Opinion
9:98-CV-1437 (LEK)(GLS)
March 21, 2002
FOR THE PETITIONER: JACK E. KELLER, Petitioner, Pro Se, Elmira Correctional Facility, Elmira, NY.
FOR THE RESPONDENT: HON. ELIOT SPITZER, EARL GIALANELLA, ESQ., Office of Attorney General, Asst. Attorney General, State of New York, Binghamton, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se, Jack E. Keller ("Keller") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on September 10, 1998. Then-Magistrate Judge David N. Hurd issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing, inter alia, the Office of the Attorney General for the State of New York ("Attorney General") to file a response (Dkt. No. 3). The Attorney General filed an answer and memorandum of law requesting dismissal of the petition (Dkt. Nos. 6-7), to which Keller filed a traverse (Dkt. No. 8). On October 21, 1999, this matter was re-assigned to this court due to the elevation of Judge Hurd to the position of District Judge (Dkt. No. 9).
II. Discussion
A. State Court Proceedings
The testimony at trial revealed that Keller, Jay Fink ("Fink") and Penny Hendershot ("Hendershot"), the girlfriend of Walter Hagadorn ("Hagadorn"), were drinking beer at the home of Hagadorn and Hendershot which they shared on Prospect Street in Binghamton, New York ("Prospect Street home"), on Saturday evening, August 26, 1995. See Transcript of Trial of Jack E. Keller (5/13/96) ("Tr.") at P. 249.
When they ran out of beer, they went to a local bar, and when the bartender refused to sell them beer, the three left and began walking down the street. Id. at PP. 249-50. Michael Murray ("Murray"), who happened to be driving through the neighborhood at the time, stopped his car after he heard Keller calling out for Murray to stop. Id. at P. 250. Murray allowed them into his car and when he indicated that he did not know where he could buy beer, Fink suggested going to a local twenty-four hour convenience store. Id. at P. 251. Murray drove to the store and Keller and Fink went in to purchase some alcohol. After purchasing the beer, Keller and Fink got back into Murray's car and began driving back to the Prospect Street home. Id. at P. 252. When they arrived, Hendershot went to a nearby home and returned to the group with Hagadorn. Murray joined them at Keller's request and after a while, Keller indicated that he wished to have someone perform oral sex on him. Id. at P. 189. Keller then got up and walked over to a nearby tree with Fink where Keller asked Fink if he believed Murray was a homosexual. Id. at P. 254. When Fink indicated that he believed Murray was gay, Keller suggested that the group "do something with this guy, you know, go out and kill him." Id. at P. 255. Upon learning of this plan, Hendershot went inside her house and when she came back outside, discovered that Keller, Fink, Hagadorn and Murray were going to a nearby river. Id. at P. 256. When they arrived, Keller and Murray got out of the car and went to the river's edge, while Hagadorn and Fink drank some beer in Murray's car. Id. at P. 200. Keller returned to the car and said "[w]hat are you guys waiting for? Grab a stick or a rock." Id. Hagadorn and Fink each grabbed a stick and began walking towards Murray. Hagadorn hit Murray in the back of his head, Id. at PP. 200-01, and when Murray began to run away, Hagadorn tackled him and punched him in his face. Id. at 201. Keller and Fink then began kicking Murray, who was on the ground, about his head. Id. Keller then ran back to the car, grabbed a screwdriver and said "[w]e've got to get rid of him, we've got to kill him." Id. at P. 202. Keller began stabbing Murray with a screwdriver in his throat and chest. Id. When Keller finished stabbing Murray, he asked Hagadorn and Fink to help Keller pick up the body and throw Murray into the river. Id. at P. 203.
At one point during the assault, Keller asked Fink and Hagadorn to stab Murray, however, they both declined. Id.
As Murray was being dragged toward the river, he was heard gurgling on his own blood. Id. at P. 204. The three men got into Murray's car and drove to a house where Keller picked up some clean clothes. Id. at PP. 205-06.
On Sunday morning, the three began driving to New York City. Id. at P. 208. When one of the tires on the car went flat, they decided to take a train into the city. Id. at P. 209. During the trip, Keller threatened to harm Hagadorn if he told anyone about the murder. Id. at P. 214. Nevertheless, when Hagadorn returned to Binghamton, he told Hendershot, his sister, and some of his friends about what had transpired. Id. at PP. 216-17. One of Hagadorn's friends called the police, and Hagadorn took officers to the scene of the crime. Id. at PP. 217-18, 286-87.
