Opinion
09 Civ. 5838 (SAS) (KNF).
June 11, 2010
REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Todd Johnson's ("Johnson" or "the petitioner") pro se petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. Johnson contends his confinement by New York State is unlawful because: (1) the prosecution failed to establish, at the pretrial Mapp/Dunawav hearing, that probable cause existed for Johnson's arrest; (2) the trial court erred, by failing to respond to a jury request, during its deliberation, for "all the evidence pertaining to the case"; and (3) the trial court consolidated improperly: (a) an indictment ("first indictment") charging Johnson and a co-perpetrator with two counts of second-degree robbery, for committing a robbery while aided by another and causing physical injury to a non-participant during the robbery; with (b) an indictment ("second indictment") charging both Johnson and his co-perpetrator with fifth-degree criminal possession of stolen property for possessing metrocards that were purchased with a credit card stolen from Raul Ruiz ("Ruiz"), which were recovered during a search incident to their arrest for the robbery charged in the first indictment. Respondent opposes the petitioner's application for the writ, which is analyzed below.
A hearing held pursuant to Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961), is used to determine whether evidence was obtained in violation of a criminal defendant's Fourth Amendment right to be free from an unreasonable search and seizure. A hearing held pursuant to Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979), is used to determine whether probable cause existed to arrest a criminal defendant.
II. BACKGROUND AND PROCEDURAL HISTORY
On December 14, 2004, Phil Simmons ("Simmons") was walking on West 36th Street, in Manhattan, when three men approached him. One of the men punched him, and the three men took three $50 bills and a "metrocard" from him. Michael Wright ("Wright"), who was inside of a van located nearby, witnessed the assault and robbery, and proceeded to follow the perpetrators as they fled the scene. As he trailed the perpetrators in his van, Wright approached a police precinct, from where he saw four persons exit, some of whom got into an unmarked vehicle. As he continued to watch the perpetrators, Wright pulled alongside the unmarked vehicle and asked the occupants if they were police officers. When he learned that they were officers, Wright reported that the "three dark males" who were walking together on the sidewalk-and were within their view-had "just robbed the guy down on 36th Street and Dwyer [Avenue]." The officers attempted to stop the three men, by driving their vehicle beyond the men, and then exiting the vehicle, identifying themselves as police officers, and asking the men to stop. One of the men surrendered to the police; the other two-one of whom was later identified as the petitioner-fled. Two police officers pursued these men, and, when the perpetrators ran in different directions, one officer-Joseph Gallagher ("Gallagher") — continued to pursue the petitioner.
Meanwhile, as Gallagher chased Johnson, another officer transmitted a description of the petitioner over a police radio. Police Officer Michael Carey ("Carey") was in the vicinity of the chase. He heard the radio transmission and approached the area where the perpetrator had fled. He observed someone who fit the description that had been broadcasted, and stopped and arrested the individual. The person he arrested is Johnson. Carey searched Johnson and recovered three metrocards and one $50 bill. It was later discovered that two of the metrocards had been purchased with a credit card stolen from Ruiz. Ruiz had been robbed four days earlier, by unknown persons, in the same neighborhood where the Simmons robbery occurred.
On December 28, 2004, the first indictment was filed with the court and on May 17, 2005, the second indictment was filed with the court. The prosecution moved to consolidate these indictments, pursuant to New York Criminal Procedure Law ("CPL") § 200.20(2)(b), based upon the assertion that, because the metrocards recovered from Johnson were purchased with a credit card stolen from Ruiz days earlier, in the vicinity of where Simmons was robbed, the two cases were "not just similar in facts, they were part of a continuum, and a jury should hear them as such." Johnson opposed this motion, stating that consolidation would be unduly prejudicial and his possession of the metrocards bought with Ruiz's credit card was unconnected to the robbery of Simmons. In October 2005, the New York State Supreme Court, New York County, ordered the indictments consolidated, finding that "evidence of the recovery of the metrocards is closely related to the evidence of the robbery" and "proof of possession of the metrocards is admissible to reveal the circumstances surrounding the arrest and to complete the narrative."
