Opinion
00 Civ. 8928 (RCC) (JCF).
October 23, 2001
REPORT AND RECOMMENDATION
Sean Davis brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County for second degree murder and related crimes. He argues that: (1) he was deprived of effective assistance of counsel because his attorney failed to advise him of his right to testify before the grand jury; (2) he was erroneously denied the opportunity for a hearing to challenge an eyewitness identification; and (3) he was denied a fair trial when the prosecutor made improper arguments during summation. For the reasons set forth below, I recommend that the petition be denied.
Background
On September 5, 1993, Darryl Campbell and several friends witnessed an altercation between the petitioner, Sean Davis, and another man on 142nd Street in Manhattan. (Tr. 257-61). During the confrontation, the other man ripped a chain from Mr. Davis' neck, and pieces of it scattered on the ground. (Tr. 509-10). After the melee had ended, Mr. Campbell found a gold medallion on the street and attached it to his own chain. (Tr. 263-64, 510, 524).
"Tr." refers to the trial transcript.
On the following afternoon, Mr. Campbell and some friends went to a block party on Edgecombe Avenue between 142nd and 145th Streets. (Tr. 264-66). In the early evening, Mr. Davis and his brother approached Mr. Campbell, and the petitioner grabbed the medallion hanging on the chain around Mr. Campbell's neck. (Tr. 335-36, 387-88, 513-14). A fight ensued, and Mr. Davis pulled a gun from his pocket and began firing. (Tr. 269-70, 373-74). He shot first at one of Mr. Campbell's friends who was holding him around the neck, but he missed. (Tr. 270-71, 339-41). He then shot at Mr. Campbell, hitting him. (Tr. 341, 417-18, 495-96). When Mr. Campbell fell, Mr. Davis knelt beside him and shot him in the back of the neck. (Tr. 272-73). The petitioner then fled. (Tr. 518).
The police arrived at the scene, and Mr. Campbell was transported to Harlem Hospital where he died. (Tr. 309-11). The autopsy revealed that he had been shot five times.
On May 21, 1995, Mr. Davis was arrested at his apartment. (Tr. 623, 669). The police, who were executing an arrest warrant for someone else, found the petitioner hiding in the closet in his underwear. (Tr. 628, 667, 669). When questioned, he initially gave a false name and date of birth. (Tr. 628-30).
Following his arrest, Mr. Davis was represented by Jesse Berman. After the petitioner was indicted, however, Mr. Berman was replaced as Mr. Davis' attorney by Steven F. Pugliese. Mr. Pugliese moved to dismiss the indictment on the ground that Mr. Berman had failed to advise the petitioner of his right to testify before the grand jury. (Appendix in Support of Answer Opposing Petition for a Writ of Habeas Corpus ("Appendix"), Exh. C). In support of that motion, Mr. Pugliese submitted an affirmation in which he asserted that Mr. Berman said he could not remember whether he had advised Mr. Davis of his right to appear before the grand jury. (Appendix, Exh. C ¶ 6).
A hearing on this motion was held before the Honorable Allen G. Alpert on September 7, 1995. At that hearing, Mr. Berman testified that he first met with Mr. Davis when he was assigned the case in the Arraignment Part of New York Criminal Court. (H. Tr. 4-5). At that time, although he did not detail for the petitioner all of the mechanics of a grand jury appearance, he did tell him that he was entitled to testify. (H. Tr. 11). Because Mr. Davis had given a statement to the police but would not receive a copy of it prior to any grand jury appearance, Mr. Berman counseled him not to testify before the grand jury lest he be impeached with the earlier statement. (H. Tr. 7-8, 11-12).
"H. Tr." refers to the transcript of the hearing on Mr. Davis' motion to dismiss the indictment.
Mr. Davis also testified at this hearing. At times he stated that Mr. Berman had told him nothing whatsoever about the grand jury. (H. Tr. 28-30). At other times, however, the petitioner testified that Mr. Berman had explained that the grand jury was a "bunch of people" who would "hear [his] side of the story." (H. Tr. 31-32). In addition, Mr. Davis testified that when Mr. Berman informed him that he had been indicted, he was shocked because he "thought [he] had a chance to speak." (H. Tr. 33).
