McLaughlin, Freedman and Adams, Circuit Judges.
In this habeas corpus case petitioner attacks his state court conviction of armed robbery. His conviction was affirmed by the Appellate Division of the New Jersey Superior Court, and the Supreme Court of New Jersey denied a certification for appeal.
The district court denied the petition for habeas corpus on a review of the state record without holding an evidentiary hearing. Petitioner's brief elaborately argues that he was denied due process on a number of grounds which are without merit and require no discussion.*fn1 We address ourselves to the substantial claims.
I. The Police Photographs
The state's evidence at the trial consisted primarily of the testimony of Nicoll Bunnell, the night auditor of the motel which was robbed at 5:00 a.m. on November 24, 1965. Later that morning, Bunnell identified petitioner in one police photograph, and later in the day identified him in another.
There was testimony by the police that Bunnell had seen the photographs in the Criminal Investigation Bureau of the Jersey City Police Department. The photographs made it evident that petitioner had at least been arrested and photographed by the police on two occasions prior to the present robbery. The front views of both photographs plainly show a large label on petitioner's person containing a number and date, and one contains the additional words "Police Dept. Union City, N.J." One of the photographs is dated September 24, 1958, and the other December 24, 1964, seven years in one case and almost a year in the other prior to the present robbery.
The trial judge admitted the photographs in evidence over petitioner's objection after directing that the notations they bore on the reverse side should be masked. In his charge he instructed the jury to disregard the fact that they were police photographs and to consider them solely in relation to Bunnell's identification testimony, without regard to any notations on the front and the fact that the reverse sides were masked.*fn2
The state was not led to introduce the photographs in order to rebut a challenge by the defense on cross-examination to the identification, a situation which might justify their explanatory use.*fn3 Here, the photographs were introduced by the prosecution in its direct examination of Bunnell in the course of his testimony identifying petitioner. Were this a case on direct appeal from a federal conviction we would be required to balance the probative value of the photographs on direct examination against the possibility of prejudice to the petitioner in order to determine whether their admission constituted reversible error.*fn4
It is not our function, however, to decide whether there was error in the admission of the photographic evidence. Nor are we called upon to decide the related problem of the effectiveness of cautionary instructions on this subject.*fn5 This is not a review on direct appeal but an application for habeas corpus, and the question before us is whether the admission of the photographs with a cautionary instruction to the jury, as approved by the New Jersey courts,*fn6 constituted a denial of due process.
The Supreme Court has made it clear in Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967), that the states have a broad area of choice regarding the rules of evidence they will apply in their criminal proceedings. There the Court upheld the decision which some states have made in dealing with recidivists that the possibility of prejudice occasioned by the admission of prior convictions before there is a determination of guilt is outweighed by their utility in establishing the elements which are necessary for the imposition of a penalty for recidivism.*fn7
In view of the broad discretion of the states which Spencer acknowledged,*fn8 we cannot say that the admission of the police photographs, masked as they were, and for the limited purpose of consideration with the victim's identification testimony, coupled with cautionary instructions ...