Keller was found in New York City on October 5, 1995, and questioned by members of the Binghamton Police Department. He gave a formal statement to the police in which he admitted striking Murray but claimed that Hagadorn was responsible for the murder. Id. at PP. 419-436. In this statement, Keller stated that, just before Murray was dragged into the river, he "was still breathing because [Keller] could still hear gurgling from his throat." Id. at P. 434. Keller also informed the police that he didn't believe Murray could "come back out [of the river] on his own" after he was dragged into it. Id. at P. 436.
A Broome County grand jury charged Keller, Fink and Hagadorn with two counts of second degree murder; the first count alleged that the three intentionally killed Murray, while the second charged the defendants with causing Murray's death "under circumstances evincing a depraved indifference to human life" (Dkt. No. 6, Ex. 1).
After a jury trial, Keller was found guilty of the intentional murder of Murray (Tr. at P. 619). Keller appeared before the Hon. Patrick H. Mathews ("Judge Mathews") for sentencing on July 15, 1996. Judge Mathews sentenced Keller to a term of imprisonment of twenty-five years to life. See Sentencing Tr. (7/15/96) at PP. 16-17.
Keller appealed his conviction to the Appellate Division, Third Department ("Appellate Division"). Appellate counsel argued, inter alia, that there was insufficient evidence to sustain the conviction; Keller argued in his pro se supplemental brief that he had received ineffective assistance of trial counsel (Dkt. No. 6, Exs. 10, 12). The Appellate Division unanimously affirmed, People v. Keller, 246 A.D.2d 828 (3rd Dep't 1998), and the Court of Appeals denied Keller leave to appeal. People v. Keller, 91 N.Y.2d 1009 (1998).
On February 19, 1998, Keller filed a motion to vacate his conviction pursuant to § 440.10 of New York's Criminal Procedure Law ("CPL"), alleging, inter alia, that Judge Mathews erred in instructing the jury on the issue of the defense of intoxication relating to the charge of intentional murder (Dkt. No. 6, Ex. 14). Judge Mathews denied the motion in his Decision and Order dated June 26, 1998 (Dkt. No. 6, Ex. 16). Keller did not seek leave to appeal the denial of his CPL § 440 motion to the Appellate Division.
B. Merits of Petition
Keller alleges that: (i) the evidence at trial was insufficient to support a conviction of murder in the second degree (Ground One); (ii) the trial court erred when it instructed the jury on the defense of intoxication (Ground Two); (iii) he received ineffective assistance of trial counsel (Ground Three); and, (iv) pretrial publicity relating to the crime deprived Keller of an impartial jury and fair trial (Ground Four).
1. Ground One
In this claim, Keller argues that he was so intoxicated on the date of the crime that "he was incapable of forming intent" sufficient to sustain the jury's verdict, and that the evidence at trial "was insufficient to sustain contention [sic] that petitioner intended to cause death" (Pet. at P. 5).
A petitioner is entitled to habeas corpus relief on a claim alleging insufficient evidence only when it is found that, after review of the evidence adduced at trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Ferguson, 2001 WL 869615, at *4 n. 3 (citing Jackson v. Virginia, 443 U.S. 307, 324 (1979). Such a claim places a "very heavy burden" on the petitioner; the appropriate inquiry for the district court is whether:
[T]he jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, [the court] must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.
Ferguson v. Walker, 2001 WL 869615, at *4 n. 4 (S.D.N.Y. Aug. 2, 2001) (quoting United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108 (1983)); see also, Jamison v. Grier, 2002 WL 100642, at *2 (S.D.N.Y. Jan. 25, 2002).
In this case, the proof of Keller's guilt was overwhelming. Although Keller claims he was too intoxicated to intentionally kill Murray, the claim is contrary to the proof at trial. For example, although Keller had consumed alcohol on the day he committed his crime, Patricia Allan, a friend of Keller, testified that Keller's ability to walk on the evening of August 26, 1995, was impaired "[v]ery little, if . . . at all" (Tr. at P. 306). Moreover, just before Keller decided he intended to kill Murray, he walked away from him to prevent him from hearing Keller's plan. Id. at PP. 254-55. After they arrived at the river, Keller approached Fink and Hagadorn and asked them why they were waiting, and suggested that they grab something to assault Murray. Id. at P. 200. Keller also went to Murray's car, found a screwdriver and told Hagadorn that the group had to "get rid of [Murray], we've got to kill him." Id. at P. 202.
