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July 25, 1984

Howard JACOBSON, Petitioner,
Robert J. HENDERSON, Superintendent, Auburn Correctional Facility; Thomas A. Coughlin, III, Comm'r, Department of Correctional Services; and Robert Abrams, Atty. General, Respondents.

The opinion of the court was delivered by: CANNELLA


CANNELLA, District Judge:

 The petition of Howard Jacobsen for a writ of habeas corpus is denied. 28 U.S.C. § 2254.


 Petitioner is currently confined at Auburn Correctional Facility pursuant to a judgment of the New York Supreme Court, Bronx County (Kapelman, J.), upon a jury verdict convicting him of second degree murder. N.Y.Penal Law § 125.25[1] (McKinney 1975). Petitioner was sentenced to serve an indeterminate term of twenty-five years of life imprisonment.

 Approximately eight months after the jury verdict, petitioner moved to vacate the judgment because of jury misconduct during deliberations.The motion to vacate the judgment was denied. People v. Jacobson, 109 Mis.2d 204, 440 N.Y.S.2d 458 (Bronx Co.Sup.Ct.1981). On appeal of the judgment of conviction and the order denying the motion to vacate the judgment, the Appellate Division, First Department, affirmed the judgment and order. People v. Jacobson, 89 A.D.2d 826, 452 N.Y.S.2d 473 (1st Dep't 1982). The Court of Appeals denied petitioner leave to appeal. People v. Jacobson, 57 N.Y.2d 781, 454 N.Y.S.2d 1057, 440 N.E.2d 1348 (1982).

 Thereafter petitioner sought habeas relief from this Court, asserting that he was denied (1) a fair trial and the right to an impartial jury because of jury misconduct in violation of the fifth, sixth and fourteenth amendments; (2) a fair trial, his right to compulsory process in violation of the sixth amendment and due process in violation of the fourteenth amendment because the prosecution failed to produce George Miller, an alleged material witness; and (3) a fair trial in violation of the sixth and fourteenth amendments because of the court's denial to permit Leonore Berg to testify.

 Briefly, the facts relevant to the jury misconduct are: During deliberations heated colloquy occurred among the jurors: screaming, hysterical crying, fist banging and name calling. *fn1" Abusive language was used. One juror in particular, who basically "broke down", *fn2" threw a chair allegedly at another juror. That juror, an auxillary policeman, stated he was sick and required medical assistance. When the chair was thrown, allegedly one of the jurors requested the court officer to inform the trial judge of the incidents occurring in the jury room but the court officer declined to do so unless a note was sent through the foreperson. Allegedly, the court officer was informed that everything was under control. The trial judge was not informed of the chair-throwing incident at that time.

 Petitioner alleges that these acts were designed to coerce the jurors who favored acquittal to change their votes to guilty. The disturbing incidents were conveyed months after the verdict of the trial judge through affidavits of the jurors. It is further alleged that during deliberations one juror read from notes he had taken during the trial and that at one point, the jury was deadlocked and the foreperson would not so inform the trial court. At a later point in time, the trial judge was informed of a deadlock. Petitioner alleges that this conduct denied him a fair trial.

 Judge Kapelman declined to consider the jurors' affidavits to determine if members of the jury were coerced into changing their votes from innocent to guilty. Three jurors' affidavits were taken. Allegedly, juror Michael Speller stated to the Government that his affidavit was replete with inaccuracies. *fn3" He would, however, not swear to another affidavit for the Government. Speller's affidavit was sworn three weeks after the verdict at the request of Jacobson's paramour with whom he had taken flight following his conviction.

 Jacobson's counsel had obtained the affidavits of jurors Bernice Foust on May 30, 1980 and Rose Kovnit on November 6, 1980. When the Government investigated the circumstances under which these affidavits were given, the two jurors informed them that the affidavits were accurate.

