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LEON v. KUHLMANN

June 20, 1977

Jose LEON, Petitioner,
v.
Robert H. KUHLMANN, Superintendent of Woodbourne Correctional Facility, Respondent


Werker, District Judge.


The opinion of the court was delivered by: WERKER

MEMORANDUM DECISION

WERKER, District Judge.

 The petitioner in this action, Jose Leon ("petitioner"), was convicted of the crimes of possession of a weapon as a felony and possession of a dangerous drug in the fourth degree on February 7, 1974, after a six-day jury trial in Supreme Court, New York County, before the Honorable Morris Aarons. Thereafter, petitioner was sentenced to concurrent six-year terms of imprisonment. *fn1" The Appellate Division, First Department, affirmed his conviction without opinion, *fn2" and leave to appeal to the Court of Appeals was also denied without benefit of a written explanation. *fn3" Petitioner is presently incarcerated at the Woodbourne Correctional Facility, where respondent Robert Kuhlmann is the superintendent, and now makes application to this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1970), principally on the ground that prosecutorial misconduct and judicial error at trial combined to deprive him of his right to due process of law under the fifth and fourteenth amendments to the United States Constitution. *fn4" For reasons set forth in detail below, petitioner's application is denied herein.

 I

 Since petitioner elected not to testify at trial in view of his prior criminal convictions and also presented no case of his own, the uncontradicted testimony of the prosecution witnesses established the following:

 During the early morning hours of Thursday, July 12, 1973, petitioner had an argument with an unidentified individual seated near him in the rear of the "El Gallo de Morou" bar, located on upper Broadway, between 164th and 165th Streets, in the borough of Manhattan. Manuel Jimenez ("Manuel"), the manager of the bar, warned the two not to settle their differences in his establishment and they both returned to their respective bar stools. Petitioner then ordered another drink, but left the bar some five minutes later without bothering to finish it.

 Approximately ten or fifteen minutes thereafter, petitioner returned in a taxicab and walked up to the front door of the bar. In his right hand, he held a shopping bag. As he attempted to open the door to the bar, Manuel blocked his path and told him that he would not permit him to go inside. Petitioner said to Manuel that his disagreement was not with him, but "with the one who is inside;" he then placed his shopping bag against Manuel's chest and told him that he, Manuel, would be killed if he didn't move. At that time Manuel saw the butt of a rifle protruding from the open end of the shopping bag. Manuel therefore turned from the doorway, but when petitioner began to move inside Manuel grabbed his right wrist from behind. After a brief struggle, Manuel managed to wrestle petitioner to the sidewalk.

 During the course of the struggle, other individuals came out of the bar, among them Manuel's brother, Norberto Jimenez ("Norberto"), and Ignacio Diaz ("Ignacio"), a customer at the bar. Both Norberto and Ignacio were injured by shots discharged from the rifle before the shopping bag in which it was contained could be separated from petitioner's hand. However, despite his injury, Norberto then restrained petitioner while Manuel went to lock the bar and phone the police.

 This was the scene that police officers observed upon responding to a 3:13 a.m. radio call of gun fire on upper Broadway. Petitioner lay spreadeagled on the sidewalk and was still struggling to escape from Norberto's hold. There were ten or twelve bystanders in the vicinity. Ignacio, one of the bystanders, was extremely noticeable because he was wearing a blood-stained outfit and appeared to be bleeding profusely.

 The officers separated Norberto from petitioner who was then handcuffed and searched for weapons. However, since some of the individuals at the scene plainly required immediate medical attention, the surrounding area was only examined cursorily. Nevertheless, not far from where petitioner had been found, the officer conducting the search did manage to recover the rifle (which was still contained in the shopping bag) and two shell casings.

 Ignacio and Norberto were rushed to the emergency room at a nearby hospital, and the first two officers on the scene ("arresting officers") subsequently brought petitioner there in a separate radio car. Once petitioner was in the emergency room, one of the arresting officers read him his rights under Miranda5 and proceeded to search him for contraband. In petitioner's pocket, the officer found a plastic bag and a folded dollar bill, each of which contained a quantity of white powder later established to contain cocaine.

 Thereafter, petitioner was treated at the hospital for a cut on his scalp and an abrasion on his thigh.

 Through extensive and often repetitive cross-examination, defense counsel sought to suggest to the jury a markedly different version of the incident in question and one which was supported by neither logic nor evidence. Thus, prosecution witnesses were frequently asked to admit that petitioner never left the bar after the argument; that the altercation therefore took place in the bar; that petitioner was the victim of the attack rather than its cause; that petitioner was subsequently removed to the sidewalk, where the rifle and spent cartridges were placed by his side; and that cocaine was planted on his person, either while he was lying on the sidewalk or upon his arrival in the hospital's emergency room. Each of these propositions was rejected by the witnesses.

 II

 Petitioner's principal contention is that the prosecutor violated petitioner's constitutional right to due process of law by using evidence of his post-arrest silence on three separate occasions during the People's direct case and by referring to it during summation.

 The first adverse comment on petitioner's failure to make exculpatory statements at the time of, or shortly after, his arrest occurred during redirect examination of Detective Frank Morrow, one of the arresting officers, who was asked the following:

 
Q Officer, when you arrived at the scene, did you interview the people who were shot in this case, the complaining witnesses?
 
A Yes, I did.
 
Q And at that time did [Norberto and Ignacio] explain to you what happened?
 
. . .
 
A Yes, they did.
 
Q Was the defendant there?
 
A Yes, he was.
 
Q Did the defendant say anything after the accusations were made?
 
A No, he did not.
 
Q Did the defendant make any mention of the fact that he had been shot at the scene?
 
A No, he did not.
 
Q Did the defendant make any mention to you of cocaine in his pocket at the scene of the crime?
 
A No, not at the scene.

 Transcript at 233-34. Similarly, the jury heard the following testimony on redirect examination of Sergeant Spivey, ...


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