After hearing the evidence, Justice Alpert denied the petitioner's motion to dismiss the indictment. He credited Mr. Berman's testimony and found that, as a matter of fact, he did advise Mr. Davis of his right to appear before the grand jury. (H. Tr. 52-54, 56). Justice Alpert found the petitioner's testimony to be incredible, noting the inconsistency between Mr. Davis' assertion that his attorney had not informed of his right to testify and the petitioner's professed surprise at having been indicted without having had the chance to speak to the grand jury. (H. Tr. 54-56). Finally, Justice Alpert held that even if Mr. Berman had not told the petitioner of his right to testify, this would not have been constitutionally ineffective assistance. (H. Tr. 56).
Prior to trial, Mr. Pugliese also filed a supplemental affirmation seeking a Wade hearing before the Honorable Richard Andrias to determine whether a witness' identification of Mr. Davis had been tainted by suggestive procedures. (Supplemental Affirmation of Steven F. Pugliese dated Nov. 20, 1995 ("Pugliese Supp. Aff."), attached as Exh. H to Appendix). Mr. Pugliese argued that the witness had been shown potentially suggestive photo arrays, including one using a picture from the petitioner's high school yearbook. (Pugliese Supp. Aff. ¶ 2). The prosecution responded that no hearing was appropriate because the witness in question had previously known Mr. Davis and was simply shown the yearbook photo and the array to confirm that the right person was arrested. (Affirmation of David Drucker dated Nov. 27, 1995, attached as Exh. I to Appendix). Justice Andrias agreed. He found that the witness had known the petitioner for a year and was shown the photograph only as confirmation; consequently, he denied the request to hold a Wade hearing. (Respondent's Affirmation in Response to Petitioner's April 22, 2001 Letter, Exh. 3).
United States v. Wade, 388 U.S. 218 (1967).
The case then proceeded to trial before the Honorable Nicholas Figueroa. Several eyewitnesses testified that Mr. Davis shot Mr. Campbell as described above. The petitioner then took the stand and presented his version of the events. He contended that it was the victim who drew a gun. Mr. Davis then wrestled it away from him and threw it into the crowd, after which someone else fired the fatal shots. (Tr. 608-10). In summation, Mr. Drucker, the prosecutor argued:
People are basically self-motivated, self-interested. People do what is good for them; all people do that.
If you have something to gain by coming here and telling you, to make up a story and think they could get away with it, anybody would do it. But if someone has nothing to gain, nothing to lose by just telling the truth, then anybody is capable of just telling the truth.
(Tr. 709). The prosecutor went on as follows:
Now, you might think coming into a case that the key part of the case, if it happens, is the defendant testifying. When he testifies that's when we're going to know in any case if he's guilty or not; that's the key. Most cases just the opposite is true. Most cases you learn very little from the defendant's testimony.
MR. PUGLIESE: Objection to that.
THE COURT: Overruled.
MR. DRUCKER: Simply put, a defendant, any defendant, is not here just to tell you the truth, the whole truth, and nothing but the truth, wherever it happens to land. The defendant is here on the witness stand to help himself, to help beat the case. It's common sense —
MR. PUGLIESE: Objection, Your Honor.
THE COURT: Overruled.
MR. DRUCKER: It's a common sense argument, take it for what it's worth certainly. In each case what a defendant will say will differ depending on the circumstances. But basically in essence —
THE COURT: Talk about this case, Mr. Drucker, not other cases.
MR. DRUCKER: I'm trying to give an analogy, if I could.
THE COURT: No. Other cases aren't before this jury, and the jury should regard the argument accordingly. Other cases are not in evidence.
MR. DRUCKER: I suggest that the defendant got up on the witness stand, if he was innocent of these charges, he would get up there and say, I'm innocent and I didn't do it. If he was guilty he would get up there and say the same thing, I'm innocent, I didn't do it. Whatever the fact is, guilty or innocent, he's going to say the same thing, he's going to say that he didn't do it. Whatever way he thinks will best help his case, which is why what he says —
MR. PUGLIESE: I'm objecting to that.
THE COURT: Yes, yes, I'll instruct the jury that the prosecutor's estimate or his judgment of the credibility of the defendant should not be made known to you. That's his own personal view, and he's not a fact finder here.
