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November 18, 1999


The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.


  Petitioner Robert J. Richter, proceeding pro se, filed a
Petition for a Writ of Habeas Corpus challenging his conviction
after trial in Putnam, New York County Court in March 1994 for
Second Degree Murder. Richter was sentenced to an indeterminate
term of 25 years to life imprisonment. Richter appealed to the
Appellate Division, Second Department which modified on the law
Petitioner's Judgment of Conviction by deleting certain
provisions directing payment of a mandatory monetary surcharge.
Except as modified, the Appellate Division unanimously affirmed
the conviction. People v. Richter, 223 A.D.2d 734, 637 N.Y.S.2d 206
 (2d Dep't 1996). Leave to appeal was denied by the New York
Court of Appeals. See People v. Richter, 88 N.Y.2d 852,
644 N.Y.S.2d 698, 667 N.E.2d 348 (1996).

The Petition was referred to the Honorable Lisa M. Smith, United States Magistrate Judge, for a Report and Recommendation. Judge Smith filed a Report and Recommendation dated November 24, 1998 recommending that the Petition be dismissed. Petitioner filed timely objections. Consequently, the Magistrate's Report is reviewed de novo. Familiarity with that Report is assumed.

Judge Smith concluded, as does this Court, that Petitioner's first, second, fifth, sixth and seventh claims are exhausted because they were presented to both the Appellate Division and to the New York Court of Appeals in largely the same constitutional terms employed here. However, Petitioner's third, fourth and eighth claims were not exhausted. Therefore they are now defaulted and procedurally barred from review. See Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Our review of the record leads to the conclusion that Petitioner has not demonstrated the requisite cause or prejudice necessary for relief from the default. Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

Turning to the properly exhausted claims, Richter's first claim is that his confession was unlawfully coerced. The Supreme Court has held that "the ultimate question, whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination." Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). However, a state court's determinations of "subsidiary questions such as the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and familiarity with the Miranda warnings" are considered questions of fact, which are entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Id. at 117, 106 S.Ct. 445. The Magistrate concluded, as does this Court, that this presumption has not been eroded. Our review of the record, taken as a whole, supports the conclusion that Petitioner's confession was not coerced.

Petitioner's second and seventh claims test the trial court's refusal to instruct the jury as to excusable homicide and the improper use by both the trial judge and the prosecutor of the term "search for truth" at various stages of the trial. Judge Smith determined, as does this Court, that neither of these claims has merit. The trial judge specifically concluded that the facts of the case did not fit within the parameters of an excusable homicide charge. Moreover, nothing in the record supports the conclusion that the failure to include that charge constituted an error of constitutional magnitude — one that offended some right guaranteed by the Fourteenth Amendment to the United States Constitution. In addition, our reading of the trial transcript reflects that the phrase "search for truth" was used by the trial court during initial instructions to the jury, prior to opening statements, and once during the final charge to the jury. The use of these terms, in the context of the entire trial, did not implicate constitutional guarantees and the jury was clearly instructed at a number of junctures about the necessity of considering only evidence adduced during the trial and the state's burden of proof beyond a reasonable doubt on each element of the offense.

Petitioner's fifth ground for relief is that the prosecution failed to adduce sufficient evidence of defendant's guilt. On the basis of the record, it cannot be said that no rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime for which Richter was charged. We conclude that this ground, like Richter's remaining ones, are without merit.

The Report and Recommendation of the Magistrate is adopted. The objections to that Report are overruled. Richter has not made a substantial showing of the violation of his constitutional rights; consequently a Certificate of Appealability will not issue. See 28 U.S.C. § 2253, as amended by the Antiterrorism and Effective Death Penalty Act of 1996. See generally Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith. The Petition is dismissed. The Clerk of the Court is directed to enter a final judgment in favor of the Respondent.


