McFarland v. Smith

• Decision Date: 29 October 1979
• Docket Number: D,No. 1300,1300
• Parties: Robert E. McFARLAND, Petitioner-Appellant, v. Harold J. SMITH, Respondent-Appellee, and Lawrence T. Kurlander, Monroe County District Attorney, Intervenor-Appellee. ocket 79-2059.
• Court: U.S. Court of Appeals — Second Circuit

Page 414

611 F.2d 414

Robert E. McFARLAND, Petitioner-Appellant, v. Harold J. SMITH, Respondent-Appellee, and Lawrence T. Kurlander, Monroe County District Attorney,

Intervenor-Appellee.

No. 1300, Docket 79-2059.

United States Court of Appeals, Second Circuit.

Argued July 19, 1979.

Decided Oct. 29, 1979.

Steven Lloyd Barrett, New York City (The Legal Aid Society, Federal Defender Services Unit, New York, N.Y., on the brief), for petitioner-appellant.

Kenneth R. Fisher, Rochester, N.Y. (Lawrence T. Kurlander, Monroe County Dist. Atty., Rochester, N.Y., on the brief), for intervenor-appellee.

Before VAN GRAAFEILAND, NEWMAN and KEARSE, Circuit Judges.

NEWMAN, Circuit Judge:

This is an appeal from a denial of a petition for a writ of habeas corpus brought by a state prisoner to challenge his conviction essentially on the ground that his constitutional rights were denied by the prosecutor's inclusion of improper racial remarks in the summation.

Petitioner was found guilty by a jury of criminal sale of a controlled substance (heroin) in the second degree, N.Y. Penal Law § 220.41, and sentenced on June 2, 1976 in the New York Supreme Court (Monroe County) to a term of eight years to life. The Appellate Division affirmed without opinion, People v. McFarland, 59 A.D.2d 1067, 399 N.Y.S.2d 828 (4th Dept. 1977), and the New York Court of Appeals denied permission to appeal. People v. McFarland, 43 N.Y.2d 836, 402 N.Y.S.2d 1042 (1977). A petition for a writ of habeas corpus was denied on May 30, 1978 by the United States District Court for the Western District of New York (Hon. Harold P. Burke, Judge).

At trial, the State's case depended almost entirely on the testimony of Patricia Dorman, a Rochester undercover police officer. She testified that she purchased $450 worth of heroin from petitioner in the bedroom of a second-floor apartment. She recognized petitioner as a person she had known in high school and had since seen occasionally. The defense case depended entirely on the testimony of petitioner's friend, Isaac Singletary. He testified that he and petitioner had come to the apartment house to see two prostitutes with whom they had earlier made a date. According to Singletary, he and petitioner went upstairs to the second-floor apartment together with a Puerto Rican man who had entered the building just after they did. Singletary further testified that he waited in a front room, petitioner used the bathroom, and the Puerto Rican man entered the bedroom along with a Black woman (Dorman) and another Puerto Rican man. Singletary heard a brief discussion in the bedroom, after which the Black woman left the building. Singletary said petitioner emerged from the bathroom, they both asked the Puerto Ricans where the girls were, and when they were told there were no girls, both left. The inference from Singletary's testimony was that Dorman had purchased narcotics from the first Puerto Rican male, and not from petitioner.

Not surprisingly the summation of defense counsel contended vigorously that Officer Dorman's version was false and Singletary's version was true.

In the course of the prosecutor's summation the following occurred Mr. Pappalardo (the prosecutor): . . . The officer herself being, by the book, ¹ a young woman, black woman, by the way this Defendant is black also.

Mr. King (defense counsel): Objection to the racial connatation (Sic ) of individuals.

The Court: Of course I'll instruct the jury now they shall not take into consideration to any extent and use that against any individual race, color, creed makes no difference whatsoever. You may continue.

Mr. Pappalardo: I'll also instruct the jury

Mr. King: Objection.

The Court: Yes, that's improper. You cannot instruct the jury.

Mr. Pappalardo: Excuse me, I seem to be interrupted before I finish my statement because the interruption is what the People believe the People's position, as in every single case, it makes no difference what color the Defendant is. I'll finish my point. Don't you convict anyone on color or race. It makes no difference. It makes no difference to me. I hope it makes no difference to Mr. King and anybody else, but the fact is that Officer Dorman is black and the Defendant is black. That's a fact. That's a fact like you consider any other fact. If she's lying she's lying against a member, a person that (Sic ) is black.