A pre-trial Mapp/Dunaway hearing was held, at which Gallagher testified that, at 10:45 p.m., on December 14, 2004, he was inside an unmarked police car, which was parked on the north side of West 36th Street, outside the Midtown South Precinct, in Manhattan. Officer "Friel," Gallagher's partner, was in the driver's seat of the car. Gallagher testified that a white van "pulled up right next" to his police vehicle, and an individual later identified as Wright "informed [Gallagher] that the three male blacks who just walked past the car on [Gallagher's] left side . . . just robbed someone down the block." Gallagher and Friel followed the three men, drove past them and parked their vehicle, "got out [of their vehicle] and identified [them]selves as police officers and ordered [the three men] to freeze and get down on the ground." One of the men "got on his knees"; the other two "took off running westbound on the north side of 36th street." Gallagher chased the men who fled; however, when the two men split, and ran in different directions, Gallagher continued to chase only one of them. Meanwhile, Friel "went on the radio that we were in foot pursuit," and provided a description of the appearance and clothing of the man Gallagher was chasing.
Gallagher ran to the corner of 36th Street and Ninth Avenue, where he turned northbound, to continue the pursuit, and then turned eastbound on 38th Street, still following one of the perpetrators. Gallagher observed "another plain clothes officer running westbound" on 38th Street, and Gallagher "yelled to the officer that that's him, stop," and the "plain clothes officer grabbed him and put him against the wall." Gallagher learned later that the plain clothes officer was Michael Carey ("Carey"). Gallagher investigated the robbery. He interviewed Simmons, who informed Gallagher that three $50 bills and a metrocard were taken from him. Gallagher vouchered the property recovered from Johnson, which consisted of one $50 bill, two $1 bills, one $2 bill, and three metrocards. Gallagher testified that, at 10:45 p.m. on December 14, 2004, West 36th Street was "desolate," and, "West 38th Street[,] where [he] saw Officer Carey and [Johnson]," was also deserted, as "no one [was] on the block."
Carey also testified at the Mapp/Dunaway hearing. Carey recalled that, on December 14, 2004, at approximately 10:45 p.m., he was at a delicatessen, on the corner of West 38th Street and Eighth Avenue, in Manhattan, on a "meal break." Carey was not wearing a police uniform. After he placed his order, Carey observed two uniformed police officers "come running down the stairs [of the delicatessen] with their radios out," which prompted Carey to "turn [his] radio['s volume] up and heard an officer yelling that he needed assistance, and there was a foot pursuit just a few blocks away." Carey stated that, as he ran toward Ninth Avenue, he heard a description of the person being pursued on his police radio, and soon "saw someone fitting the description running towards my direction." Carey and his partner, Police Officer Keith Stylenos ("Stylenos"), stopped this individual, and Gallagher "came running around the corner pointing at the person that [was] stopped, yelling that's him, cuff him." Carey recovered $54 from Johnson-one $50 bill, "two singles," and one $2 bill-as well as three metrocards, which he gave to Gallagher to voucher, since Gallagher was the arresting officer.
At the conclusion of this testimony, defense counsel asserted that the police lacked probable cause to arrest Johnson, since there was never any "identification of Mr. Johnson by any alleged victim in this case." Defense counsel stated that, Wright's description that "those three guys were involved in a robbery" provided no information that was "particular about Mr. Johnson being involved in the taking of any property." Moreover, according to Johnson's defense counsel, the totality of the testimony demonstrated that insufficient information to establish probable cause existed "to begin that foot pursuit and to ultimately place Mr. Johnson under arrest, and therefore the seizure of the property from Mr. Johnson are the fruits of an illegal arrest," and should be suppressed. The prosecution countered by stating that: (i) Carey was confronted with an individual matching the description provided over his police radio; (ii) the individual was being chased by Gallagher; and (iii) probable cause existed to stop Johnson and, thereafter, arrest him. The court found that the search was made pursuant to a lawful arrest, and denied Johnson's motion to suppress.
On March 23, 2006, the trial commenced. Gallagher and Carey proffered testimony in conformity with their testimony at theMapp/Dunaway hearing. In addition, Simmons testified that, on December 14, 2004, at approximately 10:45 p.m., he was walking on West 36th Street, between Ninth and Tenth Avenues, when three men, one of whom punched his face, robbed him of $150-in the form of three $50 bills- and a metrocard. Simmons testified further that the three men "were all wearing hoods that were either black or dark blue, long sleeved, and dark pants," and "were all African American," and were in their "mid teens to 20." After the robbery, Simmons entered his apartment building-since the robbery occurred immediately outside it- and "dial[ed] 911." Wright testified that he observed a robbery from his parked van, followed the perpetrators, and informed individuals-whom he believed to be undercover police officers — that three men within their view had committed a robbery.