Petitioner Robert Johan Richter ("petitioner"), proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction after trial for Second Degree Murder (N.Y. Penal Law § 125.25(2)). Although petitioner relies on four grounds in his petition, he actually articulates eight claims: (1) that his confession to the crime was obtained by coercive means; (2) that the trial judge refused to instruct the jury on excusable homicide; (3) that the trial judge improperly mentioned the "cost of deliberations" to the jury; (4) that the trial judge improperly failed to instruct the jury to acquit if they had reasonable doubt as to the voluntariness of the confession; (5) that the prosecution failed to present any evidence of recklessness and failed to prove Petitioner's guilt; (6) that the prosecution used irrelevant evidence to prejudice the jury and shift the burden of proof onto Petitioner by introducing testimony that Petitioner lived in a cave; (7) that the prosecution and trial judge improperly told the jury that their function is to "search for the truth," and (8) that the prosecution improperly told the jury that they should convict petitioner if they believed the police.

This habeas corpus petition was referred to me, pursuant to your Order of Reference, for a Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and (c) and Rule 72.1(d) of the Southern District of New York Rules for Proceedings before Magistrate Judges. For the reasons that follow, I conclude, and respectfully recommend, that the petition for a writ of habeas corpus should be denied and the action should be dismissed in its entirety.


A. Facts

1. The Crime

On the night of June 22, 1993, at a wooded location, and allegedly at the victim's request, petitioner tied a pillow encased belt around the neck of the victim, Germaine Ross. Petitioner pulled the belt tight for approximately thirty seconds, until he heard the victim gurgle and her hands dropped to her sides. At that point, petitioner walked away and left the victim alone for about five minutes. When he returned to her location, he observed her face to be discolored and attempted cardio-pulmonary resuscitation. When his efforts failed, he placed the body in a shallow grave and, later that night, moved the body to a second grave site along side the Taconic State Parkway.

Petitioner was subsequently arrested and indicted on one count of Murder in the Second Degree.

2. The Pre-Trial Hearing

A suppression hearing was held on December 16, 20, 21, 23 and 27, 1993*fn1, before the Honorable William B. Braatz, Putnam County Court Judge. That hearing addressed issues relating to the voluntariness and admissibility of the statements petitioner made to the New York State police on June 28 and 29, 1993.*fn2 At this hearing, the following facts were established:

New York State Police Investigators Matthew LasPisa and Albert Swansen spoke with petitioner in the early morning hours of June 28, 1998, at the Putnam Valley Police Department. They read petitioner his Miranda rights and petitioner agreed to speak with the Investigators regarding the disappearance of his girlfriend, Germaine Ross. (SH2 130-31.) Petitioner stated that he had been with Germaine on the night of June 22, into the morning of June 23. (SH2 6, 136-37.) Petitioner stated that he and the victim had an argument on the morning of June 23, and that he had not seen her since that time. (SH2 6, 137.)

Petitioner left the police station at approximately 3:30 a.m. on June 28, and the Investigators next contacted petitioner at about 6:00 p.m. on June 28, 1993, at petitioner's father's home. (SH2 8, 142-43.) Investigator LasPisa, together with Investigator Swansen, brought petitioner to the state police barracks in Poughkeepsie in order to question him further. (SH2 8-9, 144.) They provided petitioner with food and drink on the way to the barracks, and introduced petitioner to Investigator Salmon when they arrived at the barracks. (SH2 9-10, 144-45.)

Investigator Thomas P. Salmon met with petitioner on the evening of June 28, 1993, for the purpose of conducting a polygraph examination of petitioner. (SH1 9.) He asked petitioner if he was willing to take a polygraph, and provided him with written information regarding his rights with respect to polygraph examinations. (SH1 9-10.) He administered petitioner's Miranda warnings and petitioner signed a form indicating that he knew and understood his rights and that he was consenting to the polygraph examination.*fn3 (SH1 13-17.) Petitioner then relayed the events surrounding the victim's disappearance to Investigator Salmon. After the examination, Investigator Salmon communicated to petitioner that he did not think that petitioner was being truthful with respect to certain questions. (SH1 45-47.) Investigator Salmon also informed petitioner that the victim's body had been found across the parkway from his campsite. (SH1 49.) At one point during the questioning, petitioner placed his head in his hands, covering his face, and Investigator Salmon pulled petitioner's hands away from his face and said something to the effect of "look at me" or "be a manstop crying." (SH1 125; SH3 77.) After Investigator Salmon concluded the polygraph examination, Investigators Swansen and LasPisa resumed questioning petitioner. (SH1 51.)

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