v. Crimmins, 36 N.Y.2d 230, 241-42, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975)).
Generally, federal courts reviewing habeas corpus claims premised upon prosecutorial misconduct must distinguish between "ordinary trial error of a prosecutor and that sort of egregious misconduct . . . amounting to a denial of constitutional due process." Donnelly v. DeChristoforo, 416 U.S. 637, 647-48, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); see also Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990). In making this distinction, the harmless error doctrine applies, and the court should consider whether "there was such clear evidence of guilt that the prosecutor's remarks must be considered harmless." Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986). Constitutional error occurs only when the remarks by the prosecutor are so prejudicial that they render the trial fundamentally unfair. Id.; Donnelly v. DeChristoforo, supra, 416 U.S. at 645.
Citing U.S. ex. rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir. 1973), Petitioner argues that any statements by the prosecutor reflecting racial prejudice require "automatic reversal" and that the harmless error doctrine does not apply. In Haynes, the Second Circuit affirmed the district court's grant of a writ of habeas corpus based on prejudicial remarks made by the prosecution during a state court robbery trial. There, in his summation to an all-white jury, the prosecutor repeatedly referred to characteristics and behavior of "colored people" in such a way as to suggest that the jurors "view 'colored people' as an entity separate and apart from themselves, with the natural concomitant that the defendants would be viewed by the jury members as coming from a distinct, . . . different community from themselves." 481 F.2d at 160. According to the Second Circuit, such conduct on the part of the prosecuting attorney amounted to constitutional error under either a federal or state law analysis, since "the standard for state prosecution in this regard is . . . as high as the rigorous standard required of the federal courts by the fifth amendment's due process clause." Id. at 159.
The Second Circuit in Haynes qualified its holding, finding that at least "when the evidence of guilt . . . is not overwhelming," the correct test for determining whether a defendant's due process or equal protection rights were violated by a prosecutor's allegedly racially prejudicial remarks is whether those remarks resulted in a "probability of prejudice." Id.; United States v. Weiss, 930 F.2d 185, 196 (2d Cir.), cert. denied, U.S. , 112 S. Ct. 113 (1991). The Haynes court did not extend the test to cases such as this, where the evidence of guilt was overwhelming.
Therefore, I find that the correct standard to be applied here is one of harmless error, not "probability of prejudice." See, e.g., Chapman v. California, 386 U.S. 18, 23-24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967)(question for the court is whether, on the record as a whole, it is beyond a reasonable doubt that the evidence complained of did not contribute to the verdict obtained).
In conducting harmless error anaylsis to determine whether a prosecutor's conduct has substantially prejudiced the defendant's case, the Second Circuit has applied a three-fold test. The factors include: "the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements." United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981)(per curiam), cert. denied, 456 U.S. 989, 73 L. Ed. 2d 1284, 102 S. Ct. 2269 (1982); Garofolo v. Coomb, supra, 804 F.2d at 206.
In the instant case, as the Appellate Division noted, the conduct of the prosecutor "should not be countenanced," People v. Wallace, supra, 159 A.D.2d at 1022, but it nevertheless was not severe. It consisted of brief questioning regarding a defense witness's religious beliefs and whether those beliefs might have caused the witness to refrain from cooperating with the official investigation of the murder. Upon objection to the inference that members of the Islam faith generally do not cooperate with the police, the prosecuting attorney rephrased the question so as to inquire whether that particular witness's membership in the Islam faith had anything to do with his refusal to cooperate with police in the investigation of the Vial homicide. Defense counsel did not object to this question as rephrased. Neither side mentioned this reference in their summation, nor was any other religious reference made by the parties or the judge during the remainder of the trial.
Furthermore, the conduct was cured by defense counsel's objection and by the rephrased question. The witness's answer to the rephrased question provided a plausible explanation for his refusal to cooperate which was free from the taint of any religious or racial prejudice --namely, that he was scheduled to be released from prison soon, and he was concerned that his participation in the investigation might interfere with his release.
