very integrity of the trial process is destroyed and the trial becomes little more than a mockery of justice. Consequently, this court holds that the prosecutor's overt racial remarks, set forth above, denied petitioner a fundamentally fair trial in violation of rights secured to him by the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution.
More specifically, the court holds that the prosecutor's remarks introduced race prejudice into petitioner's trial thereby denying petitioner his due process right to an unbiased tribunal. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); see Peters v. Kiff, 407 U.S. 493, 501-502, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) (Opinion of Marshall, J.), and his right to "stand on an equality before the bar of justice in every American court." Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 590, 100 L.Ed. 891 (Opinion of Black, J.), reh. denied, 351 U.S. 958, 76 S.Ct. 844, 100 L.Ed. 1480 (1956), quoting Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 84 L.Ed. 716 (1940). See Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L. Ed.2d 536 (1972) (exclusion of Negroes from grand jury which indicted Negro
To preface the court's elaboration of this holding, a decision of the Appellate Division, Supreme Court, New York County, is worthy of consideration. In People v. Hearns,
While the racial references in the Hearns case were similar to the District Attorney's remarks A-E, above, in that they were intended to bolster the testimony of a witness on account of his or her race,
"A fair trial in a fair tribunal is a basic requirement of due process."
A second element of a fair tribunal is that the trial jury be composed of "a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722-724, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). This due process requirement was also undermined by the District Attorney's arguments to the jury. It would make no sense whatsoever to insist unequivocally that jurors enter the courtroom in an impartial and indifferent frame of mind,
Furthermore, it is axiomatic that a fair trial must provide for a fair hearing of a defendant's witnesses. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Where racial bias is expressed in a prosecuting attorney's arguments to the jury, as was the case here, it is conceivable that the jury will discount the testimony of all black witnesses at the trial. Although, by some incomprehensible logic, the prosecutor made several of the remarks in the course of rehabilitating his own black witness, they might still have had this effect. The prejudicial impact on petitioner's case is incalculable, since his defense depended entirely on his own testimony and that of his wife and other blacks.
See, e. g., Peters v. Kiff, supra, 407 U.S. at 502, 92 S.Ct. 2163; Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). At petitioner's trial, the prosecutor's summation dealt with the jury as a racial group distinct from that of the defendants and maligned the defendant's race. The cumulative effect of the argument created "such a probability that prejudice will result that it [the verdict] is deemed inherently lacking in due process." United States ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L. Ed.2d 646 (1971). (Brackets, in the original.)
In addition to violating petitioner's right to due process at his trial, the prosecutor's closing argument infringed the injunction of the Fourteenth Amendment that all persons be afforded the equal protection of the laws. Of course, the guarantees of equal protection and due process are inevitably intertwined in the basic conception of a fair trial. Cf. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 84 L.Ed. 716 (1940). Thus, the due process infirmities at petitioner's trial resulting from the prosecutor's racial remarks, as set forth above, may equally be viewed as grounds for finding a denial of equal protection. However, there are additional grounds for holding that the prosecutor's conduct violated petitioner's right to equality before the law.
In a long line of cases, the Supreme Court has emphasized that a state and its agents cannot discriminate against any person in its criminal statutes or procedures on account of that person's race or color. Alexander v. Louisiana, supra; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Hamilton v. Alabama, supra; Johnson v. Virginia, supra; Avery v. Georgia, supra; Hollins v. Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed. 1500 (1935); Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497 (1906); Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879) (state judge convicted of federal crime of excluding Negroes from state grand and petit juries); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879) (defendant has right to trial by a jury selected and impaneled without discrimination against his race or color).
The prosecutor's summation deprived petitioner of equal protection at his trial in two other respects. On the one hand, the prosecutor's gratuitous racial comments detracted from the solemnity and significance of the trial by demeaning the race of defendants. In effect, the jury was indirectly told that petitioner's value as a person was less than that of a white person. What would it really matter if he were deprived of his liberty?
On the other hand, the we-they terminology, employed by the state prosecutor, impressed on the jurors the notion that petitioner, as a black, was somehow an outsider in their community. This may well have reduced the jurors' concern for the consequences of a guilty verdict.
In short, petitioner was manifestly entitled to a trial no different from that which a white person in his position would have received, a trial free from offensive and prejudicial remarks directed at his race. The prosecutor's argument deprived petitioner of this right.
The court concludes that petitioner was denied his federally guaranteed rights to due process and equal protection and, consequently, his right to a fundamentally fair trial.
