Opinion
03-CV-3464 (JG).
July 22, 2004
DEMETRIUS SMITH, DIN: 03A4308, Bare Hill Correctional Facility, Malone, NY, Petitioner Pro Se.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, By: Diane R. Eisner, Assistant District Attorney Attorneys for Respondent.
MEMORANDUM AND ORDER
Demetrius Smith petitions for a writ of habeas corpus, challenging his convictions in state court. On June 25, 2004, I held oral argument, in which Smith participated by telephone conference. The petition is denied for the reasons set forth below.
BACKGROUND
The government's evidence at trial established that, on May 23, 1998, Smith's brother was involved in an altercation with William Cherry on Saratoga Avenue in Brooklyn, during which both Cherry and Smith's brother cut each other with razors. After the fight, Smith's brother went to the apartment building located at 33-35 Saratoga Avenue and rallied his friends, some of whom had guns, to come outside with him to find Cherry. When they found Cherry at a bus stop with several of his relatives, including Douglas Parker, they approached and pointed their guns at them. Parker tried to act as a peacemaker, to no avail. The group that accompanied Smith's brother fired some shots, although no one was injured at that time since Cherry and his relatives either boarded the bus or scattered.
At the time of these events, Smith, who was then fifteen years old, was standing across the street in the lobby of 33-35 Saratoga Avenue. Next to him was Shariff Culler, who had a gun. Culler pointed the gun through a broken lobby window at Parker, who had returned to the scene. Although Culler tried to fire at Parker, the gun did not go off. Smith grabbed the gun from Culler and fired a shot at Parker, which hit him in the neck. Parker died from this gun shot wound.
Smith was charged as a juvenile offender with one count of intentional murder in the second degree and one count of depraved indifference murder in the second degree. He was also charged with criminal possession of a weapon in the second degree.
At trial, two eyewitnesses who were in the building lobby with Smith when he fired the fatal shot testified against him. One was William Vega, who observed Smith take the gun from Culler before the fatal shot and saw Smith with the gun in his hand immediately after hearing the gun shot. The other was Naquan Jones, a friend of Smith's, who saw Culler pass the gun to Smith, who then fired it through the lobby window at Parker. Both Vega and Jones lived in 33-35 Saratoga Avenue.
There was testimony at trial that Smith had approached both of these eyewitnesses to tell them not to speak to the authorities about the murder. In summation, the prosecutor argued that any inconsistencies in their testimony could be explained by Smith's threats to them, because they feared for their safety. Defense counsel moved for a mistrial, asserting that the prosecutor's remarks were beyond the scope of the record. The trial court denied the mistrial motion, explaining that "[t]here has not been any sufficient level of defect in the proceedings that would warrant such a drastic action." (Tr. at 568.) The court further explained that:
The evidence that has been presented does indicate that there was conversations [sic] between [Smith] and the witness Vega two days after the incident. Whether or not the jury finds that credible, and what weight they give to that, that's up to them. They certainly will be charged on that point. But there is sufficient evidence in this case to make fair comment on what effect that particular conversation may have had on him and what effect that conversation might have on his on-trial demeanor.
(Tr. at 569.) The court agreed with defense counsel, however, that the prosecutor had dwelled too long on the threats, and so the court directed her to "leave the area alone, regarding the change in this witness's life and his fear for his life," because "continued repetition of that area is inappropriate because it begins to rise to the level of bolstering for that witness's credibil[ity]." (Id. at 568-69.)
At the conclusion of the prosecutor's summation, defense counsel renewed his motion for a mistrial based on additional remarks by the prosecutor, which, counsel asserted, constituted burden-shifting and vouching. (Tr. at 590C-590D.) The court denied the motion. It ruled that the comments were appropriate argument and that the one burden-shifting comment, i.e., if the witnesses had made prior inconsistent statements, the defense counsel would have elicited them upon cross-examination, was harmless in light of the court's curative instructions. (Tr. at 590G-H.)
