Opinion
Case No. 98 Civ. 6529(HB).
July 27, 2001.
OPINION ORDER
Pro se petitioner Pedro Bonet seeks a writ of habeas corpus pursuant to 29 U.S.C. § 2254 challenging his March 29, 1995 conviction for criminal possession of a controlled substance in the third degree. Bonet challenges the trial court conviction on the following grounds: (1) that the trial court precluded relevant evidence and curtailed his opportunity for cross examination; (2) that the court admitted evidence of an uncharged crime in violation of his due process rights; (3) that the court improperly excluded his fiance from the courtroom; and (4) that the court imposed an excessive sentence. For the following reasons, the petition is dismissed.
Radha Natarajan, an Intern in my Chambers during the summer of 2001, was of substantial assistance in the research and writing of this opinion.
BACKGROUND
On March 29, 1995, petitioner was convicted of criminal possession of a controlled substance in the third degree, pursuant to N.Y. Penal Law § 220.16[1]. The judge sentenced petitioner, a second felony offender, to an indeterminate prison term of seven and a half to fifteen years.
Evidence introduced at trial established that on May 4, 1994, while in the presence of an undercover officer, petitioner removed several glassines of heroin from his sock. The officer attempted to buy two of the glassines from petitioner, but petitioner refused to sell them telling the officer that he feared that police were in the area. Subsequently, two other undercover officers saw petitioner sell heroin to a third party, but when an officer searched the suspected buyer shortly thereafter, he did not find any heroin. However, the officer did recover eight glassines of heroin and some cash from petitioner. The officer arrested petitioner and he was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.
The charge of criminal sale was based on petitioner's alleged attempted sale to the undercover officer and not his alleged sale to the third party.
At trial, the court declared a mistrial because a witnesses offered testimony that the court found to be unduly prejudicial. In a second trial, the jury found petitioner guilty of criminal possession of a controlled substance in the third degree but acquitted him on the criminal sale charge. Petitioner appealed his conviction arguing that the trial court erred on a number of grounds including: precluding relevant evidence and curtailing his cross examination, admitting evidence of an uncharged crime, excluding his fiance from the courtroom and imposing an excessive sentence. The Appellate Division rejected Bonet's arguments and affirmed his conviction. See People v. Bonet, 241 A.D.2d 334, 660 N.Y.S.2d 9 (1997). Petitioner filed an application for leave to appeal to the New York Court of Appeals, but his application was denied on August 28, 1997. See People v. Bonet, 90 N.Y.2d 902 (N.Y. 1997). This petition followed.
DISCUSSION
I. Standard of Review
A federal court's review of state proceedings on a habeas petition is limited. 28 U.S.C. § 2254 (d) precludes federal habeas relief unless a federal court finds that the state court's adjudication of the merits of the claims either:
(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)(1), (2); see also Williams v. Taylor, 529 U.S. 362, 390 (2000).
II. Preclusion of Evidence and Curtailment of Cross Examination
Petitioner argues that the trial court prevented him from presenting an adequate defense by curtailing his opportunity for cross examination and precluding the admission of evidence favorable to his defense.
Federal habeas review of a state court conviction is limited to determining whether the alleged error of the trial court rises to the level of a constitutional violation. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Mitchell v. Herbert, No. 97 Civ. 5128, 1998 U.S. Dist. LEXIS 5442, at *11 (S.D.N.Y. April 16, 1998). In challenging a trial court's evidentiary ruling, petitioner bears a heavy burden, for "generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation." Mitchell, 1998 U.S. Dist. LEXIS 5442, at *12 (citing Copes v. Schriver, No. 97 Civ. 2284, 1997 U.S. Dist. LEXIS 16349, at *8 (S.D.N.Y. Oct. 27 1997)). Rather, to warrant habeas relief a petitioner must establish that the error had a "substantial and injurious effect or influence in determining the jury's verdict," or deprived him of a fundamentally fair trial. Copes, 1997 U.S. Dist. LEXIS 16349, at *8-9 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Here, petitioner contends that the trial court refused to allow his counsel to introduce evidence for the purpose of impeaching the police witnesses. Specifically, Bonet sought to introduce evidence that the officer completing the arrest report had erroneously indicated that 7 petitioner was a buyer of drugs rather than a seller. Although this was an inconsistency, the trial court was within its discretion to exclude such evidence. Certainly, it cannot be said that it deprived petitioner of a fair trial nor can I conclude that the decision to exclude this evidence was objectively unreasonable. See Jones v. Stinson, 229 F.3d 112, 120-121 (2d Cir. 2000) (stating that even if the omission of evidence was clear error, a habeas court could only grant relief if the trial court's decision was unreasonable).
