Opinion
02 Civ. 2895 (LTS)(MDF)
October 20, 2003
Mr. John J. Sergi, White Plains, New York
ORDER
On November 14, 2002, Magistrate Judge Mark D. Fox issued a Report and Recommendation ("Report") recommending that the petition of Douglas Reid ("Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. No objections to the Report have been filed.
In reviewing a Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, a district court "`need only satisfy itself that there is no clear error on the record.'" Johnson v. Reno, 143 F. Supp.2d 389, 391 (S.D.N.Y. 2001) (citation omitted). See also Bryant v. New York State Dep't of Corr. Serv., 146 F. Supp.2d 422, 424-25 (S.D.N.Y. 2001) (court may accept those portions of report to which no written objection has been made, so long as they are "not facially erroneous").
The Court has reviewed thoroughly Magistrate Judge Fox's well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the petition for writ of habeas corpus is denied.
The Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability.
Magistrate Judge Fox's Report follows.
SO ORDERED.
TO: THE HONORABLE LAURA TAYLOR SWAIN, U.S.D.J.
Petitioner, pro se, has filed an application for a writ of habeas corpus to challenge his convictions for burglary in the first degree (N.Y. Penal Law § 140.30), aggravated criminal contempt (N.Y. Penal Law § 215.52), criminal contempt in the first degree (N.Y. Penal Law § 215.51) and assault in the third degree (N.Y. Penal Law § 120.00). The offenses arise from the Petitioner's acts against his former girlfriend during which time an order of protection had been issued to protect her. Pursuant to the convictions, Honorable Daniel Angiolillo of Westchester Supreme Court sentenced Petitioner to concurrent terms as follows: eleven and a half years for the count of burglary in the first degree, three to six years for aggravated criminal contempt, two to four years for criminal contempt in the first degree and one year for assault in the third degree.
Petitioner and Jackie Rawlings began a relationship in 1990 or 1991 and moved into a Mount Vernon apartment soon thereafter. When their relationship ended in October of 1998, Rawlings remained in the apartment and changed the locks on the doors. Following their breakup, Petitioner committed a number of crimes against Rawlings. On October 31, 1998 Petitioner approached Rawlings on a public street, followed her and took her purse. A few months later, on April 16, 1999, Petitioner violated an order of protection by pushing his way into Rawlings' apartment. On May 14, 1999, in Mount Vernon City Court, the Petitioner pled guilty to the 1998 petit larceny and the 1999 criminal contempt charges he had committed against Rawlings. On that day, the court also issued a permanent order of protection.
On May 20, 1999 in the afternoon Jackie Rawlings was in her Mount Vernon apartment when she heard the downstairs buzzer ring. Believing it was the little girl from next door, Ms. Rawlings let the individual into the building. Shortly thereafter, in response to a knock at her door, Rawlings looked through the peephole, but did not see anyone. Thinking the little girl was at the door, Rawlings opened the door and encountered Petitioner who then pushed his way into her apartment. Petitioner grabbed Rawlings by the hair, forcibly dragged her through the apartment and repeatedly struck her. When Rawlings begged him to stop, Petitioner continued beating her over the body and face. At several points during the attack, Petitioner grabbed Rawlings around her neck, attempted to choke her, and stated that he would kill her and throw her out the bathroom window. The attack lasted between twenty and thirty minutes. Ultimately, Petitioner led Rawlings downstairs and out the door of the apartment building, stating that instead of killing her, he would show her brother what he had done to her. Since Rawlings did not have a telephone in the apartment, she thought it would be best to leave the apartment. When they were outside, Rawlings was able to flag down Mount Vernon Police Lieutenant Joseph Hunce, who observed that Rawlings appeared upset and agitated and that her clothes were disheveled. Police Officer Jeffrey Giorgio then drove Rawlings to police headquarters where he took photographs of her bruises from the attack.
On direct appeal, Petitioner raised the following five issues: (1) failure by the prosecutor to disclose a witness, Tawana Smith, who would have contradicted Rawlings' testimony, constituted a Brady violation; (2) the state trial court's denial of the admission of certificates of conviction of Rawlings was erroneous; (3) the court's Sandoval ruling precluded the Petitioner from testifying at trial; (4) the state trial court erroneously admitted prejudicial evidence of prior convictions ( Ventimiglia ruling); (5) there was insufficient evidence and/or the verdict was against the weight of the evidence on "physical injury" for the convictions of burglary in the first degree, aggravated criminal contempt and assault in the third degree. The Supreme Court, Appellate Division, Second Department affirmed the convictions. People v. Reid, 284 A.D.2d 556, 727 N.Y.S.2d 623 (2d Dep't 2001), Iv. denied, 97 N.Y.2d 687, 738 N.Y.S.2d 303 (2001). The instant petition raises the same grounds.