Keller has not demonstrated that the jury's conclusion that he formed the specific intent to kill Murray, notwithstanding the fact that he had consumed alcohol on the night of the murder, was unreasonable in light of the evidence.
As to Keller's claim that the evidence did not establish that he intentionally caused Murray's death, Pet. at P. 5, Dr. James Terzian ("Dr. Terzian") who performed the autopsy on Murray, testified that, in addition to bruises on Murray's face, Murray had been stabbed twenty-five times; eight times in the neck, seventeen times in the chest and upper abdomen (Tr. at P. 393). These wounds were "entirely consistent with having been produced not by a knife, but rather by an instrument like a flat-headed screwdriver." Id. Keller was the individual who stabbed Murray with a screwdriver, and he continued stabbing Murray after Fink and Hagadorn refused to assist Keller (Tr. at P. 202). Dr. Terzian testified that Murray died of multiple traumatic injuries, including stab wounds, and that he may also have drowned. Id. at P. 397. To the extent Keller now argues that Murray did not die of stab wounds but instead drowned, both Hagadorn and Keller himself stated that Murray was making gurgling sounds at the time Keller dragged Murray into the river. Id. at PP. 204, 434. Additionally, Keller admitted that Murray could not safely return to shore after having been dragged into the river. Id. at P. 436. Thus, his claim that there was insufficient evidence to establish that he intended to kill Murray is without merit.
Dr. Terzian also testified that, because there were no defensive stab wounds on Murray's hands or arms, he was unconscious at the time he was stabbed multiple times in his neck and torso. Id. at P. 399.
Keller claims he assisted Fink in dragging Murray into the river (Tr. at PP. 434-35).
In his traverse, Keller argues that "[t]he prosecutions [sic] whole case rested solely on Hagadorns [sic] words alone," and that, because he testified against Keller as part of a plea agreement with the District Attorney, Hagadorn's testimony was "unworthy of belief as a matter of law" (Traverse at P. 3).
However, Judge Mathews specifically instructed the jury that Hagadorn was an accomplice as a matter of law to the crime, and that the jury could not find Keller guilty of murder based solely on Hagadorn's testimony. Judge Mathews also instructed the jury that it was required to find that Hagadorn's testimony was corroborated by other testimony which, standing alone, connected Keller to the crime in such a way as to reasonably satisfy the jury that Hagadorn was telling the truth (Tr. at PP. 590-91). A jury is presumed to have followed the instructions given to them by the judge. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Shariff v. Artuz, 2001 WL 135763, at *3 (S.D.N Y Feb. 16, 2001) (citations omitted). Thus, the jury found that Hagadorn's testimony was sufficiently corroborated by other witnesses at the trial.
Viewing Keller's claim as one that requests that this court find Hagadorn's testimony not to be credible, the undersigned notes that a habeas court, viewing a cold record, may not properly reassess the jury's finding of credibility concerning the testimony of witnesses offered at trial. Ferguson v. Walker, 2001 WL 869615, at *5 (S.D.N.Y. Aug. 2, 2001); Anderson v. Senkowski, 1992 WL 225576 at *3 (E.D.N.Y. Sept. 3, 1992) (court must presume that jury resolved questions of credibility in favor of the prosecution), aff'd, 992 F.2d 320 (2d Cir. 1993); see also, Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony").
Considering the evidence in the light most favorable to the prosecution, and construing all permissible inferences in its favor, the court finds that a rational trier of fact could have found the proof at Keller's trial demonstrates his guilt beyond a reasonable doubt. Therefore, the court recommends that this Ground in the petition be denied.
2. Ground Two
In this claim, Keller argues that the trial court improperly charged the jury on the issue of intoxication, and that he "neglected to charge a lesser included offense in which the element of intent is negated" (Pet. at P. 5).