Ruiz testified that, on December 10, 2004, at approximately 9:20 p.m., in the vicinity of Tenth Avenue and 30th Street, a "bunch of guys jump[ed] at [him], and only one hit [him] real hard, and in a matter of seconds, [his] face was swollen," and he was bleeding and fell over. As a result of the fall, Ruiz suffered a broken elbow. The men took his wallet, which contained his credit card.
Dr. James Eastman ("Eastman"), a senior director with the New York City Transit Authority, who was responsible for "security of metrocards," appeared as a witness for the prosecution. He explained that "[t]he metro card . . . is a card with a magnetic strip, and on the back of it is a serial number, and that serial number is encoded on the magnetic strip. And so every[]time you use it successfully . . ., a record is made of that transaction, and it connects it with that serial number." Eastman stated that, when a metrocard is purchased via a credit card, he is able to "keep track of the credit card number that was used to purchase the metro card," as well as "where the purchase took place, what time it took place, . . . and all that information is maintained in a big computer." Eastman testified, as follows, about three metrocards that were purchased using the same credit card: (1) on December 11, 2004, a metrocard was purchased at a vending machine located at West 34th Street, Pennsylvania Station; (2) on December 11, 2004, a metrocard was purchased from the same vending machine, a few seconds after the purchase of the first card; and (3) on December 13, 2004, a metrocard was purchased at a location on West 42nd Street and Seventh Avenue. The credit card used to purchase these metrocards belong to Ruiz.
Johnson testified on his own behalf. He explained that, on December 14, 2004, he attended a writing class in the morning and then traveled from Manhattan to the Bronx, to visit his ex-girlfriend. After visiting for four or five hours, Johnson returned to Manhattan, via subway, and exited the subway, using the station located at West 42nd Street, in Times Square, "[a]round ten or eleven" that evening. At the time, Johnson was living at Covenant House, which he described as a place where teenagers could live and receive assistance obtaining jobs and housing; it is located at 440 West 44th Street, in Manhattan. Johnson asserted that he was carrying three metrocards with him, one of which he bought "from a Puerto Rican kid on 42nd Street at the machine," for "half the price." Johnson recognized the seller of the card, because he too lived at Covenant House. Johnson stated that, the day after he bought this metrocard, the "Puerto Rican kid" was removed from Covenant House, and Johnson moved into the room this person had inhabited. Johnson found an additional metrocard in his new room. Johnson alleged he purchased the third metrocard.
Johnson recalled that, at the time he was stopped by police officers, on December 14, 2004, he was on his way to a delicatessen, located on West 38th Street, to purchase a sandwich, before he returned to Covenant House. As he walked east on West 38th Street, toward the delicatessen, he saw individuals carrying radios, whom he believed were police officers. One of the officers approached Johnson and told him he "fit the description and [the officer] would have to hold [him]." The police officers then took Johnson's "New York State ID, [] Benefit Card, [] Social Security Card, [] paychecks, [] birth certificates, and [] G.E.D. results," as well as three metrocards and $54. Johnson stated he was not with anyone else, at the time he was arrested, and the first time he saw Simmons was at trial. Johnson testified that he did not rob Simmons.
After closing arguments were given by the parties, the trial judge instructed the jury, and the jury began to deliberate. After the jury left the courtroom, the trial judge asked the prosecution and defense counsel whether they "consent[ed] to the exhibits being brought into the jury room if [the jurors] request them." The attorneys responded affirmatively. After the jury deliberated for several hours, the trial judge noted on the record that: "it is now 5:26 p.m., the jury has been deliberating since 1:30 without any communication. Now at 5:21, I received a note saying the jury has not reached a decision." The jury was brought into the courtroom, and the trial judge stated "We received your note at 5:21 p.m. stating, 'The jury has not reached a decision,' signed by . . . the foreperson." The trial judge relieved the jury from deliberating further that day, and instructed the jurors when to next report to continue their deliberations.