 Failure to Produce George Miller

 As a defense, Jacobson contended at trial that Tupper's narcotic coconspirators murdered Tupper. Jacobson contended that Miller was the only one, other than Tupper's coconspirators, who could testify about Tupper's involvement with drug traffic. Petitioner further asserts that it was incumbent on the Government to produce Miller or inform petitioner of Miller's whereabouts.

 Miller had testified as a confidential informant in a federal narcotics case in the Eastern District of New York in which Tupper was named as an unindicted coconspirator. He testified in the Eastern District case prior to peitioner's trial. Jacobson unsuccessfully tried to subpeona Miller by serving the subpoena on the Assistant United States Attorney ["Assistant"] who represented the Government in the Eastern District case. The Assistant refused service since Miller was no longer working with the Government and had returned to private life. The assistant stated that he would contact Miller to inquire if he would appear voluntarily. He then testified at petitioner's trial that although he had a current address for Miller, he was unable to contact him. Furthermore, neither the District Attorney nor the trial judge knew of Miller's whereabouts. Defense counsel told the trial court that a journalist had informed him that Miller cout not be located. The trial court encouraged defense counsel to determine Miller's availability. The record does not indicate that Jacobson sought a court order directing the Assistant or anyone else to produce Miller.

 Testimony of Leonore Berg

 Petitioner claims constitutional error by the trial court's denial of Berg's testimony as collateral. At trial, David Silbergeld testified that Melanie Cain told him petitioner "had nothing to do with Tupper's murder." *fn4" Berg notarized Silbergeld's signature on an affidavit in which Silbergeld swore that Cain had stated this to him. Cain denied having made the statement to Silbergeld and he testified that the affidavit to which he swore before Berg was not the one introduced at trial because it was not on legal sized paper. The affidavit offered into evidence was one third the size of legal sized paper. *fn5" Petitioner alleges he sought to introduce Berg's testimony to authenticate Silbergeld's affidavit. The respondent contends it was sought to be admitted to impeach Silbergeld's testimony which would impeach Cain's testimony.

 The Court ruled that Berg's testimony which would allegedly impeach the testimony of an impeachment witness by admitting extrinsic evidence was collateral and denied any testimony from Berg. *fn6"


 Initially, the Court must determine whether petitioner has exhausted his state court remedies. See 28 U.S.C. § 2254(b), (c); Petrucelli v. Coombe, 735 F.2d 684 at 687 (2d Cir. 1984). With respect to petitioner's claims converning jury misconduct, nonproduction of Miller and exclusion of Berg's testimony, there is no dispute that these alleged constitutional claims have been exhausted. The Court agrees.

 Because it is necessary that the petition contain only exhausted claims for a federal court to consider the petition's constitutional merit the Court addresses the issue raised by respondent that if petitioner is alleging that the denial of a hearing by Judge Kapelman on the jury misconduct claim constitutes a constitutional violation of petitioner's rights, then the petition must be dismissed in its entirety because petitioner did not present the claim to the state court and thereby has not exhausted this claim. See Daye v. Attorney General of State of New York, 696 F.2d 186, 190-91 (2d Cir.1982), cert. denied, 464 U.S. 1048, 104 S. Ct. 723, 79 L. Ed. 2d 184 (1983). While petitioner sought a hearing before the trial court if Judge Kapelman did not rule in petitioner's favor based on the jury's affidavits, respondent contends that petitioner waived his right to a hearing. *fn7" Petitioner stated on a number of occasions that he did not consider a hearing necessary because the affidavits would be sufficient to suport a finding of jury misconduct that denied petitioner a fair trial. *fn8"

 The Court finds that petitioner failed to argue to the state court that the denial of the hearing gave rise to a constitutional claim. *fn9" Indeed, in petitioner's papers to this Court, there is no claim that the denial of the hearing violated petitioner's constitutional rights. Petitioner merely argues that he has not waived his right to a hearing. Once Judge Kapelman denied petitioner's motion to vacate the judgment because of jury misconduct, there is no indication that petitioner then sought a hearing on the issues. Likewise, petitioner did not raise this issue on appeal. *fn10"

