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October 25, 1972

UNITED STATES of America ex rel. James C. HAYNES, Petitioner,
Charles L. McKENDRICK, Warden, Wallkill State Prison, Wallkill, New York, Respondent

Motley, District Judge.

The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

On December 11, 1965, at approximately 9:00 P.M., three men robbed a delicatessen in Niagara, New York, of about $130.00 in bills and coins. In the course of the robbery, one of the robbers hit a customer of the delicatessen with a gun, knocking him unconscious and taking his wallet and money. This robber was wearing a beige trench coat, a black beret, and a mask which covered his mouth. He was pursued by two policemen who saw him running out of the delicatessen, but he escaped apprehension after a chase. In the meantime, two other officers had come on the scene and, after losing sight of this suspected robber for a brief time, spotted petitioner and arrested him.

 At the time of his arrest, petitioner was wearing a beige trench coat and black beret. Two black stockings, which appeared to fit the description of the robber's mask, were discovered in his pockets along with over $25.00 in change and $73.00 in bills, only $20.00 of which was in his wallet.

 Petitioner was taken to police head-quarters where he was placed in a series of lineups and identified by three witnesses to the robbery, including two who claimed to have known petitioner previously. All three witnesses identified petitioner at trial as did a fourth eye-witness who claimed to have seen petitioner in front of the store before he put on his mask. Petitioner steadfastly professed his innocence before and after his arrest. At trial, he presented an alibi defense through his own testimony, elements of which were corroborated by various defense witnesses.

 During the night of the robbery, the police also arrested a 17 year old, Terry Fox, after he had been named by an eye-witness as a participant in the crime. Cox was identified in a lineup that night and signed a confession the following morning. At trial, Cox denied the truthfulness of the statement, charging that he was scared at the time and that he was told that he would go free if he confessed. The confession referred to the fact that "the stout fellow [one of the other two robbers] told the people in the store to stick em up."

 Petitioner, Cox, and a third co-defendant, Norman Jones, were subsequently indicted and were brought to trial in the County Court of Niagara County, New York on March 2, 1966. At the end of the taking of testimony, but before the summations by counsel, the District Attorney was granted a motion to dismiss the indictment against Jones for lack of evidence against him.

 On March 19, 1966, the jury returned verdicts of guilty against both petitioner and Cox on five counts of robbery in the first degree, one count of grand larceny in the first degree, and one count of petit larceny. Petitioner was sentenced to a term of from ten to twelve years on the robbery counts and a concurrent term of five to ten years on the grand larceny count. On direct appeal, the Appellate Division affirmed the judgment of conviction without opinion *fn1" and leave to appeal to the Court of Appeals was denied in April, 1970.

 Petitioner now seeks a federal writ of habeas corpus to release him from Wallkill State Prison, Wallkill, New York, where he is presently serving his term. He raises several claims of federal constitutional error in the state proceedings, which the court shall consider seriatim. Unless otherwise noted, petitioner's claims were presented to the state appellate courts and are cognizable here. 28 U.S.C. § 2254(b) (1970).

 I. The Lineups

 Petitioner contends that his constitutional rights were violated during the post-arrest lineups conducted for identification purposes in that 1) he was denied counsel at the time, and 2) the procedure utilized denied him due process of law. Since the lineups were conducted in 1966, the right to counsel claim is clearly without merit. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). While petitioner's due process claim may have substance, he neither raised it on direct appeal of his conviction nor in any other post-conviction proceeding in the state courts. *fn2" Thus, petitioner has not satisfied the exhaustion requirement of 28 U.S.C. § 2254(b) *fn3" and must first seek redress on this claim through presently available remedies in the state courts, viz., N.Y.C.P.L. 440.10 (McKinney's Consol.Laws, c. 11-A, 1971) (motion to vacate judgment) or N.Y.C.P.L.R. § 7002 (McKinney 1963) (habeas corpus).

 II. Dismissal of Charges against Jones

 Petitioner's second contention is that the trial court committed error when it granted a motion by the District Attorney, in the hearing of the jury, to dismiss charges against co-defendant Jones. See Trial Record, Vol. IX, at 2-6. The motion was made and granted prior to summations by counsel *fn4" and the trial judge gave proper cautionary instructions at the time. This court does not think that petitioner's contention raises a claim of federal constitutional error and, therefore, the court cannot entertain this part of the application. 28 U.S.C. §§ 2241(c), 2254(a)(1970). Cf. United States v. Edwards, 366 F.2d 853, 870 (2d Cir. 1966), cert. denied, Jakob v. United States, 386 U.S. 908, 919, 87 S. Ct. 852, 17 L. Ed. 2d 782 (1967) (guilty plea of co-defendant during trial made known to jury); United States v. Aronson, 319 F.2d 48, 51-52 (2d Cir. 1963), cert. denied, 375 U.S. 920, 84 S. Ct. 264, 11 L. Ed. 2d 164 (1963) and cases cited therein.