Petitioner also claims that the trial court was biased against him, undermined salient defense challenges and exhibited a preference for the prosecution's version of the facts. However, a review of the record reveals that the court sustained numerous objections by the defense and overruled a fair number of the prosecutor's objections. Furthermore, the judge correctly instructed the jury that they should not construe his rulings on legal issues as indicating any bias for or against petitioner. The jury's lack of bias against the petitioner was demonstrated by their acquittal on the sale charge.
The Appellate Division reached the same conclusion, stating that the trial court "did not interfere excessively in the proceedings or show any bias toward defendants. Rather, the court acted within its power. . ." Bonet, 660 N.Y.S.2d at 10.
In this way, petitioner has failed to show that the trial court's evidentiary rulings were erroneous, much less that they constituted a violation of his constitutional rights. Accordingly, this claim must be dismissed.
III. Admission of Uncharged Crimes
Petitioner argues that the trial court erred by admitting evidence that the undercover officers saw him sell heroin to a third party buyer when he was not charged with that crime. Once again, petitioner bears a heavy burden in challenging a state court's evidentiary ruling. To succeed on this claim, petitioner must demonstrate that the court admitted the evidence in error and that the evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt. See Mitchell, 1998 U.S. Dist. LEXIS 5442, at *15 (citations omitted); see also Estelle, 502 U.S. at 75 (evidence of uncharged criminal conduct should only be excluded if its introduction would "so infuse the trial with unfairness as to deny due process of law"). Moreover, while evidence of uncharged crimes is not admissible to show bad character or propensity for criminal behavior, a court may admit such evidence if its probative value exceeds its potential for prejudice to a defendant and if the evidence is admitted to show motive or intent. See Fed.R.Evid. 404(b); see also United States v. Sappe, 898 F.2d 878, 880 (2d Cir. 1990); Kae v. Artuz, No. 98 Civ. 4711, 2000 U.S. Dist. LEXIS 17001, at *13 (E.D.N.Y. November 21, 2000) ("It is well established, however, that evidence of uncharged crimes may be admitted to establish the intent element of a crime.") (citations omitted).
Here, the trial court explained that it admitted the officers' testimony of the alleged transaction with a third party to demonstrate the petitioner's intent to sell. Clearly, evidence that the petitioner attempted to sell drugs to a third party mere moments after he allegedly sold to the undercover officer is relevant to petitioner's intent. Furthermore, the jury was free to balance the testimony with the evidence that the police were unable to recover any drugs from the purported buyer and their verdict demonstrates that they did just that. Therefore, the court did not abuse its broad discretion in determining the relevancy of the evidence. See Davis v. Senkowski, No. 97 Civ. 2328, 1998 U.S. Dist. LEXIS 22995, at *21-22 (E.D.N.Y. August 6, 1998) ("Trial courts are given `broad discretion' in determining the relevancy and admissibility of evidence").
Furthermore, even if the evidence had been admitted erroneously, petitioner could not show that it was sufficiently material to have formed the basis for the conviction. Indeed, the petitioner himself concedes that "possession with intent to sell was easily inferable from the state's rendition of the offer to sell [without evidence of the uncharged sale]." See Pet. Brief in Support, at 10. Therefore, it is unlikely that this evidence impacted the jury's decision.
For the above reasons, this claim must be dismissed.
IV. Exclusion of Petitioner's Fiance from the Courtroom
Petitioner contends that the trial court's decision to exclude his fiance from the courtroom during the testimony of two undercover officers violated his Sixth Amendment right to a public trial.
The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right to a . . . public trial . . . "U.S. Const. Amend. VI; see also Duncan v. Louisiana, 391 U.S. 145, 148 n. 10 (1968) (holding that the right to a public trial applies to states through the Fourteenth Amendment). This right is not absolute, however. The Supreme Court in Waller v. Georgia set forth a four-part test to determine the validity of a closure on habeas review:
(1) The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,
(2) The closure must be no broader than necessary to protect that interest,
(3) The trial court must consider reasonable alternatives to closing the proceeding, and
(4) It must make findings adequate to support the closure.
467 U.S. 39, 48 9984).
In evaluating a partial closure, courts have modified the first prong of Waller to require a "substantial reason" for the closure, rather than an "overriding interest." See Guzman v. Scully, 80 F.3d 772 (2nd Cir. 1996). Additionally, in applying the Waller test, courts must carefully guard a defendant's interest in having friends and family members present. See In re Oliver, 333 U.S. 257, 271-72 n. 29 (1948); see also Guzman, 80 F.3d at 776; Hoi Man Yung v. Walker, No. 00 Civ. 1263, 2001 U.S. Dist. LEXIS 4644, at *18 (S.D.N.Y. April 20, 2001).