Keller does not specify how the charge regarding intoxication (Tr. at P. 593) was deficient. Moreover, the County Court afforded the jury the option of finding Keller guilty of less serious charges — Judge Mathews instructed the jury of the elements of manslaughter in the first and second degrees. See Id. at PP. 585-89.
The jury was instructed that if, on the night of the crime, Keller was intoxicated to such a degree as to deprive Keller of the ability to form a particular criminal intent, where intent was an element of the crime, then Keller would be relieved of criminal responsibility for his conduct. Id.
"[H]abeas corpus relief may only be granted based on instructions given to the jury, if it is 'established not merely that the instruction is undesirable, erroneous, or even universally condemned, but that it violated some right which was guaranteed by the Fourteenth Amendment.'" Clark v. Irvin, 844 F. Supp. 899, 906 (N.D.N.Y. 1994) (Hurd, M.J.) (quoting Cupp v. Naughten, 414 U.S. 141 (1973)); Smalls v. Batista, 6 F. Supp.2d 211, 219-20 (S.D.N.Y. 1998). Since Keller has failed to establish that any of the instructions given to the jury violated Keller's federal constitutional rights, his petition cannot be granted on this theory.
Turning to his claim that Judge Mathews improperly failed to charge the jury of a lesser included offense (Pet. at P. 5), Keller does not clearly articulate which charge he believes Judge Mathews was required to provide in addition to those referenced above. However, he argued in his pro se supplemental brief on appeal that Judge Mathews should have charged the jury with assault, because the People purportedly failed to conclusively establish the cause of death (Dkt. No. 6, Ex. 12). However, a trial court's failure to provide a jury charge cannot serve as the basis for federal habeas relief, "unless the failure 'so infected the entire trial that the resulting conviction violated due process.'" Rivera v. Keane, 1999 WL 816178, at *5 (S.D.N.Y. Oct. 13, 1999) (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (other citations omitted)). Keller has not come forth with any evidence that establishes that Judge Mathews' failure to charge the jury with the crime of assault infected Keller's trial in such a manner that his conviction for murder violates due process. Therefore, the undersigned recommends that Ground Two in the petition be denied.
See People v. Umana, 158 A.D.2d 492, 493 (2d Dep't) ("assault should be submitted as a lesser included offense of intentional murder when the People are unable to prove at trial that the conduct charged in the indictment was the cause of death), leave denied, 75 N.Y.2d 970 (1990).
3. Ground Three
In his third Ground for relief, Keller argues that he received ineffective assistance of counsel (Pet. at P. 6).
In considering the substance of this Ground, the court is mindful of the two-pronged test articulated by the Supreme Court that must be utilized in determining whether a criminal defendant has received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688-90, 694 (1984). To establish ineffective assistance, a habeas petitioner must show: (1) that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and, (2) prejudice, i.e., that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998) (per curiam) (citing Strickland, 466 U.S. at 688-90); Brown v. Artuz, 124 F.3d 73, 79-80 (2d Cir. 1997), cert. denied, 522 U.S. 1128 (1998); Mask v. McGinnis, 233 F.3d 132, 140 (2d Cir. 2000).
In rejecting Keller's claim of ineffective assistance, the Appellate Division found that Keller's counsel "earnestly advanced . . . defense theories," and "provided meaningful representation upon our review of the record." Keller, 246 A.D.2d at 830. Since the Appellate Division specifically considered and rejected Keller's ineffectiveness claim, his petition may only be granted if he establishes that the Appellate Division's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116 (2001).
The rule set forth in Strickland qualifies as "clearly established Federal law." See Williams v. Taylor, 529 U.S. 362, 381-82 (2000).
Keller initially argues that his trial counsel was ineffective because he failed to renew his motion for a judgment of acquittal after proof was closed. However, Keller's trial counsel moved to dismiss the indictment at the close of the prosecution's case (Tr. at P. 477). The defense only called one witness to the stand, a Police Officer who testified, inter alia, that Hagadorn had told the officer that, at one time during the night of the murder, Murray's hand was on Keller's throat. Id. at P. 516. This witness' testimony, including cross-examination, consisted of only three pages in a trial transcript more than six hundred pages long. Since Keller has not submitted evidence that testimony presented in his defense would have caused Judge Mathews to grant a renewed motion to dismiss the indictment, he has not established that there is a reasonable probability that the outcome of his trial would likely have been different had the motion to dismiss be renewed at the conclusion of proof. Thus, he has not established that his attorney's decision to not renew that motion fell below an objective standard of reasonableness. See Jackson v. Kuhlman, 1997 WL 1068667, at *8 (E.D.N.Y. May 22, 1997) (where "it would have been fruitless for trial counsel to relitigate [a motion to dismiss indictment, counsel's] failure to do so was merely part of his reasonable (though unsuccessful) defense strategy") (citing Strickland, 466 U.S. at 688-90).