The jury found Smith guilty of depraved indifference murder, acquitting him of intentional murder. Smith was sentenced to a term of imprisonment of nine years to life.
Smith, through counsel, appealed to the Appellate Division, Second Department. Appellate counsel argued that Smith should receive a new trial because the prosecutor engaged in misconduct during the trial. In particular, counsel alleged that: (a) the prosecutor's attempt to refresh Vega's recollection resulted in the improper disclosure of his grand jury testimony; (b) the prosecutor grossly misrepresented the record when she stated that prosecution witnesses were threatened by Smith not to relay what they had seen to the authorities; and (c) the prosecutor shifted the burden of proof to Smith by arguing that the prosecution's witnesses were credible because defense counsel did not point out any inconsistencies in their testimony.
The Appellate Division rejected all of these challenges and affirmed Smith's conviction on May 6, 2002. People v. Smith, 741 N.Y.S.2d 891 (2d Dep't 2002). The court stated:
The defendant's claims that the prosecutor improperly used a witness's prior Grand Jury testimony to refresh his recollection, and that the trial court erred in instructing the jury that it could consider such testimony for credibility purposes, are unpreserved for appellate review. In any event, the prosecutor properly used the witness's Grand Jury testimony to refresh his recollection.
The prosecutor's comments during summation do not require reversal because they were, for the most part, a fair comment on the evidence and were responsive to the defense counsel's summation. Further, to the extent that the prosecutor's comments exceeded proper bounds, the trial court provided timely curative instructions to ameliorate any potential prejudice that might have resulted.Id. (citations omitted). The Court of Appeals denied Smith's application for leave to appeal on July 31, 2002. People v. Smith, 98 N.Y.2d 702 (2002).
On April 23, 2003, Smith filed a pro se petition for a writ of habeas corpus in this Court, raising the same grounds raised by his appellate counsel on direct appeal.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
Under the latter standard, "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."Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411);see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S. Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[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." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
B. Smith's Claims of Prosecutorial Misconduct
Smith claims that his right to a fair trial was violated by the prosecutor's conduct during summation, and by her direct examination of Vega. I disagree.
Habeas relief based on a claim of prosecutorial misconduct is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974);see also Pimentel v. Walsh, No. 02 Civ. 570, 2003 U.S. Dist. LEXIS 19677, at *19-*20 (S.D.N.Y. Nov. 4, 2003) ("To obtain relief on a prosecutorial misconduct claim, a habeas petitioner must show that `the prosecutor engaged in egregious misconduct . . . amounting to a denial of constitutional due process.'" (ellipsis in original) (quoting Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1991))). "It is not enough that the prosecutor's remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, a petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994).
Prior to the passage of AEDPA in 1996, federal habeas courts applied the harmless error standard established in Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), under which a petitioner was required to show that the constitutional error "had a substantial and injurious effect or influence in determining the jury's verdict"; in other words, "actual prejudice." Id. at 637. It is an open question in this circuit, however, whether Brecht survives AEDPA, or whether now a federal habeas court should determine instead whether the state court's decision was contrary to, or involved an unreasonable application of, the Chapman v. California harmless error standard, 386 U.S. 18, 24 (1967) ("[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."); see Loliscio v. Goord, 263 F.3d 178, 185 n. 1 (2d Cir. 2001); Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir. 2001). Because I conclude that the errors alleged by Smith were either not errors at all or harmless under both standards, as discussed in text, infra, I need not decide this question.
In evaluating the propriety of allegedly improper remarks, courts should consider whether the comments manipulated or misstated evidence, and whether they implicated other specific rights of the accused, such as the right to counsel or the right to remain silent. Darden, 477 U.S. at 182. The habeas court should also consider the severity of the prosecutor's conduct, the measures, if any, that the trial court took to remedy any prejudice, and the certainty of conviction absent the prosecutor's remarks. See Bentley, 41 F.3d at 824.
Smith complains of three different missteps by the prosecutor. I will address each one in turn.
