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April 27, 1979

Bernard GUICHARD, Petitioner,
Harold J. SMITH, Warden, Attica Correctional Facility, and Robert Abrams,Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: NEAHER


Petitioner Bernard Guichard, a State prisoner, is currently serving a second-felony offender sentence of 71/2 to 15 years imposed following his conviction in Supreme Court, Kings County, for second-degree robbery. He has applied Pro se for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, contending that his conviction was obtained in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution. The application is opposed by respondents, who at the court's direction have supplied a transcript of all trial court proceedings as well as copies of the relevant State court appellate briefs.


 In the early afternoon of November 6, 1975, a New York City police officer on radio motor patrol duty spotted a beige Vega station wagon that matched the description of a getaway car used by two men who had only moments before robbed the Met Food Store at 631 Gates Avenue in Brooklyn. The officer took chase and, with the assistance of another police unit, soon overtook the Vega wagon. Its two occupants, later identified as Bernard Guichard and Robert Taylor, were placed under arrest; an immediate search of their vehicle revealed $ 354 in various denominations lying on the floor on the passenger side of the car. Guichard and Taylor were then taken to the 79th Precinct Station House where, in the course of the booking process, both Sua sponte volunteered that earlier they had been present at the Met supermarket.

 Guichard and Taylor were jointly indicted and charged with two counts of first-degree robbery, one count of second-degree robbery, and one count of third-degree grand larceny. Their joint trial commenced on April 26, 1976.

 Oliver Johnson, who at the time of the robbery was employed by Met as an unarmed plainclothes security guard, was the principal witness for the prosecution. Johnson testified that he was speaking with a friend at the front of the supermarket when two men, whom he identified as Guichard and Taylor, entered. Tr. at 88-89. *fn1" He was approached by Guichard who, after asking for a cigarette and a light, informed him that he was going to rob the store and opened his jacket to reveal a shotgun pressed to his side, beneath his armpit. Tr. at 90-91, 97. Guichard advised Johnson to cooperate and then pushed him toward one of the checkout counters, warned one of the cashiers to "keep cool, I don't want to have to kill anybody," instructed the other cashier to open her register, and directed Taylor who until that time had been lingering in one of the grocery aisles to remove the money. Tr. at 91-92, 103-04, 110, 113. Taylor did so, pocketed the loot, and left the store, followed by Guichard, who backed slowly out while warning those present to remain still. Tr. at 92, 110, 113, 117-18. Once outside, Guichard entered a small station wagon, from which Taylor was seen to remove the license plate; after Taylor got in, the pair drove off. Tr. at 92-94. Johnson immediately phoned the police and supplied a description of the robbers and their automobile. Tr. at 93-94.

 Johnson's account of the robbery was in large measure confirmed by the testimony of three other store employees, although two could not identify the defendants and none had actually observed the shotgun (one, Stanfield Reece, did testify that Guichard had stood with his coat oddly pressed to his side, Tr. at 128-29). Guichard, however, testified that he had entered the supermarket solely to help Taylor "boost" some meat and was unarmed. According to his version, he had identified Johnson as a kindred spirit and advised him of the plan indeed, disingenuously offered him a share of the proceeds in order to avoid interference, unaware of Johnson's status. Tr. at 166-68. The response he elicited was thus wholly unanticipated: Johnson proceeded to warn a number of the store employees to "be cool" and then instructed one of the cashiers to open her register. Tr. at 169-70. Taylor, who happened to be standing nearby, apparently decided to seize the opportunity created by Johnson and removed the cash. Tr. at 170. When Taylor left the store, Guichard had but little choice and followed. Tr. at 195.

 In accordance with New York procedure, all four counts of the indictment were submitted in the alternative to the jury, originally with a direction that the lesser charges second-degree robbery and third-degree grand larceny were to be reached only in the event the defendants were found not guilty of first-degree robbery. Tr. at 272-73; see N.Y. CPL §§ 300.40(3)(b), 300.50(4). *fn2" At counsel's request, the trial judge later advised the jury that they could consider the various counts in any order, in accordance with his instructions. Tr. 278-79. After a full day's deliberation, the jury returned a verdict of not guilty on the first robbery count (displaying a firearm, N.Y. PL § 160.15(4)) but guilty on the second (using or threatening the immediate use of a dangerous instrument, N.Y. PL § 160.15(3)); *fn3" no verdict was rendered on the two remaining counts. Prior to sentence, the trial judge denied Guichard's motion to set aside the verdict for repugnancy, but did reduce the conviction from first to second-degree robbery, as charged in the third count of the indictment. Thus modified, the conviction was unanimously affirmed by the Appellate Division, Second Department, on October 3, 1977, People v. Guichard, 59 A.D.2d 828 (mem.), and leave to appeal to the Court of Appeals was thereafter denied, People v. Guichard, 43 N.Y.2d 797, 402 N.Y.S.2d 1034, 373 N.E.2d 296 (1977) (Cooke, J.). Guichard's subsequent motion to vacate judgment, on the grounds that the trial court was without power Sua sponte to reduce the verdict and conviction, was denied on January 11, 1978, and leave to appeal that decision to the Appellate Division was denied on March 29, 1978.


 A. Exhaustion

 Guichard raises three grounds in support of his application: (1) that the trial court's Sua sponte reduction of his conviction to second-degree robbery placed him twice in jeopardy for that offense; (2) that the reduction deprived him of his right to a jury trial on the second-degree charge; and (3) that the trial court's instructions to the jury impermissibly shifted to him the burden of disproving criminal intent, an essential element of each offense charged in the indictment.

 Respondents raise the threshold objection that petitioner has not complied with the exhaustion requirement of 28 U.S.C. § 2254(b), (c). We disagree. As respondents concede, Guichard's second and third claims were presented in his direct appeal from the conviction and on his motion to vacate judgment, respectively. See Feinberg Aff. (6/6/78), P 5. Although petitioner himself never presented a double jeopardy claim to the State courts, the issue was raised by his co-defendant on their consolidated direct appeal. See Respondents' Consolidated App.Div. Brief (Aug. 1977). Taylor's claim obviously did not succeed and it is plain that Guichard's indistinguishable contentions would fare no better. In these circumstances, further pursuit by Guichard of State remedies assuming any remain would undoubtedly prove futile; hence, consideration of his double jeopardy claim at this time will not compromise those interests which are served by the exhaustion requirement. See Stubbs v. Smith, 533 F.2d 64, 68-69 (2 Cir. 1976); Allen v. Court, Ulster County, 568 F.2d 998, 1003 (2 Cir. 1977). Accordingly, we now turn to the merits of petitioner's three claims.

 B. Merits

 Petitioner's first claim requires little discussion. The fifth amendment's double jeopardy clause, made applicable to the States by the fourteenth amendment, see Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), serves "to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Green v. United States, 355 U.S. 184, 187, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199 (1957); see Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 2147, 57 L. Ed. 2d 1 (1978). While the clause thus prohibits successive trials as well as multiple convictions for the same offense, it does not preclude on the contrary, favors the consolidation in a single prosecution of multiple charges arising from the same transaction or conduct, *fn4" and is not ordinarily offended by the return of seemingly inconsistent verdicts on related counts. United States v. McDaniel, 176 U.S.App.D.C. 60, 66, 538 F.2d 408, 414 (1976); see United States v. Klein, 247 F.2d 908, 919 (2 Cir. 1957). See generally Hamling v. United States, 418 U.S. 87, 101, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974); Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 ...

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