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February 9, 1957

UNITED STATES of America ex rel. Elmer BURKE, Relator,
Wilfred L. DENNO, as Warden of Sing Sing State Prison, Respondent

The opinion of the court was delivered by: SUGARMAN

Upon the petition of one of the counsel assigned to defend him in the state court, the relator, Elmer Burke, moves that the respondent, Warden of Sing Sing State Prison, the Attorney General of the State of New York, and the District Attorney of New York County show cause 'why a writ of habeas corpus should not be issued herein, directing the production of the relator, Elmer Burke, before this Court, so that the cause of his detention and imprisonment may be inquired into.'

The petitioner claims that the relator is unlawfully detained by the respondent in Sing Sing Prison in Ossining, New York, awaiting execution of a sentence of death pronounced upon him by the Court of General Sessions of the County of New York, upon relator's conviction of the crime of murder in the first degree. After reciting the procedural history of this case, the petition asserts in substance that relator was denied a fair trial in accordance with the standards of the due process guaranteed by the Constitution of the United States on three grounds: first, the trial court's denial of an adjournment or a change of venue because of prejudicial newspaper publicity; second, the refusal of the court to set aside the verdict because of allegedly prejudicial security measures in the courtroom; third, the court's denial, during the trial, of a motion for a mistrial made after certain cross-examination of the defendant by the prosecuting attorney.

 Each of these questions was raised on the appeal by the relator to the New York Court of Appeals from his conviction in General Sessions. In disposing of those issues, among others, that Court affirmed the conviction stating: 'Judgment of conviction affirmed; no opinion.' *fn1" Certiorari was denied by the Supreme Court. *fn2"

 When a district judge sits as scrutator of the judgment of the highest court of a state, he does so as the Congressional designee 'in the hierarchy of the federal judiciary to express the higher law' and not as 'a lower court sitting in judgment on a higher court.' *fn3" In the performance of this compulsory review 'in habeas corpus cases, as in others, denial of certiorari cannot be interpreted as an 'expression of opinion on the merits." *fn4" Hence, denial of certiorari to the New York Court of Appeals in this case is accepted as merely a step in the required exhaustion by relator of his state court remedies. *fn5"

 The relator having had the representation of able and industrious assigned counsel throughout the proceedings and an adequate record having been made available to this court, no hearing is deemed necessary. *fn6"

 While an explanatory opinion by the New York Court of Appeals might have shed some light on the reasons for the affirmance, the record and briefs on appeal to that Court amply demonstrate that the questions of due process under the Constitution of the United States now raised, were there squarely presented and 'due account of the (state court) proceedings that are challenged by the application for a writ' *fn7" is taken.


 The Motions for a Change of Venue or an Adjournment

 Twice in the Court of General Sessions (once by formal motion and again at the trial prior to the selection of the jury) the relator moved for a change of venue or an adjournment of the trial because of an article which appeared in a metropolitan daily evening newspaper three days before the formal motion and eight days before the commencement of the trial. The initial motion was brought on by the affidavit of one of relator's assigned counsel, to which was annexed an exhibit of the second section of the Brooklyn edition of the 'New York World-Telegram and The Sun,' which was fairly characterized in that moving affidavit as an article which dealt with a story about this defendant; mentioned much about the impending trial; mentioned the death of others and that the police were seeking the body of this defendant's former friend and painted this defendant as a multiple murderer and blackguard. The affidavit asserted also that the article in question revived earlier publicity which occurred at the time of relator's arrest some months before, which, but for the later article, 'may have died down.' However there was no proof that the later article, published in the Brooklyn edition of the newspaper, was distributed in New York County where the trial was held and, if so, produced the atmosphere of hostility that would have made a fair and impartial trial in New York County an impossibility.

 The jury to which the indictment was tried was a special jury *fn8" which by statute is required to consist of only those persons who are able 'to lay aside an opinion or impression formed from newspaper reading or otherwise, (and) to render an impartial verdict upon the evidence, uninfluenced by any such opinion or impression * * *.'