Shortly after the jury resumed deliberating, the court received a note stating: "'The jury would like to re-hear the elements on all the charges.'" The court responded to this note by "advis[ing] them of all of the elements of the four charges." The jury then resumed its deliberations. Later that day, another note was received, by the court, from the jury, which read: "'We request the jurors to be read Phil Simmons['] testimony regarding the extent of his injury and his associated physical impairment.'" When the jury was brought into the courtroom, the court reporter read the portion of Simmons' testimony, to the jury, that was responsive to this question. In the early afternoon, the trial judge received a note indicating that the jury had reached a verdict. The jury found Johnson guilty for one count of second-degree robbery.
Johnson appealed, raising the following claims: (1) the prosecution failed to show, at the pre-trial Mapp/Dunaway hearing, that probable cause existed for his arrest; (2) the trial court committed reversible error, when it "utterly failed" to respond to a jury note requesting "all evidence"; and (3) Johnson's right to due process was violated, when his indictment was consolidated with another. In December 2007, the New York State Supreme Court, Appellate Division, First Department, rejected Johnson's claims. In relation to Johnson's probable cause claim, the court stated:
The close and difficult question presented on this appeal is whether the more reasonable inference is that the informant spoke from personal knowledge when he reported that defendant and his companions had "just robbed someone down the block. . . ." To be sure, the informant's account lacked any detailed description of the alleged robbery from which it might be inferred that he had seen it. . . . Nonetheless, as between the only two possibilities-the informant saw the robbery occur moments before or was told the robbery occurred moments before-the more reasonable conclusion under all the circumstances, including that the informant stopped his vehicle to make his report to individuals he believed to be police officers, is that the informant was reporting what he had just seen rather than what he had just been told. Accordingly, we find that the record provided sufficient basis to conclude that the informant's statement was based on personal knowledge and provided the officers with probable cause to arrest defendant.People v. Johnson, 46 A.D.3d 415, 416, 848 N.Y.S.2d 103, 104-05 (App. Div. 1st Dep't 2007) (internal citations omitted).
Johnson's claim relating to the trial court's treatment of a jury note was rejected, since "defendant failed to make a record in the trial court that is sufficient to permit appellate review." Id. at 416, 848 N.Y.S.2d at 105. In any event, the Appellate Division found that, in light of the agreement between the parties — permitting the court to provide exhibits to the jury upon request — the jury's request for "evidence" was properly construed as a "ministerial" request for exhibits. The Appellate Division noted that "the jury's request for 'evidence' was never reiterated, and the jury subsequently requested a limited readback." Id. at 417, 848 N.Y.S.2d at 105.
Johnson's challenge to the consolidation of the indictments was unavailing, since the Appellate Division found that Johnson did not raise this claim before the trial court; therefore, it was unpreserved for appellate review. Id. at 416, 848 N.Y.S.2d at 105. Even considering the merits, the Appellate Division found that the "proof of each crime was easily segregable in the minds of the jurors," and "the trial court did not improvidently exercise its discretion in ordering the consolidation of both indictments pursuant to CPL 200.20(2)(b) and 200.20(4)." Id. at 417, 848 N.Y.S.2d at 106.
In January 2008, Johnson applied for leave to appeal to the New York Court of Appeals. On March 27, 2008, that application was denied. See People v. Johnson, 10 N.Y.3d 812, 857 N.Y.S.2d 46 (2008).
The instant application for a writ of habeas corpus followed.
III. DISCUSSION
Fourth Amendment Claim
Johnson asserts that the prosecution did not establish probable cause for his arrest, at the pre-trial Mapp/Dunaway hearing, since "they did not demonstrate the civilian informant's basis of knowledge for his [sic] relied exclusively on this tip in pursuing appellant," in violation of his Fourth Amendment rights.
Where a state has a mechanism for adjudicating a Fourth Amendment claim, like the petitioner's claim concerning probable cause for his arrest, habeas corpus review of the claim is precluded. In Stone v. Powell, 428 U.S. 465, 481-82, 96 S. Ct. 3037, 3037 (1976), the United States Supreme Court held that, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." In this judicial circuit, federal courts can review the Fourth Amendment claims made by state habeas corpus petitioners only in one of two instances: "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).