These arguments are taken directly from Smith's appellate counsel's brief in the Appellate Division, upon which he relies in this petition.
1. The Summation
a. Exaggerating the Record
First, Smith complains that he was deprived of a fair trial because the prosecutor made repeated, exaggerated references to the threats that Smith allegedly made to Vega and Jones, the two eyewitnesses to the murder.
At trial, Vega testified that two days after the murder, he encountered Smith at Vega's apartment, 33-55 Saratoga Avenue, and Smith told him that "if [he] was to say anything about what happened, watch what's going to happen." (Tr. at 440, 456-57.) Vega further testified that although he had lived at 33-35 Saratoga Avenue, he had not been staying there since the trial started because he did not want to get into "no problems with anybody else." (Tr. at 442.)
Defense counsel, for his part, brought out the inconsistencies in Vega's testimony about the shooting incident. Vega vacillated between stating that he did not see the gun pass from Culler to Smith before the fatal shots and stating that he did in fact see this transaction.
Jones, the other eyewitness, testified that Smith had telephoned him prior to trial to say that he knew that Jones was "snitching" on him. (Tr. at 66.) Jones understood this statement to mean that Smith "kn[e]w I'm talking to the police." (Tr. at 67.) Jones told the jury that Smith's telephone call made him feel "[m]essed up," although he stated that he "wasn't scared." (Id.) When the prosecutor asked him if he was going back to his apartment that night (the same building in which Vega resided) after testifying in court, Jones replied, "I don't know." (Tr. at 74). Jones did testify, however, that he was "still in the neighborhood." (Tr. at 91).
As with Vega's testimony, the defense counsel exposed the inconsistencies in Jones' testimony. During defense counsel's cross-examination, Jones admitted that when he was initially questioned by detectives, he said that he did not know anything about the shooting, and he admitted his observations only when the detectives told him he could get "locked up" if he refused to give a statement. (Tr. at 76-77.) Defense counsel also elicited that several months after the shooting, Jones wrote a letter, at his father's urging, in which he stated that he gave statements to the detectives only because they threatened him. At trial, Jones denied the veracity of the letter. (Tr. at 79-80, 104-05, 108-09.)
In summation, the prosecutor argued to the jury that it should dismiss any inconsistencies in the two eyewitnesses' testimony as the by-product of their fear of testifying after they were threatened by Smith. At least implicitly, the prosecutor suggested that Smith was guilty because he would not have threatened the eyewitnesses unless he was the one who fatally shot Parker. Smith challenges these arguments here.
Specifically, these challenged portions of the prosecutor's summation are as follows:
PROSECUTOR: [Vega] wasn't threatened by [Culler]. The only person he was threatened by was [Smith]. And the one thing that came across in William Vega's testimony is how scared that boy was. He's afraid of [Smith], yet he came in here and he identified him.
DEFENSE: Objection, your Honor.
COURT: Sustained.
PROSECUTOR: Why would he do that if it wasn't true? It makes no sense. You saw him on the witness stand Two days after the murder, [Smith] approaches him in the backyard of his own building and says, say what happened. Watch what's going to happen. What do you think he meant by that? He could only have meant one thing: Keep your mouth shut, and you will be okay. And talk, and you know what I am capable of. William Vega knew what he was capable of. He had just seen him commit murder two days before.
DEFENSE: Objection, your Honor.
COURT: Sustained.
PROSECUTOR: He told you he took that threat very seriously. He told you at the start of this trial that even though he had lived in that building for 18 years, he moved out because he was afraid. A twenty year old kid moved out of his house as a result of testifying.
DEFENSE: Objection, your Honor.
COURT: Sustained.
PROSECUTOR: That was his testimony. He was so terrified to be in the same courtroom as [Smith]. . . .
DEFENSE: Objection. . . .
* * *
COURT: Sustained. The Jury is to disregard that comment. Ladies and gentlemen, I remind you that the statements of defense and the statements of the prosecution, they are not evidence. The evidence is the testimony of witnesses and those items received into evidence. They are not evidence. Keep that in mind. . . . .
