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denying due process challenge based on justification defense instruction where instructions viewed as a whole made plain that the jury's obligation was to acquit if the prosecution failed to prove beyond a reasonable doubt that the petitioner was acting in self-defense
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CV 99-3874 (RR)
October 11, 2002
JOSEPH MANNING, Beacon, New York, Petitioner, Pro Se
Attorneys for Respondent, Roseann B. MacKechnie, Assistant District Attorney Shulamit Rosenblum, Assistant District Attorney HONORABLE CHARLES J. HYNES KINGS COUNTY DISTRICT ATTORNEY, Brooklyn, New York
Memorandum and ORDER
Joseph Manning, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Manning was convicted in 1995 after a jury trial in New York Supreme Court. Kings County, of Manslaughter in the First Degree, N.Y. Penal Law § 125.20 (McKinney 1998). He is presently incarcerated, having been sentenced as a second felony offender to an indeterminate term of nine-to-eighteen years incarceration. In challenging his conviction to this court. Manning submits that (1) he was arrested without probable cause in violation of the Fourth Amendment, (2) police used suggestive identification procedures violative of due process, (3) the receipt into evidence of an autopsy report prepared by someone other than the testifying medical examiner violated due process, (4) a confusing jury instruction denied him a fair trial. and (5) trial counsel was constitutionally ineffective at jury selection.
Having carefully reviewed the parties' submissions, as well as the record of proceedings in the state courts, this court finds that Manning's petition must be denied because his Fourth Amendment claim is procedurally barred and all other claims are without merit.
Factual Background
1. The Death of Anton Frasier
At approximately 2:00 p.m. on August 3, 1994, Anton Frasier was shot and killed on Nostrand Avenue in Brooklyn. By August 14, 1994, police had identified petitioner Joseph Manning as their lead suspect in the Frasier homicide, largely due to information supplied by Arthur Johnson, a prisoner then in custody. Johnson reported that on August 3, 1994, he had spoken on the street with Manning, whom he had known for several years as "Chris," and his brother "Cleave," during which the two men displayed handguns and revealed a plan to shoot a rival gang member in retaliation for past injuries. Johnson stated that soon after the brothers left him on the street, he heard gunshots. Subsequently, the brothers told Johnson that they had shot "one of the Pacific Street guys" on Nostrand Avenue. Later on August 14, 1994, police showed Johnson a photo spread, from which he identified petitioner as the person known to him as "Chris."
On August 23, 1994, police arrested Joseph Manning and placed him in a line-up, which was separately viewed by Arthur Johnson and Natasha Priester, an eyewitness to the Frasier shooting. Asked to identify anyone they recognized. Johnson selected petitioner as "Chris," while Ms. Priester selected petitioner as a person she had seen on the street at the time Anton Frasier was shot.
Later on August 23, 1994, police advised Manning of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). After executing a written waiver form, petitioner gave both a written and videotaped statement in which he admitted shooting Anton Frasier but insisted that he had acted in self-defense. Specifically, Manning explained that a recent dispute between his brother and a member of a local street gang over a piece of jewelry had escalated to the point where various gang members had on several occasions fired gunshots at Manning and members of his family, on one occasion actually wounding petitioner. As a result, Manning began to carry a .32 caliber silver automatic handgun for protection. On August 3, 1994, Manning was so armed when Anton Frasier approached him on the street and put his hand into his pocket. Assuming that Frasier was reaching for a gun, Manning drew his own weapon and fired several times. Frasier unsuccessfully tried to grab the gun before fleeing down Nostrand Avenue.
2. Trial Court Proceedings
Manning was charged with two counts of murder in the second degree and criminal possession of a weapon in the second and third degree. Prior to trial, his attorney filed suppression motions challenging petitioner' s arrest, the various photographic and line-up identifications, as well as his post-arrest statements. These motions were all denied as without merit.
At trial, the prosecution relied primarily on Manning's written and videotaped admissions; the testimony of various law enforcement officials who responded to the crime scene; a medical examiner who had reviewed the Frazier autopsy report; and two eyewitnesses, Junior Stephenson and Natasha Priester, who saw or heard the shots fired that killed Anton Frasier, but who could not identify Manning at trial.
On May 15, 1995, a jury found Manning guilty of first degree manslaughter, a lesser included offense to the charged murders. On June 13, 1995, Manning was sentenced to the term he is now serving.
