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October 13, 1981

Alvin ST. LAWRENCE, Petitioner,
Charles SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent

The opinion of the court was delivered by: WEINFELD

Petitioner, Alvin St. Lawrence, was convicted upon a jury trial in the Supreme Court of the State of New York, Kings County, of the crimes of robbery, rape and sodomy. He was sentenced to and is now serving concurrent prison terms of eight and one-third years to twenty-five years on each count except that the sentence on a second degree robbery charge is an indeterminate term of five to fifteen years. A co-defendant, Joel Lee James, was also convicted at the joint trial. The judgment of conviction was affirmed without opinion *fn1" and leave to appeal to the Court of Appeals was denied. The victim of the crimes is a white woman, a young college professor, and the petitioner and his co-defendant are black. The petitioner seeks a writ of habeas corpus to void his judgment of conviction pursuant to 28 U.S.C. § 2254 upon allegations that he was denied his federal constitutional right to an impartial jury and to due process of law under the Sixth *fn2" and Fourteenth Amendments to the United States Constitution by (1) the trial judge's limitation of voir dire questioning of jurors about racial prejudice; (2) the allowance to the prosecution of its challenge for cause of a black venireman; and (3) the comments by the prosecutor in opening and concluding statements that deprived him of his right to the presumption of innocence and relieved the prosecution of its burden of establishing guilt beyond a reasonable doubt. In view of the claims made by petitioner, this Court has read word-for-word the voir dire transcript consisting of 626 pages in order to get the full and total atmosphere of that proceeding rather than to rely upon isolated references which may distort rather than inform as to what occurred; and since one claim rests upon incidents occurring during the prosecutor's opening and summation, the Court has also read the 463 page trial record so that the incidents may be considered in proper perspective against the totality of the trial testimony. The voir dire extended over a period of four days. The trial itself was completed and the verdict returned within three days.

The events about which the charges against petitioner and his co-defendant center occurred in the early evening of January 27, 1978 in the last passenger car, which was empty, of a ten-car moving subway train on a northbound Lexington Avenue express where the victim was raped, sodomized, assaulted and robbed. She testified that each assailant was armed with a long butcher knife. In the course of a series of revolting events, extending over a half hour, and which need not be detailed here, she also was forced at knifepoint to take from her leather travel purse a five dollar bill, five one dollar bills, two subway tokens and some change, which she handed to one of her assailants, who then took from her left hand her wedding ring. She was also forced to give to the other assaulter her wrist watch. During the assaultive activities, she was pushed into the conductor's cab of the car and the assailants started to tear off her clothes. She managed to pull the emergency cord bringing the train to a sudden stop in the tunnel between the Borough Hall Station in Brooklyn and the Bowling Green Station in Manhattan. The conductor of the train thereupon walked through cars six to nine and when he reached the tenth car, he saw only three persons, the complainant and two men, both of whom were identified upon the trial by her as well as others who played a role in apprehending them as related hereafter. The victim was told by the conductor to go to the ninth car and while alone with the two men in the tenth car he was threatened by one of them who had a knife in his hand, whereupon he retreated to the ninth car. The assailants were observed leaving the train between the cars and getting onto the catwalk alongside the rails. The train was reactivated and proceeded to the Bowling Green subway station where the victim immediately gave authorities a description of her assailants.

 Thereupon the motorman of the train following the one in which the complainant had been attacked was alerted by radio to be on the lookout for two men in the roadbed of the subway tunnel between Borough Hall and Bowling Green. About six hundred feet into the tunnel the motorman spotted two men against the wall. He stopped the train to pick them up, and the two men boarded and went to the back of the train. The motorman then advised the subway Command Center that the two men were on his train. He was directed to proceed and to stop his train after it was one car length into the Bowling Green Station. When the train stopped, the complainant, accompanied by police officers, entered the train. The complainant, after walking through five or six cars and seeing approximately 100 people, of whom at least thirty or forty were black, identified the petitioner Alvin St. Lawrence, seated on a double chair next to the conductor's cab as one of her assailants. *fn3" He was arrested and searched and a butcher's knife was found secreted under his arm. The complainant identified this knife as the one petitioner had during the attacks upon her.