* * *
PROSECUTOR: Now, defense counsel wants you to believe that you can't trust anything William Vega said because he was inconsistent on whether or not he saw [Smith] take the gun from [Culler]. First, he said he did. The defense counsel asked him and he back[ed] down. And when he was asked again, he came back to what he said, and ultimately, even on recross, he told the defense attorney, I saw him. I saw him take the gun.
And you remember defense counsel was mocking him, well, what's different about the way the DA asked the questions from the way I asked the question? The difference is very simple. When he asked him the question, I'm standing here. You saw him. He look[ed] at me and he looked at you. I'm not a threat to William Vega and neither are you. When the defense attorney asked him the question, he stood here. He forced him to look at [Smith], to look at the face that threatened him.
DEFENSE: Objection, your Honor. And I ask for an instruction.
COURT: Sustained. * * * The objection is sustained. Disregard [the prosecutor's] comments as to whatever it is that [defense counsel] had in mind. And I remind you that the comments of counsel is not evidence.
PROSECUTOR: I'm not saying defense counsel did anything deliberately. What I am saying is when William Vega answered defense counsel's question . . . William Vega was looking at [Smith], the person who had threatened him, the person he feared. And ask yourselves whether that kind of fear is going to affect the way you say something on the stand
* * *
William Vega's life has been turned upside down as a result of this incident. He has lived the past year in complete fear. He's a twenty year old kid. He has been forced to move out of his house as a result of [Smith's] actions, not just as a result of [Smith's] shooting.
DEFENSE: Objection, your Honor.
COURT: Sustained.
PROSECUTOR: As a result of [Smith's] threat. He told you, because he was afraid, because [Smith] threatened him, he moved out of there. Because they know where he lived. It's in his testimony. And his life will never be the same again. And ask yourselves —
DEFENSE: Objection, you Honor.
COURT: Go on, [to the prosecutor].
PROSECUTOR: Ask yourselves why. Why would he do this if it wasn't true?
* * *
There is no reason for you to doubt [Vega's] testimony. He has absolutely nothing to gain, and he has lost his life as he has known it, his home, his neighborhood where he grew up. He told you he can't come back. And for the rest of his life, he is going to be looking over his shoulder.
DEFENSE: Objection. Can we approach?
COURT: Sustained. Sustained.
(Tr. at 558-566.)
Similarly, Smith objects to the following remarks by the prosecutor about Jones:
Naquan Jones came in here even though [Smith] threatened him, even though he told you he couldn't go home that night * * * Ask yourselves how much courage it took for that young man to come in here and to face [Smith]. His friends didn't want him to testify. His farther [sic] didn't want him to testify.
(Tr. at 582.)
Smith complains that the remarks in the excerpts quoted above improperly overstated the record and were highly inflammatory. Specifically, Smith asserts that Vega had never once stated that he was in fear of Smith, nor did Vega testify that anyone associated with Smith had ever approached him. Indeed, Smith asserts that, quite to the contrary, Vega acknowledged that he continued to spend time in the neighborhood after the incident, as did Jones. With respect to Jones, Smith maintains that he, too, was never threatened by Vega. Smith further points to Jones' testimony that he never had any problems with Smith.
I disagree with Smith's argument for several reasons. First, the prosecutor's comments, while somewhat exaggerated, were fair inferences from the facts that were elicited at trial. Both eyewitnesses to the murder were confronted by Smith; Smith told Jones that he knew that he was "snitching" and told Vega "to watch what's going to happen" if he said anything about the incident. Based on this testimony, the prosecutor argued, in substance, that these witnesses were threatened by Smith and were afraid of the consequences of their testimony against him. I am satisfied that this argument was fairly grounded in the testimony.
