The opinion of the court was delivered by: FRANKEL
On September 7, 1957, petitioner shot and killed his 17-year old son. He was indicted for (1) murder in the second degree and (2) the carrying and use of a dangerous weapon as a felony. The second charge was dismissed on consent at the close of the prosecution's case, a matter involved in an issue (No. 2) considered below. The jury returned a verdict convicting petitioner of first-degree manslaughter, and he was sentenced on April 23, 1958, as a second felony offender, to a prison term of from 25 to 40 years. It appears that he was about 57 years of age at the time.
From the evidence the jury could, and probably did, find the following unhappy facts: On the day of the killing petitioner's son and another youth were working on the son's car, which was jacked up in the yard of the house in which petitioner and his family resided. Petitioner came out of the house, asked what the boys were doing, told them the car could not be repaired, and ordered them to "get it out of here." Then he re-entered the house. A few minutes later he came out again, and proceeded to yell at and threaten the boys for their failure to comply with his earlier directive. The performance was repeated a third time, but on this occasion petitioner referred threateningly to a gun and warned he would make the boys "run so hard [they'd] see fire, or something of that sort." With that he went back into the house, emerged with a rifle, walked to a point near a shed on the property, and watched for a minute while his son started to back the car out of the driveway. Then he fired a shot. The son hastily stopped the car, leaped out, and started to flee with his companion. Petitioner fired a second shot. His son fell, wounded but still alive. Petitioner walked past him and into the house. The other boy and his sister summoned the police. When the police arrived petitioner's son was dead.
After he had been placed under arrest, petitioner told several police officers that the rifle was a war souvenir and that he had been demonstrating the manual of arms to his son when the weapon was accidentally discharged.
Petitioner's conviction was affirmed by the Appellate Division, People v. Hunter, 10 A.D.2d 1007, 204 N.Y.S.2d 950 (2d Dep't. 1960). Leave to appeal was denied by the Court of Appeals. The Supreme Court denied certiorari, 365 U.S. 849, 81 S. Ct. 812, 5 L. Ed. 2d 813 (1961).
The present proceeding is one of many petitioner has brought in an effort to have his conviction nullified. He came here pro se, filing lengthy papers and exhibits which displayed a familiar and understandable mixture of legal learning and confusion. He asked that counsel be assigned to represent him, a step which seemed appropriate both for the full protection of petitioner's interests and for the guidance of the court. After some initial assignments and withdrawals (essentially for reasons of physical inconvenience), petitioner came to be represented by Alan David Oshrin, Esq. Mr. Oshrin has labored earnestly and at length, for which the court expresses its appreciation. Nevertheless, it seems clear that the application for a writ of habeas corpus must be denied. Despite the number and variety of his claims, petitioner presents none which warrants either issuance of the writ or an evidentiary hearing.
1. Petitioner alleges that the failure to transcribe the opening statements, summations, and portions of the voir dire deprived him of an adequate appellate review. His general assertion that the omitted portions of the record "contained most of the * * * trial errors which are reversible," presents no ground for federal habeas corpus. Moving beyond the generalities, petitioner and his assigned counsel reach alleged errors (considered hereinafter, points 2 and 3) claimed to have occurred in the untranscribed portions of the state trial. These asserted errors, it develops, stating them broadly in petitioner's favor, present no grounds for habeas. Before turning to those specifics, we may document briefly the thought that the bare complaint that a transcript (not timely requested) was not made shows no denial of federally guaranteed due process.
Although since Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956) the States have been, and have been required to be, increasingly solicitous of the rights of indigent defendants to pursue appellate and post-conviction remedies without pecuniary roadblocks, e.g., Eskridge v. Washington State Board of Prison, 357 U.S. 214, 78 S. Ct. 1061, 2 L. Ed. 2d 1269 (1958); Lane v. Brown, 372 U.S. 477, 83 S. Ct. 768, 9 L. Ed. 2d 892 (1963); Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963); Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Gardner v. California, 393 U.S. 367, 89 S. Ct. 580, 21 L. Ed. 2d 601 (1969), the Federal Constitution still does not require the impossible. If the trial transcript is unavailable due to the death of the court reporter, Norvell v. Illinois, 373 U.S. 420, 83 S. Ct. 1366, 10 L. Ed. 2d 456 (1963), or parts of the trial proceedings have not been reported, United States ex rel. Smart v. Pate, 318 F.2d 559 (7th Cir. 1963), the defects are not remediable by a federal judge.
Unlike Griffin and its progeny, this is not an equal protection case. Cf. United States ex rel. Wilson v. McMann, 408 F.2d 896 (2d Cir.1969). Rather, this is a case of a non-indigent defendant who was treated no differently from others. Cf. United States v. Carella, 411 F.2d 729 (2d Cir. 1969). The case may be different, of course, where a record is purposely not kept and where the omission is seen (or powerfully suspected) to have been evilly motivated. But that is not this case. All indications show, simply, that the reporters' notes now claimed to have been vital could have been transcribed on request of petitioner's paid counsel, but that no such request was timely made. Cf. People v. Fearon, 13 N.Y.2d 59, 242 N.Y.S.2d 33, 192 N.E.2d 8 (1963). Moreover, the passages where disputes occurred, raising questions which might have been (and, in several instances were) subjects for later scrutiny, on appeal or otherwise, were in fact transcribed and preserved - e.g., for the present uses considered below.
In these circumstances, the sweeping claim that the Fourteenth Amendment requires a word-by-word transcript must be rejected.
2. Turning, then, to petitioner's more specific allegation of an unrecorded trial occurrence which is claimed to have been an offense against due process, we reach the main issue urged on direct appeal, exhausted in post-conviction proceedings, and now raised by federal habeas.
At least once, perhaps twice, in his opening statement, the assistant district attorney referred to a prior conviction of petitioner's. Although the exact substance of the statement is not known because of the failure of the court reporter to do more than note that "Assistant District Attorney Bendersky made his opening statement to the Jury on behalf of The People * * *", for purposes of decision, we accept, with full force, the several versions tendered by petitioner's papers in this proceeding.
Moving from fresh memories to stale memories, we begin with defense counsel's motion for a mistrial at the conclusion of the People's case on the ground that
"At the opening of this trial in the course of the People's opening to the jury, the District Attorney made the remark on two occasions that the defendant ...