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November 7, 1986

ROBERT J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent

The opinion of the court was delivered by: NEAHER


NEAHER, District Judge

 After a fourth trial in 1981 *fn1" , petitioner, a State prisoner, was convicted and is serving concurrent sentences of 25 years to life for murder in the second degree, 7 1/2 to 15 years for attempted murder in the second degree, and 3 1/2 to 7 years for criminal possession of a weapon. By memorandum decision, the New York Court of Appeals affirmed the convictions and sentences, Judge Meyer dissenting, People v. Gilmore, 66 N.Y.2d 863, 498 N.Y.S.2d 752, 489 N.E.2d 721 (1985). *fn2" Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

 The charges against petitioner arose out of a shooting in the early morning of Sunday, June 6, 1976, resulting in the death of Theodore Gross and the wounding of Gross' female companion, Melita Sneed. Petitioner was then employed for over a year as night manager of Webster Bowling Lanes in the Bronx, although he resided in Brooklyn. He and Gross were friends growing out of Gross' participation in a bowling league at Webster Lanes; and after petitioner closed up at 4:00 A.M., Gross offered to drive him and a newly hired shorthand cook, George Murdock, to Brooklyn in Gross' Citroen automobile. After a brief stop at an early hours club in the Bronx, the group proceeded to downtown Brooklyn. Sneed occupied the front right passenger seat next to Gross; petitioner, the left rear seat behind Gross, and Murdock, the right rear seat behind Sneed. As the car neared Flatbush Avenue, petitioner asked Gross to stop at another after hours club called "Tears of Darkness", located on Flatbush Avenue near petitioner's home, saying he wanted to pick up some money he was owed. Gross agreed but he and Sneed remained in the car, and ran it through a nearby car wash. Petitioner and Murdock returned in 20 or 25 minutes and the group drove off.

 According to Sneed, petitioner then said "Pull alongside right here," which Sneed described as "like a little street, like a junction..." When the car stopped, she saw petitioner "bending over," and saying something about "Let me check my pistol" or "Let me check my gun," but then said "I don't really remember, but it was something to that effect..." Then she heard "this loud noise, and there was a hole in the windshield" and she "saw blood, my hand was bleeding..." She jumped out of the car and tried to summon help but no one responded, so she sat in the car until the police and an ambulance came and took her to Cumberland Hospital.

 Murdock, who was then on parole for a robbery conviction, testified for the prosecution. He said that while he and petitioner were in the "Tears of Darkness" club, petitioner said "he was going to kill Ted Gross and the girl," and that "If I want to come I could come; if I didn't, he'd respect me for that." On their return to Gross' car, they resumed the same seats: petitioner behind Gross and Murdock behind Sneed. As the car began moving, petitioner asked Gross "Do you want to drop Musah [meaning Murdock] off at the bus stop?" Murdock then saw petitioner "bending down. When he came up, I just heard shots." Murdock opened the door, as the car was then moving back, and jumped out carrying his green bag and ran up the street. He saw petitioner run past him carrying a brown burlap bag. They ran to a subway, took a train one stop and then caught a cab, and finally Murdock took a train to his girlfriend's house in Queens. He went to work on Monday and Tuesday and, after a telephone call and visit with his parole officer, he agreed to give a statement to the police which inculpated petitioner as the killer.

 Petitioner, testifying in his own behalf, denied shooting Gross or Sneed, asserting that Gross had helped him get his job at Webster Bowling Lanes. He denied that he had a brown bag and said it was Murdock who pulled a gun out of his bag and shot Gross. According to petitioner, Murdock then pointed the gun at his chest and said: "You seen what just happended to Ted. If you don't keep your mouth shut, you're going to get the same thing", ordering petitioner to follow him out the right side of the car, when petitioner went to get out on the left side. According to petitioner, it was Murdock who directed the escape route, reminding petitioner to "keep my mouth shut."

 Later that day (Sunday) petitioner attended a christening and learned from his sister that police armed with shotguns were looking for him. Petitioner decided to take a bus to Charleston, South Carolina, where, accompanied by his uncle, he surrendered voluntarily to a family friend, Sergeant Gathers, who arranged with New York police for petitioner's waiver of extradition and return to New York.

 Petitioner's Contentions


 Petitioner contends that the prosecutor elicited his post arrest silence on the State's direct case contrary to Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). Despite the absence of an objection, he asserts that the error is of constitutional dimension, citing People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786 (1983) (memorandum), and not subject to harmless error analysis, relying on Chapman v. California, 386 U.S. 18, 22-24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). Petitioner also points out that the Appellate Division had reversed a prior conviction in this matter because the same prosecutor, on cross-examining petitioner, also elicited his post arrest silence. People v. Gilmore, 76 A.D.2d 548, 430 N.Y.S.2d 854 (2d Dept. 1980).