Second, the prosecutor's remarks were a fair response to the defense case. Defense counsel brought out the fact that Jones' statements about the murder wavered over time, and argued to the jury that it should not believe Jones' account of the murder. Defense counsel also presented inconsistencies in Vega's testimony to the jury. Defense counsel argued strenuously that neither Jones nor Vega was at all credible, and attacked them as not being the "type of witnesses that add up to proof beyond a reasonable doubt." (Tr. at 524.) He specifically argued that Jones had signed a letter seeking to undermine (as coerced) his critical accusation of Smith (Tr. at 513-15), and stressed Vega's unreliability based on the changing details of his testimony. (Tr. at 521-23). The challenged arguments by the prosecutor sought to counter these attempts to depict Vega and Jones as untrustworthy by providing an explanation for the inconsistencies in their testimony.
Finally, any error was rendered harmless because the court sustained most of defense counsel's objections during the summation, and also interrupted the prosecutor's summation to instruct the jury that the prosecutor's statements during summation were not evidence. See supra. Moreover, in its initial and final charges to the jury, the court instructed that statements and arguments by the attorneys were not evidence, and that statements struck by the court should not be considered as evidence or otherwise. (See Tr. at 18, 595.)
In any event, I cannot say that the Appellate Division's application of federal law was unreasonable when it held that "[t]he prosecutor's comments during summation . . . were, for the most part, a fair comment on the evidence and were responsive to the defense counsel's summation [and]. . . . to the extent that the prosecutor's comments exceeded proper bounds, the trial court provided timely curative instructions to ameliorate any potential prejudice that might have resulted." Smith, 741 N.Y.S.2d at 891. Therefore, Smith is not entitled to the writ on this ground.
b. Burden-Shifting
Second, Smith maintains that the prosecutor shifted the burden of proof to the defense. To support his claim, Smith points to the prosecutor's suggestion that Vega was credible because the defense had failed to provide impeaching evidence: "You can bet if William Vega said anything inconsistent about that actual shooting, it would have come out in cross-examination. But it didn't." (Tr. at 563.) However, the trial court sustained defense counsel's objection to this comment, and instructed the jury to "[d]isregard that comment, please." (Id.) Smith similarly complains about the following argument by the prosecutor concerning the testimony of Jones: "[Jones'] testimony [as to the shooting] was unimpeached. You never heard anything about prior statements where he said it happened any differently. * * * You never heard anything said about any statement to the police or DA where you heard anything different." (Id. at 572-73.) Once again, the trial court sustained defense counsel's objection, and told the jury "to disregard that comment completely." (Tr. at 573.)
I do not find Smith's contentions persuasive. The prosecutor was merely trying to counter defense counsel's attempts to depict the prosecution witnesses as unbelievable due to inconsistencies in their testimony, as noted above. Moreover, although a comment on a defense failure of proof can be troublesome, especially when the proof at issue would be expected to come from the defendant himself, that is not what occurred here. The gist of the prosecutor's remarks was that if Vega and Jones had made inconsistent prior statements to the police or the prosecutor about the shooting, the jury would have learned of them through cross-examination. In my view, the argument had neither the purpose nor the effect of shifting a burden to the defendant.
In any event, defense counsel's objections at trial were sustained. If there was any unfair prejudice to Smith, it was surely dissipated by the court's immediate curative instructions, as well as by the charge to the jury at the end of summations.
Thus, under these circumstances, I cannot say that the state court's ruling that any error was harmless was an unreasonable application of federal law.
2. Refreshing Vega's Recollection
Smith asserts that the prosecutor improperly disclosed Vega's grand jury testimony to the jury when she was attempting to refresh Vega's recollection, and that this resulted in bolstering his testimony. To support his assertion, Smith points to New York state law, which essentially prohibits the use of a prior sworn statement of a witness for the purpose of refreshing the recollection of a witness in a manner that discloses its contents to the trier of facts. See N.Y. Crim. Proc. Law § 60.35. I disagree.