Finally, "there was such clear evidence of guilt" that the prosecutor's conduct did not render the trial fundamentally unfair. Garofolo v. Coomb, supra, 804 F.2d at 206. The Fourth Department found the evidence of Petitioner's guilt "overwhelming." People v. Wallace, supra, 159 A.D.2d at 1023; 552 N.Y.S.2d at 724. That evidence included testimony concerning Petitioner's detailed confession of the crime to another Attica inmate (T. 1359-67, 1418, 1428-29); Petitioner's inculpatory statement on the afternoon of the crime (T. 1830, 1853); testimony that Petitioner and Ms. Vial were observed together in the area where the crime took place (T. 136-37; 1102); testimony that Petitioner was observed coming out of the cooler where Ms. Vial's body was found, with messy hair and bloody pants (T. 144-46; 279-81; 1105-06; 1165-66); testimony that Petitioner was observed immediately thereafter washing his face (T. 148-49; 327), showering and changing his clothes (T. 1107; 1170-71); testimony that Petitioner was nervous and jittery at "the count" in the mess hall shortly after the incident, and was observed to have blood on his shoes and in his ear (T. 1258-59); and evidence including a blood-stained shirt and blood-stained pants bearing Petitioner's name, which were found by a state police investigator beneath a locker in the basement (T. 678-79).
Petitioner also complains about the prosecutor's conduct during direct examination of prosecution witness Gary Lee Stone. In response to the prosecutor's questioning, the witness stated that he heard Petitioner pronounce the name of a religious newspaper, which was printed in a foreign language (T. 1259). Petitioner claims that this line of questioning raised an inference in the juror's minds that Petitioner was a member of the Islam faith. However, in light of the clear weight of evidence of Petitioner's guilt discussed above, any error resulting from the prosecutor's conduct was harmless.
Accordingly, under the standards set forth above, the conduct of the trial was not so unfair as to result in a violation of due process or equal protection.
II. Burden of Proof.
Petitioner contends that both the prosecuting attorney and the judge made comments which impermissibly shifted or diminished the people's burden of proof to establish guilt beyond a reasonable doubt.
In his charge to the jury, the trial judge discussed circumstantial evidence as follows:
Circumstantial evidence is the grouping of facts in such a manner that you may draw an inference from these facts in such a way that you may find a safe road to the truth. Before you can rely on circumstantial evidence, it first must all point in one direction. If it points in both directions, it is your duty to favor innocence. In other words, if circumstantial evidence merely creates a suspicion or likelihood of guilt, it is insufficient to warrant a conviction. It must point only in the direction of guilt. You cannot use circumstantial evidence to draw one inference and then draw another inference from the same set of facts. Subject to these rules, there is no reason why you would be reluctant to determine guilt or innocence in this case on circumstantial evidence. It must, however, be clear and convincing.
(T. 1963-64). Petitioner contends that this charge violates due process because it created in the juror's minds the possibility that, as a special category of proof, circumstantial evidence carries with it its own "clear and convincing" standard which is less than proof beyond a reasonable doubt.
This argument was rejected by the Appellate Division. That court found the trial court's reference to the "clear and convincing" standard "to be harmless error in view of the overwhelming proof of the defendant's guilt." People v. Wallace, supra, 159 A.D.2d at 1023, 552 N.Y.S.2d at 724. The court further stated:
Moreover, we find that the court's charge, when considered as a whole, conveyed the proper standard of proof to the jury. Further we note that since there was direct evidence of a full confession made by the defendant to a fellow inmate, the circumstantial evidence charge need not have been given at all.
Id. (citations omitted).
In Cupp v. Naughten, 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973), the Supreme Court reaffirmed "the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Here, in his charge to the jury, the trial judge repeatedly referred to the prosecutor's burden to prove guilt beyond a reasonable doubt (T. 1957-59, 1968, 1969). In context, the judge's single instruction to the jury that they must find the circumstantial evidence to be "clear and convincing" does not rise to the level of constitutional error.
Petitioner also claims that the prosecutor improperly shifted the burden of proof to require Petitioner to prove his innocence. The prosecuting attorney cross-examined Petitioner in such a manner as to attempt to get Petitioner to characterize previous prosecution witnesses as "liars" (T. 1756-57; 1785-86; 1794; 1795; 1802; 1804). He also remarked during summation that, in order for the jury to find Petitioner innocent, they must believe that the prosecution witnesses were all lying (T. 1955-56). Finally, he referred to the trial as a "search for truth" (T. 1928).
This claim was likewise presented and rejected on appeal. The Fourth Department stated:
There is no merit to defendant's contention that he was denied a fair trial by the prosecutor's repeated effort to force the defendant to characterize the People's witnesses as liars and by his reference in summation that the trial was a "search for the truth." We do not find the prosecutor's remark made in summation to be prejudicial, since it did not reflect directly on the burden of proof. Although the prosecutor's attempt to force the defendant to characterize the People's witnesses as liars was error, it is harmless in view of the overwhelming proof of defendant's guilt and the ameliorative effect of the length of the trial.