Here, the trial court held a Hinton hearing before the start of the first trial to evaluate the prosecutor's claims that closure of the courtroom was necessary to protect the undercover officer's safety and effectiveness. At the hearing, the undercover officers testified as to their duties, the part of town in which they worked and their concerns about the risks to their safety and effectiveness if their identities were disclosed. The government was careful to question the officers about the part of town in which they worked.
Government: And can I ask you, Officer, have you ever operated in the vicinity of Pitt and Rivington?
Officer: Have I ever operated, yeah, frequently.
Government: And what percent of your undercover work is in that area, just giving a percentage?
Officer: This time right now, three out of four days that we work we're in that area.
Trans. at 9. One of the officers also explained that his investigations in the Pitt and Rivington area were ongoing and that exposure of his identity would likely jeopardize the investigations.
Government: Officer, do you believe that any current investigations of an ongoing nature in which you're involved will be jeopardized if your identity as a police officer were made public?
Officer: Yes, if I'm known in these areas it will jeopardize most of our cases.
Trans. at 12. Based on this testimony, the court ordered that the trial be closed to the public. However, the first trial ended in a mistrial and on the second go round, petitioner requested that his recent fiance be allowed to remain during the officers' testimony. Although the court did not hold another Hinton hearing, it did hear argument from both sides as to whether the defendant's fiance should be allowed in the courtroom during the testimony. The prosecutor argued that the fiance had a fairly extensive narcotics history and lived downtown, the area where the officers worked, and, therefore, that she posed a risk to the officers. Defense counsel did not dispute the fiance's history but argued that as a family member, she should be allowed to remain in the courtroom and that she did not pose a risk to the officers as she had not had a drug conviction within the last four years. After hearing the argument from both sides, the court concluded:
Although it is somewhat unclear from the record whether petitioner was actually engaged or "common law married" or whether the "fiance" was his girlfriend or friend, for our purposes I will consider her to be his fiance. Whatever her status, the record reflects that the relationship was of a months' duration.
The trial transcript has an apparent discrepancy on petitioner's fiance's criminal history. According to the most reasonable reading of the record, petitioner's fiance was convicted three times of possession of a controlled substance, once of criminal sale of a controlled substance, and once of attempted possession. Her most recent conviction was four years prior to the trial on Columbia Street.
It turns out that the fiance lived only one block from Pitt and Rivington, the scene of the petitioner's arrest and the area in which the officers had numerous ongoing cases.
. . . the fact that [petitioner's fiance] has this extensive record in connection with narcotics and she lives downtown, and there is a possibility they may be in the vicinity of a potential operation that these undercover officers may be involved in, and she is in the courtroom she may spot them, and she may identify them and give them up and subject their lives to danger . . . they could be killed on the spot if they identified them as undercover officers in an operation.
This exclusion satisfies all of the Waller prongs. First, closure of a trial to ensure the safety and effectiveness of undercover officers satisfies a substantial interest, thereby satisfying the first Waller prong. See Woods v. Kuhlmann, 977 F.2d 74, 76-77 (2d Cir. 1992); Bowden v. Keane, 237 F.3d 125, 129-130 (2d Cir. 2001). Second, the closure was no broader than necessary. Although the trial court ruled for a limited closure, it considered separately petitioner's request that his mother and fiance be allowed to remain in the courtroom. Although at the time of the Hinton hearing petitioner was uncertain whether his mother would attend, the trial judge indicated that, if she did, he would separately consider allowing her in the courtroom. The judge stated, "I think [petitioner's mother] should be permitted to attend if at all possible. I think we can work that out, but if she decides not to that is mute [sic] and we don't have to cross that bridge." Trans. at 82. In contrast, the court found that petitioner's fiance's should not be permitted in the courtroom during the officer's testimony as her four prior narcotics convictions and the area where she lived were evidence that she could expose the undercover officers' identity.
As there is no further mention of the attendance of petitioner's mother on the record, it appears that she opted not to attend at least that portion of the trial. The judge did allow relatives of the petitioner's co-defendant to be present during the officer's testimony.
The Attorney General's brief states that the fiance had four prior narcotics convictions, although my reading of the trial transcript is that she had five. For the purposes of this opinion, I will rely on the government's representation, as it is the one more in the petitioner's favor.
The fact that the court ordered a limited closure also satisfies the third Waller prong. See Ayala v. Speckard, 131 F.3d 62, 70-72 (2d Cir. 1997) (holding that when a trial court orders a limited closure of a criminal proceeding rather than a complete closure, the judge has satisfied the third prong of Waller and is not required to sua sponte consider further alternatives).
