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August 8, 1995

WALTER R. KELLY, Superintendent, Attica Correctional Facility, Defendant.

The opinion of the court was delivered by: HECKMAN




 This habeas corpus petition was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, it is recommended that the petition be denied.


 Petitioner was originally indicted in December of 1974. The first trial was held in July of 1975, and resulted in a hung jury. During the preliminary stages of the second trial, petitioner requested that he represent himself with the help of a court-appointed advisor. The trial court advised petitioner of his rights and the consequences of proceeding pro se, but petitioner on numerous times insisted on representing himself.

 The second trial began in October of 1975. On November 8, 1975, the petitioner was found guilty of 1) intentional murder; 2) felony murder; 3) robbery, first degree; 4) illegal possession of a loaded weapon; and 5) illegal possession of a weapon. Petitioner was sentenced on December 10, 1975. The Appellate Division, Fourth Department affirmed the judgment of conviction on January 24, 1986. People v. Pawlowski, 116 A.D.2d 985, 498 N.Y.S.2d 711 (4th Dept. 1986). Leave to appeal to the Court of Appeals was denied on April 17, 1986. 67 N.Y.2d 948, 502 N.Y.S.2d 1041, 494 N.E.2d 126.

 The trial testimony showed that on January 16, 1974 at about 10:00 PM, Deputy Sheriff Paul Keister found the body of William Balkwill in the Minute Man gas station in Batavia, New York (T. 38-52). The County Coroner pronounced the victim dead at 10:47 PM and gave his opinion that the victim had died within the previous hour (T. 162). The cause of death was a bullet, shot at very close range (T. 155-162).

 Steve Davis testified that he worked across the street from the gas station. On the night in question, he had quit work at about 10:00 PM and that he had seen a white station wagon leave the gas station about fifteen minutes before he had quit (T. 97-99). The victim's mother testified that she had seen her son at the gas station alive at about 9:30 PM on the 16th (T. 258).

 Nancy Washburn testified that she and the petitioner were engaged. On the evening of January 16th, petitioner had left her house at about 9:30 PM and taken her white station wagon (T. 269, 278-79).

 Investigator Gary Maha testified that the police found a handgun holster in the white station wagon. A search of petitioner's parents' residence revealed nine spent .32 caliber bullets and six empty .32 caliber cartridge casings behind the barn (T. 414, 427). Petitioner's co-worker, Lawrence Gaddis, also testified that defendant purchased a .32 caliber Harrington and Richardson pistol from him (T. 1029-31). The firearms expert testified that the bullet that killed the victim was from a .32 caliber pistol, most likely fired from a handgun manufactured by Harrington and Richardson (T. 1421, 1423, 1432). The expert also testified that the bullets and empty cartridge casings were from a .32 caliber Harrington and Richardson revolver (T. 1435, 1552).

 Petitioner's roommate and accomplice, Kenneth Stankiewicz, testified about petitioner's ownership of a .32 caliber revolver (T. 638-642) and the robbery of the Minute Man gas station (T. 653-661).

 Homer Causer, a cellmate of petitioner at Genesee County Jail, testified that petitioner had told him about the robbery and murder and that he requested Causer to "stick a cheve" in Stankiewicz (T. 1452-53).

 After all the evidence was in, the petitioner and prosecution made their closing arguments (T. 1918-2139) and the trial judge gave initial and supplemental jury instructions (T. 2140-2277).

 On October 26, 1989, while incarcerated at Attica Correctional Facility, petitioner filed the instant petition pro se under 28 U.S.C. § 2254, asserting seven different grounds for habeas corpus relief. Respondent filed his answer to the petition on September 18, 1990.

 There are exhaustion and procedural defect issues as to some or all of the claims that petitioner has raised. However, since respondent failed to raise these defenses in his answer, they are deemed waived. Plunkett v. Johnson, 828 F.2d 954 (2d Cir. 1987); Godfrey v. Irvin, 871 F. Supp. 577, 584 n.3 (W.D.N.Y. 1994).

 The petitioner has raised the following claims:

 1) double jeopardy,

 2) denial of right to counsel,

 3) prosecutorial misconduct,

 4) due process violations by the trial court in marshaling the evidence and in incorrectly charging the jury,

 5) error of trial court in failing to limit questioning regarding his prior convictions,

 6) error of trial court in permitting the recall of a prosecution witness, and

 7) error of trial court in failing to declare a mistrial.

 Each of these claims is discussed in turn below.


 I. Double Jeopardy

 The petitioner argues that after there was a hung jury in the first trial, the court should have granted his motion for an order of dismissal based on insufficient evidence. Consequently, he contends that the denial of the motion led to his conviction at the second trial which raises a Double Jeopardy issue.

 The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982); United States v. Dinitz, 424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075 (1976). As part of this protection, the clause affords the defendant a "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974, 69 S. Ct. 834 (1949).

