Willie Lee Kirksey v. E. W. Jones, Superintendent, 673 F.2d 58, 2d Cir. (1982)

673 F.
2d 58
Willie Lee KIRKSEY, Petitioner-Appellant,

v.
E. W. JONES, Superintendent, Respondent-Appellee.
No. 723, Docket 81-2320.
United States Court of Appeals,

Second Circuit.
Argued Feb. 5, 1982.
Decided March 8, 1982.
Stuart Holtzman, New York City, for petitioner-appellant.

Alan D. Kaplan, Asst. Dist. Atty., New York City (Mario Merola, Dist.
Atty., Bronx County, Peter D. Coddington, Asst. Dist. Atty., New York
City, on brief), for respondent-appellee.
Before OAKES, VAN GRAAFEILAND and NEWMAN, Circuit Judges.
NEWMAN, Circuit Judge:
Willie Lee Kirksey appeals from a judgment of the District Court for the
Southern District of New York (Whitman Knapp, Judge), entered September 8,
1981, denying his petition for a writ of habeas corpus to challenge his state
court conviction for the murder of three people. Kirksey contends on appeal
that his conviction was obtained in violation of his constitutional rights because
the prosecutor referred in summation to a co-defendant's confession that
implicated Kirksey, because the prosecutor's summation was inflammatory, and
because the evidence included a reference to an uncharged fourth murder. We
affirm the denial of habeas corpus relief since the facts surrounding the first
contention do not establish a constitutional violation and Kirksey has not
exhausted state court remedies with respect to the second and third points.
Kirksey and a co-defendant, Thomas Felton, were convicted in the New York
Supreme Court (Bronx County) of second-degree murder and related robbery
and burglary offenses and sentenced to concurrent terms of 25 years to life.
Kirksey's conviction was affirmed without opinion by the Appellate Division,
People v. Kirksey, 65 A.D.2d 963, 411 N.Y.S.2d 97 (1st Dep't 1978), and leave
to appeal to the Court of Appeals was denied. 46 N.Y.2d 913, 414 N.Y.S.2d
1047 (1979). The evidence at the state court trial consisted primarily of
detailed confessions by Kirksey and Felton and eyewitness identification of
Kirksey following one of the victims into her apartment building on the day she
was murdered.
3
The State seeks to uphold the judgment denying habeas corpus relief on the
ground that Kirksey has failed to exhaust state court remedies with respect to all
three of his contentions. We are satisfied, however, that exhaustion has
occurred with respect to the first point, which is that the prosecutor's
summation denied Kirksey his constitutional right to confront his accusers by
urging Kirksey's conviction on the basis of Felton's confession. The heading of
Point I of Kirksey's brief in the Appellate Division plainly states, "The
confession of a co-defendant was used against defendant at his trial in violation
of his right under the Sixth Amendment to the Constitution to confront his
accusers." While a portion of the argument concerns an alleged error in the trial
court's charge concerning the limited use of Felton's confession (a point not
raised on this appeal), the balance concerns the prosecutor's summation and
specifically alleges that it is "impermissible for the prosecutor to wrongfully
use a co-defendant's confession as evidence to obtain a conviction in violation
of the Sixth Amendment." The state court brief fully alerted the Appellate
Division to the federal nature of Kirksey's attack on the prosecutor's use of
Felton's confession and afforded that Court a "fair opportunity," Picard v.
Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), to rule
on the federal claim.
Exhaustion has not occurred, however, with respect to Kirksey's remaining