Therefore, he should not be influencing or attempting to influence fact finders with his own personal view of the defendant's credibility or for that matter bona fides, good faith, while testifying before you. That's only your opinion and that should not be made to the jury. So disregard that argument.
(Tr. 710-12). Later, the prosecutor suggested that there was "almost too much evidence" against Mr. Davis. He said, "Guilt is really too clear. I mean, there is [sic] six witnesses. Believe me, murder cases don't have six eyewitnesses." (Tr. 728). When defense counsel objected "as to most murder cases," the court overruled the objection. (Tr. 728).
After the summations were completed, Justice Figueroa excused the jury and told counsel that he considered the prosecutor's argument to be improper to the extent that it suggested that Mr. Davis should not be believed because all criminal defendants deny guilt. Justice Figueroa stated:
I think that it's improper because we're dealing here with an individual defendant who has a right to have his testimony considered fairly and impartially and as an individual. I think your over generalization really just negates a fair consideration of the defendant's testimony.
(Tr. 751). The judge then indicated that he would provide a curative instruction:
The fact that [the prosecutor] made references to defendants in other cases, and made the general statement to the effect that when a defendant testifies, that of course he's going to deny guilt.
That is an improper argument. Because when a defendant testifies he testifies as an individual and not in comparison with all the other defendants. He has a right to have his testimony considered fairly and impartially by the fact finders, yourselves[,] in the context of this trial, and not considered in terms of generally as to other defendants.
(Tr. 753-54). Defense counsel agreed that this charge was appropriate, and the prosecutor asked that it be balanced with a reminder that the jury could consider the petitioner's interest and motive in evaluating his testimony. (Tr. 754). Thereafter, the court recalled the jury and provided the following instruction:
Let me just bring one matter to your attention. That is that the fact that . . . the prosecutor may have referred to defendants generally as a class, as a general proposition, to the effect that when a defendant testifies of course he is going to deny guilt, because what other reason would he have to testify but to deny guilt.
That I think is an improper argument. Because when a defendant testifies, he testifies as an individual and not as a member of a class in comparison to other defendants. He has a right to have his testimony considered fairly and impartially by the fact finders, yourselves[,] in the context of the issues present at this trial, and not in terms of other defendants generally.
When a defendant testifies, of course he will probably generally deny guilt, but that doesn't mean that his testimony should not be considered. When you have a defendant who is innocent, he also may deny guilt as will a guilty defendant. That does not mean that generally all defendants deny guilt, therefore it puts an onus on his testimony.
Do you get what I'm trying to say? You have to consider a defendant's testimony fairly and impartially, and not consider him as part of a class that always denies guilt. Because the defendant may be innocent and that, that's the nub.
So that's why I thought it was improper argument. I don't know whether you would take it as a general proposition or what you would so with it, but I thought it was important enough to bring to your attention.
Consider the defendant's argument as an individual in the context of the issues of this trial. Now, this is not in any way to suggest that you should ignore motivations of a witness relative to the content of his testimony. I say that generally in reference to any witness, including defendants. You can always consider the motivations for a witness' testimony . . . .
(Tr. 755-57). Defense counsel objected again, stating, "Judge, I was under the impression that you were going to read the curative charge that we had drafted in the jury room. I would prefer that that had been done. And what you just told the jury I'm objecting to in general." (Tr. 757). Asked to specify, Mr. Pugliese said, "[w]ell, it's just the references again to whether the defendant is innocent or not, or discussing any type of discussion regarding guilt because he testifies." (Tr. 758). Justice Figueroa rejected these objections and proceeded to charge the jury.
Following deliberations, the jury convicted Mr. Davis of Murder in the Second Degree, N.Y. Penal Law § 125.25(1), Attempted Murder in the Second Degree, N.Y. Penal Law §§ 110.00, 125.25(1), Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03, and Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02(4). He was sentenced to concurrent indeterminate prison terms of eighteen and one-half years to life on the murder count, five to fifteen years on the attempted murder count, three to nine years on the second degree weapons count and two to six years on the third degree weapons count.