Finally, the trial court satisfies the fourth prong as it made findings adequate to support the closure. The judge held a Hinton hearing, in which both were permitted to submit evidence and cross-examine the witnesses, and determined that the officers' lives would be at risk and their effectiveness compromised if they testified in open court. As to petitioner's fiance, although her exclusion was not specifically considered at the Hinton hearing, (as the petitioner had not requested her presence at that point, the court considered the facts presented by the prosecutor and gave the defense counsel ample opportunity to offer any counter-argument. See Woods, 977 F.2d at 74 (where even one question posed by the judge to the witness constituted an adequate basis to assess the state's interests). Perhaps ideally the trial court would have held a second full-blown Hinton hearing to allow for testimony from the officers about the fiance and other relevant evidence. However, the findings here were clearly "specific enough that a reviewing court can determine whether the closure order was properly entered." See Waller, 467 U.S. at 45. This is particularly true since it was a simple matter for the court to conclude that exposure would be a real possibility since the fiance lived in the neighborhood and had a history of drug involvement. Thus, in light of the full Hinton hearing as well as the discussion with both sides regarding the specific risk posed by petitioner's fiance, I find that the inquiry was sufficient.
Significantly, this case does not fall under the ambit of recent Second Circuit cases in which the court held that the exclusion of family from the courtroom was unwarranted. In all of those cases, the trial court pointed to no specific evidence to suggest that the excluded family member posed a threat to the undercover officers. See Vidal v. Williams, 31 F.3d 67 (2d. Cir. 1994); see also English v. Artuz, 164 F.3d 105 (2d. Cir. 1998); Guzman, 80 F.3d 772. In sharp contrast, here the trial court found that petitioner's fiance's history of drug involvement created a clear danger to the officers. The fact that the trial court properly considered whether petitioners family members should be allowed in the courtroom is demonstrated by the fact that the court indicated that he would allow petitioner's mother to remain. This distinction is further supported by a similar "buy and bust" narcotics case, in which the New York Court of Appeals stated that had the defendant's wife been involved in the sale of drugs, the trial judge would have been justified in excluding her from the proceedings during the testimony of undercover officers. See People v. Nieves, 90 N.Y.2d 426, 431 (N.Y. 1997).
The concerns with respect to petitioner's fiance were not addressed during the Hinton hearing because petitioner only asked for her inclusion at the second trial, after the hearing had already taken place.
In Guzman, the Second Circuit distinguished between closure to protect the identity of a government witness, which the court found required only a minimal inquiry by the trial court, and closure due to a witness's fear of a person who already knew the witness's identity, which required a more extensive inquiry to show the grounds for exclusion. See Guzman, 80 F.3d at 776 ("Where a government witness . . . is concerned for his safety due to the disclosure of his identity, a minimal inquiry might suffice. . ").
While it is true that both defendants were free on bail between the two trials, and ostensibly could have either spotted the undercover officers or described their appearances to acquaintances including the "fiance", there is no evidence to that effect and this does not undermine the rationale of protecting the officers identity given the compelling state interest to guard against endangering the officers. Furthermore, the risk that a defendant will identify an undercover officer after an arrest is one assumed by undercover officers in all cases.
Upholding the trial court's determination also serves the purpose of enforcing the underlying policy of proceeding with caution before ordering such disproportionate relief as a new trial in a case where the trial judge did not "deliberately enforce secrecy in order to be free of the safeguards of the public's scrutiny," and in which the error is not of "the sort that risks an unreliable trial outcome and consequent conviction of an innocent person." Brown v. Kuhlmann, 142 F.3d 529, 539 (2d Cir. 1998).
Therefore, petitioner's claim on this ground must be denied.
V. Excessive Sentence
Finally, petitioner contends that his sentence of seven and a half to fifteen years is excessive in light of his background and the nature and circumstances of his criminal conduct.
There is no constitutional issue presented for habeas review when a sentence is within the range established by state statutory law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also Herrera, 2001 WL 392553, at *4 Rather, in order to prevail on such a claim, a petitioner must show the trial court's sentencing decision was an improper "arbitrary or capricious abuse of discretion" that deprived the petitioner of his liberty. See Jones v. Hollins, 884 F. Supp. 758, 761-62 (W.D.N.Y. 1995), aff'd, 89 F.3d 826 (2d Cir. 1995).
Petitioner's sentence was below the maximum statutory range of imprisonment of nine to twenty-five years. See N.Y. Penal Law § 70.06 (3). Moreover petitioner does not contend that the trial judge abused his discretion in sentencing him, and the record is devoid of any evidence to support such a claim.
Therefore, petitioner's claim must be dismissed.
CONCLUSION
For the reasons stated above, the petition is denied, and the clerk is instructed to close the case.