3. Direct Appeal
Represented by new counsel on appeal, Manning challenged his conviction on the grounds that (1) his arrest was not supported by probable cause, (2) suggestive procedures tainted pre-trial identifications, (3) the trial court erred in admitting the Frasier autopsy report, (4) his post-arrest statements were not sufficiently corroborated under New York law to support his conviction, (5) the trial court improperly questioned a sitting juror, (6) the jury instructions were either erroneous or unfairly confusing, and (7) trial counsel was constitutionally ineffective during jury selection.
On April 6, 1998, the Appellate Division, Second Department, rejected these arguments and unammously affirmed Manning's conviction. See People v. Manning, 249 A.D.2d 330, 670 N.Y.S.2d 349 (2d Dep't 1998). Specifically, the court ruled that Manning's confession was sufficiently corroborated by the testimony of the two eyewitnesses and the autopsy report to satisfy the requirements of state law. It further held that the challenged identification procedures were not unduly suggestive. See id. All remaining challenges were summarily rejected as "either unpreserved for appellate review or without merit." Id. (internal citations omitted).
On May 1, 1998, Manning moved the New York Court of Appeals for leave to appeal, specifically requesting further review of (1) the lawfulness of his arrest and subsequent identifications, (2) the jury instructions given in his case, and (3) the effectiveness of trial counsel. The Court of Appeals summarily denied the motion on July 9, 1998. See People v. Manning, 92 N.Y.2d 881, 678 N.Y.S.2d 28 (1998) (Ciparick, J.).
4. Federal Petition
On July 2, 1999, Manning filed his petition with this court for a writ of habeas corpus.
A § 2254 petition is deemed to have been filed on or about the date it is delivered to prison officials for transmittal to the court see Houston v. Lack, 487 U.S. 266 (1988), and this court assumes that Manning's petition was so delivered on the date he signed it, July 2, 1999.
Discussion
I. Standard of ReviewThis court's review of Manning's petition is governed by the standards articulated in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132. 110 Stat. 1214, 1220 (1996), which significantly amended the federal habeas corpus statute. 28 U.S.C. § 2254. Subsection (d) of § 2254 provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d) (1994 Supp. 2002).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court provided some guidance for lower courts in applying these standards. Justice O'Connor, writing for a majority, stated that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States" in § 2254(d)(1) should be understood to refer to "the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." Id. at 412. The Court then identified two circumstances under which a state court decision could be deemed "contrary to" clearly established federal law: if the state court (1) "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or (2) "decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Id. at 413.
As to the alternative "unreasonable application" clause in § 2254(d)(1), the Court held that habeas relief was warranted only "if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner' s case." Id. The Court ruled that reasonableness was to be assessed objectively rather than subjectively. See id. at 409-10. Moreover, whatever difficulty there might be in defining the term "unreasonable." courts were cautioned that "an unreasonable application of federal law" did not equate with "an incorrect application of federal law." Id. at 410. Thus, a "federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see also Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (cautioning that while "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great: otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence" (quotation omitted)). Further, as long as the state court disposes of the federal claim on the merits and reduces its disposition to judgment, the deference demanded of a federal habeas court by § 2254(d)(1) applies "even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Applying these principles to this case, it is apparent that Manning is not entitled to § 2254 relief.
II. Procedural Default
Preliminarily, the court notes that respondent submits that certain of Manning's claims are procedurally barred from federal collateral review because they were not fully exhausted in the state courts or because they were defaulted there. These procedural challenges require little discussion since, in any event. Manning's federal claims are without merit. While 28 U.S.C. § 2254(b)(1)(A) does state that a federal habeas court may not entertain a collateral challenge to a state court judgment unless petitioner "has exhausted the remedies available in the courts of the States." another subpart of that same statute permits the denial of non-meritorious petitions "notwithstanding the failure of the applicant to exhaust" state remedies. 28 U.S.C. § 2254(b)(2). Similarly, although procedurally defaulted claims should not be addressed unless a petitioner can show either (1) good cause to excuse the default and ensuing prejudice, or (2) a fundamental miscarriage of justice, Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). neither standard can be met when, as in Manning's case, the claims at issue are plainly without merit.
III. Fourth Amendment Challenge to Arrest
Manning asserts that he was arrested without probable cause in violation of the Fourth Amendment. He submits that subsequent identifications and his own written and videotaped statements should have been suppressed as the fruits of this unlawful arrest.