 After the complainant and the police entered the stopped train at the Bowling Green Station, the motorman saw a man dressed in a green army coat running along the catwalk from the side of the train near the wall and up the stairs at the Bowling Green Station. A transit officer, who pursuant to instructions was at the Bowling Green Station, also observed a man wearing a long green army coat running up the catwalk, dash up the stairs and flee to the street. The officer gave chase, and while in pursuit kept the fleeing man in sight until he turned a corner. The officer searched the street into which the fleeing man had run, and finally spotted him crouching in a space under a grating where he arrested him. Upon his return to the Bowling Green Station with the arrested man, the complainant identified Joel Lee James, the co-defendant, as the other of her assailants. An immediate search of James revealed a five dollar bill, five one dollar bills, two tokens and some loose change. Complainant had testified that she had been knifed during the experience and was bleeding. Clothing removed from each defendant immediately following his arrest had blood on them. Also, St. Lawrence's clothes as well as his hands and sneakers were covered with a sooty substance, "like what you find in the subway." Neither defendant testified; the defense essentially was that the State had failed to sustain its burden of establishing guilt beyond a reasonable doubt.

 Against the foregoing summary of trial testimony we consider petitioner's various contentions.

 1. The claim that the Trial Court's limited voir dire questioning on racial prejudice denied petitioner an impartial jury.

 At the outset, to put matters in proper focus, it is desirable to note what this application does not encompass. Despite the statement in petitioner's brief that selection of an impartial jury was complicated by the related problems of pre-trial publicity and the fact that this was an interracial rape case, prejudicial pre-trial publicity is not an issue on this application. There is no claim by petitioner that pre-trial publicity deprived him of his right to a fundamentally fair trial, and, indeed, if it were made, the record would require its rejection. The incident which gave rise to the indictment occurred on January 27, 1977 and was publicized on the following day in the New York City newspapers, principally in the New York Daily News and the New York Post. The trial took place ten months later in late November. At the start of the trial, the Court conferred with the prosecution and defense as to an acceptable formula in the questioning of jurors to avoid the impact of any reference to the publicity. *fn4" Many who were called into the jury box had not seen or heard any publicity about the case; those who did were excused. *fn5" Thus the issue on this application is confined to petitioner's claim based upon the voir dire.

 The Supreme Court, in Ristaino v. Ross, *fn6" has held that there is no absolute constitutional entitlement on the voir dire to pose questions specifically directed to racial prejudice merely because the victim of the crime and the defendant are of different races or because a crime of violence is involved. However, where racial issues are inextricably bound up with the conduct of the trial and there is a significant likelihood it might affect a defendant's right to a fair trial, inquiry into possible racial prejudice is required in order to assure an impartial jury. *fn7" Recently, the Court in Rosales-Lopez v. United States, *fn8" a case involving a defendant of Mexican descent, adhered to its holding in Ristaino that there is no per se constitutional right to specific voir dire questioning of jurors on racial or ethnic bias or prejudice, such constitutional right being restricted to cases exhibiting "special circumstances," and it is only when in the particular case there is a "likelihood" that such considerations might influence the jury, that inquiry on the subject is required if requested, and if denied may rise to a constitutional violation. Here, whether constitutionally required or not, the record demonstrates that the "wiser course" was adopted and that the court itself initiated inquiry and permitted counsel to question jurors on the subject. *fn9" What is at issue is whether the court, in exercising its statutory discretion to disallow "statements or questions by either party that are irrelevant to the examination or repetitious" *fn10" violated the defendant's federally protected constitutional right to select an impartial jury.

 The record shows that when a group of jurors was seated in the jury box, the trial judge gave preliminary instructions concerning their basic functions, duties and conduct as required by New York law. *fn11" The court also instructed the jury on the nature of the indictment; its lack of evidential value; the presumption of innocence; the burden of proof; and that the guilt or innocence of each defendant was to be decided separately as to him.

 In addition, the trial judge noted that the complainant was white; that the defendants were black; that race was not a factor and that the case was to be decided solely on the evidence, and inquired specifically if the jurors could perform that function. *fn12" Those who indicated inability to comply were forthwith excused.

 The court also in its general inquiry of jurors required them to disclose any personal or family experience that might foreclose fair and impartial judgment based solely upon the evidence in the case and in such instances those jurors were questioned separately and out of the presence of other jurors by the court and counsel.