 Petitioner's brief to the Appellate Division states in general terms that testimony should be received when the jury's verdict has been improperly influenced. *fn11" He then refers to cases in which hearings have been held following a trial. No constitutional argument is presented in these cases. Therefore, even broadly construing petitioner's papers submitted to the state courts, petitioner did not alert the state court to constitutional considerations involved in the denial of the hearing. See Daye v. Attorney General of the State of New York, supra, 696 at 194. Thus, if the Court were to assume arguendo that petitioner is raising in this writ a constitutional violation by the denial of the hearing, *fn12" the Court would be constrained to find that the claims have not all been exhausted. See Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). Because petitioner has failed to raise this issue as a constitutional violation of petitioner's rights to this Court or the state courts, the issue need not be addressed. Furthermore, the Court construes petitioner's request for a hearing as a remedy to be granted if the Court finds that petitioner may have been denied a fair hearing.

 Jury Misconduct

 Generally, courts are reluctant to impeach a jury verdict by affidavits or post-verdict examination unless extraveous influence invaded the jury room which prejudiced the defendant, thereby denying him a fair trial. *fn13" See United States v. Brasco, 385 F. Supp. 966, 968 (S.D.N.Y.1974), aff'd 516 F.2d 816 (2d Cir.), cert. denied, 423 U.S. 860, 96 S. Ct. 116. 46 L. Ed. 2d 88 (1975). Judge Friendly has interpreted New York precedent to encompass jury misconduct in the definition of "extraneous influence". See United States ex rel. Owen v. McMann, 435 F.2d 813, 819-20 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S. Ct. 1373, 28 L. Ed. 2d 646 (1971). Testimony of jury misconduct may concern facts involved that describe the extraneous influence but may not include "how far that influence operated upon his mind". Id. (quoting Mattox v. United States, 146 U.S. 140, 149, 13 S. Ct. 50, 53, 36 L. Ed. 917 (1892)). Mindful of these considerations, the Court addresses petitioner's claims.

 Petitioner argues that he was denied the right to an impartial jury and a fair trial in violation of the due process clause of the fourteenth amendment because of the jury incidents. Petitioner further argues that Judge Kapelman erroneously determined that the affidavits of jurors could not be admitted to impeach their verdict. But see Fed.R.Evid., 606(b); United States v. Beltempo, 675 F.2d 472, 481 (2d cir.), cert. denied, 457 U.S. 1135, 102 S. Ct. 2963, 73 L. Ed. 2d 1353 (1982). Because the Court determines that the jury misconduct either viewed separately or collectively did not violate peititioner's constitutional rights, it finds that it was not reversible error for the trial court to decide that the jury could not impeach its verdict with affidavits.

 The affidavits indicate that vituperative arguments occured in the jury room accompanied by screaming, name calling, fist slamming and the use of obscenities.While the Court does not encourage this conduct, such behavior does not give rise to a claim of constitutional dimension. One juror, who broke down crying and indicated that he was sick and needed to see a doctor, *fn14" worsened the atmosphere by his argumentative attitude and further, by throwing a chair that landed a few feet from another juror.

 Judge Kapelman determined that the chair was not thrown at anyone in particular, apparently based on facts culled from affidavits. Factual findings by the trial court are generally presumed to be correct. Beesley v. Smith, 582 F. Supp. 727, 732 (S.D.N.Y.1984). Because this finding did not hinge on a determination of credibility following a hearing, this Court is equally able to evaluate the facts as the trial court. If the affidavits are taken as true, the chair may have been thrown at someone but it is disputed at whom. Whether or not the chair was thrown at a juror, the Court is disturbed by this conduct.

