Q: Now, Mr. Hernandez, you don't use drugs, is that what you said on direct?
A: No, I don't use drugs.
Q: Never used drugs in your whole life?
A: Do you want me to be honest with you?
Q: There is always the first time.
MR. JACOBS: Objection, Judge, the comment.
. . .
THE COURT: I believe I'm going to sustain the objection to the comment by the D.A. and ask you to disregard it, please.
As a threshold matter, it is clear that claims of prosecutorial misconduct of the type advanced here are cognizable on a petition for habeas corpus. See, e.g., Donaldson v. Dalsheim, 508 F. Supp. 294, 297 (S.D.N.Y.), aff'd without op., 672 F.2d 899 (2d Cir. 1981), cert. denied, 455 U.S. 951, 102 S. Ct. 1455, 71 L. Ed. 2d 666 (1982). It is equally clear, however, that in order to rise to the level of a constitutional violation warranting reversal of the conviction, the improper remarks must have caused the petitioner substantial prejudice. United States v. LaMorte, 950 F.2d 80, 83 (2d Cir. 1991), cert. denied, 112 S. Ct. 1938, 118 L. Ed. 2d 544 (1992); United States v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085, 85 L. Ed. 2d 146, 105 S. Ct. 1847, (1985). In analyzing the challenged remarks within the context of the entire trial, this court must consider three primary factors: the severity of the misconduct, the degree of curative measures taken, and the likelihood of conviction in the absence of the improper statements. See LaMorte, 950 F.2d at 83; Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 116 L. Ed. 2d 123, 112 S. Ct. 158 (1991); Olsen v. McFaul, 843 F.2d 918, 929-30 (6th Cir. 1988); Monaghan, 741 F.2d at 1443.
Considered individually and in the aggregate, the challenged remarks of the prosecutor at petitioner's trial do not constitute sufficient cause for vacating the conviction. While this court agrees that nearly all of the offending statements were inappropriate, none of them carried a significant risk of improperly inflaming or misleading the jury. For instance, the suggestion that petitioner's testimony was evasive and untruthful ("It sounds better that way, doesn't it?"; "There is always the first time.") seldom rises to the level of a constitutional deprivation. See Strouse v. Leonardo, 928 F.2d 548, 556-57 (2d Cir. 1991) (repeatedly referring to defendant as "liar" improper but not substantially prejudicial); Olsen, 843 F.2d at 930 (references to defendant as "deadbeat", "thief", "creep", and "liar" insufficient basis for granting petition); cf. Lindsey v. Smith, 820 F.2d 1137, 1155 (11th Cir. 1987) (improper reference to defendant as "scum" during closing argument not a denial of due process), cert. denied, 489 U.S. 1059, 103 L. Ed. 2d 595, 109 S. Ct. 1327, (1989). Moreover, the fact that petitioner invited some of these sarcastic observations by asking questions of counsel ("Do you want me to be honest with you?") and by "opening the door" with unresponsive answers ("I never been incarcerated for robbery.") diminishes their impropriety. Cf. Monaghan, 741 F.2d at 1443 & n.42 (one relevant factor is extent to which statements were made in response to defense statements) (citing United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 73 L. Ed. 2d 1284, 102 S. Ct. 2269, (1982)).
Even in the case of the most inflammatory statement -- counsel's allusion to petitioner's prior criminal history -- it cannot be said that petitioner suffered substantial prejudice. In the recent Blissett case noted above, the Second Circuit denied a habeas petition predicated in part on nearly identical conduct. In that case, the prosecutor asked the witness (a police officer) about the defendant's arrest on a charge unrelated to those brought at trial; after the court sustained an objection and struck the answer from the record, the prosecutor compounded his offense by restating the answer. 924 F.2d at 440. Notwithstanding the clear impropriety of this conduct, the Second Circuit found it insufficient to justify reversing the conviction. Figuring prominently in the court's reasoning was the fact that the trial court responded promptly to the objections and issued two separate instructions to the jury to disregard the statements. Id. at 441.
In this case, the trial court took equally prompt action, sustaining the objection and "strongly urging the jury to disregard" the objectionable remark concerning petitioner's criminal history. Indeed, under the second prong of the three-part test applicable here, the trial court's repeated curative jury instructions (on three separate occasions) in response to the prosecutor's remarks militate strongly against a finding of significant prejudice.
Finally, even if the comments had been more egregious and gone unrebuked by the court, the strong evidence of petitioner's guilt would weigh heavily against granting the petition. In light of petitioner's contradictory, evasive, and at times unbelievable testimony,
the fact that the victim's body was found in his apartment, and especially in view of his multiple confessions -- including one recorded on an audiotape played for the jury -- it is difficult to imagine that the jury could ever have returned a verdict of acquittal. Clearly, where there is overwhelming evidence of guilt, it is highly unlikely that a handful of improper comments by the prosecutor can be said to have caused a defendant substantial prejudice.
In sum, petitioner's claims fail to survive scrutiny under the three-part test adopted in this Circuit. Accordingly, both petitioner's request for appointment of counsel and the petition for habeas corpus are denied.
Dated: Brooklyn, New York
August 10, 1992
I. LEO GLASSER, U.S.D.J.