Federal habeas review of Fourth Amendment claims is narrowly circumscribed by the Supreme Court's ruling in Stone v. Powell, 428 U.S. 465, 481-82 (1976):
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.
Thus, the Second Circuit has ruled that habeas review of Fourth Amendment claims is permissible only if (1) the state has provided no corrective procedures to redress the alleged unlawful search or seizure, or (2) the state has provided a corrective mechanism, but the defendant was precluded from using it by an "unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977); Cappiello v. Hoke, 698 F. Supp. 1042. 1050 (E.D.N.Y.), aff'd 852 F.2d 59 (2d Cir. 1988) (per curiam).
The issue for this court then is not whether it agrees or disagrees with the state court's ruling that Manning's arrest was adequately supported by probable cause. Before this court can reach this Fourth Amendment claim, Manning must first show that New York did not provide an opportunity for full and fair litigation of the issue. In fact. Manning cannot satisfy this burden since New York Criminal Procedure Law § 710.20. governing motions to suppress unlawfully acquired evidence, clearly provided him with the requisite opportunity to litigate the lawfulness of his arrest. That procedure has been approved as facially adequate by federal courts in this Circuit. See Capellan v. Riley, 975 F.2d at 70 n. 1 (and cases cited therein).
Neither can Manning show any "unconscionable breakdown" in this otherwise adequate process. See id. (discussing what constitutes an "unconscionable breakdown"). To the contrary, Manning was afforded a full evidentiary hearing on his arrest challenge. as well as one appeal of right and one opportunity to move for leave to appeal.
Under these circumstances, Stone v. Powell prohibits habeas review of Manning's Fourth Amendment claim.
IV. Identification Procedures
Manning asserts that the photo spread from which Arthur Johnson identified him was unduly suggestive because petitioner was the only person depicted with a ponytail. He further complains that the line-up in which he participated was unduly suggestive because he was obviously younger than the other stand-ins. These arguments merit little discussion.
For Manning to show that the state court clearly erred in rejecting his suggestivity claim, he would have to demonstrate that the challenged procedures were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968); accord Kennaugh v. Miller, 289 F.3d 36, 43 (2d Cir. 2002). Assuming he could meet this heavy burden, due process would at most have entitled him to suppression of the out-of-court identifications and, possibly, those in-court identifications not based on the witness's untainted independent recollection. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers, 409 U.S. 188, 199-200 (1972). But Manning can hardly claim that his conviction was obtained in violation of due process since neither Johnson nor Ms. Priester ever identified him at trial, and their out-of-court identifications were not offered into evidence.
Manning further argues. however, that his post-arrest statements should have been suppressed as the fruit of the suggestive identification procedures. Specifically, he submits that since Arthur Johnson's identification was the product of a suggestive photo spread. and since that identification was a ground for his arrest, then the arrest was tainted as well as any statements made pursuant thereto. This variation on his Fourth Amendment claim is without merit. As the Appellate Division found, and the record amply supports, Johnson's identification of Manning was not the product of a suggestive photo spread since Johnson had "an independent basis" for his identification, having known the defendant for several years. See People v. Manning, 249 A.D.2d at 331, 670 N.Y.S.2d at 349. Since this finding is neither unreasonable in light of the facts presented nor clearly contrary to established Supreme Court law, Manning is not entitled to habeas relief on his suggestive identification claim.
V. Autopsy Report
In proving that Anton Frasier was shot to death with bullets from a .32 caliber handgun. the prosecution relied on the autopsy report of a medical examiner who did not testify at trial, as well as the testimony of another medical examiner who. upon review of the report, offered an expert opinion as to the cause of death. Manning complains that introduction of the autopsy report into evidence denied him a fair trial. Generally, such claims are brought under the Confrontation Clause. Whether the challenge is considered under the Fifth or Sixth Amendment, however, it must be rejected as without merit.
In United States v. Rosa, 11 F.3d 315, 333 (2d Cir. 1993), the Second Circuit rejected a constitutional challenge to the receipt of an autopsy report into evidence, ruling that the factual observations in a medical examiner's autopsy report have sufficient "indicia of reliability" to qualify it as an admissible hearsay exception and to be admitted as a business record regardless of whether or not the examining pathologist testifies at trial. Accord Manocchio v. Moran, 919 F.2d 770, 777-78 (1st Cir. 1990); See also Tucker v. Bennett, CV 97-2332 (RR), 2002 U.S. Dist. LEXIS 15738 at *1145 (E.D.N.Y., July 22, 2002); Montgomery v. Fogg, 479 F. Supp. 363, 370 (S.D.N.Y. 1979). Thus, Manning was not denied a fair trial by the receipt into evidence of this part of the medical examiner' s autopsy report.
