Appeal from denial of a writ of habeas corpus by the Honorable Charles L. Brieant, United States District Judge for the Southern District of New York. State prisoner sought writ on grounds of allegedly erroneous jury instructions and allegedly unconstitutional "overguarding" during his trial.
Before Moore, Oakes and Gurfein, Circuit Judges.
Petitioner-appellant, Calvin Hardee ("Hardee"), comes into the federal court via the not-too-unusual habeas corpus route. His petition for a writ was denied without a hearing by Judge Charles L. Brieant of the Southern District of New York, from which denial Hardee appeals.
On April 27, 1976, Hardee was convicted by a jury in the Supreme Court of the State of New York, Westchester County, of the crime of manslaughter, second degree and sentenced to a prison term in a State Correctional Facility from zero to ten years, which he is now serving.
Hardee has availed himself of all procedures afforded by the State to correct alleged trial errors: first, to the Appellate Division, Second Department (judgment unanimously affirmed, 55 A.D.2d 858, 390 N.Y.S.2d 768), and second, by seeking leave to appeal to the New York Court of Appeals, which was denied (41 N.Y.2d 866, 393 N.Y.S.2d 1033, 362 N.E.2d 631). Certiorari was then denied by the Supreme Court of the United States (431 U.S. 958, 97 S. Ct. 2683, 53 L. Ed. 2d 276 (1977)). Hardee now, in effect, seeks to have the federal courts review the trial and appellate processes of the State of New York for alleged violation of his rights under the United States Constitution in two respects: (1) the presence of armed guards in the courtroom during trial, one guard having been seated some three feet behind the defendant, one at the jury box, and the other at the courtroom entrance; and (2) alleged error in the instruction to the jury as to the burden of proof of establishing justification by way of self-defense.
After a bar room brawl, Hardee was shown to have pursued one of the participants and to have stabbed him with a knife causing his death. Although on the trial Hardee claimed that he had acted in self-defense, the jury convicted him of second degree manslaughter.
Before and during the trial, Hardee's counsel objected to the presence of uniformed guards in the courtroom*fn1 and suggested that the guards sit in the back of the room or wear civilian clothes. The trial judge honored this request to the extent that the guard nearest to Hardee was directed to sit no closer than three feet in back of him.
Hardee's argument as to the presence of the guards is premised on the alleged adverse effect on the jury that their presence might have had on his presumption of innocence and the creation of a belief that he was a dangerous person. In support of this argument Hardee cites cases where the defendant has been brought to trial in prison garb or handcuffed to a uniformed deputy sheriff. See Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973), Cert. denied, 416 U.S. 959, 94 S. Ct. 1976, 40 L. Ed. 2d 310 (1974), and cases cited and discussed therein.
The courts throughout the ages have endeavored to clothe all persons accused of crime in a "garb of innocence". However, such expressions used without practical application to the realities of a criminal trial are mere vacuities. The defendant is indicted by a Grand Jury (occasionally he is charged by information). The indictment advises the defendant of the crime or crimes with which he is charged. During their selection the jury is told the name of the accused and the nature of the crime. The "presumption of innocence" admonition is repeated frequently during the trial. Thus, there can be no doubt that the jury is aware of the defendant, the nature of the crime charged, and the presumption of innocence.
To preserve the presumption of innocence the jury is told that they are to disregard the charges in the indictment, the Philippics of counsel, evidence which has been stricken, and even rulings by the court itself, in arriving at their verdict. They are told that a verdict of guilty must be based only on the facts presented to them which, in their minds, establish guilt beyond a reasonable doubt.
An assumption which by time-honored custom has been injected into the judicial process is that the instructions given by the court as to the elements of the crime, against which the jury will appraise the facts, will be followed by the jury. However, the courts have been realistic enough to recognize that, although not a part of the evidence, the presence of a defendant sitting before them hour after hour or day after day, clad in recognizable prison garb or handcuffed to a police officer or bound, gagged or shackled is bound to have an adverse effect on the jury in fairly weighing the evidence against such a defendant.*fn2
It is against this background that Hardee's claim of lack of due process and equal protection must be assessed. He had been charged with murder. The State was entitled to require bail; he had not been able to post it hence, he was properly in custody. He was brought to court clad in civilian apparel no prison garb, no handcuffs, no visible signs of restraint. The stationing of a guard three feet behind him apparently did not interfere with private communication with counsel at least there is no such claim made. As to the effect of the two other guards in the courtroom, the jury must have known that the presence of police officers in a courtroom was normal expectancy. If the concept of "law and order" is to be honored, it must be maintained by security forces. Here there was no ostensible display of unusual precaution which might have been interpreted as singling out this defendant as a particularly dangerous or guilty person. As to rotation of position, see note 1, this could only have been interpreted as normal routine. And there has been no showing that this practice was in any way ...