CPL §§ 710, et seq., provide a procedure for litigating Fourth Amendment claims. In the case at bar, the trial court provided Johnson a full and fair opportunity to litigate, inter alia, the claim that the police lacked probable cause for his arrest by relying on an unknown informant's tip, when it held a combined Mapp and Dunaway hearing. Since Johnson does not allege he was precluded from using the procedure New York provides for challenging the legality of the arrest, due to an unconscionable breakdown in the underlying procedure, the Court finds Johnson's claim, that the police lacked probable cause for his arrest, is not cognizable in this habeas corpus proceeding.
Improper Consolidation of Indictments
"[I]t 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, 112 S. Ct. 475, 480 (1991). "Improper joinder does not, in itself, violate the Constitution"; "[r]ather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." United States v. Lane, 474 U.S. 438, 446 n. 8; 106 S. Ct. 725, 730 n. 8 (1986).
Under New York law, indictments may be consolidated and offenses joined when, inter alia, "[e]ven though based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first." CPL § 200.20(2)(b) (McKinney 2001). Pursuant to CPL § 200.20(4):
When two or more indictments against the same defendant . . . charge different offenses of a kind that are joinable in a single indictment pursuant to subdivision two, the court may, upon application of either the people or a defendant, order that such indictments be consolidated and treated as a single indictment for trial purposes. If such indictments, in addition to charging offenses which are so joinable charge other offenses which are not so joinable, they may nevertheless be consolidated for the limited purpose of jointly trying the joinable offenses.
The substance of Johnson's claim is that the trial court's determination to consolidate two indictments deprived him of a fair trial, because the evidence related to Ruiz's robbery was separate and distinct from the evidence related to Simmons' robbery. However, Johnson does not explain why CPL § 200.20(2)(b) does not capture the consolidation of two indictments-one involving the Simmons' robbery, and the other involving Johnson's possession of a metrocard purchased with Ruiz's stolen credit card, which was recovered from Johnson's person, after the Simmons' robbery. Therefore, it appears that the trial court's consolidation of the indictments was a proper exercise of its discretion, and Johnson has not shown that the court's determination to consolidate the indictments rendered his trial unfair fundamentally. See CPL § 200.20(2)(b); § 200.20(5) (McKinney 2001) ("A court's determination of an application for consolidation [under § 200.20(4)] is discretionary").
Response to Jury Note
Johnson contends the trial court committed "reversible error," when it "utterly failed to respond to a jury note that sought 'all the evidence pertaining to the case.'" Johnson notes that "the record establishes that the court did not even see the note, resulting in a complete failure to follow the required jury note protocol."
Although the respondent contends this claim is procedurally barred from federal habeas corpus review by its adjudication on an independent and adequate state-law ground, this does not appear to be the case. In People v. Kisoon, 8 N.Y.3d 129, 132, 831 N.Y.S.2d 738, 739 (2007), the New York Court of Appeals considered "whether a trial court committed a mode of proceedings error when it failed to disclose . . . a jury note." The court found that a trial court's "core responsibility" "is both to give meaningful notice to counsel of the specific content of the jurors' request . . . and to provide a meaningful response to the jury." Id. at 134, 831 N.Y.S.2d at 741. The court found that "a failure to fulfill the court's core responsibility is not" subject to the rules of preservation. Id. at 135, 831 N.Y.S.2d at 741. Therefore, although the petitioner's trial counsel did not object to the trial court's failure to respond to the jury's note for "all of the evidence," and the trial transcript does not make any reference to this note, under Kisoon, Johnson's jury note claim is not subject to preservation rules and, therefore, these omissions are not fatal to appellate review. Consequently, the Court proceeds to a merits review of this claim.
CPL § 310.30 provides that, during its deliberation, a jury may request further instruction or information from the court, and
[u]pon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. With the consent of the parties and upon the request of the jury for further instruction with respect to a statute, the court may also give to the jury copies of the text of any statute which, in its discretion, the court deems proper.
"A trial court's failure to respond to jury inquiries in whole or in part may, in some cases, be error." Jones v. Brown, No. 07 Civ. 0454, 2009 WL 2242444, at *7, 2009 U.S. Dist. LEXIS 65192, at *23-24 (S.D.N.Y. July 28, 2009). "All such cases inevitably turn on their precise circumstances." United States v. Young, 140 F.3d 453, 457 n. 2 (2d Cir. 1998).