 The offending article appeared, not during relator's trial but eight days prior thereto in one metropolitan evening daily apparently (in the absence of proof to the contrary) distributed in a county and borough of New York City from which none of the jurors who tried relator could have been drawn. In most cases the offensive article appears during the trial when its effect on the jury can no longer be tested and the court must be content with the admonition to the jury to ignore it. *fn9"

 There is nothing in the record to sustain the relator's counsel's assertion in his affidavit on the motion for change of venue or adjournment of the trial, that the article in question and the publicity which attended the relator's arrest 'months ago' and which 'may have died down * * * created * * * a very hostile attitude in the community against him.' The bare statement alone is insufficient. *fn10"

 Turning thence to the assertion in the same affidavit that a fair trial was then impossible because 'each prospective juror must have seen these published articles or some person may have discussed such news reports with him' the record belies the claim. The examination of jurors on their voir dire has been said to be the best test as to whether local prejudice exists. *fn11" The interrogation of each prospective juror on the voir dire in criminal trials in New York state courts is not normally made part of the printed record on appeal. It was not in this case. This court directed the District Attorney of New York County to supply the minutes of the examination of each juror and alternate juror ultimately accepted and sworn. That transcript shows that full opportunity was accorded to and exercised by relator to obtain by a searching inquiry a jury composed of talesmen who had either never read the article or, if they had, recalled having given it only scant notice. Every juror and alternate sworn was declared to be acceptable to the relator.11A

 Thus, the relator was tried by a fair and impartial jury *fn12" to which the court stated in its charge, without any exception having been taken thereto, that 'nothing outside of that evidence (verbal testimony and exhibits) should be considered by you in your deliberations.'

 The record herein fails by far to establish that clear showing of abuse by the Court of General Sessions in denying the motions for change of venue or adjournment of the trial which would warrant a disturbance of the verdict by habeas corpus. *fn13"


 The Alleged Prejudicial Security

 Measures in the Courtroom

 The petition in support of this application for a writ of habeas corpus states that:

 'Prior to the sentence, a motion was made by counsel for the relator to vacate the verdict of the jury on the ground that the trial had been conducted in an atmosphere which prevented the defendant from obtaining a fair trial. In was pointed out to the Court that no spectator was admitted to the courtroom during the trial, which lasted for about twenty days, unless he was searched and frisked manually by the Court attendants attached to the Court. In addition thereto, spectators were kept to one side of the courtroom, and on the other side of the courtroom a great many detectives in plain clothes were permitted to be seated in a section immediately behind the defendant. Counsel for the relator offered to submit proof that during the conduct of the trial jurors entering the corridor leading to the jury room were in a position to see, and did see the spectators being searched as they entered the courtroom. The motion was denied, as was the application for a hearing to offer proof with respect to the allegations by counsel, as above set forth.'

 That statement by counsel fairly summarizes what occurred on the day of sentence.

 The court was trying a 38 year old defendant who, in his testimony, admitted (1) that he left high school at age 17 because he

 'was talking to a teacher and I made a mistake in grammar. I don't know what it was at the time, but I remember he says, 'You speak like you were brought up in the gutter,' and I got mad and wanted to fight. He run down the hall and I run after him, you know, and we ran into the disciplinarian's office, and some monitors grabbed me and the disciplinarian told me to go outside until I cooled off, * * *'

 (2) that when he was 24 years old he was 'arrested for armed robbery * * * took a plea to robbery two * * * and (served) about two and a half years' in Elmira; (3) that while in the Army he was (a) 'given * * * a summary court martial' in France and (b) was fined 'for breaking a window in City Hall and for fighting with the (police) officers' in Kentucky; (4) that subsequently, after returning to civilian life, he 'took a plea to robbery * * * three' and 'got five to ten years in State's Prison, in Sing Sing'; (5) that (before the homicide for which he was being tried) he 'had loaned * * * a .32 calibre Belgian automatic * * * to a friend * * * to commit a crime';

 (6) that (after the homicide for which he was being tried) he (a) went to Boston, Massachusetts, where he was imprisoned for crime, (b) escaped from jail with the aid of some people, one of whom was armed and masked and (c) fled Massachusetts and went ultimately to South Carolina, where he was apprehended and returned to New York to stand trial.