Respondent would have the court determine that, "even if . . . any error in the summation rose to constitutional proportions, the overwhelming evidence against petitioner makes this error harmless [beyond a reasonable doubt]", citing Harrington and Chapman, supra. However, as the opinion makes abundantly clear, this court does not think that petitioner's state prosecution comported with "the fundamental conception of a fair trial." Estes v. Texas, supra, 381 U.S. at 560, 85 S.Ct. at 1641, 14 L.Ed.2d 543 (Warren, C. J., concurring). Consequently, under this view of the case, there can be no question of whether or not the constitutional error contributed to petitioner's conviction, for the error was so significant as to make the trial a nullity.
Therefore, the court holds that when a prosecuting attorney makes prejudicial remarks to a jury concerning a defendant's race, creed or color, the constitutional error which results destroys the fundamental fairness of the proceedings and can never be considered harmless beyond a reasonable doubt.
Assuming, nonetheless, that the harmless constitutional error rule does apply to the issue presented here, the court would reach the same result. After evaluating the entire record of petitioner's trial, the court cannot conclude that the constitutional error committed by the state prosecutor was harmless beyond a reasonable doubt and might not have contributed to petitioner's conviction. The reasons for this conclusion follow.
First, a comparison with the Chapman decision is instructive. As Justice Harlan pointed out in his dissenting opinion, the evidence against Chapman adduced at trial was virtually conclusive and Chapman offered no defense on the merits. See 386 U.S., at 54-55, 87 S.Ct. 824, 17 L.Ed.2d 705. Moreover, Chapman's prosecution for kidnapping and murder, for which she was sentenced to life imprisonment, was far more serious than petitioner's alleged crime. Finally, the constitutional error in Chapman was the extensive argument by the prosecutor directed at Chapman's failure to take the stand. In comparing the records, the error in Chapman can certainly not be viewed as any more damaging than the error committed at petitioner's trial and, as in Chapman, this court cannot conclude that the error was harmless beyond a reasonable doubt.
Second, consideration of the other major Supreme Court precedents on this issue, Harrington, supra, Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L. Ed.2d 340 (1972) and Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), confirms this conclusion. Harrington and Schneble involved the use at trial of the confessions of co-defendants, without the opportunity for cross-examination, in violation of the Bruton rule. In Milton, the petitioner challenged the introduction into evidence of statements which he had made to a police officer under circumstances which, the petitioner contended, violated his constitutional rights. In all three cases, the Supreme Court held that the alleged constitutional error was harmless beyond a reasonable doubt.
In each of those cases, however, the prejudice resulting from the alleged error was exclusively evidentiary in nature. In Harrington, the confessions of
The challenged evidence in the Milton case was also duplicative of other evidence at trial. Indeed, Milton gave "no less than three full confessions," all of which were introduced at trial, prior to making the challenged statements to the police officer. 407 U.S., at 373, 375-376, 92 S.Ct., at 2175.
In each of these cases, the Supreme Court held that there was overwhelming evidence of the defendant's guilt, that the constitutional error simply injected cumulative evidence into the trial, and that, consequently, the error could not, beyond a reasonable doubt, have contributed to the verdict.
Thus, petitioner's case is distinguishable from Harrington, Schneble, and Milton on both theoretical and factual grounds. On the one hand, the constitutional error at petitioner's trial was not in any way an evidentiary matter. If the only effect of the prosecutor's racial argument had been to strengthen the testimony of the 13-year old black girl, this court might find the error harmless beyond a reasonable doubt, since it might be argued that the evidence she provided was essentially duplicated by three other witnesses.
However, the error here affected petitioner's trial in a far more significant way by prejudicing the minds of the jury against petitioner's race.
On the other hand, apart from this theoretical framework, the facts of petitioner's case are in stark contrast to the facts in the Supreme Court cases discussed above. Petitioner claimed that he was not at the scene of the crime. Petitioner testified to that effect
Petitioner has already paid six years of his life to account for the crime that he allegedly committed. If the state determines that continued incarceration of petitioner for his alleged crime is advisable, it has the opportunity to retry petitioner and to find him guilty, if the jury so decides. However, this time it must utilize a trial process which conforms to the constitutional requirements of an unbiased tribunal and respects petitioner's constitutional right to stand equal before the law.
The petition is granted unless the state within 60 days from the date of the entry of this court's order retries petitioner.
Submit Order within 10 days on five days' notice. Dated: New York, New York
APPENDIX
Reprinted below are the non-racial remarks in the prosecutor's summation which are challenged by petitioner. The page numbers refer to Volume X of the Trial Record. The statements have been reproduced verbatim with the exception of #11, where some repetitious phrases have been deleted.
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