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August 3, 1982

HAROLD J. SMITH, Superintendent, Attica Correctional Facility, Respondent

The opinion of the court was delivered by: CURTIN


 This habeas corpus action challenges John Petrucelli's second conviction for the murder of Joseph Gernie who, along with Liberto Moresco, was killed in a barroom shoot-out in Bronx County, New York in 1968. Because he was a fugitive for several years, Petrucelli was not tried until 1973 for the murders of both men and the felonious possession of a weapon. The jury acquitted him of Moresco's murder, but found him guilty on two other counts: manslaughter in the first degree for Gernie's death, and the illegal possession of a weapon. He was sentenced to concurrent prison terms of eight and one-third years to twenty-five years for the manslaughter charge and up to seven years on the weapons charge.

 Petrucelli appealed his conviction to the New York Supreme Court, Appellate Division, First Department. On March 31, 1974, that court reversed the conviction due to the pervasive "unethical" and "prejudicial" misconduct by the prosecutor. People v. Petrucelli, 44 A.D.2d 58, 353 N.Y.S.2d 194 (1st Dep't 1974). Petrucelli immediately moved to ban his second trial on grounds different from those raised here. When that motion was denied, he was retried in 1975. Once again, Petrucelli was convicted of manslaughter in the first degree for Gernie's death and the felonious possession of a weapon. Again he appealed. Among other grounds raised on that appeal, Petrucelli contended the prosecutor's introduction of testimonial evidence relating to Moresco's death violated his rights because he had been acquitted of Moresco's murder at his first trial. The Appellate Division affirmed his second conviction without opinion. Leave to appeal to the New York Court of Appeals was denied on May 26, 1978.

 Petrucelli then came to this court seeking collateral federal relief from his state conviction. After listening to argument, I determined he had not exhausted his state remedies on his claims. I therefore dismissed his application with leave to renew after he fulfilled his prerequisites to federal court intervention. Order, CIV-78-477C (September 28, 1978).

 Petrucelli returned to the state courts for redress. There he applied for a state writ of habeas corpus, objecting to his second conviction on double jeopardy grounds. He alleged for the first time that the prosecutor's misconduct at his first trial barred his retrial for the same crimes under United States v. Dinitz, 424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075 (1976). Justice John S. Conable denied the application in a written Memorandum and Order on March 16, 1979. The New York Supreme Court, Appellate Division, Fourth Department affirmed Justice Conable's decision without opinion. On June 30, 1980 the New York Court of Appeals concurrently dismissed petitioner's appeal and denied leave to appeal.

 Having by this time completed his protracted trek through the state judicial system, Petrucelli once again seeks a federal writ from this court. He advances two grounds for habeas relief. First he claims that his second trial was constitutionally barred under the Double Jeopardy Clause of the Constitution by virtue of the prosecutor's misconduct at his first trial. As a second basis for relief, he asserts that the prosecutor's use of evidence relating to Moresco's murder, of which he was acquitted at his first trial, infringed his constitutional rights ["Moresco evidence claim"]. *fn1"


 The facts surrounding Petrucelli's conviction can be briefly summarized. In the evening of December 22, 1968 the victims, Joseph Gernie and Liberto Moresco, entered the Glass Post Bar in Bronx County together. John Petrucelli, Anthony Zinzi, and Ernest Coralluzzo walked into the same bar approximately half an hour later. At that time the only other people in the bar were John Ferolito, the bar owner, and Geraldine Paciulli, a bartender. As soon as Petrucelli, Zinzi, and Coralluzzo came in, Ferolito sent Paciulli to the White Castle Restaurant across the street for coffee.

 Within minutes, James Donlan, a car mechanic, heard gunfire and other noises as he drove past the Glass Post Bar. He also saw three men dart out of the building. Driving off, Donlan spotted two policemen who called for assistance and returned to the bar with him. Ferolito was standing outside and told them that someone had been shot. Inside the bar, Joseph Gernie lay on the floor, dead from gunshot wounds.

 The two police officers proceeded to cross the street to the White Castle Restaurant parking lot. Immediately before the police appeared, Theresa Napoli, a White Castle carhop, observed a man later identified as Moresco walking in the parking lot with a gun in his hand. She then saw a blue automobile pull up to Moresco with its horn blowing persistently. As she watched, Moresco flew into the air, apparently having been hit by the car which quickly sped away. When the two policemen arrived five minutes later, Moresco was kneeling on the ground and bleeding. The police rushed him to the hospital where he died of gunshot wounds half an hour later.

