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UNITED STATES EX REL. PARKER v. MCMANN

February 11, 1969

UNITED STATES of America ex rel. William PARKER, Petitioner,
v.
Daniel McMANN, Warden, Auburn State Prison, Auburn, New York, Respondent



The opinion of the court was delivered by: COOPER

MEMORANDUM

 COOPER, District Judge.

 Petitioner, a state prisoner serving a term of five to seven years as a second felony offender upon his conviction on August 30, 1965 by a jury of grand larceny, first degree, applies to this Court, pro se, for a writ of habeas corpus contending that the introduction of certain testimony by the State, in the presence of the jury, violated both his constitutional rights and the law of the State of New York.

 On May 6, 1965, Mrs. Ethel Birenbaum, upon entering her apartment building located in the vicinity of 170th Street and College Avenue, Bronx, was grabbed about the neck and shoulders, spun around, and her money demanded by a man she later identified to be the petitioner. A struggle followed during the course of which her assailant was able to acquire possession of her purse and flee into the street (Tr. 17-19). *fn1" Later that same evening petitioner was apprehended and brought to the 48th Precinct station house where he was arrested and searched by Detective Eugene Goddard (Tr. 65-66). During the trial Goddard testified, on the State's direct case, that at the time he arrested petitioner he conversed with him concerning the events of that evening; the following questions and answers then ensued:

 
Q. Do you recall what you said to him and what he said to you?
 
A. Yes, sir. I asked the defendant if he had taken Mrs. Birenbaum's pocketbook and he denied having taken it. As a matter of fact -
 
Mr. Potter [defense counsel]: I will ask for the exact words used.
 
Q. Do you recall the exact terms, if you can?
 
A. He said, "I didn't do it, I didn't take the pocketbook."
 
Q. Go on. A. He said that he had never seen Mrs. Birenbaum before. I asked him where he had been that evening and he said he was at 169th Street and Morris Avenue.
 
Q. Did you ask him what he was doing there?
 
A. Yes, sir. First he told me he went into the building to visit a friend.
 
Q. Did you ask him the address?
 
A. I did.
 
Q. What was his response? A. He did not give me the number of the building.
 
Q. Did you ask him the name of the friend?
 
A. I did.
 
Q. What was his response?
 
A. He didn't give me a name.
 
Q. Did you have any further conversation with him? A. Yes, sir. Later on I asked him if this money was his, if the $63 belonged to him and he said he had gotten paid a couple of days before that from his job. I asked him where he worked. However, I can't recall now what he told me, what his answer was.
 
Q. Did you ask the defendant where he lived?
 
A. Yes, sir, I did.
 
Q. Do you recall what he said to that?
 
A. 961 Fox Street.
 
Q. Is that in the Bronx?
 
A. Yes, sir.
 
Q. Can you tell me how far 961 Fox Street is from College Avenue and 170th Street?
 
A. I'd say approximately two and a half to three miles (Tr. 66-67).

 Petitioner now asserts, as he did previously on direct appeal from his conviction, *fn2" that Goddard's testimony that he failed to respond to certain questions concerning his whereabouts on the evening of the crime violated his constitutional right to remain silent as well as New York State law. *fn3" He contends that "the prosecution was using [his] failure to reply to these questions as evidence of [his] guilt," and urges that this Court not overlook "[the] probability that the jury misconstrued [his] silence and took it to be an admission that he was implicated in the crime in some way."

 In an attempt to rebut petitioner's constitutional claim, the State argues that the holding of Griffin v. State of California *fn4" is factually inapplicable; further, even if the reasoning of Griffin is applicable to these facts, petitioner's constitutional rights were not violated since " the detective's testimony was not introduced in such a manner as to inculcate in the minds of the jury an impression that the refusal to answer was tantamount to admission of guilt " and " no comment was made by the prosecutor upon petitioner's silence." (State's Affidavit In Opposition, verified October 22, 1968, pp. 5-6.) We supply the emphasis for reasons which will become apparent hereinafter.

 Factually Griffin is distinguishable since no comment was made by the prosecution on petitioner's failure to testify. Yet, that is not to say that petitioner has presented no claim of constitutional dimension. Suffice it to say at this point that the Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), held that "it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation." Id. at 468 n. 37, 86 S. Ct. at 1625. The applicability of Miranda is an issue we discuss later.

 Vital portions of trial transcript not before mentioned

 In our study of the complete trial record consisting of 166 pages, as is our plain duty in an application such as the one before us especially when presented pro se, we came upon certain portions thereof unmentioned at any stage of the entire proceedings heretofore had herein, including the instant petition, which we regard as bearing significantly on petitioner's grievance. We raise no hopes nor indulge in criticism; we earnestly seek further enlightment on the crucial issue before us - not whether the petitioner was guilty as charged, but whether he received, as was his due, a constitutionally fair trial under law.

 Accordingly, of more immediate concern to this Court is the State's allegation that "no comment was made by the prosecutor upon petitioner's silence." A thorough reading of the record reveals the State's allegation to be incorrect, for the record contains several instances where both the prosecutor and Judge presiding, during the summation and charge respectively, made reference to petitioner's failure to respond to Detective Goddard's questions.

 During the course of his summation, the prosecutor, focusing on Goddard's testimony, stated:

 
The cogent point of the testimony, the important facet, was when this defendant was questioned, what were you doing in the neighborhood, you live over at Fox Street, two and a half miles away? People are entitled to go wherever they want, but what were you doing there? That is a legitimate question. After all the circumstances that have taken place, what were you doing there?
 
I went to visit a friend.
 
Where does the friend live?
 
Well, I don't know the address.
 
That is even legitimate too. People may not know the address. They can know the building. What is the name of the friend?
 
I don't know. I don't know. This is an answer (Tr. 121-122).

 At a later point in his summation, the prosecutor again made reference to petitioner's silence:

 
* * * and then the statement made by this defendant to Detective Goddard that he was visiting somebody at an address he didn't know and people he couldn't give the name of.
 
Doesn't this connote an element of a lie? Why would he want to lie about it? He knew if he had given the name of a person the detective could very easily check up on it and if it proved correct, he could walk out a free person, but he was caught in his own lie.
 
He didn't think fast enough or he didn't think correctly enough, and he lied (Tr. 131).

 The Judge, in the course of his summary of the testimony in the case, also referred to ...


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