 It is difficult to understand how the knowledge of the jurors (assuming them to have had it) that (a) spectators at the trial were 'searched and frisked manually by the Court attendants * * * (and) were kept to one side of the courtroom' and (b) 'a great many detectives in plain clothes were permitted to be seated in a section immediately behind the defendant' denied relator 'fairness (that) fatally infected the trial.' *fn14"

 In the light of relator's admissions at the trial, of acts demonstrating his propensity to refuse to yield to constituted authority (excluding the crimes in civilian and military life which he attributed to 'black-outs' induced by intoxication and limiting it solely to his earliest intractability as a high school student and his latest jail-break with armed assistance) the security measures adopted by the state were not unreasonable *fn15" and could not be held to have reduced his trial to a farce. *fn16"

 This court rejects the People's contention that because relator elected to stand mute throughout the entire trial (as to the practices which he first condemned after conviction and at sentence) and chose not to timely voice a complaint which would have put the trial court on notice and have afforded it an opportunity to correct or ameliorate the alleged abuses if it deemed them such, his mere silence constituted a waiver. *fn17" We do not have here the deliberate, unequivocal, articulate surrender of guaranteed rights sometimes permitted by rule or statute. *fn18"

 The security measures adopted at the trial and the court's refusal to hold a hearing thereon did not deprive relator of due process.


 The Alleged Prejudicial Cross-Examination of Relator

 The 'World-Telegram and Sun' article referred to in I supra contained among others two paragraphs as follows:

 'Feud Flares.

 'The long smoldering feud between Cribbins and Burke flared up at the Lake Ronkonkoma rendezvous. Cribbins was slain and his body hidden somewhere in the neighborhood, detectives were informed.

 'Police believe Burke later murdered Connelly and his wife after he hid out with them on the Isle of Pines, a South Carolina resort. The FBI combed the Carolinas in an unsuccessful search for the Connellys' graves.'

 When relator was being cross-examined by the district attorney certain questions were asked.18A

 Relator contends that the quoted cross-examination, coupled with the article, warranted the mistrial sought and that its denial deprived him of due process.

 From what appears in I supra the association in the jurors' minds of the Connelly mentioned in the article with the Connelly mentioned in the cross-examination is highly speculative. At most the cross-examination is to be gauged solely by its effect at the trial. That the cross-examination, by itself, implied that relator killed the Connellys is not farfetched. But New York holds that short of abuse such cross-examination is proper. *fn19"

 'As to the 'due process of law' that is required by the 14th Amendment, it is perfectly well settled that a criminal prosecution in the courts of a state, based upon a law not in itself repugnant to the Federal Constitution, and conducted according to the settled course of judicial proceedings as established by the law of the state, so long as it includes notice and a hearing, or an opportunity to be heard, before a court of competent jurisdiction, according to established modes of procedure, is 'due process' in the constitutional sense. * * *

 'It is therefore conceded by counsel for appellant that, in the present case, we may not review irregularities or erroneous rulings upon the trial, however serious, and that the writ of habeas corpus will lie only in case the judgment under which the prisoner is detained is shown to be absolutely void for want of jurisdiction in the court that pronounced it * * *.' (Emphasis supplied.) *fn20"

 Thus, the determination of the relevance, in a trial for murder, of questions implying defendant's attempt to commit a disconnected but similar act, is within the state's power and the adoption of a rule permitting such interrogation does not violate the Fourteenth Amendment. *fn21"

 The character of the cross-examination as inoffensive to due process was not altered by the district attorney's summation. The passages thereof which relator singles out and asserts, when coupled with the cross-examination, denied him due process, were fair argument in the light of the contested theories of the trial: i.e., that of the People, that the killing was deliberate and that of the defendant that it was not.

 In any event, relator cannot now be heard to complain, having taken no exception to the portions of the summation which he now denounces. *fn22"

 The denial of a motion for a mistrial because of the alleged prejudicial cross-examination of relator by the district attorney and the latter's summation was not a deprivation of due process.

 The shibboleth in testing accordance of due process in state court criminal trials was stated by Justice Holmes to be

 'In so delicate a matter as interrupting the regular administration of the criminal law of the State by this kind of attack too much discretion cannot be use, and it must be realized that it can be done only upon definitely and narrowly limited grounds.' *fn23"

 Justice Cardozo cautioned that

 'There is danger that the criminal law will be brought into contempt -- that discredit will even touch the great immunities assured by the Fourteenth Amendment -- if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.' *fn24"

 The application for a writ of habeas corpus is denied.

 Where human life is at stake one may not indulge in the assumption that appellate tribunals will share his views of the law. Hence a certificate of probable cause is granted. *fn25"

 It is so ordered.

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