The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
This is a petition for habeas corpus by a state prisoner seeking relief from a conviction for criminal possession and sale of a controlled substance, 14 ounces of cocaine. According to the prosecution's proof, a cooperating defendant arranged the transaction involving petitioner, who appeared with what turned out to be the narcotics. The drugs were then driven to a parking lot in Yonkers where one of petitioner's agents who participated in the meeting with petitioner sold the cocaine to undercover officers. Petitioner was arrested at the parking lot. Upon being told the charges, petitioner "kind of smiled" and cooperated in the arrest.
The issues raised by the petition were presented to the state courts on direct appeal and rejected by the State Court of Appeals in a memorandum opinion, People v. Basora, 75 N.Y.2d 992, 556 N.E.2d 1070, 557 N.Y.S.2d 263 (1990), aff'g People v. Basora, 151 A.D.2d 588, 542 N.Y.S.2d 691 (2d Dep't 1989).
While petitioner challenges evidentiary and other rulings of the trial court, there is no contention that the evidence offered by the prosecution failed to establish guilt if believed by the jury. I agree with both state appellate courts that petitioner's claims do not justify overturning his conviction after trial, and I deny the petition.
Petitioner's first argument is that references in the prosecutor's summation to his having smiled when arrested and during the trial violated the Fifth Amendment privilege against self-incrimination. The New York Court of Appeals treated the references as improper, but held that since the defense made no objection or further request when the trial court failed to follow through on a statement that a curative instruction would be given, the point had not been preserved. 75 N.Y.2d at 264.
Such a waiver, or even procedural default at trial, is not remediable by federal habeas, especially where the alleged error did not involve direct or powerful evidence of guilt likely to affect the outcome. Absent otherwise adequate evidence of guilt, a jury would to a very high degree of certainty disregard a smile for the very reasons given by the state court in holding the reference in effect irrelevant:
"A smile . . . can convey many different states of mind . . . the evidence was ambiguous and its probative value minimal . . . all the more so here because no statement was made to defendant that might evoke a response . . ." Id.
The fact of the smile at the time of arrest, and the references to that smile in the prosecutor's summation, were harmless beyond a reasonable doubt absent aggravating factors not shown here.
Entirely apart from the valid grounds on which the state Court of Appeals rejected petitioner's contention that reference to the asserted smiles vitiated his conviction, I note that neither the state court nor the petitioner has cited any federal decisions holding that such non-assertive, non-testimonial behavior is protected by the Fifth Amendment privilege, and a federal violation is, of course, necessary to federal habeas corpus relief.
The Fifth Amendment privilege protects one from being "compelled" to be a witness against one's self in a criminal case. With respect to the smile at the time of arrest, it is hard to discern how petitioner could have been "compelled" to make that communication; it occurred without any request on the part of the authorities and before any interrogation was undertaken. Similarly, any facial expressions one chooses to exhibit at trial are voluntary; they are exhibited, moreover, in the presence of counsel, from whom the defendant has the opportunity to obtain advice. Jurors are apt to notice the demeanor of nontestifying as well as testifying parties present in the courtroom whether the matter is mentioned in summation or not.
Moreover, the evils at which the Fifth Amendment privilege is aimed do not appear to be involved here. There is no involuntarily imposed "trilemma" involving a choice between risking contempt, perjury or conviction by one's own testimonial assertions, see Murphy v. Waterfront Commission, 378 U.S. 52, 55-57, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964). Nor is there any question of "crime . . . to be ferreted out by searching the conscience of ...