Ground 1
Petitioner argues that the prosecution's failure to timely disclose Tawana Smith, a witness whose testimony would have contradicted Rawlings' testimony on a single point, constituted a Brady violation and deprived Petitioner of a fair trial and due process. Following opening statements and testimony of three witnesses at trial, the prosecutor informed defense counsel of the intent to call Tawana Smith, a neighbor of Rawlings. Relying on New York's Rosario rule, codified in NYCPL § 240.45, defense counsel sought to preclude Tawana Smith because she was disclosed after opening statements. The trial court precluded Smith from testifying on the ground that the Petitioner's case was prejudiced by the late disclosure. On direct appeal, Petitioner expanded the scope of his argument to add that the late disclosure of Smith constituted a Brady violation.
Petitioner argues the prosecutor did not timely disclose Smith as the prosecutor informed defense counsel of Smith's existence after the trial had already began. Petitioner further contends that Smith's testimony would have contradicted Rawlings' testimony. Smith had told the prosecutor's investigator that on the day of the incident she heard banging and yelling at Rawlings' door, which testimony inferentially contradicted Rawlings' testimony that she believed that the little girl was at the door. Smith also told the investigator that she heard a man's voice at Rawlings' door, that Rawlings told the man to go away and then heard a fight inside the apartment. Nevertheless, following disclosure of the investigator's report, the prosecutor informed the court that based on her conversation with Smith, the report was incorrect about Smith's recollection of the events of that day. Smith had actually told the investigator that the banging on Rawlings' door occurred on a different day.
The Brady obligation is as follows:
To the extent that [a] prosecutor knows of material evidence favorable to the defendant in a criminal prosecution, the government has a due process obligation [grounded in the 14th amendment] to disclose that evidence to the defendant. Information coming within the scope of this principle . . . includes not only evidence that is exculpatory, i.e., going to the heart of the defendant's guilt or innocence, but also evidence that is useful for impeachment, i.e., having the potential to alter the jury's assessment of the credibility of a significant prosecution witness.United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998):see also Brady v. Maryland, 373 U.S. 83 (1963). . .
In Stickler [v. Green, 527 U.S. 263, 281-282 (1999)] the Supreme Court ruled that:
There are three components of a true Brady violation. The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001). "The undisclosed evidence `must be evaluated in the context of the entire record.'" Mendez v. Artuz. 303 F.3d 411, 412 (2d Cir. 2002).cert. denied, 123 S.Ct. 1353 (2003).
The disclosure of Smith following commencement of trial did not amount to a Brady violation. Brady material does not have to be disclosed by the prosecution to defense counsel prior to the beginning of trial. See Leka v. Portuondo, 257 F.3d at 100. Rather, for a Brady violation to stand, the Petitioner must show that the material was disclosed too late to enable the defendant to use it effectively in his own defense. See United States v. Munoz, 736 F. Supp. 502, 504 (S.D.N.Y. 1990). Here, the prosecutor informed defense counsel of the intent to call Smith as a witness prior to close of the People's case. The prosecution did not suppress the witness and defense counsel had sufficient time to request a continuance or subpoena Smith. Therefore, the timing of the disclosure did not amount to a Brady violation.
In addition, the disclosure of Smith did not amount to a Brady violation because her testimony would have contradicted Rawlings' testimony on an insignificant point with regard to the burglary charge brought against Petitioner. A Brady violation does not automatically occur when evidence that is "possibly useful" to defense counsel is not disclosed by the prosecution. See United States v. Avellino, 136 F.3d at 257 (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)). Rather, suppression of such evidence only amounts to a constitutional violation when there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Hakeem v. Goord, 2000 U.S. Dist. LEXIS 14927 (S.D.N.Y September 27, 2000) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
An individual commits burglary in the first degree when he "knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he . . . causes physical injury to any person who is not a participant in the crime." N.Y. Penal Law § 140.30 (McKinney 1999). While Petitioner argues that Smith's testimony could have led the jury to believe there was no unlawful entry into Rawlings' apartment, no reasonable jury would have concluded that the entry was lawful. Petitioner did not dispute the identity of Rawlings' assailant. Photographs of Rawlings' injuries amply evidenced an attack. The prior incidents of petit larceny and the violation of the order of protection clarified the intent of Petitioner's visit. Even if the jury had believed Smith's statement to the investigator, the circumstances would have compelled the jury to conclude that Petitioner's entry was unlawful. In addition to the direct evidence of the assault and the circumstantial evidence of intent, according to Smith, Rawlings told Petitioner to leave after which Smith heard the fight in the apartment. Under these circumstances, a reasonable jury would not have been able to conclude that Petitioner had entered the apartment other than to assault Rawlings.
