Appeal from an order of the United States District Court for the Eastern District of New York (Weinstein, C.J.), granting John Gibilaro a writ of habeas corpus, and ordering him released unless retried within sixty days of the order.
Kaufman and Van Graafeiland,*fn* Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
This is an appeal from an order of the United States District Court for the Southern District of New York (Weinstein, C.J.) which granted John Gibilaro's petition for a writ of habeas corpus because of an allegedly improper comment during summation by the State prosecutor. We reverse.
In 1976, Gibilaro was convicted in Supreme Court, Queens County, of rape in the first degree, sodomy in the first degree, attempted rape in the first degree, and unlawful imprisonment in the first degree. The Appellate Division, Second Department, affirmed the conviction without opinion, and the New York Court of Appeals denied leave to appeal. Gibilaro filed his habeas corpus petition in July 1981.
The record on appeal shows that Gibilaro was arrested on June 11, 1974, in connection with three incidents of sexual assault. Following his arrest, Gibilaro made a full confession to Detective Ronald Policare at the station house. Gibilaro then repeated his confession to Assistant District Attorney Michael Schwed, who later prosecuted Gibilaro's case. At the pretrial Wade-Huntley hearing, Schwed announced his intention to testify concerning the giving of Miranda warnings and instructions to a lineup witness. In exploring the possibility that Schwed's proposed testimony could be covered by stipulation, defense counsel inquired whether Schwed had heard any part of Gibilaro's confession. When Schwed answered that he had been present, defense counsel stated "Then perhaps we had better have the testimony." Schwed's testimony included a recital of Gibilaro's confession, which was to the effect that committing the assaults was the only way he could become sexually aroused.
At trial, the defense did not dispute that Gibilaro had committed the acts with which he was charged, the only issue being whether he was mentally responsible for his conduct. Both sides introduced psychiatric testimony. Detective Policare also testified concerning what Gibilaro had told him, which was in substance what Gibilaro had told Schwed. At the request of defense counsel and pursuant to stipulation, Schwed's testimony at the pretrial hearing, at least half of which was interrogation by defense counsel, then was read to the jury.
Thereafter, in response to defense counsel's argument that Gibilaro committed the sexual assaults in a "dreamlike" state, in response to "voices", and without knowing "what the heck he was doing", Schwed said in summation:
If you remember the confession he gave to the police, it was obvious from that that he knew he did something wrong. He never told the detective that, "God told me to do this." Or, "Why am I here? I didn't do anything wrong." He knew he did something wrong. It was very apparent to him.
Mr. Spirn says he wasn't there. Dr. Kinzel comes into the case later but I was there in the station house too; I heard him. My testimony was read.
MR. SPIRN: I will object to this.
MR. SCHWED: You heard my testimony, that he told me at that time that the reason he did it was not because God was telling him to do it, not because he thought this was the right thing to do but because it was the only way that he could achieve sexual gratification. That is the reason he did it. The only way he could become aroused was to take a knife to a woman and do it.
In an oral decision which followed a hearing on the habeas corpus petition, Chief Judge Weinstein held that the reading of the prosecutor's Wade-Huntley testimony at the request of defense counsel was not a constitutional violation. We agree. See Estelle v. Williams, 425 U.S. 501, 512, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976). He also held that most of the above-quoted argument by the prosecutor was not such a constitutional violation as would warrant habeas corpus relief. Again, we agree. See United States v. Canniff, 521 F.2d 565, 571 (2d Cir. 1975), cert. denied, 423 U.S. 1059, 96 S. Ct. 796, 46 L. Ed. 2d 650 (1976). However, focusing solely on the sentence, "That is the reason he did it", Chief ...