When an examining pathologist does not testify, his opinion about the cause of death should generally be redacted from the autopsy report. See United States v. Rosa, 11 F.3d at 331-33. It appears that such redactions were made by the prosecution and approved by defense counsel in this case. See Trial Tr. at 77-78, 337. Thus, because the autopsy report was properly redacted before its admission into evidence, Manning was not denied a fair trial.
To the extent Dr. Joaquin Gutierrez offered his expert opinion as to the cause of Frasier' s death, he was certainly qualified to do so, being a board certified forensic pathologist and a ten-year employee of the New York City Medical Examiner's office. Further, the admissible factual observations in the autopsy report provided sufficient data to allow Dr. Gutierrez to offer an opinion with a reasonable degree of medical certainty.
In sum, Manning's constitutional challenge to the admission of the Frasier autopsy report must be rejected as without merit.
VI. Jury Charge
Manning submits that the trial judge violated due process when he charged the jury that it "must" rather than "may" convict if the prosecution proved all the elements of the charged crimes beyond a reasonable doubt. This court disagrees.
After outlining the elements of each crime charged in the indictment, the trial judge instructed the jury:
If you are convinced beyond a reasonable doubt that the. . . People have proved each of these essential elements, you must find the defendant guilty. . . . If you are not convinced beyond a reasonable doubt that the People have proved each of these essential elements, you must find the defendant not guilty.
Trial Tr. at 309. See also Trial Tr. at 320-21, 322-23, 325, 328, 330. This language does not unfairly characterize the jury's duty under the law. See United States v. Pierre, 974 F.2d 1355, 1356-57 (D.C. Cir. 1992) (upholding jury instruction that "[i]f you find that the government has proven beyond a reasonable doubt every element of the offense . . . it is your duty to find him guilty. On the other hand, if you find the government has failed to prove any element of the offense beyond a reasonable doubt, then you must find him not guilty"); Wright v. Smith, 569 F.2d 1188, 1193-94 n. 8 (2d Cir. 1978) (approving trial court's instructions that jury "must convict" if they find charged elements proved beyond a reasonable doubt. and that jury "must find this defendant not guilty" if not convinced beyond a reasonable doubt when holding that jury charge on defendant's alibi defense did not impermissibly shift burden of proof when read as a whole); Green v. People, 98-C V-3453 (JSM), 2000 WL 1480485 at *3 (S.D.N.Y. Oct. 5, 2000) (not error for judge to instruct jury that if they found all the elements of the crime present they "must convict," in response to a jury note when the converse instruction was given in original charge); see also People v. Fields, 160 A.D.2d 606, 607, 554 N.Y.S.2d 250, 251 (1st Dep't 1990) (denying defendant's claim that the court impermissibly interfered with the "jury nullification doctrine" when it instructed jury that if they found each element of the crime established beyond a reasonable doubt, they "must convict"); 1 L. Sand, et al., Modern Federal Jury Instructions ¶ 4.01, Inst. 4-2 (2002) (recommending that jury be instructed that if it is convinced of defendant's guilt beyond a reasonable doubt, it "should vote to convict").
Manning submits that the instruction, even if not erroneous in isolation, was nevertheless unfair because it suggested that a conviction might be mandated without regard to petitioner's justification defense. A careful review of the charge as a whole will not support this argument. See Cupp v. Naughten, 414 U.S. 141, 147 (1973) (holding that reviewing court must consider charge in its entirety); accord Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir. 1996).
With respect to each charge to which a justification defense was raised, the court, after outlining the elements and giving the challenged instruction on the jury's duty, carefully charged as follows:
However, if you determine that the People have established all the elements of the crime . . . you must then turn and consider the defense known in law as justification . . . which is commonly referred to as self-defense. Even if the defendant is otherwise guilty, if you should determine that he acted in self-defense. that is with justification, then he must nevertheless be found not guilty.