 The situation was further complicated by the fact that the bailiff heard noise in the jury room, asked the foreperson what was going on, and allegedly was informed that matters were under control. The foreperson also informed the trial judge that the jury was deadlocked on Thursday night but allegedly refused to inform the trial judge of a deadlock on subsequent occasions before the jury rendered a verdict on the following Saturday. *fn15"

 Judge Kapelman, having reviewed the facts set forth in the jury affidavits, determined that the affadivits could not impeach the jury's verdict. The Court is mindful that when violence is employed to coerce a jury verdict, affidavits may be the only available means to demonstrate that such influence was improperly used. See United States ex rel. Owen v. McMann, supra, 435 F.2d at 819-20. While it is a close question whether the conduct alleged denied petitioner the right to a fair trial, the Court finds that any error was harmless. See generally Barber v. Scully, 731 F.2d 1073 at 1075 (2d Cir. 1984).

 The circumstances under which the affidavits were taken do not support a finding of reliability. One juror indicated to Detective Alan Brenner that his affidavit was inaccurate and misleading. *fn16" While the other two affiants stated that their affidavits were true and accurate, they were taken as a result of an investigation by petitioner's counsel. "This type of unsupervised inquiry is neither approved of nor condoned by this Court." United States v. Brasco, supra, 385 F. Supp. at 970 n. 5. Clearly "all post-trial questioning of jurors must only be conducted under the strict supervision and control of the court, with the inquiry restricted to those matters found by the court as both relevant and proper." Id; see United States v. Balistrieri, 577 F. Supp. 1532, 1549-51 (E.D.Wis.1984). King v. United States, 576 F.2d 432, 438 (2d Cir.), cert. denied, 439 U.S. 850, 99 S. Ct. 155, 58 L. Ed. 2d 154 (1978).

 In this regard, the Court notes that the trial court determined that after the chair was thrown, deliberations continued and the jury requested readbacks of testimony on two occasions.Moreover, the jury was polled and each juror rendered a verdict of guilty. *fn17"

 Generally, jurors' affidavits may not be employed to explaint what happened in the jury room or why but only to state objective facts. See People v. DeLucia, 20 N.Y.2d 275, 279, 229 N.E.2d 211, 214, 282 N.Y.S.2d 526, 530 (1967) (illegal view). Because the trial court properly determined that jurors' affidavits are inadmissible as evidence of their states of mind, a hearing was not necessary. See People v. Foti, 99 A.D.2d 517, 518, 470 N.Y.S.2d 689, 690 (2d Dep't 1984); People v. Rhodes, 92 A.D.2d 744, 746, 461 N.Y.S.2d 81, 83 (4th Dep't 1983). In view of the foregoing and recognizing the flexibility afforded due process claims, see Augustin v. Sava, 735 F.2d 32 at 37, (2d Cir.1984), the Court finds that petitioner was not denied the right to a fair trial.See generally Johnson v. Scully, 727 F.2d 222 at 227 (2d Cir.1984).

 Exclusion of Berg's Testimony

 Petitioner argues that he sought to introduce Berg's testimony to authenticate the copy of Silbergeld's affidavit. Silbergeld testified that the original affidavit explained the context in which Cain stated that petitioner "had nothing to do with the murder" and that the copy did not. *fn18" Allegedly, Cain's statements were made in a hypothetical context. Silbergeld acknowledges that it was his signature on the affidavit but testified that the statements therein were not framed in the context in which they were made. Because the petitioner failed to produce the original and because the trial court determined that the testimony of Berg to impeach Silbergeld, an impeaching witness of Cain was collateral, the trial court denied petitioner's request to admit Silbergeld's affidavit.