 Petrucelli fled the scene with his girlfriend, Joan Platta. Platta later testified for the prosecution, stating that Petrucelli told her he had killed Moresco in self-defense. Petrucelli voluntarily surrendered to the authorities in November 1972.

 In the meantime, Petrucelli, Coralluzzo, Zinzi and Ferolito were indicted for two counts of murder. Coralluzzo was tried and acquitted. Zinzi pled guilty to assaulting Moresco, and Ferolito pled guilty to criminal solicitation for his participation in the incident of December 22, 1968. Petrucelli was not tried for Gernie's murder until several years after the conclusion of the criminal proceedings against the others.


 The threshold inquiry of every federal habeas court is whether the habeas applicant has fully exhausted all available state court remedies. 28 U.S.C. § 2254(b) & (c). Recognizing that the exhaustion requirement in this circuit is quite stringent, see Klein v. Harris, 667 F.2d 274, 282-83 (2d Cir. 1981); Johnson v. Metz, 609 F.2d 1052, 1053-54 (2d Cir. 1979); Sabino v. LeFevre, 490 F. Supp. 183, 186-87 (S.D.N.Y.), aff'd, 630 F.2d 919 (2d Cir. 1980), respondent argues that Petrucelli has failed to exhaust his state remedies in compliance with federal law. The state court records of Petrucelli's two trials reveal that respondent is incorrect with respect to both of petitioner's claims.

 The exhaustion doctrine requires that the state courts must have had a full and fair opportunity to consider an applicant's federal constitutional claims before federal habeas relief on those grounds can be granted. Klein v. Harris, supra; Johnson v. Metz, supra. Petrucelli asked the state courts to resolve his constitutional Moresco evidence claim on direct appeal from his second conviction. He argued that the evidence concerning the circumstances of Moresco's death should not have been introduced at trial because he had previously been acquitted of Moresco's murder. Although the federal constitutional dimensions of this claim were not artfully described, petitioner asserted that the "admission of the Moresco evidence . . . deprived him of a fair trial and due process of law." *fn2" Brief of Defendant-Appellant, Appellate Division, First Department, p. 10 (Trial II). He later argued that "it is inconsistent with the fundamental principles of due process to have admitted such evidence." Id. at 13. As in Twitty v. Smith, 614 F.2d 325, 332 (2d Cir. 1979), petitioner's mention of "due process" instantly brings into focus the fourteenth amendment's due process guarantees. See Rivera v. Smith, 492 F. Supp. 1017, 1018 (S.D.N.Y. 1980). But cf. Taylor v. Scully, 535 F. Supp. 272, 274-75 (S.D.N.Y. 1982) (more than reference to "due process" is required).

 Petrucelli also cited several federal cases to buttress his claim, including, notably, United States v. Phillips, 401 F.2d 301 (7th Cir. 1968). In the section of the Phillips opinion discussed at length in Petrucelli's appellate brief, pp. 19-20, the Seventh Circuit relied on United States v. Kramer, 289 F.2d 909, 916 (2d Cir. 1961). In that case, Judge Friendly articulated the federal constitutional foundation of a claim such as petitioner's.

 For these reasons petitioner has satisfactorily presented his federal constitutional Moresco evidence claim to the state courts for resolution. He is entitled to have the merits considered by this court. See Klein v. Harris, supra at 282; Daye v. Attorney General, 663 F.2d 1155, 1156-57 (2d Cir. 1981) (reargument en banc April 13, 1982).

 Petitioner's constitutional prosecutorial misconduct-based double jeopardy claim is in a different posture before the court than his Moresco evidence claim. He presented this ground for redress to the state judiciary for the first time in an application for a state writ of habeas corpus after he completed his direct appeals from his second trial. Justice John S. Conable denied the petition, declaring:

If there had been no appeals, this Court would grant the relief sought. In view of the outcome of those appeals, however, this Court feels that it's [sic] instincts about the law are wrong. Both the Appellate Division decision and the action of the Court of Appeals were long after U.S. v. Dinitz was decided. This Court feels that the Appeal where Double Jeopardy was argued has established the law as it applies to this particular case. This Court is bound by the action of the Appellate Division.

 Memorandum and Order, New York Supreme Court, Wyoming County, p. 3 (March 16, 1979). The Appellate Division, Fourth Department affirmed the decision without opinion. The New York Court of Appeals denied leave to appeal and simultaneously dismissed the appeal, stating perfunctorily that "no substantial constitutional question is directly involved."

