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finding that defendant's presence during voir dire provided him opportunity to raise concerns about his waiver and therefore constituted knowing, voluntary, and intelligent waiver
Summary of this case from Davis v. GrahamOpinion
99 Civ. 11231 (HB)
June 29, 2001
OPINION ORDER
Pro se petitioner, Arkil Johnson ("Johnson") brings this petition for habeas corpus seeking relief from his conviction on June 12, 1996 on the following grounds: 1) that he was deprived of his due process rights as the sole eyewitness misidentified him and 2) that he was denied the right to be present at sidebar conferences during voir dire. For the following reasons, the petition is denied.
NaNa Park, an Intern in my Chambers during the summer of 2001, was of substantial assistance in the research and writing of this opinion.
PROCEDURAL HISTORY
On June 12, 1996, a jury convicted Johnson of murder in the second degree, and the court sentenced him to twenty years to life. On February 17, 1998, Johnson appealed to the New York Supreme Court Appellate Division on the grounds that his due process rights were violated at trial as there was insufficient evidence to establish guilt beyond reasonable doubt and that the court violated his statutory right to be present at sidebar conferences with prospective jurors. The Appellate Division unanimously affirmed Johnson's conviction on October 8, 1998, holding that the verdict was not against the weight of the evidence and that Johnson's waiver to sidebar conferences was knowing, intelligent, and voluntary. On November 6, 1998, Johnson applied for leave to appeal to the New York Court of Appeals. But, on December 11, 1998, that court denied Johnson's application. On November 12, 1999, Johnson filed the instant petition, pro se, seeking a writ of habeas corpus on the same grounds.DISCUSSION
I. Standard of Review
The Antiterrorism and Effective Death Penalty Act ("AEDPA") enacted in 1996 provides that a habeas petition will not be granted unless the state court decision: "(1) `was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or (2) involved an `unreasonable application of the facts in light of the evidence presented in the State court proceeding.'" Williams v. Taylor, 529 U.S. 362, 386(1999); see 28 U.S.C. § 2254.
In order to establish that a state court's decision is "contrary to" clearly established federal law, a habeas court must find either that "the state court arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or that "the state court confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent and arrive[d] at an [opposite] result."Williams, 529 U.S. at 405; see also Espejo v. Artuz, No. 98 Civ. 7130, 2000 U.S. Dist. LEXIS 18268, at *14 (E.D.N.Y. Dec. 18, 2000). To find that the state court engaged in an "unreasonable application" of the facts, a habeas court must find that the court unreasonably applied the correct law to the particular facts of the case. See Williams, 529 U.S. at 407. In making this determination, the reviewing court must "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409.
II. The Sufficiency of the Evidence
Johnson argues that the eyewitness, Benjamin Pacheco ("Pacheco"), did not offer credible evidence since Pacheco was under the influence of crack/cocaine at the time of the incident and provided inconsistent testimony.
A petitioner claiming insufficiency of evidence on habeas review bears a heavy burden as the reviewing court will not disturb the state court's conviction unless it finds that no reasonable trier of fact could have found the petitioner guilty. See United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on the defendant is very heavy and all inferences must be drawn in the government's favor); Martinez v. Artuz, No. 99 Civ. 5744, 2001 WL 540737, at *6 (S.D.N.Y., May 22, 2001) (holding that the state criminal conviction will be upheld if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"). In particular, a habeas court will not disturb the jury's findings with respect to a witness's credibility. See Martinez, 2000 WL 540737, at *6; Carromero v. Strack, No. 98 Civ. 3519, 1998 WL 849321, at *5 (S.D.N.Y. Nov. 19, 1998) ("The jury is exclusively responsible for determining witness credibility.") (citing United States v. Strauss, 999 F.2d at 696). Rather, a court "must draw all reasonable inferences and resolve all issues of credibility in favor of the verdict." Martinez, 2000 WL 540737, at *6; see also United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989) (holding that the evidence adduced at trial was sufficient to support an inference of defendant's knowledge of the crime).
Here, Johnson fails to meet this high standard. Johnson argues that the fact that Pacheco was using drugs at the time of the incident renders his testimony unreliable. Although it is, of course, correct that drug use can impair a witnesses' ability to recollect events accurately, this determination is properly left to the trier of fact. In this case, Johnson had ample opportunity and did in fact present evidence to the jury highlighting Pacheco's impaired state at the time of the incident. It was up to the jury to weigh this evidence with Pacheco's testimony and reach their own conclusion. I cannot say as a matter of law that no trier of fact could have found Pacheco's testimony convincing on this ground.