Mr. Davis then appealed to the Appellate Division, First Department. His court-appointed attorney argued a single point: that he had been deprived of a fair trial when, in summation, the prosecutor belittled his right to testify and vouched for the strength of the prosecution case. (Appendix, Exh. M). Mr. Davis submitted a supplemental pro se brief, contending that he had been denied effective assistance of counsel because his first attorney had failed to advise him of his right to testify before the grand jury and that he had been deprived of due process when the court rejected his suppression motion without a hearing. (Appendix, Exh. O).
On July 1, 1999, the Appellate Division affirmed the petitioner's conviction. People v. Davis, 263 A.D.2d 351, 691 N.Y.S.2d 773 (1st Dep't 1999). It found that "[b]y failing to make specific objections, [the petitioner] has not preserved his current challenge to the prosecutor's summation and to the suitability of the court's curative instruction." Id. at 351, 691 N.Y.S.2d at 773. The court went on to hold that if it were to consider this claim on the merits, it would hold that the curative instructions prevented any prejudice. Id. at 351, 691 N.Y.S.2d at 774. Finally, the court summarily rejected the claims that Mr. Davis had presented in his pro se brief. Id. at 351, 691 N.Y.S.2d at 774. On August 30, 1999, the New York Court of Appeals denied leave to appeal. People v. Davis, 93 N.Y.2d 1017, 697 N.Y.S.2d 575 (1999) (table). Mr. Davis then filed the instant petition for a writ of habeas corpus.
Discussion A. Assistance of Counsel
Mr. Davis' claim of ineffective assistance of counsel fails for at least two reasons. First, it is predicated on the factual assertion that his first attorney, Jesse Berman, never advised him of his right to testify before the grand jury. This allegation is contrary to the state court finding, which is entitled to a presumption of correctness.
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C. § 2254(e)(1). See also Morris v. Reynolds, 264 F.3d 38, 47 (2d Cir. 2001); Leslie v. Artuz, 230 F.3d 25, 31 (2d Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1206 (2001). Thus, the petitioner can overcome the state court's finding only if "the material facts were not adequately developed at the state court hearing or the court's factual determinations are not fairly supported by the record." Morris, 264 F.3d at 47 (quotation and citation omitted). Neither condition is met here. Justice Alpert held a full hearing at which both Mr. Davis and Mr. Berman testified. Moreover, the record fully supports the state court's finding: Justice Alpert merely credited Mr. Berman's testimony over that of the petitioner.
Second, even if Mr. Davis could establish the factual predicate for his claim, he cannot demonstrate that he was prejudiced by the actions of his attorney. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that counsel's performance was deficient and that the attorney's errors prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700. In general, an error in grand jury proceedings is necessarily rendered harmless by a trial jury's subsequent finding of guilt beyond a reasonable doubt. See United States v. Mechanik, 475 U.S. 66, 70 (1986). Accordingly, "[i]f federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court." Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). Certainly, that is true in this case, where Mr. Davis' testimony at trial was disbelieved by the petit jury, and there is no reason to believe that the grand jury would have found him more credible. Since the evidence against him was overwhelming and the grand jury need only find probable cause in order to indict, there is no reasonable likelihood that the outcome would have been different had the petitioner been advised of his right to testify. Therefore, he suffered no prejudice and was not deprived of constitutionally effective counsel. See Saldana v. State of New York, 850 F.2d 117, 119-21 (2d Cir. 1988); Boyd v. Hawk, 965 F. Supp. 443, 451 (S.D.N.Y. 1997); Velez v. People of the State of New York, 941 F. Supp. 300, 316 (E.D.N.Y. 1996).
B. Denial of a Wade Hearing
Mr. Davis' claim that he was deprived of due process because he was denied a Wade hearing is also without merit. There is no general constitutional requirement that the admissibility of identification testimony be determined prior to trial outside the presence of the jury.Watkins v. Sowders, 449 U.S. 341, 349 (1981). Rather, "the reliability of the identification evidence can be ensured through the `time-honored process of cross-examination' — `the device best suited to determine the trustworthiness of testimonial evidence.'" United States v. Ruggiero, 824 F. Supp. 379, 396 (S.D.N.Y. 1993) (quoting Watkins, 449 U.S. at 349); see also James v. Senkowski, No. 97 Civ. 3327, 1998 WL 217903, at *7-8 (S.D.N.Y. April 29, 1998); Garcia v. Kuhlman, 897 F. Supp. 728, 730-31 (S.D.N.Y. 1995).