 The decision is, at best, ambiguous. Nevertheless it is possible to draw two plausible conclusions from the opinion. First, Justice Conable neither held that petitioner had waived his right to present his double jeopardy assertion by failing to raise it earlier, nor declined to discuss its merits for this reason. On the contrary, and this is the second point, the court apparently considered the legal substance of petitioner's claim, and ruled that although his decision did not comport with his "instincts," he was bound by a higher court's previous decision in this case.

 These aspects of Justice Conable's decision are important in view of respondent's implicit contention that petitioner waived his prosecutorial misconduct/double jeopardy claim because he could have raised it on direct appeal, but did not. See Memorandum in Support of Respondent's Motion to Dismiss, pp. 6-7. This argument cannot withstand analysis. Even if the state habeas judge could have refused to entertain petitioner's application under N.Y.Crim.Pro.Law § 440.10(2) (c) for failure to raise his claim on direct appeal, he nonetheless chose to confront the merits, however sparingly. Under these circumstances, there is no reason I should give greater respect to the state's purported procedural requirements than did the state court itself. Mitchell v. Smith, 633 F.2d 1009, 1011 (2d Cir. 1980), cert. denied, 449 U.S. 1088, 66 L. Ed. 2d 814, 101 S. Ct. 879 (1981). See discussion, Klein v. Harris, supra at 284-87.

 In any event, New York law permits a petitioner to raise a double jeopardy claim by way of a state habeas corpus application despite the failure to assert the claim at trial or on direct appeal. People v. Michael, 48 N.Y.2d 1, 6-7, 420 N.Y.S.2d 371, 373-74, 394 N.E.2d 1134 (1979); People ex rel. Pendleton v. Smith, 54 A.D.2d 195, 388 N.Y.S.2d 426, 429 (4th Dep't 1976). Interestingly, both Petrucelli and the petitioner in Pendleton were in the same procedural stance when they made their state habeas motions. As in Pendleton, supra at 430-31, Petrucelli's double jeopardy right did not clearly exist until after his conviction at his second trial. Although foreshadowed by the Supreme Court's plurality opinion in United States v. Jorn, 400 U.S. 470, 485, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971), the double jeopardy principles Petrucelli asserts were not expressly adopted until the Court handed down United States v. Dinitz, 424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075 on March 8, 1976. Also as in Pendleton, supra at 431, then-prevailing New York law permitted Petrucelli's reprosecution despite his successful appeal. People v. Jackson, 20 N.Y.2d 440, 446, 285 N.Y.S.2d 8, 231 N.E.2d 722, cert. denied, 391 U.S. 928, 88 S. Ct. 1815, 20 L. Ed. 2d 668 (1967); N.Y.Crim.Pro.Law § 40.30(3).

 The Pendleton court concluded it was entirely correct for petitioner to present his double jeopardy claim in a state habeas proceeding regardless of his failure to raise it earlier. The court reasoned that to hold otherwise would "place an impossible burden on the accused [to anticipate a drastic change in the law, and] would continually result in impractical contentions or impermissible waivers of significant constitutional rights." People ex rel. Pendleton v. Smith, supra at 431.

 The identical intolerable predicament would have resulted had Petrucelli not been able to present his double jeopardy claim in his state habeas action. There is no reason to presume that Justice Conable failed to take applicable New York waiver law into account when he rejected petitioner's application. Thus, petitioner's double jeopardy claim was not waived, and is properly before this court for resolution. *fn3"


 In United States v. Dinitz, 424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075 (1976), the seminal case relied on by Petrucelli, the Supreme Court affirmed that a mistrial granted at a criminal defendant's behest because of prosecutorial or judicial error will normally not foreclose a second trial. Id. at 607-09. The Court nevertheless pronounced that where a defendant's motion for mistrial was intentionally provoked by the "bad faith conduct" of the judge or prosecutor, a retrial is proscribed by the Double Jeopardy Clause of the fifth amendment. Id. at 611; Mitchell v. Smith, supra at 1011. This doctrine was recently refined in Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982), handed down after the instant action was submitted for decision. The Supreme Court explained that the double jeopardy bar can be interposed by a criminal defendant who has successfully moved for a mistrial only where "the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Id. at 679.

 Petrucelli, of course, is on a somewhat different footing before this court than the criminal defendants in Dinitz and its progeny, including Oregon v. Kennedy. In that line of cases, mistrials were granted by the trial court. Here, Petrucelli's frequent motions for a mistrial based on the prosecutor's deplorable behavior were all denied. For purposes of double jeopardy analysis, however, I am convinced that reversal of a conviction for deliberately offensive prosecutorial misconduct warrants the same relief as a mistrial granted on that ground.

