Appeal by a state prisoner from a judgment in the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, dismissing petition for a writ of habeas corpus. Affirmed.
Before: GURFEIN, VAN GRAAFEILAND and KEARSE, Circuit Judges.
Petitioner Eugene Twitty, a state prisoner, appeals from a judgment of the United States District Court for the Eastern District of New York (Mark A. Costantino, Judge ), dismissing his petition for a writ of habeas corpus. The district court held that Twitty had exhausted his state remedies but that his claims lacked merit. We conclude that as to certain of his claims Twitty did not exhaust his remedies in the state court, and that the claims as to which he did exhuast his remedies do not justify the granting of the writ. Hence we affirm the district court's judgment.
Twitty was convicted of murder and felony murder in 1972 in New York Supreme Court, Kings County. The case arose out of the robbery of a supermarket in Brooklyn in August 1971, during which the manager of the store was shot and killed by one of the robbers. The prosecution's case in chief rested principally on the testimony of two eyewitnesses to the robbery who identified Twitty as the robber who shot the store manager when the latter had difficulty in opening the safe, and on the testimony of a police officer who had arrested Twitty's alleged accomplices and, on the basis of their statements, searched out and eventually arrested Twitty. After presentation of the defense case, which included two alibi witnesses for Twitty, the prosecution called as a rebuttal witness one of Twitty's alleged accomplices who had pleaded guilty, who testified that Twitty had been one of the robbers and had shot the store manager.
Twitty was represented at trial by assigned counsel, Abraham Kartzman. Twitty claims that, for various reasons, Kartzman's performance was so inadequate that he was denied effective assistance of counsel at trial in violation of his rights under the Sixth Amendment to the Constitution.*fn1 The chronology of events that give rise to his claim is as follows.
The robbery and murder took place on August 24, 1971, in the presence of two eyewitnesses: a store guard, and an electrician who had been called to the store to make repairs. On September 8, 1971, police detective Patrick Cambridge arrested three suspects, including one Robert Smith, but not including Twitty, on charges of murder. After interrogating these three men, Cambridge commenced to search for Twitty. Twitty was indicted on two counts, murder and felony murder, and was eventually arrested in Wichita Falls, Texas, on December 28, 1971.
On January 4, 1972, Twitty was arraigned in Brooklyn and Kartzman was assigned as his counsel. Kartzman made no pretrial procedural motions,*fn2 and the case was called for trial on January 26. At that time Twitty told the court that the wanted a different lawyer, complaining that "I don't think Mr. Kartzman here, have [sic ] given me justice in my eyesight." The court declined to appoint other assigned counsel, but gave Twitty until the next day to retain counsel, indicating that any new counsel would be given a reasonable opportunity to prepare for trial. The next day, Twitty said that he had been unable to obtain other counsel. He reiterated his desire for counsel other than Kartzman, stating that Kartzman never believed anything Twitty said and would not listen to him. Twitty then attempted unsuccessfully to inform the court that he had been in the South during July and August 1971, but the court refused to go into the merits of the case. The court again declined to appoint other counsel, whereupon Twitty said he would represent himself. After being warned of the risks of proceeding pro se, however, he indicated that he would allow Kartzman to represent him.
On the following day, Friday, January 28, the State opened its case,*fn3 which included the testimony of the two eyewitnesses.*fn4 Both had seen the events at close range and both positively identified Twitty as the robber who shot the deceased.
The defense case began on Monday, January 31 with Twitty taking the stand in his own defense. He testified that he had been in North Carolina when the crime took place. After Twitty's testimony, Kartzman requested a recess until the next day to allow two alibi witnesses to come to New York, stating that he had been unaware until that morning that there would be alibi witnesses to substantiate Twitty's testimony. In light of the delay, the prosecutor asked to call Mrs. Twitty at that time as a rebuttal witness; defense counsel said he had no objection. Mrs. Twitty testified, and the case was adjourned to February 2.
When trial resumed, Twitty again asked for a change of lawyers and the request was again denied. Two alibi witnesses from North Carolina then testified for the defense. The prosecutor recalled Twitty for additional cross-examination and asked him, without objection, whether he had told Kartzman his alibi. Although Twitty appeared not to understand the term alibi, he testified that he had told Kartzman he was in North Carolina on August 24, 1971. The defense rested and the prosecutor then called Kartzman as a rebuttal witness. After Kartzman took the stand, was sworn in and identified himself, a side-bar conference was held, at which the prosecutor stated that he would ask Kartzman, inter alia, whether Twitty had told him about the alibi. The prosecutor adverted to Kartzman's statement two days earlier, out of the jury's presence, as to his ignorance of the alibi witnesses. Kartzman did not immediately object to testifying, but when the court pointed out that such a conversation would be privileged, Kartzman said that he would assert the attorney-client privilege. At that point, the prosecutor withdrew Kartzman as a witness.
Still out of the presence of the jury, the prosecutor stated that he would call as a rebuttal witness Robert Smith, one of Twitty's alleged accomplices in the robbery, who had pleaded guilty to felony murder on January 26. The prosecutor explained that he had not intended to call Smith and decided to do so only after he heard the unexpected alibi defense. He stated that during the Tuesday recess, he had offered to allow Smith, in return for his testimony, to withdraw his plea of guilty to felony murder and to plead to first-degree manslaughter, an offer Smith had accepted. After this explanation by the prosecutor, Kartzman moved for a mistrial, apparently on the ground that such rebuttal testimony was not permitted by New York Criminal Procedure Law ("CPL") § 260.30.*fn5 A colloquy ensued during which the court at first stated that it would "in all likelihood" grant a mistrial, and that the new trial would begin the same afternoon, although the court expressly recognized that special circumstances would justify permitting Smith to testify as a rebuttal witness. After hearing from the prosecutor, the court again adverted to the special circumstances that would justify permitting Smith's testimony on rebuttal, and stated, "I want to make it clear that I am not stating that I will grant the application, but, rather, that I will give some consideration to it." The court reiterated that if the motion were pressed, "we will discharge this jury and impanel a new jury and commence the retrial immediately." Kartzman then informed the court that he was scheduled to embark shortly on a month-long vacation, that his tickets were already paid for, and that starting a second trial immediately would depirve him of his vacation. The trial judge inssted that any retrial would begin immediately. After conferring with Twitty, Kartzman finally withdrew the motion. The entire colloquy is set forth in the margin.*fn6
Trial resumed immediately, and as a rebuttal witness Smih testified that he had seen Twitty shoot the store manager. On corss-examination Kartzman brought out that Smith's accomplices had threatened him before he pleaded guilty; that the court had said it would give "favorable consideration" to Smith in sentencing if he pleaded guilty, depending on the contents of the probation report; that Smith would be permitted to withdraw his plea if dissatisfied with the sentence; that Smith had insisted on further consideration in return for testifying and would not have testified without the promised reduction of his plea to manslaughter; and that Smith had been a narcotics user for four or five years, and had used narocics on the morning of the crime, on the day he confessed, and on the day he pleaded guilty. Because at least part of this cross-examination amounted to an attack ...