The opinion of the court was delivered by: LASKER
In 1973 Richard Moore was convicted in the New York State Supreme Court of the attempted murder of two New York City policemen and sentenced to a term of 25 years to life imprisonment.
The conviction was unanimously affirmed by both the Appellate Division, without opinion, and the Court of Appeals. 42 N.Y.2d 421, 397 N.Y.S.2d 975, 366 N.E.2d 1330, Cert. denied, 434 U.S. 987, 98 S. Ct. 617, 54 L. Ed. 2d 482 (1977). Moore now petitions for a writ of habeas corpus on the ground that he was denied his right under the Sixth and Fourteenth Amendments to trial by a fair and impartial jury because of the trial judge's failure to inquire of the jurors whether they had seen or read a magazine article prejudicial to the defense and by the presence of an auxiliary policeman on the jury. For the reasons which follow, the petition is denied.
For purposes of the issues before this court, the crime with which Moore was charged and the events leading up to his arrest and conviction, while of an unusually flamboyant nature, need not be described at length. Moore was charged with having shot and seriously wounded two policemen in an automobile chase on Riverside Drive on May 19, 1971. Several days after the shooting, two packages were delivered, one to the New York Times and the other to the radio station WLIB, each of which contained a license plate, a .45 caliber cartridge and a message beginning:
"Here are the license plates sort (sic) after by the fascist state pig police. We send them in order to exhibit the potential power of oppressed peoples to acquire revolutionary justice . . ."
On June 5th, Moore was arrested while robbing an "after hours" club in the Bronx. One of the weapons found at the scene of the arrest was a machine gun, said by a patron to have been carried by Moore, which was identified by a ballistics expert as the gun used in the May 19th shootings. The police also determined that Moore's fingerprints matched several of those on the papers left with the New York Times. A week after the arrest, an anonymous phone call led the police to Pauline Joseph, one of Moore's apartment mates. With Joseph's consent, the apartment was searched, revealing several documents typed on the same typewriter as the messages sent to the press, including one addressed to the police commissioner, which referred to the Riverside Drive shootings and stated: "what we have in mind is to let you know that EVERYTIME you use your guns against our people we'll use our guns against your repressive forces." Joseph, although characterized by Moore as a "paranoid schizophrenic, prostitute, welfare cheat and liar of no small dimension",
provided crucial evidence at trial as to Moore's whereabouts and statements at the time of the shooting which strongly suggested that he was responsible for the crime.
The habeas corpus petition is directed at the jury selection for Moore's second trial, the first having been declared a mistrial when the jury was unable to reach a verdict. The second voir dire lasted twelve days, during the course of which 86 prospective jurors were questioned by counsel. As background to the issues presented here, it should be pointed out that the shooting in May of 1971, although the only such crime with which Moore was charged, was one of a number of serious attacks on policemen in the metropolitan area during this period, which generated substantial publicity. Two such incidents, which were reported in the press, occurred during the selection of the second jury. Accordingly, during the voir dire, the transcript of which is more than 1850 pages long, the jurors were questioned in depth as to their exposure to publicity relating not only to the Riverside Drive shootings but to any other incident involving an attack on police officers.
Of the 86 jurors examined, only 39 stated that they had no prior knowledge of the Riverside Drive shootings.
However, of the remaining 47, only 5 indicated prior knowledge that Moore had been arrested for the incident
and all 5 were challenged for cause. Nevertheless, in the course of the first nine days of the voir dire, defense counsel made close to thirty motions for a mistrial or an adjournment based on adverse publicity.
All of these motions were denied in rulings which are not contested here.