contentions. In complaining to the Appellate Division that the prosecutor's
summation contained inflammatory passages and that the evidence contained
reference to an uncharged fourth murder, Kirksey's brief makes no explicit
reference to any provision of the Constitution, see Wilson v. Fogg, 571 F.2d 91
(2d Cir. 1978), nor uses any language that calls to mind a federal constitutional
guaranty, see Twitty v. Smith, 614 F.2d 325, 332 (2d Cir. 1979) (alleged denial
of "effective assistance of counsel" sufficiently asserts Sixth Amendment
claim). Appellant suggests that references in his state court brief to denial of a
"fair trial" sufficiently alerted the Appellate Division to a contention that the
trial failed to comport with the due process guaranties of the Fourteenth
Amendment. We rejected that argument in Daye v. Attorney General, 663 F.2d
1155 (2d Cir. 1981), and Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979), where
the circumstances alleged to deny a fair trial were the frequent and biased
interventions of the trial judge. Whether or not the rehearing en banc of Daye v.
Attorney General, supra, scheduled for April 13, 1982, results in any
modification of the strictures of Johnson v. Metz, supra, the exhaustion
requirement is not automatically satisfied every time an alleged trial error is
claimed to deny a defendant a "fair trial." State court briefs routinely
characterize a variety of errors as a denial of a fair trial, conveying the thought
that the error, simply as a matter of state law, warrants a new trial. Alleging
lack of a fair trial does not convert every complaint about evidence or a
prosecutor's summation into a federal due process claim. An isolated emotional
remark in a summation1 and a reference to a fourth uncharged crime in addition
to three charged offenses do not approach the circumstances that might
arguably be deemed sufficient to alert a state court that a due process violation
is claimed.
5
On the merits of the one claim that has been exhausted, Kirksey's complaint
about the prosecutor's use of Felton's confession is unavailing. The
Confrontation Clause of the Sixth Amendment is not violated by the admission
at a joint trial of a co-defendant's confession that interlocks with a confession of
a defendant. Parker v. Randolph, 442 U.S. 62, 72-75, 99 S.Ct. 2132, 2138-40,
60 L.Ed.2d 713 (1979) (plurality opinion); United States ex rel. Cantanzaro v.
Mancusi, 404 F.2d 296, 300 (2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct.
956, 25 L.Ed.2d 123 (1970). Parker permits admission of a co-defendant's
confession only in the case against the co-defendant, 442 U.S. at 75, 99 S.Ct. at
2140, as the trial judge instructed the jury in this case. The rationale of Parker
is that when a co-defendant's confession interlocks with that of a defendant, the
"possible prejudice" resulting from the jury's failure to follow limiting
instructions does not "require departure from the general rule allowing
admission of evidence with limiting instructions." Id. at 74-75, 99 S.Ct. at
2139-40.2 Of course, the prosecutor is not free to make a jury argument that
increases the possibility of prejudice; the "interlocking confession" exception to
the usual rule barring use at a joint trial of a co-defendant's confession
implicating the defendant, Bruton v. United States, 391 U.S. 123, 88 S.Ct.
1620, 20 L.Ed.2d 476 (1968), does not entitle the prosecutor to disregard the
limiting instructions and urge the jury to convict one defendant because his codefendant has confessed. Having elected to try the defendants together, the
prosecutor has an obligation to respect the limiting instructions when he argues
the evidence admissible only against each defendant. In this case, while the
prosecutor did not confine all references to Felton's confession to a discrete
portion of his summation urging Kirksey's conviction, we are entirely satisfied
that he neither sought to argue Kirksey's guilt from Felton's confession nor
created any substantial risk that the limiting instructions would be ignored.
Judgment affirmed.
The remark, which should not have been made, referred to one of the murder
victims as a woman "who(se) muffled sounds you will hear if you do not after
considering the evidence return a verdict of conviction against these
defendants." The judge promptly instructed the jury to disregard the remark.
While excessively emotional appeals seem to recur despite condemnations from
federal and state courts, see United States v. Modica, 663 F.2d 1173, 1180 (2d
Cir. 1981) (per curiam); People v. Ashwal, 39 N.Y.2d 105, 347 N.E.2d 564,
383 N.Y.S.2d 204 (1976), the remark here drew a prompt instruction to
disregard from the trial judge; moreover, the summation contained no
impropriety, such as a racial slur, complaint of which would plainly convey
reliance on constitutional prohibitions. See McFarland v. Smith, 611 F.2d 414
(2d Cir. 1979)
The interlocking confession rule has been questioned, though applied, in this
Circuit, United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973); its
application would have created a greater risk of prejudice in this case if
independent evidence had not connected Kirksey to the scene of one of the
crimes and if Felton's confession had incriminated Kirksey as to a salient point
not set forth in Kirksey's own confession

Willie Lee Kirksey v. E. W. Jones, Superintendent, 673 F.2d 58, 2d Cir. (1982)

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Willie Lee Kirksey v. E. W. Jones, Superintendent, 673 F.2d 58, 2d Cir. (1982)

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673 F.

Willie Lee KIRKSEY, Petitioner-Appellant,

United States Court of Appeals,

Stuart Holtzman, New York City, for petitioner-appellant.

Exhaustion has not occurred, however, with respect to Kirksey's remaining

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