Johnson also contends that Pacheco's testimony at trial was inconsistent with his statements to the prosecutor. Once again, this determination must be left to the jury. Unless the court finds that no reasonable trier of fact could have concluded that the petitioner was guilty, the jury's determination regarding any inconsistencies in witness testimony must not be disturbed. See McCalvin v. Senkowski, No. 97 Civ. 2998, 2001 WL 336819 (S.D.N.Y. April 5, 2001); Ouartararo v. Hanslamaier, 186 F.3d 91, 96 (2d Cir. 1999) ("[I]nconsistencies [in the witnesses' testimony] were for the jury to resolve.").
Johnson complains of relatively slight inconsistencies between Pacheco's testimony at trial and his prior statements to the prosecutor. Specifically, Pacheco could not recall the type of gun used when the prosecutor interviewed him but at trial identified that gun as a black .38 caliber revolver. Pacheco further told the prosecutor that he heard all six shots before he turned around and saw the gunman but, at trial, testified that he heard three or four of the six shots after he turned around and saw the gunman. These inconsistencies do not warrant reversal. A jury could have determined that Pacheco's memory was triggered after the event allowing him to remember the make of the gun and the timing of the shots. Alternatively, they could have concluded that Pacheco simply misspoke in his initial conversation with the prosecutor as there was considerable confusion at the time of the incident. Moreover, Pacheco had known Johnson for approximately ten years prior to the incident and never expressed any doubts that he had correctly identified Johnson as the gunman. Thus, I cannot find that no reasonable trier of fact could have found Johnson guilty, and petitioner's claim must be dismissed.
Pacheco explained that he recognized the make of the gun used because his brother once owned the same type of gun. Pet. Brief in Support at 9.
In fact, the evidence showed that the shots fired had come from a .38 caliber revolver.
To the extent that plaintiff challenges the fact that the jury relied on the testimony of only one eyewitness, this argument fails. The testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction. See United States v. Danzey, 594 F.2d 905 (2nd Cir. 1979), cert. denied, 449 U.S. 878(1980); Summers v. Senkowski, No. 99 CIV 9092, 2001 WL 204205, at *4, n. 2 (S.D.N.Y. Feb. 28, 2001) (holding that prosecution's evidence was sufficient to uphold the conviction despite the fact that it relied in large part on the identification testimony of one eye-witness).
III. Presence at Sidebar Conferences
Johnson also claims that he is entitled to habeas relief as the trial court deprived him of the right to be present during sidebar discussions with prospective jurors during voir dire.
The right to be present at sidebar during voir dire derives from New York state statutory law. See Espejo, 2000 U.S. Dist. LEXIS 18268, at *22; see also People v. Rivera, 691 N.Y.S.2d 4, 7-8(1999). Since a federal court on habeas review is limited to considering only violations of the federal Constitution or federal statutory law, I am procedurally barred from considering this claim.
However, even if I was able to consider petitioner's claim, he would not prevail. The record shows that Johnson knowingly, voluntarily and intelligently waived his right to participate in the sidebar. Before the first round of sidebar conferences, the trial judge directly asked both Johnson and his counsel if Johnson waived his right to be present at the sidebar. Resp't Opp. at 16. Both answered affirmatively. Id. Additionally, the trial judge confirmed that Johnson waived this right by questioning his counsel, in Johnson's presence, before the next two round of sidebar conferences. Id. at 17. Furthermore, Johnson had ample opportunity to raise any concerns or questions about his waiver since he was present throughout voir dire. See Espejo, 2000 U.S. Dist. LEXIS 18268, at *23 ("[Petitioner] has not shown how he was prejudiced by his exclusion from sidebar when he was present throughout the proceeding; he consulted with his attorney prior to the exercise of challenges, and he was present for the questioning of the jurors and recording of the challenges in open court.); United States v. Doe, 964 F.2d 157, 159 (2d Cir. 1992) (holding that the defendant waived his rights to attend a conference in chambers regarding sentencing by remaining in the courtroom as the conference took place).
Thus, not only am I procedurally barred from considering petitioner's claim but he has failed even to show that his state statutory rights were violated.
CONCLUSION
For the above reasons, Johnson's petition is denied. The clerk of court is instructed to close the case.