Opinion
04 CIV. 2229 (DLC) (DF).
August 30, 2006
Robert Daily, pro se, For petitioner.
Luke Martland Section Chief Federal Habeas Corpus Section Office of the Attorney General State of New York New York, NY, For respondent.
OPINION ORDER
Robert Daily brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his July 7, 1999 conviction, following a jury trial, on one count of second-degree robbery and three counts of second-degree attempted robbery. Daily was sentenced as a persistent violent felony offender to concurrent terms of 16 years to life for the robbery conviction and 12 years to life for the attempted robbery convictions. Daily challenges his convictions on the grounds that: (1) the prosecutor was improperly allowed to introduce evidence of his prior conviction of an allegedly similar crime; (2) the prosecutor was improperly allowed to cross-examine Daily's alibi witnesses about their failure to come forward earlier; (3) Daily was prevented from examining the arresting officer about bias against him; and (4) the prosecutor made improper prejudicial remarks in front of the jury.
This case was referred to Magistrate Judge Debra Freeman for a report and recommendation ("Report"), which was issued on February 10, 2006. The Report recommends that the petition be denied. On April 26, 2006, Daily's Objections to the Report ("Objections") were received. This Opinion adopts the Report.
Background
The facts relevant to the petition are set forth in the Report and summarized here. Petitioner's convictions arise out of three incidents, all of which took place in midtown Manhattan in September 1998. On September 3 at about 5:30 p.m., Gregg Finn ("Finn"), who worked in the diamond and jewelry business, was robbed of two FedEx boxes containing loose diamonds as he was walking down Madison Avenue near 44th Street. Finn testified that the robbery was carried out by two men, one of whom he later identified as Daily in both a pre-trial line-up and again at trial. A security guard in a nearby store witnessed the incident and also identified Daily as one of the participants in a pre-trial line-up and again at trial.
On September 15 at about 6:30 p.m., Kyung Sun Ro ("Ro") and her husband, Joon Choi ("Choi"), both of whom were employed by a jewelry store, left work to deliver a box of jewelry to a FedEx store on 44th Street near Sixth Avenue. As they neared the FedEx location, two men attempted to rob them of the box. One of the men, who Ro later identified as Daily in both a pre-trial line-up and again at trial, sprayed Choi in the eyes with mace. As Choi lay on the ground, unable to see, the other man approached Ro from the rear and tried to take the box of jewelry.
On September 30 at approximately 5:00 p.m., an undercover police officer began observing Daily and another man walk back and forth on the blocks near Fifth Avenue and 48th Street in Manhattan. The two were eventually joined by a third man, and they continued walking up and down the same blocks. The detective ultimately observed the three men arrive at the northwest corner of Sixth Avenue and 47th Street. A crowd gathered, and one of the men ran away, holding a FedEx package. The detective approached Daily and placed him under arrest.
After a jury trial conducted from June 14 to June 22, 1999, Daily was convicted of three counts of attempted robbery in connection with the events of September 15 and one count of robbery in connection with the events of September 3. Although he was charged with grand larceny in connection with the September 30 incident, he was not convicted.
Daily appealed to the Appellate Division, First Department, on substantially the same grounds as those he now raises in the petition. On September 19, 2002, the Appellate Division unanimously affirmed his conviction on the merits. People v. Daily, 297 A.D.2d 562 (1st Dep't. 2002). Petitioner sought leave to appeal by a letter dated October 21, 2002. On November 25, the Court of Appeals denied the application. People v. Daily, 99 N.Y.2d 534 (2002). Daily timely filed the instant petition on February 11, 2004.
Discussion
The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which petitioner objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). "The referring district judge may accept those portions of the magistrate judge's report and recommendation to which no specific written objections are made, provided there is no clear error on the face of the record." Doe v. Goord, No. 04 Civ. 570 (GBD), 2006 WL 1041130, at *2 (S.D.N.Y. Apr. 18, 2006). In addition, where objections are "merely perfunctory" and amount to "an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition," the report may be reviewed under this more lenient "clear error" standard.Guerrero v. Tracey, 425 F. Supp. 2d 434, 436 (S.D.N.Y. 2006) (citation omitted).
In his Objections, Daily specifically takes issue with the Report's conclusion that the trial court did not err in admitting evidence regarding Daily's previous conviction of robbery on the theory that it was sufficiently similar to the acts of which he was accused that it could demonstrate a modus operandi. Daily also objects to the Report's determination that his Sixth Amendment rights were not violated by the trial court's refusal to let him cross-examine the arresting officer regarding his alleged bias against Daily. The remainder of Daily's Objections, however, are not sufficiently specific or detailed to require de novo review here. For the reasons stated in the Report, each of Daily's claims is properly denied under the appropriate standard of review.
In his Objections, Daily argues that the "guarantee against self-in-crimination [sic] was also egregiously violated," and attaches a portion of the trial transcript as an exhibit. Because this argument was not made in the petition, however, it is unpreserved and will not be addressed here.
A. The Prior Robbery Conviction
In 1992, Daily pled guilty to robbing a United Parcel Service driver of two bags of jewelry. The theft, which involved Daily and one accomplice, took place at approximately 5:45 p.m. near 29th Street and Sixth Avenue in Manhattan. At Daily's trial for the 1998 robberies, the prosecution attempted to admit evidence of this conviction, arguing that it evidenced a modus operandi that was sufficiently similar to the crimes with which Daily was charged to be probative of whether he was in fact the perpetrator. The trial court initially deferred ruling on the admissibility of this evidence. After Daily presented alibi witnesses, however, the trial court ruled that he had placed "identity" at issue and allowed the prosecution to present evidence of the 1992 incident. The Appellate Division ruled that the trial court had acted properly in deferring decision and then admitting the evidence.