Self-defense is a defense recognized in our law. When a defendant raises such a defense and . . . offers such evidence that he was acting in self-defense, it becomes the burden of the People to convince you beyond a reasonable doubt that he was not acting in self-defense.
Trial Tr. at 310-11. See also Trial Tr. at 321, 323, 325.
In sum, when the instructions are viewed as a whole, it is plain that the jury was properly charged that, even if the prosecution proved the other elements of murder or manslaughter, if it failed to prove beyond a reasonable doubt that Manning was not acting in self-defense, the jury was obliged to acquit.
Manning' s due process challenge to the jury charge is denied as without merit.
VII. Ineffective Assistance of Counsel
Manning asserts that his trial counsel was constitutionally ineffective for failing to raise a cause challenge to a juror who in voir dire revealed that he could not be fair and impartial in the case.
A petitioner raising a Sixth Amendment challenge to the performance of counsel carries a heavy burden. He must establish both (1) that counsel's performance was so unreasonable under prevailing professional norms that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687 (1984), and (2) that counsel's ineffectiveness prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" id. at 694. Accord United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998).
In considering the first prong of this test, a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. at 689. Moreover, a court must consider any purported omissions in light of counsel's overall performance. See Kimmelman v. Morrison, 477 U.S. 365, 386 (1986). Paramount to the court's consideration of any claim of ineffectiveness is whether counsel' s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. at 686. Manning cannot satisfy these strict requirements of Strickland.
In conducting voir dire, the trial judge asked jurors who had been the victims of crimes to relate their experiences. He then asked each juror, "Will that interfere with your being fair and impartial?" receiving a series of "No" answers. See Voir Dire Tr., Vol. 1 at 20-22. When the judge reached the juror whose impartiality is now challenged, the victim of a recent home burglary, the ultimate question was recast from "Will that interfere with your ability to be fair and impartial?" to "Can you be a fair and impartial juror?" The juror answered, "No." Id. at 22.
Although Manning now faults his trial counsel for failing to challenge this juror for cause, this court notes that no one who heard the questionable response — neither the trial judge nor the prosecutor nor defense counsel — pursued the matter. Indeed, the trial judge simply proceeded to the next juror. This is significant because trial judges are, of course, uniquely situated to observe juror demeanor in assessing fitness to serve. Indeed, their ultimate determinations about juror impartiality are accorded considerable deference. See Wainwright v. Witt, 469 U.S. 412, 428 n. 9 (1985) (noting that reviewing courts should not reverse trial judges' determinations of juror impartiality "except in a clear case" (quoting Reynolds v. United States, 98 U.S. 145, 156-57 (1879)).
In this case, the only logical inference to be drawn from the trial judge's inaction, coupled with that of the prosecutor as well as defense counsel, is that the juror's answer was mis-transcribed or, at worst, that the juror had misspoken in anticipation of the previous formulation of the "fair and impartial" question. In either case, it is apparent that no one who observed him, most particularly not the trial judge, had any reservations about his ability to serve fairly and impartially. Because the record alone then will not support Manning's claim that a juror in his case was incapable of fair and impartial service, he has failed to demonstrate either that counsel was objectively unreasonable in failing to raise a cause challenge or that he was prejudiced by this omission.
Certainly nothing else in counsel's trial performance suggests that he was constitutionally ineffective. To the contrary, counsel vigorously cross-examined prosecution witnesses, consistently raised evidentiary objections, and delivered a cogent summation that struck at several weakness in the prosecution's case. Specifically, counsel forcefully argued that Manning acted in self-defense. Indeed. to strengthen his argument that Manning genuinely feared that Frasier was about to shoot him, counsel offered evidence of petitioner' s recent hospitalization for gunshot wounds, thereby corroborating a key fact in his post-arrest claim of self-defense. Further. counsel persuaded the trial court to admit medical evidence that the Frasier was under the influence of marijuana at the time of death, which fact, he argued, made it more likely that he was the aggressor in the fatal encounter.
For all these reasons, the court rejects Manning's Sixth Amendment claim as without merit.
Conclusion
For the reasons stated, this court finds that Manning's Fourth Amendment challenge to his arrest and the evidence derived therefrom is barred from federal habeas review by Stone v. Powell, 428 U.S. 465, and that his remaining due process and Sixth Amendment claims are all without merit. Accordingly, it hereby denies Manning's petition for a writ of habeas corpus as well as a certificate of appealability.