 III. Co-defendant Cox's Confession

 Petitioner next contends that the admission into evidence of Cox's confession at the joint trial violated petitioner's constitutional rights. The challenge is made on two grounds. First, petitioner claims that since the confession arguably implicated him in the crime, its introduction at the trial violated the rule of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) and Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968). However, in those cases appellants, who were implicated by the extrajudicial confessions of their codefendants, had no opportunity to cross-examine these codefendants at trial and were thus denied their Sixth and Fourteenth Amendment rights. Here, in contrast, Cox did testify at the joint trial and was cross-examined by petitioner's counsel. Cox admitted making the statement, but denied its truthfulness, and otherwise testified favorably to petitioner. Trial Record, Vol. X, at 72-79, 141-43, 153-155. Consequently, petitioner has no viable Bruton claim. See Nelson v. O'Neil, 402 U.S. 622, 628-630, 91 S. Ct. 1723, 29 L. Ed. 2d 222 (1971). Cf. California v. Green, 399 U.S. 149, 159-164, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). In any event, if error there were, it would be harmless beyond a reasonable doubt for the reason stated below. See Harrington v. California, 395 U.S. 250, 252-253, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969).

 Second, petitioner claims that the trial judge's failure to make a preliminary determination, outside the hearing of the jury, of the voluntariness of Cox's confession transgressed the rule of Jackson v. Denno, 378 U.S. 368, 377, 391, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), and, therefore, rendered the confession inadmissible at trial. *fn5" Assuming arguendo that petitioner has standing to raise this issue, *fn6" and has not waived it by failing to move for a Huntley hearing at or before trial, *fn7" this court rejects the claim on the ground that, in any event, the alleged error of the trial court was harmless beyond a reasonable doubt. See Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

 The only part of Cox's confession which inculpated petitioner was its reference to "the stout fellow [who] told the people in the store to stick em up." (sic) Trial Record, Vol. VII, at 19. At worst, this statement was merely cumulative evidence supplementing other overwhelming evidence on the issue of petitioner's identity. Petitioner was captured immediately following the robbery in clothing matching the description of that worn by one of the robbers. In addition, he was identified by four eyewitnesses at trial. Thus, there is not the slightest possibility that the description of one of the robbers as a "stout fellow" affected the jury's determination on the identity issue. Compare Harrington, supra, where the Supreme Court found the alleged error harmless beyond a reasonable doubt, although the challenged statements were more incriminatory and the evidence against the defendant less conclusive than in the instant case. (See p. 1001 infra)

 IV. The District Attorney's Summation

 Petitioner finally argues that the state prosecutor employed improper and prejudicial argument in his summation, thereby depriving petitioner of a fair trial within the meaning of the due process clause of the Fourteenth Amendment. Petitioner cites no less than eighteen different remarks in the summation to support this contention. [Plaintiff's Memorandum of Law, at 6-8.]

 Respondent urges the court to dismiss this claim on the ground that it does not raise a federal question. While some decisions in this Circuit have held particular statements by state prosecutors to be trial errors without constitutional dimensions, see, e.g., United States ex rel. Garcia v. Follette, 417 F.2d 709, 713 (2d Cir. 1969); United States ex rel. Colon v. Follette, 366 F.2d 775 (2d Cir. 1966); United States ex rel. Castillo v. Fay, 350 F.2d 400, 401 (2d Cir. 1965), cert. denied, 382 U.S. 1019, 86 S. Ct. 637, 15 L. Ed. 2d 533 (1966), the court reads the latter decision as propounding a rule of fundamental fairness for testing whether such errors in a specific case violate the Fourteenth Amendment. See Castillo, supra, 350 F.2d at 401, 403, 405 (Hays, J., for the Court; Kaufman, J. concurring, Marshall, J. [now Justice Marshall], dissenting on other grounds). Consequently, petitioner's claim is properly before this court. *fn8"