Ground 2
Petitioner claims that the state trial court erred when it refused to admit certificates of conviction against Rawlings in order to impeach her credibility. When defense counsel questioned Rawlings about her previous arrests and convictions in the 1970s, 1980s and 1990s, she stated that she could not recall most of the incidents. Rawlings admitted that she had been imprisoned in the past, but when asked about arrests on specific dates, she stated that she could not recall them because she wanted to put the incidents behind her. Rawlings also admitted that she was a former drug addict. Defense counsel then sought to admit certificates of conviction for five drug related crimes pursuant to N.Y. Crim. Proc. Law § 60.40, which provides that if a witness is asked if he or she was previously convicted of an offense and "answers in the negative or in an equivocal manner, the party adverse to the one who called him may independently prove such conviction." N.Y. Crim. Proc. Law § 60.40 (McKinney 1992). The court refused to admit these certificates into evidence because defense counsel had questioned Rawlings about convictions other than the ones counsel had sought to prove by the certificates. Therefore, as Rawlings had not specifically stated that she did not recall those arrests, the judge refused to admit the certificates (T 1203-1208, 1325-1331).
An erroneous evidentiary ruling premised on state law can only rise to the level of constitutional error if Petitioner can show that the error deprived him of a fundamentally fair trial. See Copeland v. Walker, 258 F. Supp.2d 105, ___ (E.D.N.Y. 2003) (cases cited therein). The state trial court's ruling did not deny Petitioner a fair trial because Petitioner did not demonstrate how he suffered prejudice as a result of the ruling. Defense counsel was permitted to inquire about Rawlings' arrests as well as her former drug addiction. Therefore, the jury was aware that Rawlings had been arrested in the past and also that she was a former drug addict. More importantly, the state trial court's ruling was not erroneous. The record does not reflect that defense counsel was entitled to admit the certificates into evidence because Rawlings never denied the convictions sought to be proved by the certificates. Therefore, the statutory predicate for their admission was not met.
Grounds 3 and 4
The state trial court issued a joint Sandoval/Ventimiglia ruling following a pretrial hearing. For Sandoval purposes, the court permitted the prosecution to impeach the Petitioner about five convictions in the event that he testified: (1) March 18, 1991 attempted petit larceny; (2) April 1997 criminal possession of a controlled substance in the seventh degree; (3) January 5, 1998 misdemeanor; (4) October 31, 1998 petit larceny; and (5) April 16, 1999 criminal contempt in the second degree.
The evidence that was found to be admissible for Ventimiglia purposes was limited to specific circumstances of the petit larceny on October 31, 1998 and criminal contempt in the second degree on April 16, 1999.
Since Petitioner did not testify at trial the jury did not hear and it is not possible to determine the prejudicial impact of the convictions which were the subject of the Sandoval ruling. It is well established that in order to raise a claim for improper impeachment with a prior conviction, the defendant must testify at trial. See Nieves-Delgado v. New York, 2003 U.S. Dist. LEXIS 9456 (S.D.N.Y. June 9, 2003) (citing cases therein). Accordingly, Petitioner is not entitled to relief on this issue.
In this case, the state trial court had to determine if the probative value of the evidence of the underlying circumstances of Petitioner's prior convictions outweighed the potential for prejudice. People v. Ventimiglia, 52 N.Y.2d 350. 364 (N.Y. 1981).In Ground 4, Petitioner contends that evidence of the underlying circumstances of the prior offenses was unnecessary because he did not dispute the identity of the perpetrator or the element of intent. In applying the balancing test required by Ventimiglia, the state trial court limited the prosecutor as follows. On the petit larceny offense, the prosecutor was only permitted to ask if Petitioner had approached Rawlings on a public street and had taken her purse. On the criminal contempt offense, the prosecutor was only permitted to inquire if Petitioner had pushed his way into Rawlings' apartment on that day. When the prosecutor questioned Rawlings about these convictions the state trial court instructed the jury that the incidents had been admitted merely for background information regarding the relationship between Petitioner and Rawlings and the offenses could not be considered proof of propensity to commit the charged crimes (T 1088-1090). The state trial court repeated this instruction as part of the jury charge (T 1598-1601).