 While defense counsel's failure to object may be attributed to a desire to avoid underscoring prejudicial testimony in the jurors' minds by drawing attention to it, Williams v. Henderson, 451 F. Supp. 328, 331 n.5 (E.D.N.Y. 1978), aff'd 584 F.2d 974 (2d Cir. 1978), this explanation is unavailing. Defense counsel raised the same matter on cross-examination, Tr. 223-24, leaving petitioner in a poor position to complain. See United States v. Nunez-Rios, 622 F.2d 1093, 1101 (2d Cir. 1980); cf. People v. Seaton, 119 A.D.2d 600, 500 N.Y.S.2d 771, 772 (2d Dept. 1986) (memorandum).

 The New York Court of Appeals ended its memorandum decision stating,

 "Defendant's remaining arguments, to the extent that they have been preserved for our review, are without merit."

 498 N.Y.S.2d at 754.

 The State, as a basis for affirmance, had urged petitioner's procedural default in failing to object. In such a situation,

 "[t]he teaching of prior cases of this [federal] Court is that when (a) the defendant has failed to follow prescribed state procedures in the trial court to raise a constitutional issue, (b) he thereafter attempts to raise the constitutional issue on appeal to the state appellate court, (c) the State objects to his raising the constitutional question because of the failure properly to preserve the question for appellate review, and (d) the state appellate court affirms the defendant's conviction without stating whether it has rejected the constitutional claim on its merits or on the ground of the procedural default, the federal habeas corpus court should normally' interpret the state appellate court s ruling as one based on the procedural default. Although this principle was developed in cases in which the state appellate court had simply affirmed convictions without opinion, it is equally applicable to an affirmance in an opinion that does not address the constitutional claim."

 Stepney v. Lopes, 760 F.2d 40, 44 (2d Cir. 1985) (citations omitted).

 Writing for the Court in Hawkins v. LeFevre, 758 F.2d 866 (2d Cir. 1985), Judge Kaufman reviewed the cases and concluded that New York courts do not require an objection to preserve errors concerning reference to the accused's post arrest silence, id. at 871, relying on People v. McLucas, 15 N.Y.2d 167, 256 N.Y.S.2d 799, 204 N.E.2d 846 (1965), and also citing People v. Bowen, 65 A.D.2d 364, 411 N.Y.S.2d 573 (1st Dept. 1978). In Bowen, despite the absence of an objection, the Appellate Division, also citing McLucas, considered the defendant's complaint that the prosecutor had been allowed to question him about his post arrest silence. Ultimately, the Court rejected the merits of the claim and further noted that the error, if any, was harmless beyond a reasonable doubt. 411 N.Y.S.2d at 577. In affirming the Appellate Division, the Court of Appeals stated,

 "Appellant tenders two issues. With respect to the first--the propriety of the prosecutor's cross-examination of defendant as to his failure at the time of his arrest to come forward with the exculpatory version of the episode to which he testified on trial--it appears that the issue is not preserved for our review inasmuch as no timely protest was registered."

 People v. Bowen, 50 N.Y.2d 915, 917, 431 N.Y.S.2d 449, 409 N.E.2d 924 (1980) (memorandum).

 Despite his extensive review of the cases, Judge Kaufman in Hawkins neither cited nor referred to the Court of Appeals' decision in Bowen, which obviously refuses to extend McLucas to the improper use of the accused's post arrest silence. In McLucas the Court had ruled that no objection was necessary to preserve error concerning the trial court's improper comment on the accused's failure to testify in his own defense. While related, the two situations are not identical.

 In light of Bowen and the Court of Appeals' invocation of waiver in petitioner's case, this Court finds that the Court of Appeals rejected this claim of error on procedural grounds.

 "Petitioner's procedural default in state court precludes him from raising the issue in a federal habeas proceeding unless he is able to show cause and prejudice."

 Cantone v. Superintendent, etc., 759 F.2d 207, 218 (2d Cir. 1985). Petitioner has not addressed the cause and prejudice requirement, hence the record does not entitle him to a writ on this ground.


 Petitioner next contends that witness Bobby Glover was an agent of the police, who elicited a confession from him while he was in custody and represented by counsel. At trial Glover testified as follows,

 "A On that specific date [June 16, 1976] we were on the fourth floor in this building. When I saw him, Mr. Gilmore, I asked him point blank, how did it look for him, meaning, how did the case look, and he stated that it didn't look too good because there were two people that could put him away for the killing of Ted Gross, a male and female; and he asked me would I be getting out anytime soon, and I told him I was hopeful, which led me to his next question as to whether I would contact someone about some moneys, in reference to, you know, me being paid for killing the people so they wouldn't testify against him. He said that I would be given a phone number to call someone to speak with them in reference to the money, and it would be set up from there.

 "Q Did you have any further conversation with respect to anything else, in a place out of the city involving the deceased, anything further?