 There is no reason why a criminal defendant whose timely request for a mistrial is granted should be placed in a better position than a defendant whose request is wrongfully denied. See Burks v. United States, 437 U.S. 1, 11, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978). Indeed, it might be argued that a defendant who has been forced to endure a full trial over legitimate protests of improper prosecutorial behavior should be more vigorously protected from the "embarrassment, expense, and ordeal" of a retrial than a defendant whose mistrial motion at the first instance of prosecutorial misconduct is granted. See Oregon v. Kennedy, supra at 689 (J. Stevens, concurring); United States v. Dinitz, supra at 606. Unlike the defendant whose trial has run its course over protest, the defendant whose mistrial motion was granted has not been subjected to the damaging cumulative impact of prosecutorial misconduct throughout an entire trial.

 In Burks v. United States, supra, the criminal defendant's pre-verdict motion to dismiss based on insufficient evidence was denied. The circuit court reversed the jury's subsequent guilty verdict for lack of sufficient evidence, but gave the government an opportunity to reprosecute. On appeal, the Supreme Court ruled that the Double Jeopardy Clause forbids a second trial where a first conviction is reversed by virtue of the insufficiency of the evidence. In so holding, the court overruled its prior decisions which implied that the double jeopardy bar never attaches where the defendant seeks a new trial by way of, inter alia, appellate review. Id. at 17-18. The Court focused instead on the nature of the reason the first conviction was nullified, and distinguished a dismissal or reversal for lack of sufficient evidence from a reversal for mere trial error where a retrial would be permitted. Id. at 14-16.

 In this case, had any one of Petrucelli's many mistrial motions been granted, the double jeopardy principles embodied in United States v. Dinitz and Oregon v. Kennedy would have been called into consideration. As in Burks v. United States, supra, the deliberate prosecutorial misconduct involved in Dinitz and Oregon v. Kennedy contemplates far more than mere trial error. Accordingly, the applicability of the prosecutorial misconduct-based double jeopardy doctrine should not be made to hinge on the outcome of a defendant's mistrial motions. United States v. Roberts, 640 F.2d 225, 227-28 and discussion at 230-31 (J. Norris, dissenting) (9th Cir.), cert. denied, 452 U.S. 942, 69 L. Ed. 2d 957, 101 S. Ct. 3088 (1981); United States v. Rios, 637 F.2d 728, 729 (10th Cir. 1980), cert. denied, 452 U.S. 918, 69 L. Ed. 2d 422, 101 S. Ct. 3054 (1981); United States v. Opager, 616 F.2d 231, 235-36 (5th Cir. 1980); see Burks v. United States, supra at 11; Comment, Double Jeopardy: An Illusory Remedy For Governmental Overreaching at Trial, 29 Buffalo Law Review 759, 773-76 (1980). But see Alicea v. Kuhlman, 537 F. Supp. 1156 (S.D.N.Y. 1982).

 The Appellate Division, First Department found that acts of outrageous prosecutorial misconduct pervaded Petrucelli's first trial. Characterizing the prosecutor's behavior as "prejudicial and sometimes unethical," the court recited example after example of blatant, reprehensible misconduct by the assistant district attorney. People v. Petrucelli, 44 A.D.2d 58, 353 N.Y.S.2d 194, 196 (1st Dep't 1974). As examples only, the court adverted to the prosecutor's expression of his personal opinion of the witnesses' credibility by calling the defense witnesses a "bunch of thieves," and by remarking, during cross-examination of a principal defense witness, "I don't have to believe him. I believe Joan [the principal prosecution witness.]"; his prejudicial attempt during summation to place the burden on the defense to prove that one "Ray" was at the scene and might have been the killer; his questions "designed" to influence the jury regardless of the inadmissibility of the answers, such as one series suggesting that the prosecution's witness had been intimidated when all she testified was that she had been given a "dirty look"; and a question implying that defendant's former counsel "walked out on this defendant," because the attorney knew his client was guilty when in fact he had withdrawn by court order. Id. The court concluded:

These instances are only illustrative of the prosecutor's misconduct throughout the trial . . . . This is not the sum of harmless errors equalling harmless error [citation omitted]; it is an erosion of the corrective efforts of the court by the cumulative effect of prejudicial conduct.


 Presuming the appellate court's factual findings to be correct, 28 U.S.C. § 2254(d), and being satisfied that that the state court record as a whole fairly supports the court's factual findings, 28 U.S.C. § 2254(d) (8), I find no reason to disturb the court's factual determinations. See Sumner v. Mata, 449 U.S. 539, 546, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981). The question then becomes whether the prosecutor's reproachable behavior in this case was intended to provoke a mistrial. If it was, Petrucelli's second trial should not have been held. Oregon v. Kennedy, supra at 679.

