pants with the broken zipper were also admitted into evidence. Tr. 335.
The prosecution also presented the testimony of Officer Rush and Detective Carlin who said that Ingram was crying and upset, and her clothes were disheveled, on the evening of October 18, 1976, after the events in question took place. Tr. 319; Tr. 627. Ms. Ingram's mother also testified that when her daughter came home her pants were "busted" and her coat was gone, and she was crying and upset. Tr. 7/5/77, 26. In all, the prosecution's case offered clear evidence that Ingram had been raped by Rawls.
The defense attempted to show that Ingram was friendly with "Big Eddie" and had come to the house voluntarily. Tr. 7/1/77, pp. 72 et seq.; 149 et seq. The evidence presented on this issue was not particularly strong, and in any event this line of defense does not address the relevant issue in the case, i.e., what happened later between Ingram and the defendants, and whether Ingram consented to have intercourse with Rawls and Griffin.
On the evidence in the record, without relying on Griffin's statement, the jury would have accepted Ms. Ingram's version of events and found Rawls guilty of rape. Any error in admitting the redacted statement was harmless beyond a reasonable doubt.
VII. ALLEGED BRUTON VIOLATION DURING CLOSING ARGUMENT
Petitioner also argues that the prosecutor made improper reference to Griffin's statement in his closing argument. In his closing, the prosecutor said: 1) that Griffin's statement was that " Rawls was on top of her", and 2) that the sentence "one of the guys came out of the middle room and asked me if I wanted some" from Griffin's statement coincided with Ingram's testimony that Rawls pushed her on the bed. See closing argument excerpts, supra, p. 6. Petitioner argues that by re-inserting Rawls's name, the prosecutor nullified the already inadequate redaction.
Petitioner cites U.S. v. Alvarez, 519 F.2d 1052 (3d Cir.1975) for the proposition that it is error to allow the prosecutor in closing argument to refer to a redacted statement to corroborate evidence being used against the confessor's codefendants. 519 F.2d at 1054. This rule was adopted by the Third Circuit in Alvarez pursuant to its supervisory authority over the administration of criminal justice in the district courts. Id. The Third Circuit made it clear that such a rule is not a constitutional requirement. ("Under Bruton and Lipowitz, the Constitution requires only that the redacted confession not in itself 'inculpate' the other defendants," 519 F.2d at 1055). When a writ of habeas corpus is sought, the petitioner must demonstrate a violation of his constitutional rights. 28 U.S.C. § 2254(a). For this reason, the Magistrate correctly concluded in his Report and Recommendation that the prosecutor's remarks "do not constitute grounds for a grant of a writ of habeas corpus from a state conviction." Report and Recommendation, p. 19.
Even if Alvarez were applicable to the case before me, I would find the prosecutor's remarks harmless beyond a reasonable doubt. His use of Rawls's name was not prejudicial error, given that Rawls's presence in the house and his intercourse with Ingram were not seriously contested. Further, the prosecutor's offending remarks were a relatively minuscule part of a trial that lasted seven days (from the prosecutor's opening statement on June 27, 1977 to the jury charge on July 6, 1977) and were not likely to have made a deep impression on the jury, given the amount of evidence they had already heard.
In this particular case it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty, based on the evidence, absent the prosecutor's remarks. See U.S. v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96, 1981 (1983).
For the reasons stated in this Memorandum, the petition for a writ of habeas corpus will be denied. There is probable cause for appeal.