 "A Yes. I had asked him how he had killed Ted, and he said Ted was screwing up the money from the narcotics. He wasn't paying his debts, and the weight was coming down on him. He was catching flack from the people he was under, his bosses, and that he had to do something about it; that he had brought it to Ted's attention previously, but he hadn't, Ted hadn't done anything, you know, to correct it, and that he had no other choice. As I recall, that same day he was somewhat reluctant to go before a grand jury because he didn't feel competent, he didn't feel that his defense attorney at that particular time was confident--or competent enough to represent him. He later stated to me, related to me that he had fled New York enroute to South Carolina where he had gone to stay at a friend's house, or a relative's house.

 " While there he was in a part of the house where people were frequently coming and going, and as people would come and go, he would leave the room, and he got tired of jumping up, walking from one part of the house to the other part of the house, so he elected to stay there, and upon doing so a police sergeant on the force in that town came in and saw him and stated to him -- [objection argued] 'You're the guy that fled New York for murder. You're wanted for murder in New York.'

 "At that time Mr. Gilmore said that he asked the sergeant could he speak with him in private, which he allowed him to do so. He stated that he had offered the sergeant $10,000 cash money then on the spot to just forget that he had seen him period. That he would leave the premises immediately. The sergeant told him, "No, I can't do that, but I'll give you something like the benefit of the doubt by saying that you turned, when we get to the station, after I arrest you and we get to the station, I'll let it be known that you turned yourself in to me.'"

 Tr. 298 301.

 Petitioner denied that he knew Glover and that any conversation with Glover had occurred.

 Apposite in that situation is the Supreme Court's recent comment in Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 2630, 91 L. Ed. 2d 364 (1986):

 "As our recent examination of this Sixth Amendment issue in [Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985)] makes clear, the primary concern of the Massiah [v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964)] line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since 'the Sixth Amendment is not violated whenever--by luck or happenstance--the State obtains incriminating statements from the accused after the right to counsel has attached,' [106 S. Ct. at 487], citing United States v. Henry, [447 U.S.] at 276 (Powell, J., concurring), a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks."

 The uncontradicted evidence discloses that Glover contacted Inspector Nevins, who in turn contacted the prosecution, only after Glover had obtained petitioner's statements. Until then the authorities were unaware of Glover's efforts in this case. Once aware of those efforts, they declined Glover's offer to interrogate petitioner while secretly recording the responses.

 In his argument on this point to the New York Court of Appeals, petitioner insisted that Glover's past dealings with the Kings County District Attorney's Office created an agency relationship. Under the standard applicable to a claimed violation of the right to counsel under the Sixth Amendment, as enunciated in Kuhlmann, supra, the police must authorize their agent's acts before the fact. See United States ex re. Milani v. Pate, 425 F.d 6, 8 (7th Cir.), cert. denied, 400 U.S. 867 (1970); Paroutian v. United States, 370 F.2d 631, 632 (2d Cir.), cert. denied, 387 U.S, 943, 18 L. Ed. 2d 1331, 87 S. Ct. 2077 (1967); cf. United States v. Melanson, 691 F.2d 579, 585 (1st Cir. 1981) ("Where the government was not involved in obtaining statements from the accused in the absence of counsel, the statements have consistently been held admissible under the sixth amendment." (citations omitted)); United States ex rel. Baldwin v. Yeager, 428 F.2d 182, 185 n. 10 (3d Cir. 1970), cert. denied, 401 U.S. 919, 27 L. Ed. 2d 822, 91 S. Ct. 905 (1971) ("[I]f the police deliberately isolated the defendant with prisoners who had in the past cooperated with the police, fully intending to interrogate those prisoners before trial regarding statements made to them by the defendant, . . . such statements would be inadmissible. "). Ratification by acceptance of the benefits of the informant's acts after the fact will not suffice. See People v. Cardona, 41 N.Y.2d 333, 335, 392 N.Y.S.2d 606, 360 N.E.2d 1306 (1977) (discussion therein). There is no merit to petitioner's claim.


 Alternatively, petitioner asked the New York Court of Appeals to reopen the hearing on his motion to suppress Glover's testimony. After the second trial of these charges and before the Appellate Division reversed the resulting convictions, petitioner moved the State trial court to vacate his convictions on the basis of evidence which assertedly contradicted the prior evidence of Glover's relationship with the district attorney's office.

 At the original suppression hearing, Assistant District Attorney Stuart Klein, assigned to the Rackets Bureau, testified that Glover had not been productive in relation to the shooting of Orsby Johnson by William Chasten, an incident Glover claimed to have witnessed. Specifically, Klein testified,

 "A . . . Orsby Johnson was found by two detectives in my office, and a presentation in the Grand Jury was scheduled, involving that particular shooting. As a result of that, Bobby Glover, with the aid of myself, at the instructions of my superior, at the time Barry Friedman, was le[t] back out into the street."

 H. Tr. 134. He added that Glover's bail had been reduced and that Glover did not testify in the case. Thereafter, the relationship between Glover and the district attorney's office deteriorated, viz.,

 "A I was constantly -- he was constantly breaking appointments. None of his information ended up in any case. Say the William Chasten case, he was not productive. Mr. Friedman instructed ...

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