During the afternoon session on February 5th, one of the prospective jurors examined was a Mr. Wichik (also called Richard and Winter), a junior high school teacher who specialized in behavior counselling. While being questioned by the prosecutor, Wichik stated that defense counsel might be "concerned" to know that he had recently joined the Auxiliary Police Department. (Tr. 1285) Wichik agreed with the prosecutor that the role of an auxiliary policeman included "wearing a uniform and going into your own community unarmed" (Id.), but added that he had joined "to work with the young kids in my neighborhood and try to get them, sitting on stoops, drinking beer, to enter the various community centers that we have available for them." (Tr. 1285-86) He also stated that he had joined the force six or seven weeks earlier and had not yet reported to his assigned precinct house. (Tr. 1286, 1305) Wichik stated in response to the prosecutor's questions that he did not think that he would feel an "alliance" with the two injured police officers and that he could act as an unbiased juror. (Tr. 1287)
Defense counsel's questioning of Mr. Wichik was relatively brief. (Tr. 1304-08, 1310-12) Although he examined Wichik, as he had earlier jurors, as to his prior knowledge of the crime and his views toward black militant groups, counsel touched on Wichik's membership in the auxiliary police force only briefly to elicit a promise that Wichik would not visit the precinct house during the course of the trial. (Tr. 1305-06) Nevertheless, defense counsel subsequently challenged Wichik for cause on the ground that his having joined the auxiliary police force indicated "some faith and some belief in the mechanism of the police department" which would prevent him from being an unbiased juror. (Tr. 1350) The challenge for cause was denied. Defense counsel then exercised his one remaining peremptory challenge to exclude another juror, Mr. Smith, and noted for the record his objection to Wichik and a second juror, Mr. King. (Tr. 1351-53)
On February 6th, after eleven jurors had been empaneled, defense counsel notified the court out of the presence of the jury that he had received in the mail that morning the February 12th issue of New York Magazine, whose cover story, entitled Target Blue, The Story Behind the Police Assassinations, dealt at length with the shootings for which Moore was on trial. Describing the contents of the article as "shocking", defense counsel moved for a mistrial and an adjournment. (Tr. 1413-14) The motion was denied by the trial judge who relied on his repeated instructions to the jurors not to read or listen to any reports relating to the subject matter of the trial as sufficient to ensure that the jurors would avoid the article. (Tr. 1416-17) Defense counsel then argued at length that the article revealed that the police had exculpatory evidence which had been withheld by the prosecution and demanded that the author of the article, a former Deputy Police Commissioner, be examined at a hearing to determine his sources. (Tr. 1421-54) This request was also denied (Tr. 1455), and no further mention was made of the magazine article in the examination of the jurors which followed that afternoon.
On the following day, February 7th, in response to questioning by the prosecutor, the prospective twelfth juror, Mr. Meals, stated in front of the eleven empaneled jurors that he had received in his mail the current issue of New York Magazine but that upon seeing its cover, which he described as "rather graphic", he had given the magazine to a neighbor without examining its contents. (Tr. 1513-14) Defense counsel asked Meals no questions about the magazine article and did not challenge him for cause on the basis of his exposure to the cover. Meals was sworn in as the twelfth juror, and the selection of the alternate jurors began.
On the morning of February 8th, the last day of jury selection, defense counsel again raised the subject of the magazine article, requesting that "on the basis of the New York magazine article . . . this jury be sequestered." (Tr. 1656) The request was denied (Id.), and the examination of the jurors continued. Following the luncheon recess, the defendant refused to appear in court. Considerable discussion ensued as to whether facilities could be made available to Moore so he could view the proceedings outside the courtroom. The suggestion was ultimately rejected by the judge. Before the jury was brought in defense counsel stated that he had "two things" to discuss with the court. One related to another case. The other consisted of a suggestion that "it would be appropriate for his Honor to ask those eleven jurors (empaneled before Mr. Meals) if they had occasion to see the (New York Magazine) article and/or to read it." (Tr. 1746) This request was denied, again on the ground that the court's repeated general admonitions not to read anything in connection with the case were sufficient safeguard. The transcript indicates that defense counsel did not press the point, and the selection of the alternate jurors was then completed. Significantly, of the 16 proposed alternate jurors examined by defense counsel after he first became aware of Target Blue, only 6 were asked by him whether they had seen or read the article. All of these jurors answered no.
Failure to Question the Eleven Empaned Jurors as to Target Blue
Moore argues that the New York Magazine article was so inherently prejudicial as to entitle him as a matter of constitutional right to have the judge inquire whether ...