As stated above, an erroneous evidentiary ruling premised on state law can only rise to the level of constitutional error if Petitioner can show that the error deprived him of a fundamentally fair trial. See Copeland v. Walker, 258 F. Supp.2d at ___. Petitioner must show that the Ventimiglia ruling was material to the defense by demonstrating that if the crimes had not been admitted, a reasonable doubt about the Petitioner's guilt would have been created. Id. Petitioner did not demonstrate how the court's ruling deprived him of a fundamentally fair trial, in fact Petitioner did not show how the court's ruling was even erroneous. The state trial court permitted the convictions to be admitted for the purpose of demonstrating the basis for the permanent order of protection issued by the court against the Petitioner. The court also limited the prosecution's inquiry into these incidents and twice instructed the jury that the convictions were not admitted for the purpose of establishing propensity to commit the charged crimes. The state trial court's instructions to the jury diminished any potential for prejudice from the admission of this evidence. See Miller v. Portuondo, 151 F. Supp.2d 245, 248 (E.D.N.Y. 2001).
Ground 5
Finally, Petitioner contends that the evidence of "physical injury" was insufficient to sustain the convictions of burglary in the first degree, aggravated criminal contempt, and assault in the third degree.
The standard for granting a habeas corpus petition on the ground of insufficient evidence to support a finding of guilt beyond a reasonable doubt is a very stringent one. The test, according to the Supreme Court is "whether, 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).Donaldson v. Dalsheim, 508 F. Supp. 294, 296 (S.D.N.Y. 1981), aff'd, 672 F.2d 899 (2d Cir. 1981), cert. denied, 455 U.S. 951 (1982).
In this case, assault in the third degree, which requires proof of a physical injury, was charged as an element of burglary in the first degree and aggravated criminal contempt.
The elements of a crime maybe inferred from circumstantial evidence. Thus, "[a]s long as any competent evidence went to the fact-finders from which they could infer guilt beyond a reasonable doubt, the conviction will stand." Furthermore, this court cannot substitute its own evaluation of the evidence for the jury's, even in a case where it might be inclined to differ.Martin v. Scully, 748 F. Supp. 159, 163-64 (S.D.N.Y. 1990) (citations omitted).
Petitioner recites circumstantial evidence which he claims demonstrates a lack of physical injury: Rawlings did not seek medical attention; she walked up four flights of stairs just following the incident; there was no evidence of how long the finger marks remained on her neck; three days after the incident Rawlings' brother described her face as kind of swollen. New York Penal Law § 10.09(9) defines "physical injury" as "impairment of physical condition" or "substantial pain." During the May 20, 1999 attack, Rawlings suffered a carpet burn which tore the skin off her knee, causing it to bleed, and left a noticeable scar. A photograph of Rawlings' knee taken two months after the attack depicts the scar. A "scar alone is impairment sufficient to constitute physical injury."People v. Rivera, 183 A.D.2d 792, 583 N.Y.S.2d 520 (2d Dep't 1992); People v. Jones, 173 A.D.2d 359, 570 N.Y.S.2d 4 (1st Dep't 1991); People v. Tejeda, 165 A.D.2d 683, 560 N.Y.S.2d 142, 143 (1st Dep't 1990), aff'd 78 N.Y.2d 936 (1991). While Rawlings' injuries were not severe enough to require medical attention, a rational trier of fact could have believed there was sufficient evidence to prove beyond a reasonable doubt that Rawlings suffered physical injury. Whatever inferences might be drawn in Petitioner's favor from the circumstances he cites, Rawlings' testimony and photographic evidence of her condition immediately after the attack, depict obvious injuries. A reasonable jury was not required to draw the inferences raised by Petitioner as against Rawlings' testimony and the photographic evidence. After weighing all of the evidence a reasonable jury could conclude that Petitioner had inflicted "physical injury."
For the foregoing reasons, I respectfully recommend that Your Honor deny this petition for writ of habeas corpus.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Rule 72(b), Fed.R.Civ.P., the parties shall have ten (10) days, plus an additional three(3) days, pursuant to Rule 6(e), Fed.R.Civ.P., or a total of thirteen (13) working days, (see Rule 6(a), Fed.R.Civ.P.), from the date hereof, to file written objections to this Report and Recommendation. Such objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of The Honorable Laura Taylor Swain at the United States Courthouse, 40 Centre Street Room 426, New York, New York, 10007, and to the chambers of the undersigned at the United States Courthouse, 300 Quarropas Street Room 434, White Plains, New York, 10601.Failure to file timely objections to the Report and Recommendation will preclude later appellate review of any order or judgment that will be entered by Judge Swain. See Thomas v. Arn, 474 U.S. 140 (1985);Frank v. Johnson, 968 F.2d 298 (2d Cir.), cert. denied, 506 U.S. 1038 (1992); Small v. Secretary of H.H.S., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolekv. Canadair, Ltd., 838 F.2d 55, 58 (2d Cir. 1988). Requests for extensions of time to file objections must be made to Judge Swain and should not be made to the undersigned.