 It is well-established that the "constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as waived." Paul v. Henderson, 698 F.2d 589, 592 (2d Cir.), cert. denied, 464 U.S. 835, 78 L. Ed. 2d 118, 104 S. Ct. 120 (1983) (quoting United States v. Perez, 565 F.2d 1227, 1232 (2d Cir. 1977). In Henderson, the defendant failed to present his double jeopardy claim to the trial court before the second trial. The Second Circuit held that the defendant had waived his right and that he could not be "heard to complain now that his right has been abridged." Id.

 In this case, there is no indication in the record that the defendant asserted his double jeopardy claim before he was subjected to the second trial. The defendant cites Menna v. New York, 423 U.S. 61, 46 L. Ed. 2d 195, 96 S. Ct. 241 (1975) as authority. However, Menna is not controlling as the defendant in that case had timely asserted his double jeopardy claim prior to the second trial.

 Even assuming that petitioner has not waived his claim to double jeopardy, his argument must fail. Regardless of the sufficiency of the evidence at the first trial, petitioner has no valid double jeopardy claim. It is clear that retrial following a hung jury does not constitute double jeopardy. Richardson v. United States, 468 U.S. 317, 325, 82 L. Ed. 2d 242, 104 S. Ct. 3081 (1984).

 Accordingly, petitioner is not entitled to habeas corpus relief on this ground.

 II. Waiver of Right to Counsel

 Petitioner claims that the trial court failed to conduct a searching inquiry to determine if petitioner had knowingly and voluntarily relinquished his right to be represented by counsel.

 Under the Sixth Amendment, a defendant has the right to represent himself. Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). A defendant may proceed pro se if he "knowingly, voluntarily, and unequivocally" waives his right to appointed counsel. Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir. 1994); Johnstone v. Kelly, 808 F.2d 214, 216 (2d Cir. 1986), cert. denied, 482 U.S. 928, 96 L. Ed. 2d 699, 107 S. Ct. 3212 (1987).

 The right to represent oneself does not attach until it is asserted "clearly and unequivocally." Faretta, supra, at 835. Equivocation is a broad concept which not only constitutes speech but takes into account conduct as well as other expressions of intent. Bartlett, supra, at 100.

 In order to determine if the waiver was knowing, voluntary and unequivocal, the Court must review the trial court record. The record is clear that on more than one occasion petitioner clearly and unambiguously asserted his desire to represent himself at trial. Initially, when informed that his attorney in the first trial had withdrawn, petitioner stated: "I also wish to be my own counsel, as I believe . . . this is my right by the Constitution of the United States . . ." (Misc. Proceedings of May 13, 1975 at 3). This statement was made after the trial court granted the defendant an adjournment to confer with his parents. Thereafter, at petitioner's request, the trial judge allowed a public defender to advise the defendant during the course of the trial. The judge again asked the petitioner if he wanted to conduct his own defense and the petitioner replied that he did (Misc. Proceedings of May 13, 1975 at 5). The trial judge ordered a one-week adjournment so that petitioner could have time to discuss the matter with the court-appointed advisor.

 The record further indicates that the court-appointed advisor familiarized petitioner with the services that the public defender's office provided to defendants. The court asked the petitioner if he had any legal expertise and advised him of the consequences of attempting to represent himself. The court then asked the petitioner if he still wanted to proceed pro se (Misc. Proceedings of May 20, 1975 at 15-17). The petitioner responded by claiming that he had no legal experience and that he understood the consequences of representing himself. The court again offered the petitioner an adjournment so that he could obtain an attorney, but the petitioner refused (Misc. Proceedings of May 20, 1975 at 18). In response to the trial judge's inquiry before jury selection, the petitioner again asserted his desire to proceed pro se (Proceedings of October 6, 1975).

 The record indicates that defendant's waiver of his Sixth Amendment right to counsel was voluntary and knowing. Moreover, on each occasion, petitioner's statements show a "purposeful choice reflecting an unequivocal intent to forego the assistance of counsel." United States v. Tompkins, 623 F.2d 824, 827-28 (2d Cir. 1980). Finally, the record does not support a finding of equivocation or vacillation on petitioner's part in the five months which passed from the time petitioner initially asserted his right to self-representation to the start of the second trial.

 Accordingly, I find that the petitioner has failed to prevail on this habeas corpus ground.

 III. Marshaling Evidence and Jury Instructions

 A. Marshaling Evidence

 Petitioner challenges the portions of the trial judge's charge which marshaled the evidence presented in the case, arguing that the judge presented only the evidence most favorable to the prosecution.

 Under New York Law, when charging the jury, the trial judge must state the fundamental legal principles applicable, but need not summarize the evidence except to the extent necessary to explain the application of the law to the facts of the case. N.Y. Criminal Procedure Law § 300.10(2). The critical issue in reviewing a trial court's marshaling of the evidence is whether the defendant was ...

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