 Respondent further argues that petitioner failed to challenge many of the allegedly prejudicial remarks on his state appeal. Therefore, it is argued, petitioner has not met the exhaustion requirement of 28 U.S.C. § 2254(b) in respect to those remarks. However, while not specifically citing all conceivably prejudicial remarks, petitioner's appellate brief did point to no less than fourteen pages of the prosecutor's summation and clearly invited the appellate court to consider the summation as a whole. *fn9" Since no new issue of fact or law has been raised in this habeas corpus application, the mere citation of additional pages of the trial transcript in this court does not require remission to the state courts of the very same claim which they have previously considered and decided against petitioner. *fn10" The claim was fairly presented to the state courts and is cognizable here. *fn11" See Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971).

 In reaching the merits of petitioner's claim, the court will first consider the challenged remarks of the prosecutor which make no reference to race. They are reprinted in the Appendix to this opinion, infra. Taken as a whole, these remarks cannot be said to have so prejudiced petitioner as to have denied him a fair trial.

 Several of the statements complained of referred solely to co-defendant Cox and could not have affected petitioner's case. [Appendix, #3-5.] The alleged misstatements of testimony and the District Attorney's allusion to an extrajudicial identification by one of the prosecution witnesses were not so offensive as to constitute constitutional error, especially since they were immediately followed by curative warnings by the trial judge. [Appendix, #12-14.] Likewise, the prosecutor's exhortation to the jury to convict the defendants and his alleged appeals to fear, although clearly inappropriate, did not vitiate the fairness of the trial. *fn12" [Appendix, #10-11.]

 The prosecutor's comments evincing his personal belief that petitioner testified falsely at the trial are also challenged. *fn13" Some of these remarks [Appendix, #6-8] were simply an averment of belief based on the evidence adduced at trial and were, therefore, not wholly improper in the absence of any intimation that they were founded on personal knowledge or matter not in evidence. See Lawn v. United States, 355 U.S. 339, 359 n. 15, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958); United States v. Grunberger, 431 F.2d 1062, 1068 (2d Cir. 1970). *fn14"

 Two other comments on petitioner's credibility, however, were objectionable. The District Attorney stated that:

A lot of things are put in statements by these defendants and they are not there to tell the truth in most cases. You are lucky to get a scintilla of truth out of them. [Appendix, #2] Now, one of the things that Haynes did was to fabricate a story that would get him in the position that he was found. [Trial Record, Vol. X, at 77]

 Taken together, these remarks constituted "a statement of belief that the jury was expected to understand came from the prosecutor's personal knowledge of, and from the prosecutor's prior experience with, other defendants, and as such he was speaking as an expert based upon matter outside the record. That the remark was improper is beyond dispute." See United States v. Grunberger, 431 F.2d 1062, 1068 (2d Cir.1970), and cases cited therein. *fn15" Cf. United States v. Lamerson, 457 F.2d 371, 372 (5th Cir.1972). The prosecutor's apparent scorn for petitioner and for his testimony was aggravated by his reference in the summation to defendants as "these thugs." *fn16" [Appendix, #1]

 The combination of this indecorous characterization of petitioner and the improper disparagement of his testimony might have constituted reversible error, had petitioner's trial occurred in the federal courts. See Hall v. United States, 419 F.2d 582, 587 (5th Cir.1969). However, in reviewing petitioner's state court conviction, this court cannot say that the remarks, despite their impropriety, violated petitioner's Fourteenth Amendment rights. Viewing the trial record as a whole, the prejudicial nonracial comments did not create, as a demonstrable reality, such essential unfairness at petitioner's trial that his conviction must be reversed on federal constitutional grounds. See Buchalter v. New York, 319 U.S. 427, 431, 63 S. Ct. 1129, 87 L. Ed. 1492 (1942); United States ex rel. Castillo v. Fay, supra, 350 F.2d at 401.

 On the other hand, the remarks which berated Haynes must also be considered in relation to several derogatory comments by the prosecutor directed at the "colored race." In Part V of this opinion, the court holds that the racial comments in the prosecutor's summation deprived petitioner of a fundamentally fair trial. It is only to be noted at this juncture, that the District Attorney's ostensibly non-racial observations which deprecated petitioner's character and credibility may well have produced racially prejudicial overtones in the minds of the jurors. *fn17" Juxtaposed against statements to the effect that blacks are different, a comment that "these defendants . . . are not there to tell the truth in most cases" ...

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