Although there may be some circumstances where a Wade hearing is constitutionally required, see Watkins, 449 U.S. at 349, this is not such a case. Each of the witnesses was acquainted with the petitioner, and Mr. Davis acknowledged being at the scene and having an altercation with the victim. (Tr. 606-10). His defense was not one of misidentification, but of credibility. The jury simply had to determine whether to credit the testimony of prosecution witnesses that Mr. Davis shot the victim or the petitioner's testimony that someone else fired the gun. Thus, when a witness was shown a photo array including a yearbook picture of the petitioner, the identification was merely confirmatory. This is not the exceptional circumstance where a pretrial suppression hearing is constitutionally required.
C. Prosecutorial Misconduct
Finally, Mr. Davis argues that the prosecutor's summation denied him a fair trial by undermining his right to testify and by bolstering the testimony of prosecution witnesses. However, the Appellate Division found that the petitioner had not preserved these issues for appeal, and the respondent now contends that they may not be reviewed on the merits.
When a state court judgment rests on adequate and independent state law grounds, including a petitioner's failure to meet state procedural requirements, a federal court may not consider the petitioner's substantive claims. See Coleman v. Thompson, 501 U.S. 722, 728-30 (1991); Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000). Here, the Appellate Division implicitly relied on such a ground, New York's contemporaneous objection rule. See N.Y. Crim. Pro. Law § 470.05(2). The fact that the Appellate Division ruled in the alternative that the petitioner's claim was meritless does not alter the effect of any procedural default. See Fama v. Commissioner of Correctional Services, 235 F.3d 804, 810 n. 4 (2d Cir. 2000); Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996).
However, there is some doubt in this case whether the Appellate Division's ruling was "adequate." Mr. Davis' attorney did, in fact, object to the prosecutor's statements on summation. When the court proposed curative instructions, counsel agreed. However, when the instructions actually given deviated from those the judge had articulated, Mr. Davis' attorney again objected. At that stage, his objection was indeed general in the sense that he did not identify the differences between the proposed charge and the actual charge that he considered prejudicial. On the other hand, he had previously voiced his concerns about the prosecutor's comments with sufficient particularity. At lease one court has rejected a procedural default defense under similar circumstances. See Fagon v. Bara, 717 F. Supp. 976, 985-87 (E.D.N.Y. 1989) (procedural bar defense "utterly specious" where court denied mistrial, defense counsel sought and received curative instruction, and defendant nevertheless pressed claim of prosecutorial misconduct). It is therefore appropriate to proceed to the merits.
The prosecutor's suggestion that Mr. Davis' testimony should be disbelieved because defendants who are guilty always proclaim their innocence may not have been improper at all. See Portuondo v. Agard, 529 U.S. 61, 70-73 (2000) (finding no impropriety in prosecutor's "generic" comments about defendant's credibility). In any event, Justice Figueroa's curative instructions pointed out that Mr. Davis should be considered individually and that his testimony should be evaluated on its own merits, not on the basis of what criminal defendants might do "generally." (Tr. 755-57). See Moreno v. Kelly, No. 95 Civ. 1546, 1997 WL 109526, at *6 (S.D.N.Y. March 11, 1997) (court's instruction sufficient to cure prosecutor's statement that defendant was a coward for failing to admit to crimes). Nor was it inappropriate for Justice Figueroa to balance his curative charge by noting that the jury could consider a witness' interest when evaluating credibility. (Tr. 757). See Agard, 529 U.S. at 73. Finally, the prosecutor's comments about the credibility of the witnesses and the strength of the case were not bolstering; they were fair rebuttal to challenges by defense counsel.
A prosecuting attorney is not an automaton whose role in summation is limited to parroting facts. . . . He is an advocate who is expected to prosecute diligently and vigorously, albeit without appeal to prejudice or passion.Evans v. Artuz, 68 F. Supp.2d 188, 204 (E.D.N.Y. 1999) (quoting United States v. Wilner, 523 F.2d 68, 74 (2d Cir. 1975)). Thus, the prosecutor's summation did not deny Mr. Davis a fair trial.
Conclusion
For the reasons set forth above, I recommend that Mr. Davis' petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard C. Casey, Room 1950, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.