The opinion of the court was delivered by: CONNER
Robert Bryant, currently incarcerated in the Green Haven Correctional Facility, petitions this Court for a writ of habeas corpus. On April 2, 1971 he was sentenced by Justice Francis J. Bloustein of the Supreme Court of the State of New York, Bronx County, to a term of twenty years to life after a jury trial in which he was convicted of murder and manslaughter.
The events which led to the petitioner's prosecution for murder took place on October 18, 1969. That evening Dennis Koll and Armando Carrasquillo, two teenage grocery delivery boys, set out to make deliveries at a tenement house in the Bronx. They reached their destination at about 6:30 p.m. and Armando went up the stairs to the fifth floor of the tenement, with Dennis following shortly thereafter. Armando completed his deliveries and, on his way down, passed Dennis on the fourth floor, and a person he identified as the petitioner on the second floor. While waiting outside with the bicycles, Armando heard a shot and a scream (Tr. 60). A moment later he saw the person he identified as the petitioner run out of the building followed by Dennis, who collapsed on the sidewalk, mortally wounded (Tr. 3).
At the trial, Armando testified that he recognized petitioner as someone he had seen daily around the neighborhood over at least the past two years (Tr. 45-48, 73).
Armando also testified that he was taken to a police station that night and shown photographs of possible assailants, but was unable to identify petitioner at that time. He added that the following day, he returned to the police station and selected petitioner from a photograph of a lineup, and that he subsequently picked him from an actual lineup (Tr. 112, 115). This testimony was corroborated by Detective Robert Byrnes, who testified that he was present when Armando identified petitioner from the lineup photograph (Tr. 163).
Petitioner filed a timely appeal challenging his conviction on the grounds that: 1) the trial court erred in permitting the prosecutor to elicit testimony from Armando and Detective Byrnes concerning the out-of-court identification; and 2) the court erred in permitting the prosecutor to cross-examine petitioner about a crime of which he had not been convicted, and in charging the jury, at the request of the prosecutor, that the prosecutor was bound by petitioner's response and could not introduce evidence in rebuttal of it.
In a 3-2 decision, the Appellate Division, First Department affirmed petitioner's conviction. People v. Bryant, 39 App. Div. 2d 80, 332 N.Y.S. 2d 143 (1972). The majority, while recognizing that the hearsay testimony respecting the out-of-court identification was improper, concluded that it in no way tainted the in-court identification, which had an independent source. The Court did not make a specific determination respecting petitioner's contention that the introduction of the hearsay testimony in corroboration of the in-court identification was prejudicial.
However, as an alternative basis for denying relief, the Court ruled that the petitioner, by not objecting to the hearsay testimony at the time of its adduction, had failed to preserve the issue for appeal.
On November 2, 1972, the New York Court of Appeals unanimously affirmed the convition on the sole ground that "the errors asserted, not having been objected to upon the trial, have not been preserved for our consideration or review." People v. Bryant, 31 N.Y. 2d 744, 338 N.Y.S. 2d 115, 290 N.E. 2d 152 (1972).
In this Court, petitioner seeks a new trial on the grounds that: 1) his incourt identification was tainted by an out-of-court identification which was impermissibly suggestive in that the lineup included five persons, of which only the petitioner was not dressed in a suit, and none of the others were of petitioner's height, weight or coloring; 2) the Court improperly permitted Armando and Detective Byrnes to testify concerning Armando's out-of-court identification; 3) the Court improperly permitted the prosecutor to cross-examine petitioner about a crime for which he had not been convicted; and 4) the Court improperly charged the jury and unfairly marshalled the evidence.
The State opposes his application on the grounds that: 1) petitioner's claims of an impermissibly suggestive out-of-court identification procedure and improper marshalling of the evidence by the trial judge have never been presented to the State Courts for review and, therefore, fail to satisfy the exhaustion requirement of 28 U.S.C. § 2254; 2) petitioner's claim as to the in-court identification procedure is not cognizable by way of Federal habeas corpus since it involves an alleged violation of a State rule of evidence; 3) the State properly cross-examined petitioner about a crime for which he had not been convicted since, in his direct testimony, petitioner had referred to the investigation of that crime; and 4) the charge to the jury was thorough, correct and fair.
Petitioner's claim that his in-court identification was tainted by an impermissibly suggestive out-of-court identification was never presented to the State court for review. Therefore, with respect to this contention, petitioner has clearly failed to exhaust his state remedies. Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971).
Moreover, this is not a case which presents one of the "rare instances" where justice requires a deviation from the exhaustion requirement. See United States ex rel. Graham v. Mancusi, 457 F.2d 463, 468 (2d Cir. 1972); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2d Cir. 1972). Nor is this a case where petitioner is in fact foreclosed from seeking redress in the New York courts. The New York Court of Appeals has held that although alleged violations of constitutional rights are not raised at trial, state habeas ...