Waterman, Friendly and Hays, Circuit Judges.
Thomas N. Cole was convicted in May 1967 in the County Court of Monroe County, New York, of committing grand larceny upon the Carpenter Shoe Co. in Rochester. In November 1964 he had been indicted, along with James and Clara Slater, on this charge and others. A conviction on the other counts of the indictment in February 1965 was reversed on the ground that his case should have been severed to protect him from the adverse effect of statements to the police by the Slaters which implicated him in the crime. People v. Cole, 26 A.D.2d 896, 274 N.Y.S.2d 378 (4th Dept. 1966). In September 1965, he and James Slater were tried on the instant count and convicted, but his conviction was reversed because of the prejudicial effect of a statement by Slater, despite a redaction which was held ineffective. People v. Cole, 27 A.D.2d 794 (4th Dept. 1967). In 1967 he was again tried and convicted on this count; the Appellate Division affirmed and leave to appeal to the Court of Appeals was denied.
Cole then filed a petition for habeas corpus in the District Court for the Western District of New York. He asked that counsel be assigned and an evidentiary hearing held. Considering that the state record and briefs enabled him to dispose of the case, Judge Burke denied these requests and made findings of fact and conclusions of law that the petition should be denied. We granted a certificate of probable cause.
At the trial three witnesses from Carpenter Shoe Co. testified to the robbery by two men on Friday, October 16, 1964, of a cash payroll of $2553.34 enclosed in a bank money pouch, along with a bank book in which delivery of the payroll had been recorded. The witnesses were unable to identify the robbers since the men were wearing ski-masks. Within a few hours the police went to a five-apartment building at 19 Savannah Street in Rochester, where Cole, Joan Wright and their child lived in one apartment and Mr. and Mrs. Slater and their child in another. Only the two women were at home. The apartments were searched, but nothing was seized. On October 17, the police asked the women to come to the station house and there questioned them. The next day the women were again called in and questioned. This time the police obtained from each a written consent to "a complete search of my residence." According to the testimony of a detective, of which more hereafter, Clara Slater took him to an attic used by all residents for storage purposes and handed him a shopping bag containing the Carpenter Shoe Company's bank book, a money pouch from the same bank, and various articles of clothing including two ski masks. That evening the police got word that Cole and Slater were at home. They found Cole on the roof, daring the police to come and get him. They did. Cole was searched at the police station, and a total of $1188.35 was found on his person, including a package of twenty-five one dollar bills in a wrapper which fell from his shorts. In addition to these facts the prosecution offered the testimony of Joan Wright that she had heard Cole and Slater plan the robbery. The defense put on one witness to attack her character and another, a lawyer, who testified that Cole had given him four or five hundred dollars for safekeeping, which he had returned shortly before October 18, 1969. Cole did not testify.
Although other issues were raised at earlier stages of this case, these have been limited, with petitioner's consent, to a complaint that the court's charge violated his Fifth Amendment privilege, a contention that the search violated his Fourth Amendment rights, and a claim, related to the second point, that the court should have held a hearing and appointed counsel. We shall consider them in that order.
The portion of the charge of which Cole complains is as follows:
Now, I charge you that under our law where one is found in exclusive possession of stolen property within a reasonably short time after the theft, the law creates an inference of fact that his possession is guilty and places upon him the burden of explaining it satisfactorily. And so, if the proof satisfies you beyond a reasonable doubt that this defendant had recent and exclusive possession of the fruits of the theft and that such possession now remains unexplained, you, as the jury, will be justified in drawing an inference or conclusion of fact that he is the man who actually committed the crime, for the resort to falsehood and evasion by one accused of a crime, affords an assumption of evil intention and may be considered as evidence bearing upon the guilt or innocence of the accused.
Now, this is not to say that this defendant has any burden of proving anything whatsoever, it is up to the People and it is theirs, the People's, duty to prove the defendant's guilt beyond a reasonable doubt and that burden never shifts to the accused. The defendant always has an opportunity to explain exclusive possession of recently stolen property and if the evidence satisfies you beyond a reasonable doubt that the defendant in this case has failed to use that opportunity, you may draw an inference of fact from that set of affairs that he is the person who stole or withheld the property.
Remember, however, that you may not draw any inference of guilt from the defendant's failure to take the stand; all I do is state that you may draw an inference of guilt from the possession of articles recently stolen which has not been explained at all.
At the conclusion of the charge a colloquy between defense counsel and the court took place in the presence of the jury:
Mr. Franzen: Your Honor, I have one exception to the Court's charge with reference to the duty or obligation as to the law as the Court gave it, the defendant to explain away possession. Outside of that I have one request.
The Court: You take exception * * * I don't think I charged that he had a duty to explain it away, I specifically stated he may be silent on that ...