The Report concludes that the trial court's admission of the evidence did not violate Daily's federal rights. In his Objections, Daily asserts that this ruling was in error. He argues that the trial court "misconstrued" People v. Molineux, 168 N.Y.2d 264, 293 (1901), which established the New York rule that evidence of other crimes is admissible when it "tends to establish . . . the identity of the person charged with the commission of the crime on trial." The Court of Appeals has since elaborated on this statement, holding that uncharged crimes can be deemed relevant "in limited circumstances, when the defendant employs some unique, unusual, or distinctive modus operandi . . . that is relevant to proving his identity as the perpetrator of the crime charged." People v. Mateo, 93 N.Y.2d 327, 332 (1999). Daily's Objections highlight decisions of the New York Court of Appeals that he contends support his view that the 1992 incident was not sufficiently similar to the 1998 crimes to demonstrate a modus operandi.
As the Report accurately notes, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The proper interpretation of Molineux is clearly a question of state law. Furthermore, even if Molineux were improperly applied, it would not necessarily raise a constitutional issue amenable to review here:
[N]ot all erroneous admissions of [prejudicial] evidence are errors of constitutional dimension. The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence is so extremely unfair that its admission violates fundamental conceptions of justice.Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (citation omitted).
Daily has not made a showing that the trial court's interpretation of Molineux rendered his trial fundamentally unfair. Indeed, he has not even shown that the trial court's ruling on this issue was erroneous. As the Report notes,
The similarities between the crimes at issue in this proceeding and the 1992 robbery . . . are obvious. The 1992 robbery, the 1998 robbery, and the 1998 attempted robbery all occurred in midtown Manhattan within a 20-block radius; they each occurred during rush hour; they each involved a team of two men; and the targeted items were packages of jewelry in the victim's possession that had been prepared for delivery via private mail carriers. These facts are sufficient to create a modus operandi.
The admission of evidence regarding Daily's previous conviction therefore does not entitle him to habeas relief.
B. The Failure to Allow Cross-Examination of Officer on Bias
Daily argues that the trial court's refusal to allow him to cross-examine the arresting officer about the officer's prior conduct toward him, including placing him in line-ups for crimes with which he was not charged, deprived him of his Sixth Amendment right to confront his accusers. The Appellate Division found that the objection was not preserved, but also noted that even if it were preserved, it would be rejected, since there was "no violation of [Daily's] right to present a defense and confront witnesses." Daily, 297 A.D.2d at 563. The Report questions whether the Appellate Division's waiver holding was correct, but it agrees that Daily's Sixth Amendment claim is without merit, noting that the Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985).
The Report's assessment is correct. The Supreme Court has held that "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). "Only when this broad discretion is abused will we reverse a trial court's decision to restrict cross-examination." United States v. Crowley, 318 F.3d 401, 417 (2d Cir. 2003). The trial court's apparent determination that the arresting officer's prior interactions with Daily were not sufficiently relevant to the issue of his guilt or innocence to outweigh the potential for confusion was not an abuse of discretion. The restrictions on Daily's cross-examination of the arresting officer therefore do not entitle him to habeas relief.
The single case cited by Daily in support of his objection to this portion of the Report does not undermine this conclusion.Crawford v. Washington, 541 U.S. 36, 50 (2004), deals with the use of an out-of-court statement made by a witness that the defendant had no opportunity to cross-examine. It does not, however, address the situation here, where Daily was merely limited in the scope of his cross-examination.
C. Daily's Other Claims
In his petition, Daily also argues that the trial court erred in allowing the prosecution to cross-examine Daily's alibi witnesses about their delay in coming forward with exculpatory evidence without first establishing that: (1) they were aware of the charges against Daily, (2) they had reason to recognize that they possessed exculpatory information, (3) they had a reasonable motive to exonerate Daily, and (4) they knew how to do so. Daily also contends that he was prejudiced by the trial court's delay in ruling on the modus operandi evidence until after a substantial portion of the defense case had been presented. The Appellate Division determined that both of these claims were unpreserved, as Daily made no contemporaneous objections during trial. The Report concludes that this is an "adequate and independent" state-law ground for rejecting the claims, therefore exempting them from federal habeas review. See Coleman v. Thompson, 501 U.S. 722, 729 (1991); Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006).
Daily's final claim is that the prosecutor made five remarks in front of the jury that undermined the fairness of the trial. The Appellate Division found that Daily's objections to four of the remarks were unpreserved. The Report again concludes that this is an "adequate and independent" state-law ground, putting the claim outside the purview of federal habeas review. With respect to the final challenged statement — the prosecutor's reference to the fact that Daily's brother is serving a 20-year sentence — the Appellate Division found that the trial court's curative instructions were sufficient to prevent prejudice. The Report concludes that the comment did not infect the trial to such an extent that "the resulting conviction [was] a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). It also notes that, in light of testimony from multiple eyewitnesses identifying Daily as one of the perpetrators, the evidence of Daily's guilt was strong; therefore, the prejudicial effect of the prosecutor's remark can be deemed insubstantial. See United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981).
As noted above, Daily did not specifically object to any of these conclusions, and they therefore need not be reviewed de novo. Because the Report's analysis of these claims contains no clear error, it will be adopted here.
Conclusion
The recommendation of Magistrate Judge Freeman is adopted, and the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. Daily has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find, pursuant to United States Code, Section 1915(a) (3), that any appeal from this order would not be taken in good faith.Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss the petition.
SO ORDERED.