 Throughout all the proceedings in this action, there has never been a factual finding of the prosecutor's motives for his conduct at Petrucelli's first trial. Whether an evidentiary hearing is required for this purpose is not an easily answered question. Faced with prosecutorial misconduct-based double jeopardy claims, some courts have held hearings to determine why the prosecutor acted as he did. See, e.g., Oregon v. Kennedy, supra at 668; United States v. Rios, 637 F.2d at 728-29; United States v. Cox, 633 F.2d 871, 873 (9th Cir. 1980), cert. denied, 454 U.S. 844, 102 S. Ct. 159, 70 L. Ed. 2d 130 (1982); United States v. Martin, 561 F.2d 135, 138 & n.4 (8th Cir. 1977) (hearing held, but court relied on affidavits submitted by prosecutor); United States v. Kessler, 530 F.2d 1246, 1252 (5th Cir. 1976). Other courts have not conducted independent hearings, choosing instead to deduce the intent of the prosecutors from the facts apparent in the record of the prior proceedings. See, e.g., United States v. Roberts, 640 F.2d at 228; Mitchell v. Smith, 633 F.2d at 1012; United States v. Calderon, 618 F.2d 88, 89-90 (9th Cir. 1980); United States v. Gaultney, 606 F.2d 540, 547 (5th Cir. 1979), rev'd on other grounds, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981); Drayton v. Hayes, 589 F.2d 117, 122 (2d Cir. 1979); see also Potenza v. Kane, 79 A.D.2d 467, 437 N.Y.S.2d 189, 192 (4th Dep't 1981).

 Although a separate evidentiary hearing on the criminal defendant's double jeopardy claim was conducted in Oregon v. Kennedy, the language of the Supreme Court's decision lends considerable support to the proposition that if the prosecutor's intent can be inferred from objective indicia manifested in the record, an evidentiary hearing is not necessary. Explaining its newly clarified standard, the Court stated:

[A] standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal judicial system.

 Id. at 4546.

 More significant is the opinion of Justice Powell, whose concurrence with four other Justices gave Oregon v. Kennedy its status as a majority opinion. Though agreeing with the "intention" standard established by the Court's decision, Justice Powell "emphasize[d] that the court -- in considering a double jeopardy motion -- should rely primarily upon the objective facts and circumstances of the particular case." Id. at 680. Justice Powell pointed to such factors as the absence of a pattern of prosecutorial misconduct and the prosecutor's surprise at the defendant's motion for mistrial as the type of "objective factors and circumstances," extracted from the record, which a court should take under consideration. Id.

 Undeniably, whether based on direct testimony concerning the issue or the record of past proceedings, a determination of a prosecutor's motivation for his or her trial behavior is often difficult to make. Potenza v. Kane, supra at 192. Absent a direct admission by the prosecutor that he or she intended to provoke a mistrial motion, the prosecutor's specific motive must be inferred. There is no such admission in the trial transcripts, nor do I expect the prosecutor would offer such an admission at an evidentiary hearing. Even so, the prosecutor's misconduct at Petrucelli's first trial was so extensive and inexcusable that an inference that the prosecutor deliberately goaded Petrucelli into moving for a mistrial is abundantly justified by the record, regardless of any other motive he may also have had. Several illustrations will serve to underscore this conclusion.

 Gino Gallina, Esq., who testified for the defense, once represented Petrucelli and his family. On February 17, 1972, Joan Platta, her husband, and Frank Santilli, an investigator employed by Gallina, met with Gallina in his office. The meeting was taped, but the tape was excluded from evidence. Gallina testified that Platta told him at the meeting that she had lied to the prosecutor because he had coerced her. On Gallina's cross-examination, the following exchange took place:

IRWIN GOLDSMITH [prosecutor]:
. . . did you tell Joan Platta what your client John Petrucelli told you, just yes or no?
A: I don't recall. You have to direct my attention to the tape. I would like to hear the tape so I could --
Q: I know you would like to hear the tape. You ought to make a better one.
MR. KLEMPNER [defense attorney]: I didn't hear that last remark. May we have that read back?
. . .. THE COURT: The remark is stricken, there is no side remarks.
MR. GOLDSMITH: He shouldn't make a remark either, it wasn't in answer to my question.
THE COURT: I don't want to argue with you which came first, the chicken or the egg. I just told you not to make any remarks.

 (Tr. Trial I, pp. 1244-45).

 Later during his cross-examination of Gallina, the prosecutor asked the following questions, over objection:

Q: Did either of these two investigators work for you in connection with ...

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