 Petitioner claims this ruling denied him his constitutional rights, relying on Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297 (1972). *fn19" Unlike Chambers v. Mississippi, id., petitioner was afforded the opportunity to cross-examine Silbergeld, which he did extensively. *fn20" Furthermore, the Court notes that not every exclusion of testimony is a violation of the accused's right to due process. See Wilkerson v. Turner, 693 F.2d 121, 124 (11th Cir.1982). Indeed, an evidentiary ruling which does not give rise to a constitutional claim will be upheld unless there was an abuse of discretion. See Petrucelli v. Coombe, supra, at 690. In addition, while the affidavit was inadmissible, Silbergeld did testify that Cain made the statements, so Cain's testimony was indeed impeached. See Chambers v. Mississippi, supra, 410 U.S. at 299-301, 93 S. Ct. at 1047-1048. Considering the excludable testimony of Berg in light of the entire record, the Court finds that any error was harmless and that petitioner was not denied a fair trial. See Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert. denied, 464 U.S. 1000, 104 S. Ct. 503, 78 L. Ed. 2d 694 (1983); Reese v. Bara, 479 F. Supp. 651, 656 (S.D.N.Y.1976). Accordingly, petitioner's application is denied.

 Production of Miller

 Petitioner argues that his sixth amendment right to compulsory process was violated by the trial court's failure to compel the District Attorney or the Assistant to produce Miller. See United States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S. Ct. 3440, 3449, 73 L. Ed. 2d 1193 (1982). Initially, the Court notes that petitioner has failed to indicate when in the record he sought a court order directing Miller's production. It is undisputed that petitioner attempted to serve Miller through the Assistant who would not accept service because Miller was no longer under the control of the federal government.

 Mindful that petitioner failed to seek a court order directing production of Miller and did not seek to produce Miller through information he may have received from the journalist about Miller being unavailable, it is possible that Miller was available to defense counsel though means other than the Government. *fn21" See Boyd v. LeFevre, 519 F. Supp. 629. 635-36 (E.D.N.Y.1981).

 As the court noted in People v. Tayeh, 96 A.D.2d 1045, 1046, 466 N.Y.S.2d 458, 460 (2d Dep't 1983), Miller would not be considered a confidential informant as his name, although not his address, was disclosed to petitioner and the Assistant testified that he did not know Miller's wherabouts. The Assistant did all that he was required to do. *fn22" See Boyd v. LeFevre, supra, 519 F. Supp. at 635-36; People v. Dillard, 96 A.D.2d 112, 115, 468 N.Y.S.2d 259, 263 (4th Dep't 1983).

 Unlike the informant in People v. Jenkins, 41 N.Y.2d 307, 360 N.E.2d 1288, 392 N.Y.S.2d 587 (1977), Miller was not the informant in petitioner's case, but was the former informant in a federal case involving Tupper as well as other unindicted coconspirators. Although Miller was no longer under the control of the federal government, reasonable efforts to locate him were made and there is no evidence that the government acted in bad faith to render Miller unavailable. *fn23" See id., 41 N.Y.2d at 310-11, 360 N.E.2d at 1292-93, 392 N.Y.S.2d at 588-89. Furthermore, the petitioner must "demonstrate that the proposed testimony of the informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution's case either through direct examination or impeachment." Id. See generally Cousart v. Hammock, 580 F. Supp. 259, 269 (E.D.N.Y.1984). To compel Miller's production, defendant must show that his testimony would be relevant and material. See United States v. Valenzuela-Bernal, supra, 458 U.S. at 873-74, 102 S. Ct. at 3449-50; People v. Goggins, 34 N.Y.2d 163, 170, 313 N.E.2d 41, 44 356 N.Y.S.2d 571, 575 (1974). Finally, while petitioner established that Miller's testimony was relevant, the absence of Miller's testimony did not unduly prejudice petitioner. Reasonable efforts were made to secure his production. See Boyd v. LeFevre, supra, 519 F. Supp. at 635-36. Accordingly in view of the overwhelming evidence of defendant's guilt, it cannot be determined that petitioner was deprived a fair trial. *fn24"


 Accordingly, petitioner's application for a writ of habeas corpus is denied. 28 U.S.C. § 2254.

 The Clerk of the Court is directed to dismiss the Complaint.


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