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BARBER v. SCULLY

February 28, 1983

JAMES BARBER, Petitioner
v.
CHARLES SCULLY, SUPERINTENDENT, GREENHAVEN CORRECTIONAL FACILITY, STORMVILLE, NEW YORK, Respondent


Lasker, D.J.


The opinion of the court was delivered by: LASKER

LASKER, D.J.

James Barber was convicted in the County Court, Westchester County, of Murder in the Second Degree, Arson and Grand Larceny. The judgment of conviction was affirmed by the Appellate Division, Second Department, People v. Barber, 83 A.D.2d 794, 441 N.Y.S. 2d 757, and leave to appeal to the New York Court of Appeals was denied. People v. Barber, 55 N.Y.2d 826, 447 N.Y.S.2d 1038, 432 N.E.2d 146. His petition for certiorari to the United States Supreme Court was denied, Barber v. New York, 455 U.S. 1025, 102 S. Ct. 1727, 72 L. Ed. 2d 145 (1982).

 Barber petitions for a writ of habeas corpus on the grounds that: (1) the admission of certain testimony violated his right to confront the witnesses against him; (2) the jury instructions on reasonable doubt were constitutionally defective; (3) the delay in bringing him to trial violated his constitutional right to a speedy trial; and (4) extra-record information and misleading remarks in the State's appellate brief deprived him of due process.

 The State answers that: (1) Barber waived his right to federal habeas review because in his petition for certiorari to the United States Supreme Court he failed to raise certain of the claims presented here; (2) Barber waived his claim under the Confrontation Clause by his failure to make an objection on that basis at trial; (3) the jury instructions were proper; (4) the delay in bringing Barber to trial was not the State's fault; and (5) the State's brief to the Appellate Division was proper.

 1. The Petition for Certiorari

 The State's contention that Barber waived certain claims by not raising them in his petition for certiorari is without merit. In the first place, a habeas petitioner is not required to present any claims to the United States Supreme Court prior to filing a petition for habeas corpus. Secondly, the waiver doctrine of Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), was based on the principle of comity, which is not implicated where the court which has purportedly been bypassed by the petitioner on his way to federal habeas review is not a state court but the United States Supreme Court.

 2. The Confrontation Clause Claim

 Barber claims that the introduction of certain testimony at trial violated his right to confront the witnesses against him. The most significant item of testimony to which Barber objects is the testimony of the victim's friend that the victim had told her that she was "very, very afraid" of Barber. At trial, counsel objected on grounds of hearsay. The objection was overruled on the basis that the statement was not offered for its truth but only as evidence of the victim's state of mind. (Transcript at 179).

 The State contends that the confrontation claim was waived because Barber objected to the admission of the evidence only on grounds of hearsay.

 New York takes a "stringent" approach to the contemporaneous objection rule, People v. Jones, 81 A.D.2d 22, 440 N.Y.S.2d 248, 260 (2d Dept. 1981). A claim may be considered on appeal only if the objection made at trial was "sufficiently specific to focus attention upon the particular issue sought to be raised on appeal." Id. 440 N.Y.S.2d at 258 (emphasis added). For example, the New York Court of Appeals has held that a constitutional claim of denial of the right to speedy trial was waived where the sole objection made at trial was in terms of the statutory right to speedy trial. People v. Lieberman, 47 N.Y.2d 931, 419 N.Y.S.2d 946, 393 N.E.2d 1019 (1979). Similarly, in People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920 (1976), the Court of Appeals held that a claim that Miranda warnings were insufficient had not been preserved because the objection at trial had been on the grounds that the warnings had not been administered at all.

 Barber contends that an objection on grounds of hearsay is "sufficiently specific to focus attention" upon a confrontation clause claim. See People v. Jones, supra. We disagree. As the New York cases cited above demonstrate, New York requires that objections at trial be specific. While there is substantial overlap between the evidentiary rules of hearsay and the constitutional right of confrontation, the two doctrines are not identical. See Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). In the press of trial, it is by no means clear that a hearsay objection will alert the trial court to the problems of the Confrontation Clause. Accordingly, because Barber did not specifically object at trial on grounds of the Confrontation Clause, his procedural default bars consideration of the claim in a federal habeas proceeding. *fn1"

 Finally, Barber's contention that the State may not argue waiver before this Court because it did not make a similar argument before the Appellate Division is without merit. There is no requirement that the State "exhaust" issues before state appellate courts as a condition of presenting them to a federal habeas court.

 Washington v. Harris, 650 F.2d 447 (2d Cir. 1981), on which Barber relies on this point, is inapposite. In Washington, the prosecution defended the petitioner's claim on the merits before the Appellate Division; it did not argue that the petitioner had waived his claim. Under those circumstances, the Second Circuit concluded that the State itself did not believe its waiver argument to be applicable, id. at 451, and that there was therefore "no warrant . . . for guarding state procedural rules more vigilantly than the State itself does." Id. at 452.

 However, in the instant action, the State's brief to the Appellate Division does not discuss the confrontation claim at all. The State's failure to argue that a claim has been waived, in the context in which the claim is not discussed at all, is entirely different from Washington, in which the State defended the claim on the merits at the Appellate Division, ...


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