 After the court's general inquiry, the prosecution and the defense attorneys questioned jurors individually and collectively. At the outset the court permitted each side unlimited questioning on the subject of racial prejudice. As much is conceded by petitioner. *fn13" The unrestricted scope of questioning on the subject of racial prejudice continued until the court determined that the interrogation, particularly by Mr. Hill, the attorney who represented petitioner's co-defendant, *fn14" was repetitive, protracted and irrelevant, and that thereafter the voir dire would be recorded. *fn15" The court's action was taken after admonition to Mr. Hill that his questions sought to inject into the case civil rights issues that were unrelated to the charges against the defendants, as noted hereafter.

 Despite its ruling, the court did not restrict further interrogation of jurors on the issue of racial prejudice. Thereafter and over a period of more than two days the jurors were questioned on the subject by the prosecution and the defense. The prosecutor sought assurance from individual jurors that prejudice would not enter into the case and that questions of race would not be brought up in the jury room and that the verdict would be based solely on the evidence. *fn16" Defense counsel likewise without restriction inquired on the subject. *fn17" However, defense went much beyond and sought to question jurors on their views on civil rights. The court again admonished Mr. Hill that although he was given "the widest possible latitude," he continued to interrogate on irrelevant and repetitive matters. *fn18"

 The thrust and unmistakable purpose of Mr. Hill's questioning, which the court found irrelevant and repetitive, was made clear at any early stage of the voir dire by his responses to the court's statement that "this is not a civil rights case ... it's a rape and robbery case and I intend to try it as such ... I'm allowing you to question extensively with regard to racial prejudice in spite of Restaino (sic). You are overdoing it." Mr. Hill, however, persisted in his view that "every case is a civil rights case ..."; that from his experience "very, very few cases (do) not have some kind of racial overtone"; that the history of the treatment of the negroes in this country had relevance in rape and robbery cases and that "for two hundred years black women have been raped in this country day after day and no one does anything about it." The court unsuccessfully continued to remonstrate, stating "you will not tell me this is a civil rights case because it is not. It is a criminal case." Mr. Hill again responded "it's a civil rights case." *fn19"

 Thereafter, as the voir dire continued, and despite the court's admonition, Mr. Hill was persistent in his effort to question jurors on extraneous matters, including their views on mixed marriages. *fn20" Finally, after two and a half days of voir dire questioning by court and counsel and after eleven jurors had been sworn in, the trial judge announced that with respect to a new panel of jurors from which one juror and an alternate were to be selected that counsel would be restricted in questioning the jurors concerning race, and that she herself would interrogate on the subject. The trial judge stated the reasons for her ruling including, but not limited to, Mr. Hill's inquiries as to irrelevant matters. *fn21" After colloquy, defense counsel stated: "Back to this question of race ... (it's) because the minds of Americans are permeated with prejudice and we must do something about it in these courts. We must try to keep it out of the court, and we cannot keep it out by being silent." The court thereupon responded:

I didn't say we would be silent. I said I would question the jurors with regard to it.... I feel asking every black juror whether they would stand up as a black man or black woman and be counted in the jury room is an improper thing to do. I feel that strongly.
(A) trial judge conducting the voir dire may satisfy the defense of due process by generalized, but thoroughly voir diring the panel of prospective jurors. I intend to do that myself. *fn22"

 The subsequent questioning by the court of prospective jurors not only continued to satisfy the doctrine enunciated by Ristaino v. Ross and the more recent Rosales-Lopez v. United States, but went much beyond its requirement. *fn23" The questions clearly were probing, direct and sufficiently detailed to require a juror to expose any latent racial hostility. *fn24" Although in this instance too, the court did state it would take over the questioning of the jurors on the subject of race, both prosecution and defense were permitted to question jurors, but Mr. Hill again sought to inject extraneous issues into the case. *fn25"

 A full and objective reading of the entire voir dire questioning by defense counsel, particularly Mr. Hill, compels the conclusion that his statements and questions were deliberately calculated to inject into the case civil rights issues touching upon the denial to blacks of their economic, social and political rights from the founding of the Republic to the present. His evident purpose was to obtain jurors who would bring into jury deliberation their individual views on civil rights matters based on historical factors and favorable to the defendants because of their race in a case where the charge was robbery, rape and sodomy and in no respect involved civil rights issues a case in which there was no claim that the charges were a frame up in retaliation for civil rights activities, such as in Ham v. South Carolina. *fn26"

 The trial judge, after this purpose had repeatedly manifested itself, was entirely justified in exercising the discretion vested in her to terminate "irrelevant ...

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