Keller also claims his counsel improperly cross-examined Hendershot, thereby "opening the door" to damaging testimony (Pet. at P. 6). Specifically, he contends that when his counsel asked Hendershot why she did not call the police immediately after hearing of the plan to kill Murray, it opened the door to testimony in which Hendershot stated that she was "scared" of Keller. Id., see also, Tr. at PP. 265-67.
"The scope and manner of examination of witnesses is rarely a valid basis for a claim of ineffective assistance of counsel. See United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S. 958 (1987). The Second Circuit has consistently declined to deem counsel ineffective "notwithstanding a course of action (or inaction) that seems risky, unorthodox or downright ill-advised." Tippins v. Walker, 77 F.3d 682, 686-87 (2d Cir. 1996) (citing Cuevas v. Henderson, 801 F.2d 586, 590 (2d Cir. 1986) (questioning that "opened the door" to damaging evidence not ineffectiveness) (other citations omitted). Keller has not established that his counsel's cross-examination of Hendershot was objectively unreasonable, or that there is a reasonable probability that the outcome of his trial would have been different had Hendershot not stated that she was afraid of Keller.
Since Keller has not established that the Appellate Division's finding that his ineffectiveness claim was without merit was contrary to, or an unreasonable application of, Strickland, the court recommends that this Ground of the petition be denied.
4. Ground Four
In his final Ground, Keller argues that he was denied a fair trial due to "extensive publicity" surrounding his trial, and that he could not have been found guilty by a panel of impartial jurors because "it was a given that everyone in the City of Binghamton, New York, heard or read or seen [sic] something about this murder (Dkt. No. 6, Ex. 14).
A criminal defendant has the right to a fair trial; one that is not conducted in a "carnival atmosphere," Sheppard v. Maxwell, 384 U.S. 333, 358 (1966), overwhelmed by press coverage, Murphy v. Florida, 421 U.S. 794, 798 (1975), or dominated by a "wave of public passion." Irvin v. Dowd, 366 U.S. 717, 728 (1961).
During voir dire, Judge Mathews extensively questioned prospective members of the jury, and when some individuals mentioned that they had heard about the crime in the media, Judge Mathews ensured that only individuals who indicated they would only find Keller guilty of the crimes charged beyond a reasonable doubt based upon the evidence presented at his trial, were seated on the jury (Tr. at PP. 19-86). Additionally, in considering and denying Keller's CPL § 440 motion seeking relief on this theory, Judge Mathews noted that "all but two of the articles submitted [by Keller in support of his claim] were published during or after the trial" (Dkt. No. 6, Ex. 16 at P. 3).
"Absent a clear abuse of the trial court's discretion, one that results in manifest prejudice to defendant[s], the finding made by the trial judge that the jury was fair and unbiased must be upheld." Ruzas v. Sullivan, 1988 WL 83377, at *7 (S.D.N.Y. Aug. 2, 1988) (citing United States v. Moon, 718 F.2d 1210, 1219 (2d Cir. 1983), cert. denied, 466 U.S. 971 (1984)). Furthermore, the state court's finding that the jury was impartial is entitled to a presumption of correctness. See Wheel v. Robinson, 34 F.3d 60, 65 (2d Cir. 1994), and "'the trial court's findings of impartiality [may] be overturned only for manifest error.'" Knapp v. Leonardo, 46 F.3d 170, 176 (2d Cir. 1995) (quoting Patton v. Yount, 467 U.S. 1025, 1031 (1984)).
Keller has not provided the court with evidence by which it could find that the jury that found him guilty was biased, or that he otherwise did not receive a fair trial. Therefore, the undersigned recommends that this Ground in the petition be denied.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Keller's petition be DENIED and DISMISSED; and it is further
ORDERED, that the Clerk serve a copy of this Order and Report-Recommendation on the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.