Section 60.35[3] provides:
When a witness has made a prior signed or sworn statement contradictory to his testimony in a criminal proceeding upon a material issue of the case, but his testimony does not tend to disprove the position of the party who called him and elicited such testimony, evidence that the witness made such prior statement is not admissible, and such party may not use such prior statement for the purpose of refreshing the recollection of the witness in a manner that discloses its contents to the trier of the facts.
N.Y. Crim. Proc. Law § 60.35[3].
Vega initially testified that he did not see how the gun got from Culler's hand to Smith's, and that he first saw the gun in Smith's hand after hearing the last shot fired. (Tr. at 437-38.) Soon after this testimony, the prosecutor handed Vega a transcript of his testimony to the grand jury, and asked him if it "refresh[ed] [his] memory as to how it was that the gun got from [Culler's] hand to [Smith's] hand" (Tr. at 441.) Defense counsel objected, pointing out that Culler had not stated that he could not remember, and the court sustained the objection. (Tr. at 441-42.)
In his petition, Smith objects to the following exchange between the prosecutor and Vega, which occurred during the direct examination and followed the sequence just described:
PROSECUTOR: Well, how did the gun get from —
Did you see how the gun got from [Culler's] hand to [Smith's] hand?
VEGA: Well, it says in the [transcript of the grand jury testimony] that he grabbed it.
PROSECUTOR: Did you see him grab it?
VEGA: I don't remember if seen it [sic].
DEFENSE: Objection, Judge. I ask that be stricken.
COURT: It's stricken.
PROSECUTOR: Does that refresh your recollection? Does that refresh your memory as to whether or not you saw him grab the gun?
VEGA: Yes.
PROSECUTOR: Did you see him grab the gun?
VEGA: Yes.
PROSECUTOR: And did you see [Smith] grab the gun from [Culler] before or after you heard that shot?
VEGA: Before.
(Tr. at 441-42.)
Similarly, Smith objects to the exchange that took place on the prosecutor's redirect of Vega:
PROSECUTOR: Now, when you testified in the grand jury, you took an oath. You remember that?
VEGA: Yes.
PROSECUTOR: And, you've been asked a few times about what you said in the grand jury and what you said here. And after having reviewed your grand jury testimony, do you remember now whether or not you saw [Smith] grab the gun from [Culler]?
VEGA: Yes.
PROSECUTOR: Did you?
VEGA: Mm-hmm.
(Tr. at 461.) In summation, the prosecutor argued that Vega should be believed because his trial testimony was consistent with his grand jury testimony. (Tr. at 563.) The trial court instructed the jury that it should disregard this comment and consider the grand jury testimony only for credibility purposes, not for the truth of the assertions made in the grand jury. (Tr. at 564.)
Assuming that this issue was preserved, it cannot afford Smith a basis for habeas relief. Putting aside the fact that a violation of state law is not generally cognizable in a habeas petition, see Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("federal habeas corpus relief does not lie for errors of state law"), and the fact that the trial court instructed the jury not to consider the grand jury testimony as substantive evidence, there still is no constitutional violation here. Indeed, under the Federal Rules of Evidence, the grand jury testimony of a witness may properly be disclosed to the jury under the circumstances presented at Smith's trial. Rule 801(d)(1) provides that a prior statement of a witness is not hearsay if "[t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding. . . .". Fed.R.Evid. 801(d)(1). Once Vega testified that he had not seen the gun passed to Smith, the use of his contrary testimony under oath to the grand jury was permissible under federal law. Accordingly, Smith cannot prevail on this ground for relief.
Respondent argues that this error is unpreserved. Indeed, as noted above, the Appellate Division held that the issue was unpreserved for review. People v. Smith, 741 N.Y.S.2d 891 (2d Dep't 2002). The record reveals that Smith's trial counsel failed to object to all of the testimony and argument that Smith presents here as troubling. Also, the ground for the objection at trial (i.e., the attempt to refresh recollection was improper in the absence of a claimed failure to recall) is not the same as the ground advanced here. I need not delve into this preservation analysis, however, because Smith's claim is meritless, as discussed in the text, infra.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Smith has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.