Moore and Anderson, Circuit Judges, and Levet, District Judge.
On January 4, 1962 in the County Court of Kings County, New York, a jury returned a verdict of guilty against the relator-appellant Salvatore D'Ambrosio for attempting to bribe two police detectives with the intention of influencing them in carrying out their official duties. On February 19, 1962 D'Ambrosio was before the court for sentencing. At that time he and his counsel were presented with a second offender information which had been filed by the District Attorney. After a hearing thereon the court adjudged D'Ambrosio a second offender and sentenced him to imprisonment for five to ten years. This judgment was affirmed by the Appellate Division on July 1, 1963 (19 App.Div.2d 777, 242 N.Y.S.2d 625), and leave to appeal to the New York Court of Appeals was denied by Judge Fuld of that court on October 26, 1963. The Supreme Court of the United States denied certiorari May 18, 1964 (377 U.S. 936, 84 S. Ct. 1342, 12 L. Ed. 2d 300). The petition for habeas corpus to the United States District Court for the Southern District of New York was denied September 22, 1964, and it is from the denial of that petition that D'Ambrosio now appeals. We affirm the judgment below.
Two grounds of appeal are claimed as violations of the Fourteenth Amendment to the Federal Constitution: first, that in the course of his argument before the jury in the state court, the prosecutor improperly commented upon D'Ambrosio's failure to take the witness stand and testify on his own behalf; and, second, that he was improperly sentenced as a second offender because (a) he did not receive adequate notice of the second offender charge and (b) the trial court did not warn him of the increased penalties to which he could be subject as a second offender.
The first ground claimed stems from a statement made by the prosecutor at the beginning of his argument, which immediately followed the summation for the defendant. The remarks referred to by the appellant are the following:
"I am now going to speak without notes. My summation is in here, and I would be lying if I told you that I didn't spend a substantial part of all last night studying it, but it is out the window now; it is dead, completely dead, because, in order to draw my summation, I had to rely on the only evidence in the case, that which I had, and I had only one choice; either Mr. D'Ambrosio would admit that this was his money, and he had passed it, which he obviously has not --
Mr. Brodsky: If your Honor please, I move for the withdrawal of a juror and the declaration of a mistrial.
The Court: Motion denied.
Mr. Schmier: -- or the only other alternative, if it is not his money and he didn't pay this bribe and he is innocent, which he says he is, and which he is presumed to be, and which we all respect; I had to decide to sum up to you and decide whose money this is, because that $1100 belongs to somebody. This is somebody's $1100. So I drew my summation, and I guessed that Mr. Brodsky, in summing up, would yell, 'Frame up'; and I was right, but I don't get any credit for that because he had no other alternative. This $1100 belongs to somebody. His client, he claims, is innocent."
The appellant asserts that in hearing this statement the jury must naturally and necessarily have concluded that the prosecutor was making express reference to the failure of the defendant to take the witness stand in his own behalf. We disagree. In the context in which the remark was made, it is apparent that the prosecutor was making a reference only to the accused's plea of "not guilty" and defense counsel's theory of the case which had just been presented in the summation for the defendant.
The statement objected to was a part of the prosecutor's description of what went through his mind at a late hour the night before in planning his summation. This was largely irrelevant and not the best advocacy and was an effort to enlist sympathic consideration from the jury by telling them what great difficulty he faced in trying to anticipate the nature of the defense. It must also be borne in mind that, at the time he was engaged in the train of thought which he was describing, he had not yet finished putting in the main case for the People and did not know whether the defendant was going to take the stand or not. His reference to the "only evidence in the case, that which I had * * *" plainly at that stage meant only the People's own evidence. It must have been quite clear to the jury that the prosecutor was doing no more than to recount his late hour speculations about possible theories of defense which might be advanced. In using the words principally objected to "either Mr. D'Ambrosio would admit that this was his money, and he passed it, which he obviously has not --," it is unlikely in the context of these words, that the jury would either naturally or necessarily conclude that the prosecutor was talking about a failure by Mr. D'Ambrosio to take the witness stand.
On the contrary, they would have understood that he was pondering the strategy which would be adopted by the defense at the close of the People's main case, when either the strength of the People's case might have persuaded the defense not to contest further, or the accused might continue to assert his innocence on all elements of the offense and claim that he had been framed. If the accused were to concede the charge against him, it is highly unlikely that he would take the stand to testify about it. Instead, he would have entered a change of plea from "not guilty" to "guilty." To interpret the words "* * * Mr. D'Ambrosio would admit that this was his money and he had passed it, which he obviously has not --" as an allusion to the accused's failure to take the stand and testify would necessarily require the interpretation that the accused failed to take the stand to testify, not on his own behalf, and in denial and contradiction of the People's case, but in full support of the charge against him in the indictment. It is not reasonable to suppose that the jury entertained any such idea. After the denial of the motion for a mistrial, the prosecutor continued in the same vein in saying "* * * if * * he is innocent, which he says he is, and which he is presumed to be, * * *." He obviously did not mean by this that D'Ambrosio took the stand and testified that he was innocent. Certainly his whole preamble leading up to his discussion of the defense claim of "frame up" could have been better expressed and much of it would better have not been said at all, but if there was any misunderstanding or confusion by one or more jurors, it was taken care of by the state trial judge's charge that the accused had a right either to take the stand or not and that no unfavorable inference could be drawn from his refusal to testify.
The relator-appellant argues that the state trial judge had a duty at the time of the motion for a mistrial to give prompt and emphatic cautionary instructions to the jury; but his whole claim is based upon the assumption that the prosecutor's remarks were a reference to the failure of the accused to take the stand and testify -- something no court in reviewing the case has found to be so. Defense counsel did not ask for such cautionary instructions, nor did he request any special charge with regard to it, nor did he except to the charge which the court actually made with regard to the accused's failure to take the stand, although he placed in the record a large number of other exceptions. The trial judge in his charge repeatedly told the jury that they must take the instructions of law from him and no one else. After some deliberation the jury asked for further instruction on some issues but at no time indicated any misunderstanding about the prohibition against drawing unfavorable inferences ...