In United States v. Bolden, 514 F.2d 1301 (D.C. Cir. 1975), andUnited States v. Jackson, 257 F.2d 41 (3rd Cir. 1958), the defendants' convictions were reversed because of "a trial court's total or partial failure to respond to jury inquiries[.]" Young, 140 F.3d at 457 n. 2. In Bolden, the defendant was convicted for felony murder when a security guard was killed in the course of a robbery of the store in which he was stationed. During its deliberation, the jury inquired, inter alia, whether, if it determined a robbery had been committed, "does this necessarily imply previous intent to commit a robbery?" Bolden, 514 F.2d at 1308. When the trial judge responded to this question, "the problems raised by [this] question . . . were not resolved by the court's further charge." Id. The District of Columbia Circuit determined that, "[w]hen the [trial] court refused to do anything more than reread the statute and the standard instruction, despite cogent requests from the jury and both government and defense counsel, it could well have left the jury with the incorrect impression that coincidence was sufficient to convict." Id. The Circuit Court found that the "denial of the requested instruction constitute[s] reversible error," and noted that, "[p]articularly where a difficult legal issue such as intent, which is not precisely defined by the statute, is the subject of the jury's inquiry, the trial court should carefully inform the jury of the law, and not allow the troubled jury to rely on a layman's interpretation of a superficially simple but actually complex statute." Id. at 1309.
In Jackson, William Jackson ("Jackson") was convicted for selling and concealing narcotics. During its deliberation, the jury inquired, by note, whether an informant was a government employee. The trial judge responded that he "did not remember," and the jury was "sent back to resume its deliberations without any answer to its question." Jackson, 257 F.2d at 42. After the jury resumed its deliberation, counsel and the court discussed the jury note further, and it was determined that the court would read a portion of the transcript identifying the informant as a paid government informer. See id. at 42-43. However, "[b]y the time the decision had been reached to let the jury have the information, that body had given notice that it had reached a verdict." Id. at 43. When the trial judge inquired whether the jury required an answer to its previous note, the foreman responded the jury was no longer in need of an answer. However, the Third Circuit Court of Appeals found "[t]hat the jury may be given information upon what a witness has said if it is possible to furnish it is well settled. . . . Usually the matter rests in the discretion of the court, . . . but in this particular situation we think the defendant was entitled to have the jury informed as a matter of right." Id. The Third Circuit explained:
The point of the jury's question was highly relevant. The court had just explained what entrapment was and on the matter of entrapment the question whether "Sarge" was a government employee was certainly something to be considered. In view of the circumstances present in this case, we think that the failure to permit the reading of the relevant testimony at a time when it would have been useful in the jury's deliberations created unfairness to the defendant.Id. at 43.
In the case at bar, the jury's note, requesting "all of the evidence," is distinguishable from the notes in Jackson andBolden, since, the jury note in the present case is extremely broad, and the jury notes described above relate to specific information. In addition, in the present case, no response was given to the jury. In Jackson and Bolden, the trial judges responded to the jurys' notes. However, in Jackson, the trial judge failed to provide the jury an opportunity to have relevant responsive testimony read to it, because of his poor recollection of the trial record, and, in Bolden, the trial judge gave an incomplete response that may have left the jury with an inaccurate impression of the law it was to apply. Since the jurors' questions in both Jackson and Bolden were pointed, precise questions, and the answers to each question would have a direct impact on jury deliberations and the outcome of the respective verdicts, both appellate courts found the inadequate responses to each jury's question was reversible error.
In the present case, the jury was not misinformed, nor was an impression made by the trial judge that might affect their deliberation-the jury continued to deliberate, based on its understanding and memory of the facts elicited at trial. The request for "all evidence" was extremely broad; and, the court's failure to provide the jury with a response to its note, while error, was not the type of error that would render the outcome untrustworthy or flawed. As noted above, the jury continued to deliberate, without a response, and, after submitting additional notes to the court seeking clarification of the elements of the charges and for readback testimony, reached a verdict. Without more, Johnson has not demonstrated that the trial judge's omission was of constitutional magnitude. See Henderson v. Kibbe, 431 U.S. 145, 153-54, 97 S. Ct. 1730, 1736, 36-37 (1977). As a result, this claim does not warrant habeas corpus relief.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Johnson's petition for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Shira A. Scheindlin, 500 Pearl Street, Room 1050, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Scheindlin. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985);IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).