Mr. King: Objection.

The Court: Overruled.

Mr. Pappalardo: That is a proper consideration for you to examine, to think about and now she's lying against another black person. You think about it because that's what Mr. King is telling you that she's lying. Someone she knows and that's (Sic ) a member of her own race. You use your common sense to think about that.

(Tr. 369-71).

The prosecutor thus urged the jury to credit Officer Dorman's testimony on the theory that the probability of truthfulness was increased by the circumstance that a Black person was testifying against another Black person. The trial judge's overruling of defense counsel's objection assured the jury that the Court accepted the propriety of this argument.

In United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir. 1973), this Court ruled that racial remarks in a prosecutor's summation can constitute a violation of a defendant's right under the Due Process Clause to a fair trial. Judge Oakes' opinion drew upon the line of fair trial cases beginning with Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923), and the line of equal protection cases beginning with Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879), and noted that when racial prejudice is injected into a criminal trial, "the due process and equal protection clauses overlap or at least meet . . . ." 481 F.2d at 159 (footnote omitted).

The Office of the Monroe County District Attorney, which has intervened to uphold petitioner's conviction, contends that the racial remarks of the prosecutor, while "imprudent" (Intervenor's Br. 12), were not racial slurs. The remarks in Haynes involved racial slurs, and the District Attorney argues that only remarks of that category are appeals to racial prejudice that can render a conviction invalid under the Fourteenth Amendment.

Neither Haynes nor the lines of authority on which it drew set the constitutional limits for improper prosecution argument at racial slurs. Race is an impermissible basis for any adverse governmental action in the absence of compelling justification. When a prosecutor's summation includes racial remarks in an effort to persuade a jury to return a guilty verdict, the resulting conviction is constitutionally unfair unless the remarks are abundantly justified. To raise the issue of race is to draw the jury's attention to a characteristic that the Constitution generally commands us to ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker might neither have predicted nor intended.

This is not to say that every race-conscious argument is impermissible. Indeed, in Haynes, defense counsel, with apparent court approval, had attacked identification testimony on the ground that the eyewitness, being White, was unlikely to be able to discern distinguishing characteristics of the face of the criminal, who was Black. 481 F.2d at 160. These remarks were race-conscious, but race-neutral, since presumably an argument could be made with equal force that a Black eyewitness would have difficulty discerning the features of a White criminal. And there is some basis for accepting the validity of both contentions. Chance, Goldstein & McBride, Differential Experience and Recognition Memory for Faces, 97 J. Soc. Psych. 243 (1975); Malpass, Racial Bias in Eyewitness Identification, 1 Personality & Soc. Psych. Bull. 42 (1974); Malpass & Kravitz, Recognition for Faces of Own and Other Race, 13 J. Personality & Soc. Psych. 330 (1969); Shepherd, Deregowski & Ellis, A Cross-Cultural Study of Recognition Memory for Faces, 9 Int'l J. Psych. 205 (1975). But given the general requirement that the race of a criminal defendant must not be the basis of any adverse inference, any reference to it by a prosecutor must be justified by a compelling state interest. The issue in this case is whether the racial remarks, even if not overt racial slurs, were sufficiently justified to be countenanced.

In People v. Hearns, 18 A.D.2d 922, 923, 238 N.Y.S.2d 173, 174-75 (2d Dept. 1963), the Appellate Division reversed a conviction because, as in this case, the prosecutor had urged the jury to credit the testimony of Black police officers partly on the basis of their membership in the same racial group as the defendant. That argument, the Court concluded, is predicated on a false and illogical premise and constitutes an appeal to racial prejudice. Some analysis is warranted to explore that conclusion. Since the prosecutor in this case did not spell out his reasoning, one is left to consider what possible lines of reasoning might support a valid argument that the testimony of Officer Dorman is entitled to some degree of enhanced probability of truthfulness because her race is the same as the defendant's.

The analysis may begin by recognizing the obvious fact that from any group, racial or otherwise, some persons called as witnesses will testify helpfully to a defendant and some will testify accusingly. ² It may well be that testimony is more frequently helpful than accusing when the testimony is given within group lines (witness and defendant members of the same group) than when testimony is given across group lines (witness and defendant not members of the same group). Two circumstances would seem to support this thesis. First, alibi and character witnesses normally come from those with whom the defendant spends time, and there is a reasonable likelihood that members of his group are a disproportionately large segment of his friends and...